author: Ed. F. McFaddin, Justice.

text:
    Thompson v. Harper.
    5-641
    279 S. W. 2d 277
    Opinion delivered May 16, 1955.
    [Rehearing denied June 13, 1955.]

      H. B. Stubblefield, W. J. Bung an and Campbell <& Campbell, for appellant.

      Wood, Chesnutt <& Smith and Clayton Farrar, for appellee.
   Ed. F. McFaddin, Justice.

This is a suit brought by appellees who claim a commission as real estate brokers. In rendering judgment, the Chancery Court necessarily found: (a) that appellees had a valid and enforcible contract with appellants; (b) that appellees had not abandoned the contract; and (c) that appellees were the procuring cause of the sale of the property. On this appeal, several questions are argued; but we find it necessary to consider only one point: that the appellees had abandoned whatever contract they formerly possessed.

The Broadway Hotel Company, a corporation, owned certain property in Hot Springs: part of the property was operated as a hotel and part was rented for stores and offices. The appellees, Frank Harper and Charles Hughes, rented an office from the corporation and operated a real estate brokers’ partnership known as “Hot Springs Realty Company.” In January, 1952, the Broadway Hotel Company duly filed its Certificate of Dissolution in Garland County; and the three Directors named in the said Certificate were Vance M. Thompson, B. F. Lewis and Mrs. B. F. Lewis. By force of law (§ 64-807, Ark. Stats.) these three Directors became Trustees of the corporate property. They are the appellants in this case. B. F. Lewis continued to operate the Broadway Hotel for the benefit of the former stockholders.

In early April, 1953, B. F. Lewis told appellees, Harper and Hughes, that the Broadway Hotel Company’s property was for sale; and that he thought the property would be sold for $50,000 cash. Lewis signed no contract with the appellees.- They were to get an offer and transmit same to Lewis who was then to submit the offer to the other parties interested with Lewis. All of the “other parties” do not appear to have been named, but appellees understood that Vance M. Thompson was one such party interested with Lewis.

Shortly after the above conversation, appellees reported to Lewis that E. D. Murphy would buy the property for $65,000 provided (a) Murphy’s home was taken as $15,000 payment and (b) the balance of $50,000 was to be paid $10,000 cash and $40,000 in deferred payments secured by vendor’s lien note or first mortgage. Lewis agreed to submit this offer to Mr. Thompson; and in a few days Lewis advised appellees, Harper and Hughes, that there could be no deal made. Here is Appellee Harper’s testimony as to this final conversation with Lewis:

“. . . he informed me that he didn’t think Mr. Murphy had enough money and he didn’t think they would be interested in it. A little later on, a few days later on, I met him on the street and I asked him what he was going to do about it, if he was going to do anything about it, and he said no, Mr. Thompson wouldn’t go along with him, so he let Mr. Thompson have all his interest in the hotel, so he sold out to him.

“Q. Mr. Lewis sold to Mr. Thompson?

“A. Yes.

“Q. Did jmu have any further dealings with Mr. Murphy after that?

“A. No, I didn’t have any further dealings with Mr. Murphy after that.”

Also here is Appellee Hughes’ version as to the final conversation with Lewis:

“Q. You knew about Mr. Lewis? You heard his testimony that he said forget about everything, everything was off, some few days after you had this discussion with him?

“A. Yes, he said that. . . .

“Q. I am talking about Mr. Lewis said forget about it, did you contact them any more or have any further conversation with the Murphys after that?

“A. Yes, I did. . . .

“Q. Now, that was after they had already purchased it?

“A. Yes, sir.

“Q. In other words, you didn’t talk to either Mr. Murphy or Mrs. Murphy after Mr. Lewis said for you to forget about it until after Mr. Murphy had already purchased the hotel from Mr. Thompson?

“A. That’s right.”

Lewis’ testimony is to like effect:

“A. I told Mr. Harper that Mr. Thompson wouldn’t take $50,000 and to just forget the whole thing, that I had washed my hands of it, that I wasn’t going to have any more to do with it, and so far as I was concerned, I would continue to operate it.”

After this conversation the appellees dissolved their real estate brokers’ partnership. Appellee Harper had nothing further whatsoever to do with'Hughes or the Broadway Hotel Company’s property. Appellee Hughes went to Alabama on a trip and did nothing further in regard to the Broadway Hotel property. We emphasize that Lewis signed no contract with the real estate brokers; that they had no listing of the Broadway Hotel property for any definite time; that any offer they got they were to submit to Lewis and he to submit it to Thompson; and that when Lewis notified appellees of Thompson’s rejection of the offer, appellees did what Lewis suggested — i. e., they forget the entire matter.

Some time after the quoted conversation and, presumably, while Hughes was on his trip to Alabama, Murphy sought out Lewis in order to locate Thompson; and Murphy went to McCrory, Arkansas, to see Vance M. Thompson and there closed a deal with him for the purchase of the Broadway Hotel property for $60,000, being payable: $9,308.08 cash; first mortgage notes on some California property for $8,691.92; and the balance of $42,000 evidenced by vendor’s lien note on the Broadway Hotel property. After Appellee Hughes returned from Alabama he learned of the sale of the Broadway Hotel property by Thompson to Murphy. No demand for real estate commission was ever made by either of the appellees: instead they filed this suit on July 3, 1953, for $15,000 as claimed real estate commission. Equity jurisdiction was invoked because the defendants, Thompson, B. F. Lewis and Mrs. B. F. Lewis, were by law (§ 64-807, Ark. Stats.) trustees of the Broadway Hotel property.

We have repeatedly held that a real estate broker’s contract.need not be in writing. See Long v. Risley, 208 Ark. 608, 188 S. W. 2d 132, and cases there cited. We have also held that when the owner sells the property even after the expiration of the real estate broker’s contract, the owner is liable to the real estate broker for the commission if the broker was in fact the procuring cause of the sale. See Hartzog v. Dean, 216 Ark. 17, 223 S. W. 2d 820. But in the case at bar whatever kind of contract the appellees had regarding the Broadway Hotel property was entirely abandoned by them. Lewis told them they could “forget the whole thing” and they thereupon considered the matter entirely ended. Harper did nothing and Hughes went to Alabama. When Murphy went to see Thompson he did not tell Thompson that Hughes or Harper or anyone else had anything to do with the property; and Thompson testified that he did not know of the connection of either of the appellees with the property. Lewis testified that Harper and Hughes had no contract and were not the procuring cause of the sale.

In 8 Am. Jur. 1069, in discussing the effect of abandonment on the part of the broker, the holdings are summarized in this language:

“If a broker, after introducing a prospective customer to his employer to no purpose, abandons his employment entirely, or if, after procuring a person who proves to be unwilling to accept the terms of his principal, he merely ceases to make further endeavors to negotiate a deal with that particular individual and all negotiations in that direction are completely broken off and terminated, he will not be entitled to a commission if his employer subsequently renews negotiations with the same person, either directly or through the medium of another agent, and thus effects a sale without further effort on the part of the broker first employed.”

In an Annotation in 9 Ann. Cas. 435 many cases are cited to sustain this statement:

“If a broker does not procure a purchaser on the terms authorized and he abandons further efforts to sell to a prospective purchaser, or if negotiations between the broker and the purchaser are completely broken off and terminated, the broker will not be entitled to a commission if the owner subsequently enters into negotiations with the same party and effects a sale.”

The rules stated in the foregoing quotations are completely applicable to the case at bar; and find inferential support in our own holdings. Our cases, while factually different nevertheless, recognize the rule that abandonment of the contract by the broker leaves the owner free to act without being liable for a commission. See Stogsdill v. Holmes, 144 Ark. 574, 169 S. W. 961; Johnson v. Knowles, 169 Ark. 1089, 277 S. W. 868; and Oliver v. Dent, 207 Ark. 843, 183 S. W. 2d 302. We conclude that the appellees abandoned whatever contract that might have been originally made, and therefore they are not entitled to any recovery.,

Reversed and dismissed.

Chief Justice Seamster not participating.

Justice Holt dissents.

       Here is Lewis’ testimony as to the so-called “listing”: “Well, one day I was passing the real estate office and Mr. Harper was there and I just remarked T believe I’m getting just about ready to quit the hotel business and if you ever have anybody that was interested in the hotel to get an offer and then I would submit it to the owner, Mr. Thompson, and if theywanted to sell, so far as I’m concerned we could sell it, that I was ready to stop,’ and that was when I told him I couldn’t list it with him that I didn’t have any authority to list the hotel.”

       These questions and answers are taken from Hughes’ discovery-deposition which is in the record. Hughes testified to the same effect at the trial.

       Annotations listing the cases supporting the quoted textual statement are contained in: 9 A. L. R. 1194; 12 A. L. R. 2d 1367; 27 A. L. R. 2d 1402; 44 L. R. A. 346, 613; 16 L. R. A. (N. S.) 432; 139 A. S. R. 231; 9 Ann. Cas. 435; Ann. Cas. 1913D, 824; and Ann. Cas. 1913E, 788.


source: Caselaw Access Project

author: Minor W. Millwee, Justice.

license: Public Domain

text:
    Murrel v. Bridges.
    5-670
    279 S. W. 2d 30
    Opinion delivered May 16, 1955.

      Longstreth, Witt $ Brooks and Arthur G. Prankel, for appellant.

      Guy B. Reeves, for appellee.
   Minor W. Millwee, Justice.

Appellant, Roger L. Murrel, brought suit against appellees, Joe Bridges and George Washington, to recover a balance of $1,281.79 alleged to he due on two separate, promissory notes and to foreclose a chattel mortgage given to secure payment of the first note. The chancellor found, in appellant’s favor for $281.79, which represented the balance due on the first note of $664.89, and directed foreclosure of the chattel mortgage. This appeal is from the action of the court in sustaining appellee’s plea of failure of consideration as to the second promissory note for $1,000 and in dismissing the complaint as to said note.

Appellant is an attorney and had previously represented appellee, George Washington. The evidence indicates that Washington sought the advice and assistance of appellant relative to a feasible plan for the operation by appellees of a night club for Negroes in the city of Little Rock without too much interference from law enforcement officers. Acting on appellant’s advice, a “fraternal corporation” known as the “Imperial Order of Animistic Swahili, Big Rock Council” was formed with 17 charter members. On July 22, 1954, appellees entered into a partnership agreement drafted by appellant under which they agreed, “to carry on the business of a catering service, entertainment and social hall, and generally speaking operate a night-club business” under the trade name of “Temple of Swahili.” According to appellant the corporation “concessionaired out the con-sessions, handling of the bar and sale of beer, and so forth,” to the partnership. Under the partnership agreement Bridges agreed to donate certain personal property used in the operation of the business and Washington was designated, “the active and sole manager of said business.” It developed that the equipment used in the operation of the business actually belonged to Bridges’ wife but she apparently acquiesced in the donation to the partnership. The partnership agreement further provided that neither party should endorse any note without the written consent of the other, and that appellees should retain appellant as their attorney individually and as a partnership.

On August 6, 1954, George Washington, as “President & General Manager of Temple of Swahili, ’ ’ executed a note payable to appellant for $664.89 and a chattel mortgage on the personal property donated by Bridges as security for the payment of said note. On August 13, 1954, Washington executed another note ‘in the same capacity for $1,000 payable to appellant on demand. Bridges could not read but signed the partnership agreement after his wife read it. Insofar as the record discloses he knew nothing about the execution of the notes and mortgage. Although he was to remain in the background it was shown that he operated the business on certain days and Washington was in charge on week ends. Income of the business was apparently confined primarily to proceeds from the sale of intoxicants by the drink and the operation of dice tables. The business did not prosper and became involved with the state Alcoholic Beverage Control Board. Operations ceased about the time the second note for $1,000 was executed by Washington.

Appellant testified that both notes were executed for legal services and advancements he made to the partnership. Except for the drafting of the partnership agreement, he gave vague and evasive answers concerning the nature of such legal services and the specific amount of any cash advancements to the partnership. Belative to the first note and a $200 payment to him by Bridges on July 22, 1954, appellant stated that same were, “to cover the expenses of the entire operations which were entwined basically in a partnership,” and, “as a basic part of a series of legal involvements and relationships.” When pressed for an answer as to the specific nature, of the consideration for the $1,000 note he stated it was for “legal services fully rendered as per oral agreement with the parties.” He also stated that he spent many evenings and hours with appellees and “helped them in many ways toward management of the club.” Washington testified that appellant interceded once before the Alcoholic Beverage Control Board when the business was closed and that appellant told him the $1,000 note was for legal fees. Bridges stated he had no knowledge of the execution of the notes and mortgage.

In holding the second note based upon an illegal consideration and void, the chancellor found that any legal services performed by appellant were in furtherance of the operation of an illegal business under the guise of a lodge. While the testimony was not as fully developed on this issue as it might have been, we have concluded that sucli finding is supported by a preponderance of the evidence. It is a well-settled principle that contracts between attorney and client which have for their subject-matter any interference with the due enforcement of the criminal laws are against public policy and, therefore, void. 5 Am. Jur., Attorneys, § 56. It is clear from this record that any services performed by appellant in connection with the note for $1,000 were in furtherance of the operation of an illegal business and to prevent the due enforcement of the laws against gambling and the illegal sale of intoxicants.

The decree is accordingly affirmed.

Chief Justice Seamster not participating.


author: George Rose Smith, J.

text:
    Davis v. Little.
    5-671
    279 S. W. 2d 31
    Opinion delivered May 16, 1955.

      W. J. Fungan and H. M. Cooley, for appellant.

      John F. Eldridge, Jr., for appellee.
   George Rose Smith, J.

The question in this case is whether the appellant, as the vendor in a conditional sales contract, has elected to retake the property in satisfaction of the debt and has thereby lost his right to recover the purchase price. The trial court, by the two orders now appealed from, lielcl that the seller had elected to pursue his remedy against the property sold.

In 1950 the appellant sold a threshing machine to the appellee for $1,875. The purchaser was allowed a credit of $300 for a trade-in and executed a conditional sales contract for the unpaid balance of $1,575. By mutual mistake, however, the two promissory notes that were given for this balance totaled only $1,475 instead of $1,575.

Upon the appellee’s failure to make any payment of either principal or interest the appellant brought this suit in equity. By his complaint he asked (a) that the notes be reformed to reflect the true amount of the debt, (b) that he have judgment for $1,575 with interest, (c) that, if the judgment were not paid within a reasonable time to be fixed by the court, the sheriff be directed to take and sell the thresher, and (cl) that the plaintiff have execution for any deficiency remaining after the proceeds of sale had been applied on the judgment. The appellee was served with summons on May 30, 1952, but made default. On September 8, 1952, the chancellor entered a default decree by which the plaintiff was awarded precisely the relief sought. Upon the appellee’s failure to pay the debt within the time fixed by the court the sheriff, in obedience to the decree, took the threshing machine from the appellee, advertised it for public sale, and on September 20,1952, held the sale, at which a third person bought the property for $50.

On November 13, 1952, which was before the term of court had lapsed, the appellee filed a petition asking that the decree be amended to eliminate personal liability for any deficiency remaining after the application of the proceeds of sale. A hearing on this petition was delayed by the illness and death of the plaintiff’s attorney; but in December of 1954 and January of 1955 the court entered the orders now under review. By these orders the sale was confirmed, the appellee’s request for an amendment of the decree was granted, and the creditor was denied execution for the unsatisfied balance of the purchase price.

It is contended by the appellant that his complaint is primarily a demand for a money judgment and that the prayer for a sale of the thresher should be treated as a request for a specific attachment — a remedy available to a conditional seller. Ark. Stats. 1947, §§ 34-2301 et seq. The appellee in turn argues that the complaint is an impermissible attempt to foreclose a conditional sales contract and that, apart from the equitable cause of action for reformation of the notes, the suit is in substance an action in replevin. Upon this premise the appellee invokes the familiar rule that a conditional vendor who replevies the property cannot have judgment for the purchase money as well.

It is unnecessary to determine whether this suit is in effect one for specific attachment or an effort to “foreclose” the contract, for in either event the appellee’s position is not well taken. The complaint was specific in asking for relief which the appellee now contends to be without precedent. This asserted defect, however, did not involve a complete want of judicial power. Within the time allowed for answer the defendant was free to raise the objection now urged, thereby either forcing the plaintiff to elect his remedy or preserving the objection as a basis for appeal.

Instead of pleading to the complaint the appellee let the matter go by default. The decree directed that any overplus resulting from the sale be paid to the. appellee. It was not until the property had been sold to a third person for an amount less than the debt that the appellee finally appeared in court and sought at the same time to take advantage of that part of the decree which might be construed as an election by the plaintiff and to reject that part of the decree which imposed personal liability on the defendant. “A party cannot ratify and yet repudiate the same transaction in one breath. He must make his election at the outset, to repudiate it in toto or take it cum onere, and when once made and acted upon, he is estopped from assuming an attitude inconsistent with his first position and detrimental to the rights of others.” Dismukes v. Halpern, 47 Ark. 317, 1 S. W. 554. Having chosen to remain silent and speculate upon the possibility of deriving a benefit from the decree, the appellee cannot now be permitted to change his position to the plaintiff’s prejudice.

Reversed.

Seamster, C. J., not participating.


author: Ward, J.

text:
    Scott v. Shairrick.
    5-682
    279 S. W. 2d 39
    Opinion delivered May 16, 1955.

      Henry B. Means and W. H. McClellan, for appellant.

      Cole & Epperson, for appellee.
   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 question 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.


author: Robinson, J. J. Seaborn Holt, J.,

text:
    Askew v. Murdock Acceptance Corporation.
    5-666
    279 S. W. 2d 557
    Opinion delivered May 16, 1955.
    [Rehearing denied June 20, 1955.]

      Tilghman E. Dixon, for appellant.

      James M. McHaney and Owens, Ehrman & McHaney, for appellee.
   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.

J. Seaborn Holt, J.,

(dissenting). June 30, 1953, Alice B. Askew, sister of appellant, Jess Askew, executed a note in favor of appellee, Murdock Acceptance Corporation, for $1,561.68, in monthly payments, and as security, executed a chattel mortgage on a 1951 Buick automobile, which Alice had purchased about a year earlier, from Little Bock Motor Company. It appears that this original purchase of the car by Alice had been financed by Associated Discount Corporation, and the proceeds from the loan from appellee, Murdock, above, were used to pay off this earlier debt of Alice Askew, and title to the Buick was in her at all times. Jess Askew, as indicated, was not a party to the above note and mortgage.

On November 15, 1954 Jess Askew brought suit against Murdock (Appellee) and his sister, Alice Askew, alleging in effect that the above note and mortgage should be cancelled on the grounds of usury, and title to the Buick car should be vested in him. December 6, 1954 appellant (Askew) filed a motion asking for “an order permitting him to make the payment on the car involved in this action to the Clerk of this Court and that the Clerk of the Court hold same iu the registry of the court during the pendency of this action and that the defendant be restrained from molesting or harassing plaintiff and his sister Alice E. Askew during the pendency of this action (Tr. 14).” The court denied this motion, on the day filed, and also on this same day, Murdock (Appellee) filed in the Pulaski Circuit Court an action in replevin against Jess Askew to gain summary possession of the Buick auto. Alice Askew was not made a party in this suit but she was a party to the usury suit filed by Jess Askew. Appellee, Murdock, in his complaint alleged: “On or about June 30, 1953, Alice E. Askew executed a note in favor of the plaintiff in the sum of One Thousand Five Hundred Sixty-one and 68/100 Dollars ($1,561.68), payable in twenty-four (24) monthly installments of Sixty-five and 07/100 Dollars ($65.07) each. Said note was secured by a chattel mortgage of the same date conveying to plaintiff a 1951 Buick, two door sedan, motor number 63655635, a certified copy of which is attached hereto and made a part hereof. The said Alice E. Askew was, at the time of execution of the aforesaid mortgage, the registered owner of said automobile, same having-been purchased by her from Little Eock Motor Company in March, 1952. The proceeds of the aforesaid loan were used, exclusively, to pay off an indebtedness of the said Alice E. Askew to Associated Discounts Corporation of Little Eock, which said indebtedness was incurred as a result of the purchase of the aforesaid automobile by the said Alice E. Askew.

“The said Alice E. Askew is indebted to plaintiff on said note and chattel mortgage in the sum of Five Hundred Eighty-five and 63/100 Dollars ($585.63), which is now due and unpaid, and, although demand has been made therefor, payment has been refused.

“The property is of the value of Five Hundred Eighty-five and 63-100 Dollars ($585.63).

“The plaintiff is entitled to the immediate possession of said automobile by reason of the aforesaid default, said automobile is now in the possession of defendant, the brother of Alice E. Askew, and is unlawfully detained by him under a false claim of ownership. Said Alice E. Askew has consented that the plaintiff may have possession of said automobile but the defendant refuses to surrender same ...”

Murdock posted the statutory bond, the replevin writ was issued, and the car delivered to Murdock. Thereafter, Jess Askew filed a demurrer alleging that:

“DEMUEEEE

“Comes the defendant, Jess Askew, and for his demurrer to the complaint of the plaintiff herein, states:

“That this court does not have jurisdiction of this cause of action for the reason that there is another action pending between the same parties for the same cause and same subject matter, said action is pending in the Chancery Court of Pulaski County by the style of JESS ASKEW vs. MUEDOCK ACCEPTANCE COEPOEATION, NO. 101309, said suit being filed and summons issued on November 15, 1954, that in said suit the title to the car involved in this action and the right of possession to same is involved and can be fully determined in the Chancery Court in the suit pending therein.

“That this court should dismiss the complaint of the plaintiff and should order plaintiff to immediately restore said car to the possession of defendant. . .”

The court overruled the demurrer, whereupon appellant (Askew) refused to plead further and the court then entered judgment for Murdock for possession of the car and Murdock together with its surety were discharged from liability under the replevin bond. This appeal followed.

For reversal appellant stoutly contends that: “The Circuit Court erred in overruling the demurrer of the defendant and in rendering judgment against the defendant because the Circuit Court did not have jurisdiction of this cause of action for the reason that there was and is another action pending in the Chancery Court of Pulaski County between the same parties for the same cause and involving the same subject matter, prior to and still pending at the time this action was filed in the Circuit Court of Pulaski County.”

I think this contention is untenable in the circumstances. Our rule is that a complaint is subject to demurrer only for defects apparent on its face. § 27-1115, Ark. Stats. 1947, provides:

“Demurrer to complaint — Grounds.—The defendant may demur to the complaint where it appears on its face, either:

“First. That the court has no jurisdiction of the person of the defendant, or the subject of the action; of, Second. That the plaintiff has not legal capacity to sue; or, Third. That there is another action pending between the same parties for the same cause; or, Fourth. That there is a defect of parties, plaintiff or defendant; or, Fifth. That the complaint does not state facts sufficient to constitute a cause of action. (Civil Code, § 111; C. & M. Dig., § 1189; Pope’s Dig., § 1411.)” Ordinarily jurisdiction in the statutory action of replevin is in the circuit court, (§ 34-2101, et seq., Ark. Stats.). Here on the face of appellee’s complaint I find none of the above grounds that would support a demurrer. The parties in 1he usury suit (equity) and those in the replevin suit (law) are not the same. Alice Askew was a party to the former suit but was not a party in the latter. In the replevin suit default in monthly payments by Alice Askew under the terms of the note and mortgage which she alone signed was alleged, and this default, if true, gave appellee the right to summary possession of the Buick car in a court of law. What we said in the recent case of Wilson v. Sanders, 217 Ark. 326, 230 S. W. 2d 19, relating to the above statute (§ 27-1115, Ark. Stats. 1947), applies with equal force here. “It is also urged by the appellee that the issues in the two cases are not the same. This contention is well taken. What the statute requires is that the two suits be ‘for the same cause,’ and our decisions have enforced this requirement. In Garabaldi v. Wright, 52 Ark. 416, 12 S. W. 875 one partner sued the other for a dissolution of the partnership and a settlement of their affairs. The defendant later sued the plaintiff in a different court for conversion of part of the property involved in the first case. In stressing the need for an identity of issues we said: ‘If the objects of two suits are different, they may progress at the same time, although the thing about, or in reference to which, they are brought, is the same in each case.’ ”

The general rule is stated in 1 Am. Jur., § 30, Page 37: “It does not necessarily follow from the mere fact that the same property is in controversy in both actions or that the same right or title is involved, that the prior action can be pleaded in abatement of the second one; it is necessary that the cause of action be the same in both suits.”

Appellant refused to plead further and elected to stand on his demurrer, which was in effect a speaking demurrer. Dodson v. Abercrombie, 218 Ark. 50, 234 S. W. 2d 30. He made no motion to transfer to equity. “Under the code of practice, if a party commit an error in the kind of proceedings adopted, he may change and have the same transferred to the proper docket, either before answer filed, without motion, or after, on motion; but the court is not bound to make the transfer unless asked to do so by the party desiring it.” Berry, Adm’x, et al. v. Hardin, et al., 28 Ark. 458, Headnote 2.

I would affirm the judgment.


author: J. Seaborn Holt, J.

text:
    Universal C. I. T. Credit Corporation v. Hall.
    5-678
    279 S. W. 2d 281
    Opinion delivered May 23, 1955.

      M. P. Matheney and Wright, Harrison, Lindsey <& Upton, for appellant.

      Stein & Stein, for appellee.
   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.


text:
    Kansas City Southern Railway Company v. Shane, Administratrix.
    5-685
    279 S. W. 2d 284
    Opinion delivered May 23, 1955.

      Hardin, Barton, Hardin & Garner, for appellant.

      Shaw, Jones & Shaiu and Shato S Spencer, for appellee.
   J. Seaborn Holt, J.

Appellee, as Administratrix of the estate of her deceased husband, sued appellant for damages in the amount of $151,000, for his death which resulted when a one-half ton auto truck he was driving was struck by one of appellant’s freight trains on a public crossing in Mena, Arkansas. She alléged in her complaint that the negligent acts of appellant were: (1) Failure, while approaching the crossing, to keep a lookout, (2) Failure to ring the bell or blow the whistle as required by § 73-716, Ark. Stats. (1947), (3) Running the train at an excessive speed, (4) Failure to keep the crossing, which was hazardous, in a safe condition, and (5) Failure to provide signal warning devices, or a watchman at this “particular” crossing. Appellant’s answer was in effect a general denial, and in addition contained the affirmative plea of deceased’s contributory negligence, as a complete bar to any recovery.

A jury trial resulted in a verdict for appellee in the amount of $9,000 and it is not claimed that this verdict is excessive. From the judgment is this appeal.

For reversal appellant first argues that the court erred in giving, over its objections, appellee’s Instruction No. 1 submitting the issue of failure of appellant’s employees to keep a lookout as required under § 73-1002, Ark. Stats. (1947), and that the court erred in refusing to give appellant’s requested Instruction No. 11 which was in effect peremptory.

After review of the record presented, we have reached the conclusion that this contention of appellant must be sustained. Appellee’s Instruction No. 1 provides: “You are instructed that Section 73-1002 of the Revised Statutes of Arkansas for 1947 provides in part as follows:

“‘Duty of trainmen to keep lookout Burden of proof of reasonable care. — It shall be the duty of all persons running trains in this state upon any railroad, to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad, shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout.’

“In this connection, therefore, you are instructed that under the law of this state, the persons running the train of the defendant, Kansas City Southern Railroad Companjr, were under a duty to keep a constant lookout for persons and property upon the track or approaching said track, and if the person or persons running said train failed to keep such lookout and such failure, if any, resulted in the death of the deceased, Charles D. Shane, then the defendant Kansas City Southern Railway Company would be liable to the plaintiff for all damages to the plaintiff resulting from such neglect, if any, to keep such lookout.”

Appellant’s requested Instruction No. 11 provides: “You are instructed that the plaintiff has failed to prove, by a preponderance of the evidence in the case, her allegation that the defendant failed to maintain and keep a constant lookout at the railroad crossing at the junction of Reine Street and U. S. Highway 71, and as to that allegation of negligence, your finding must be for the defendants.”

The collision in question occurred about 6:45 p. m., November 28, 1953, on a dark, misty night. The deceased was driving a one-half ton truck east along Reine Street and was struck by appellant’s northbound freight train on the Reine Street public crossing. Appellant’s engineer who was operating the engine of the freight train testified in effect that he had been acting as an engineer for appellant for about thirteen years. The engine had four diesel units of the General Motors type, weighing about 900,000 pounds with a modern headlight of 32,000 candlepower which was ten feet, nine and one-half inches above the rails. You could distinguish an object (such as a man) about 800 feet and larger objects further than that depending on weather conditions. On the night in question he had a good headlight beam of about 600 feet from the end of the curve up to the crossing. His train consisted of fourteen loaded cars, four empties, and a caboose, and was going at a speed of about forty-five miles per hour, a speed he was required to make. As he approached the crossing in question he saw the headlights of the truck approaching the crossing when it was about 150 feet away going east. He immediately made an emergency application of the brakes. His brakes were working perfectly and responded promptly to his application. When the truck was about fifty feet from the crossing its driver, Mr. Shane, seemed to try to stop it but the pavement was wet and the truck skidded to the side upon the crossing almost sidewise. It required a distance of about 1,350 feet to stop the train and he stopped it as quickly as possible in the circumstances. He was passing through a cut about seven feet wide at its highest point and from his seat on the right side of the engine he was about thirteen feet above the rails. Two other employees, a brakeman and the fireman, were sitting on the seat beside him and their testimony tends to fully corroborate this engineer’s testimony. These three employees were the only eye-witnesses to the collision. A witness had testified that he thought the truck could have been seen by the appellant’s operatives, when the train was approximately 258 feet away, for a distance of about 225 feet from the crossing. This difference between 150 and 225 feet as to the distance is not of material importance here in the circumstances because the physical facts show that tins train could not have been stopped in time to have avoided the collision had the truck been discovered 225 feet away. In fact 1,350 feet was required in which to stop it.

As we read the evidence presented, the uncontradicted testimony shows that the operatives of appellant’s train were keeping the lookout required by the lookout statute above, and, therefore, this issue should not have been submitted to the jury there being no evidence to support it.

In construing § 73-1002 above our rule appears to be well settled that where an injury is caused by the operation of a railway train a prima facie case of negligence is made against the company operating such train and the burden rests on the company to show that it was not guilty of negligence. The effect of the statutory presumption created by the lookout statute above has been construed many times by this court and its legal effect well settled by our decisions. In St. Louis-San Francisco Railway Company v. Cole, 181 Ark. 780, 27 S. W. 2d 992, this court said: “The Supreme Court of the United States recently said, in construing a statute similar to the Arkansas statute: ‘The only legal effect of this inference is to cast upon the railway company the duty of producing some evidence to the contrary. When this is done, the inference is at an end, and the question of negligence is one for the jury upon all the evidence.’ Western & A. R. R. Co. v. Henderson, 279 U. S. 639, 49 S. Ct. 445, 73 L. Ed. 884.

“After the introduction of evidence hy the railroad company, as we have already said, the inference is at an end. It cannot be considered by the jury as evidence.

“Under the construction placed upon statutes like ours, the presumption of negligence is at an end when the railroad company introduces evidence to contradict it, and the presumption cannot be considered with the other evidence, because to do this would, as stated by the Supreme Court of the United States, be unreasonable and arbitrary, and would violate the due process clause of the 14th Amendment. . . .

‘ ‘ The duty of the railroad to take precautions begins when it discovers, or should have discovered, the peril of the traveler. . . .

“The jury could not arbitrarily disregard the testimony of the engineer and fireman. St. L. I. M. & S. R. Co. v. Landers, 67 Ark. 514, 55 S. W. 940.

“ ‘The public interest requires that trains be run on time and that railroads dispatch their business promptlv.’ Davis v. Porter, 153 Ark. 375, 240 S. W. 1077.”

The record reveals that appellee requested no instruction on the alleged negligence of appellant in failing to give the statutory signals (ringing the bell or blowing the whistle) required under § 73-716, Ark. Stats. (1947) and none was given. He also did not request any instruction on the issue of the alleged negligent speed of the train and none was given. The court did, however, give appellee’s requested instructions on the issue as to the alleged hazardous condition of the crossing such as might require a “watchman, gongs, lights, or similar warning devices” and on the issue of the alleged negligence of appellant in failing to keep the right-of-way free of-view obstructing objects. The jury, therefore, was not given an opportunity to pass on the issues as to warning signals and excessive speed.

We, therefore, reverse for the error above, and we remand the canse for a new trial. Our rule in reversing a law case is to remand the case for a new trial unless there be an affirmative showing that there can be no recovery. See Fidelity Mutual Life Insurance Company v. Beck, 84 Ark. 57, 104 S. W. 533, 1102.

In view of a new trial we think it only fair to point out that we find no abuse of the trial court’s discretion in refusing to admit in evidence certain photographs offered by appellant which were taken some eleven months after the collision. Accordingly, the judgment is reversed and the cause remanded for a new trial.

Justice Millwee dissents.


author: Ed. F. MoFaddin, Justice.

text:
    Keith v. Arkansas State Highway Commission.
    5-661, 5-689 (consolidated)
    279 S. W. 2d 292
    Opinion delivered May 23, 1955.

      Moore, Burrow, Chowning d Mitchell, for appellant.

      W. R. Thrasher, Lawson E. Glover and Cole d Epperson, for appellee.
   Ed. F. MoFaddin, Justice.

Two appeals, consolidated in this Court, stem from the efforts of certain property owners (hereinafter called “appellants”) to enjoin the City of Malvern (hereinafter called “City”) and the Arkansas State Highway Commission (hereinafter called “Commission”), from constructing a viaduct over certain railroad tracks in the City.

In January, 1954, the City adopted its Ordinance No. 494 captioned:

“An ordinance accepting the responsibility and liability fo.r furnishing all required right-of-way free of obstructions and free of property damage for a grade separation (viaduct) on U. S. Highway 270 and Main Street over the Missouri Pacific and Rock Island Railroad Tracks in the City of Malvern, Arkansas.”

The ordinance stated, inter alia, that the Commission had agreed to construct the overpass at a cost of approximately $600,000.00 if the City would adopt and fulfill the provisions of the said ordinance, which included the matters mentioned in the caption.

In keeping with the ordinance, the City on November 27, 1954, filed its complaint in the Circuit Court of Hot Spring County attempting to name as defendants all of the property owners whose property abutted on the street in the area affected by the overpass. The action was a proceeding in eminent domain. The complaint alleged, inter alia:

“That a portion of said viaduct and an approach thereto will be in that portion of Main Street adjacent to the lands described in paragraphs IY and Y hereof, but not actually, physically touching any lands belonging to any of the defendants. Some or all of said property owners are claiming that the proposed construction and grade separation will damage their respective lands, and constitute a technical taking of a portion.”

Instead of filing a pleading in the eminent domain case in the Hot Spring Circuit Court the appellants, on December 3, 1954, filed complaint in the Pulaski Chancery Court, naming as defendants the Commission and the City, and alleging that the appellants’ properties would be damaged in a sum aggregating $70,000.00. The complaint alleged, inter alia:

. . that the plaintiffs have not been compensated by the defendant City of Malvern or the Arkansas State Highway Commission for the taking and damaging of their property for public use; that the City of Malvern is without legal authority and without necessary or sufficient funds legally available or appropriated to compensate the plaintiffs; . . . that defendant Arkansas State Highway Commission has advertised for sealed bids from contractors for the construction of said overpass viaduct, to be submitted and opened by said defendant on December 9, 1954, and unless restrained and enjoined by this Court will enter into a contract with a private contractor for the construction and will go forward with the construction of said overpass viaduct, to the irreparable damage to the plaintiffs and each of them; that the plaintiffs have no adequate remedy at law.”

On December 7, 1954, tlie Pulaski Chancery Court temporarily enjoined the Commission from letting a contract ; but quaslied service on the City and refused to enjoin the City. Prom such order the appellants have appealed. (See § 27-2102, Ark. Stats.) Even if the service of process on the City had been sustained, nevertheless the Pulaski Chancery Court had discretion as to temporarily enjoining the City. The temporary restraining order against the Commission prevented the letting of any contract. The City was left free- — as it should have been — to proceed with its eminent domain case in the Hot Spring Circuit Court. The Pulaski Chancery Court did not abuse its discretion in refusing, on December 7,1954, to issue a temporary restraining order against the City even if the City had been properly summoned.

Case No. 689 in this Court involves further proceedings in the Pulaski Chancery Court. As aforesaid, an order was made on December 7, 1954, temporarily restraining the Commission. The City, being unrestrained by the Pulaski Chancery Court, proceeded in its eminent domain case in the Hot Spring Circuit Court. Appraisers were appointed to appraise the property damage of the appellants and of other abutting property owners. The City deposited in the Hot Spring Circuit Court the sum of $21,505.00 to cover such damages; and this was an amount in excess of the total of all appraised damages. Thereupon the Hot Spring Circuit Court issued an order of immediate possession to the City (see § 35-902, Ark. Stats.). This order, reciting the deposit of $21,505.00, was made by the Hot Spring Circuit Court on January 8, 1955; and all this was made to appear to the Pulaski Chancery Court in the motion filed by the State Highway Commission for dissolution of the temporary restraining order.

On January 24, 1955, the Pulaski Chancery Court dissolved the temporary restraining order of December 7, 1954, thus leaving the State Highway Commission free to proceed. Prom such order of January 24, 1955, dissolving the temporary restraining order, the appellants have appealed to this Court in this Case No. 689 : and the appellants claim, inter alia, that the temporary restraining order should have remained in force. An order dissolving a temporary restraining order is appealable (see § 27-2102, Ark. Stats.); but the test is whether the Trial Court abused its discretion in dissolving the restraining order. See Riggs v. Hill, 201 Ark. 206, 144 S. W. 2d 26.

We see no abuse of discretion in the case at bar. In the original complaint the appellants alleged that the City was without funds to pay the damages that the appellants’ property would sustain. That was a good ground of equity jurisdiction. See Fordyce v. Dallas County, 195 Ark. 552, 113 S. W. 2d 500. To allow private property to be taken, appropriated or damaged for public use, without just compensation would be a violation of the Constitutional guaranties. (See Art. II, § 22, of the Arkansas Constitution.) So the temporary restraining order of December 7,1954, against the Highway Commission was proper. But by the time of the hearing on January 24, 1955, the Hot Spring Circuit Court had required a deposit far in excess of the appraised valuation of damages. The Statute provides for deposit prior to entry. (Section 35-902, Ark. Stats.) Such was .done in the Hot Spring Circuit Court; so there was no reason for any restraining order against the Highway Commission on January 24, 1955, after it was shown that the City had made deposit in the eminent domain proceedings.

Therefore the Pulaski Chancery Court was correct in dismissing the temporary restraining order on January 24, 1955. Any further relief that the appellants may seek against the City of Malvern must be in the proper forum in Hot Spring County. See Selle v. Fayetteville, 207 Ark. 966, 184 S. W. 2d 58; and Burton v. Ward, 218 Ark. 253, 236 S. W. 2d 65.

Affirmed.

       We judicially know that the City of Malvern is a City of the first class and is the County seat of Hot Spring County, Arkansas. Lyman v. State, 90 Ark. 596, 119 S. W. 1116.

       An amendment was filed to the complaint on December 6, 1954, adding other defendants and property in a further effort to join all parties. This amendment was before any order had been made in the two cases here appealed. All of the appellants in this Court are parties in the eminent domain proceedings.

       The prayer of the complaint was: “WHEREFORE, Premises Considered, Plaintiff prays that the Court determine in which instances, if any, the proposed improvement constitutes the taking of the respective defendants property; and in such instances in which it is found that said improvement does constitute a taking, that the court determine by a proper proceeding the amount of damages, if any, due therefor, and enter proper judgment against the plaintiff accordingly.”

       The prayer of the complaint was: “Wherefore, Plaintiffs and each of them pray that this Court issue a restraining order restraining and enjoining the defendants and each of them from proceeding further or taking any further action toward contracting for the construction of said overpass viaduct or the approaches thereto, or constructing same, until the issues in this cause have been heard and finally determined and until the plaintiffs and each of them have been fully compensated in damages as by law in such cases made and provided; and for costs herein expended, and all other relief, equitable and legal, to which they may be entitled.”

       This order recited: “Defendant, Arkansas State Highway Commission be and it is hereby restrained and enjoined from proceeding further or taking any further action toward contracting for the construction or constructing of an overpass viaduct in the City of Malvern until the issues in this cause have been heard and finally determined and the Court hereby fixes the 12th day of Jan., 1955, at 10:00 A.M. as the day certain at which the causes here presented shall be heard finally.”

       The said motion recites in part: “That since the granting of the temporary restraining order in this case the City of Malvern has proceeded with its condemnation proceedings in the Circuit Court of Hot Spring County. That on the 8th day of January, 1955, the Circuit Court of Hot Spring County entered an order condemning said property for this right of way easement and that a sufficient and adequate sum of money was deposited in the Registry of the Court to secure these plaintiffs the payment for any property or damages resulting to them by reason of the construction of this viaduct. A certified copy of said order is attached hereto and made a part hereof and marked Exhibit 2. Further Orders were entered by the Court on the same day, certified copies of which are hereby attached and made a part hereof and marked Exhibits 3 and 4. That the Circuit Court of Hot Spring County has jurisdiction of this subject-matter and that the plaintiffs have a complete and adequate remedy at law and that their complaint should be dismissed.”


text:
    Johnson v. Wert.
    5-676
    279 S. W. 2d 274
    Opinion delivered May 23, 1955.

      Johmton & Rowell, for appellant.

      Gordon dt Gordon, for appellee.
   Minor W. Millwee, Justice.

Appellant instituted this action against appellees, directors of Bast Side School District No. 5 of Conway County, to recover damages for the breach of an alleged contract of employment as superintendent of schools of said district. This appeal is from the action of the trial court in directing a verdict in favor of appellees at the conclusion of the testimony on behalf of the appellant.

According to the evidence appellant had been employed as superintendent by the district under written contract which was to espire June 30,1953. At a regular meeting of the five-member board of directors on Friday night, February 27, 1953, a motion was made to re-hire appellant as superintendent for a period of two years. After discussion for two hours the motion carried by a vote of three to one with Directors Lee Wert, Carl Odom and Samuel Criswell voting in the affirmative and E. L. Brewer voting in the negative. Rupert Hemphill, president of the board, did not vote. Appellant was not present during the discussion and nothing was said about salary or other contract provisions except there was some objection about appellant’s failure to visit the Ward schools and talk of placing a clause in the contract to make him “do right.” After the vote was taken appellant was notified and he thanked the board for their action on the motion.

On Saturday night, February 28, Director Criswell went to appellant and asked him to resign. He told appellant that the patrons of the district were “on him” about his vote the night before and that he could not stay with appellant. On Sunday, March 1, Criswell together with his father and another patron again talked to appellant and asked him to resign but appellant declined. On Monday, March 2, appellant went by the office of the County School Supervisor and had a secretary in the office prepare a contract on a regular form prescribed by the State Board of Education and which contained blank spaces for the signature of appellant and the president and secretary of the board of directors. The proposed contract provided a salary of $325 per month for the new two-year term and other provisions similar to the former contract except that the following clause in the old contract was omitted: “Other Conditions: It is understood if the work is not satisfactory, this contract may be cancelled on 30 days notice by the board.” Appellant signed the proposed contract and took it to the home of Carl Odom, secretary of the board, about 7 p. m. and obtained Odom’s signature. He did not advise Odom of Criswell’s request that he resign and he knew that Brewer and Hemphill were opposed to his reemployment as superintendent.

On March 3, 1953, Hemphill, Brewer and Criswell signed and mailed notices to the other two directors of a call meeting of the board to be held March 6 to reconsider the election of the superintendent. At said meeting attended by all members and appellant the minutes of the previous meeting were read and disapproved as to the rehiring of appellant. On motion by Criswell, duly seconded, to rescind the board’s action of February 27, Criswell and Brewer voted in favor of the motion and Wert and Odom against it. President Hemphill then broke the tie by voting for the motion. Prior to taking the vote there was considerable discussion by interested patrons and board members. When Criswell was questioned about his change of position he stated that this had been explained to appellant, that, politics was involved in the schools as in other matters, and that there was nothing either he or the appellant could do about it. There was also some discussion concerning the objection by certain patrons to the nature of certain teachings in a course taught by appellant on health or sex.

President Hemphill refused to sign the contract and appellant never presented it to.him until several weeks after the board meeting on March 6. Pursuant to action taken at a regular board meeting on March 28, the president and secretary mailed to appellant a notice of the action taken on March 6, and that his services would not be needed after June 30, 1953. Appellant presented the contract to the board on April 27,1953, when its execution was again declined. Hemphill, Criswell and Brewer were reelected directors in the school election on March 15, 1953, and Wert was defeated. Odom resigned and did not seek reélection.

Ill sustaining appellees’ motion for a directed verdict on the ground that the testimony offered by appellant was insufficient to establish a valid contract of employment between the parties, the trial court said:

“The evidence in this case shows that at a meeting had on February 27, 1953, the Board at that time by a majority vote announced to the plaintiff, Johnson, that it had reelected him for the position as superintendent of East Side School District No. 5 for a period of two years. His school year for which he had already been elected would have expired at the end of June 1953. Under the law in effect in this state, it is required that all contracts of employment of teachers be in writing. So, the court would hold that the action of the Board on February 27, 1953, in which by a majority vote they stated to Johnson they would employ him for a period of two years, did not of itself constitute a valid contract, in that subsequent to that time there must have been entered between the parties by mutual consent and understanding a written contract of employment, because the law requires that it be done.”

The court further found that the action of the board on February 27, 1953, was only tentative and ineffective to bind it in the absence of proper' authority in Odom to do so alone; and that on March 6, 1953,' the board rescinded its original action prior to the execution of a binding contract in conformity with the law.

Appellant contends that under the testimony a jury question was made as to whether a valid written contract of employment was fully executed by the board’s action on February 27, 1953; that such action amounted to a substantial compliance with the statutory requirement of a written contract; and that the validity of the agreement entered into on February 27 was unaffected by the subsequent refusal of the president or a majority of the board members to sign or approve such agreement. We cannot agree with these contentions. Most of the cases cited by appellant involve the elements of ratification or estoppel where a contract, invalid in its inception, is subsequently ratified by the district accepting the benefits of the teacher’s services. These elements are not present here. In other cases cited either a majority of the board or its president and secretary joined in the actual execution of the written contract.

The discretion of school boards in respect to the making of employment contracts with teachers is very broad. ^Ordinarily the board has the absolute right to decline to employ or reemploy any applicant for any reason whatever or for no reason at all. 47 Am. Jur., Schools, § 114. Under Ark. Stats., § 80-509(d), the board of directors is empowered to make written contracts with teachers and other employees, “in the form prescribed by the State Board of Education.” Section 80-1304(b) provides that every teacher in the state, “shall be employed by written contract.” Section 80-1306(a) provides that if the board does not make contracts in accordance with this and other statutory requirements, the County Superintendent shall notify the County Treasurer of the invalidity of such contracts and the latter shall refuse payment of any warrants issued thereon. In Bald Knob Special School Dist. v. McDonald, 171 Ark. 72, 283 S. W. 22, we held the requirement of a .similar statute that employment be by written contract to be mandatory and not merely directory as appellant contends. This holding conforms to the general rule that compliance with the formal requisites prescribed by statute is essential to the validity of a teacher’s or superintendent’s contract except insofar as the statutory requirements are directory only. 78 C. J. S., Schools and School Districts, § 189.

It is also well settled that in order to be entitled to recover compensation, a teacher must have been appointed or elected to the position for which it is sought, and have a valid contract for his services. 78 C. J. S., Schools and School Districts, § 218c. The second requirement of a valid contract was never consummated in the case at bar. The election of appellant for a new two-year term on February 27, 1953, was merely preliminary to the further requirement that a valid written contract in the form prescribed by the State Board of Education be executed. Under the undisputed evidence this second and final step essential to support a recovery of compensation was never met, and the trial court correctly directed a verdict in favor of appellees.

The judgment is affirmed.

Chief Justice Seamster not participating.


text:
    Universal C. I. T. Credit Corporation v. Stanley.
    5-679
    279 S. W. 2d 556
    Opinion delivered May 23, 1955.
    [Rehearing' denied June 20, 1955.]

      M. P. Mathemy and Wright, Harrison, Lindsey & Upton, for appellant.

      Spencer & Spencer, for appellee.
   George Rose Smith, J.

This is a suit filed by the appellee to obtain cancellation, for usury, of a conditional sales contract that was executed after the decision became final in Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973. The chancellor canceled the contract and quieted the plaintiff’s title to the car that had been sold. It is contended by the appellant that the apparently usurious nature of the agreement was the result of mutual mistake and that even if the contract should be set aside the purchaser is not entitled to keep the automobile.

On July 13,1953, the appellee Stanley bought a used car from Brown Motor Company for an agreed price of $1,895. By cash and a trade-in Stanley made a down payment which left due a balance of $1,000. On forms furnished' by the appellant the seller prepared two instruments relating to the sale. First is the conditional sales contract now in issue, which recites a “time balance” of $1,260.54, payable in eighteen monthly installments. Second is an invoice which discloses that the time balance was composed of these items:

“[Unpaid balance of purchase price]........................$1,000.00

“Insurance 18 months w/pkg.............."..........$129.00

“Finance Charges..................................................... 131.54

260.54

$1,260.54”

Within a day or two after the sale the appellant bought the commercial paper from the seller. Stanley made two monthly payments and then filed this suit for cancellation.

It is conceded by the appellant that if the invoice charges of $1,000 for purchase money and $129 for insurance are the only items owed by Stanley, then an interest charge of $131.54 is usurious. The appellant undertook to prove, however, that insurance “w/pkg” (with package) includes not only a comprehensive automobile policy, for which the appellant paid the recited $129 premium, but also life and accident policies for which the appellant paid an additional $39.32. It is insisted that the latter item should have been designated by Brown as part of the finance charges, leaving a difference attributable to interest that would be within the legal rate.

The trouble with this argument is that there is almost nothing in the conduct of either party to confirm the existence of a mutual mistake. Stanley, on the one side, denies that he agreed to pay the extra insurance charges now demanded by the finance company. As was said in the similar ease of General Contract Corp. v. Duke, 223 Ark. 938, 270 S. W. 2d 918: “It cannot be said here that the ease involves a mutual mistake of fact, since the plaintiff merely accepted the terms given him by the seller.” And the appellant, on the other side, presumably examined the invoice and found it satisfactory. The company accepted two monthly payments and put forward no suggestion of error until suit had been brought. Even at the trial the appellant failed to show just how Brown, who admittedly used the appellant’s rate hook in computing the' amount owed, arrived at a finance charge of exactly $131.54. In the absence of persuasive proof that either party intended to make the agreement now asserted by the appellant it would manifestly be difficult to hold that both parties so intended.

The appellant’s second contention is that the chancellor erred in allowing Stanley to keep the car. Here the argument is that Stanley’s only claim to the vehicle derives from the conditional sales contract and that if that contract be abrogated Stanley’s assertion of title must fail as well. This line of reasoning disregards the basic fact that, by the ruling in the Hare case, supra, a transaction such as this one is in reality a loan rather than a sale. It is not our intention to undermine the Hare case by reverting to the outmoded fiction that what is actually a loan must be treated as a sale. The present contract plainly comes within the purview of Act 39 of 1887: “The maker of a usurious contract may by suit in equity . . . have such contract . . . annulled and cancelled, and. any property, real or personal, embraced within the terms of said lien or conveyance, delivered up if in possession of any of the defendants in the action, and if the same he in the possession of the plaintiff, provision shall be made in the decree in the case removing the cloud of such usurious lien . . .” Ark. Stats. 1947, § 68-609; Bailey v. Commerce Union Bank, 223 Ark. 686, 269 S. W. 2d 314.

Affirmed.

Seamster, C. J., not participating.


text:
    Missouri Pacific Railroad Co., Thompson, Trustee v. Heitman, Administrator.
    5-672 and 5-673 (consolidated)
    279 S. W. 2d 280
    Opinion delivered May 23, 1955.

      Pat Mehaffy and Richard M. Ryan, for appellant.

      Cole & Epperson and Joe W. McCoy, for appellee.
   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.