text:
    McDaniel v. State.
    4902
    313 S. W. 2d 77
    Opinion delivered April 28, 1958.
    [Rehearing denied June 2, 1958]

      D. B. Bartlett, Bob Bailey, Jr., and Richard Mob-ley, for appellant.

      Bruce Bennett, Atty. General; Ben J. Harrison, Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

Tlie principal issue on this appeal is the right of a trial judge to discharge a juror after all the jurors have been chosen and sworn to try the case.

Charlie McDaniel, appellant, was charged with murder in the second degree for killing one W. J. Morrow. He was convicted of voluntary manslaughter and sentenced to serve a term of 2 years in the penitentiary. Some of the details surrounding the killing- are in dispute but we find ample evidence in the record to support the jury’s finding.

The killing took place at the rural home of deceased on July 2, 1956. The record discloses that there had previously been some difficulty between them over the possession of the place where the deceased and his family were living. On the fatal day some of appellant’s cows were found in the deceased’s garden while the deceased was away from home. He returned about 8 P. M. and while he was eating supper his wife told him about the cows. About this time appellant and his wife drove up to the house in a truck and he began mending the garden fence. According to deceased’s wife Morrow walked outside and said, “Charlie what are you doing?” Appellant replied, “I am fixing the fence.” The deceased said, “Leave it alone and I will fix it in the morning.” Thereupon as deceased was walking toward the garden appellant shot him. After the first shot witness heard 2 or 3 more shots. According to Mrs. Morrow her husband did not have a pistol. This version of the shooting was sharply contradicted by appellant’s wife. According to her, while the deceased was approaching appellant, his stepson, Arnie Rhoads, was behind him with a shotgun in his hand. When deceased was about 17 feet away from appellant he said “Damn you, I'said for you to leave that fence alone, and I will fix you and it too.” Then the deceased reached into his hip pocket with his right hand, and, when he was about 6 feet away, appellant shot him. There were other conflicts in the testimony pertaining to the killing, but they were resolved by the jury under proper instructions by the court.

One. The principal question arose in the following manner. All 12 jurors were chosen and sworn to try the case just before the noon hour, when court was recessed until 1:45 P. M. Before the recess was taken the court dismissed all unused members of the regular and special jury lists “subject to further services upon order and direction of the court . . .” When court was reconvened at tlie appointed time tlie conrt made the following statement:

“It has been brought'to the attention of the court that after the examination of the jurors on the voir dire examination by the attorneys and after the jury had been duly-sworn to try the case in question, that one of the Jurors, Mr. John E. Blackard, is related to the defendant, Mr. McDaniel, in the case, and without suggesting that Mr. Blackard would not be a fair and impartial juror in the case and that he would not conscientiously return such verdict as he thought justified under the law and the evidence, the court thinks that it is the best policy in compliance with the law on the face of the statements made that the juror is related within the fourth degree of consanguinity or affinity, and that he should be excused. The court at this time will excuse Mr. Black-ard from service on the jury. I am going to ask that counsel proceed with the special jurors until the panel is selected.”

By Mr. Bailey: “Save our exceptions, and the further objection, I also object to selecting another juror from the special list because the special list was discharged for the term, and only the ones that happen to be in Clarksville or in the Court House are available.”

It is earnestly and ably contended by appellant that the above action on the part of the court in dismissing Blackard constituted reversible error. Section 39-102 Ark. Stats, provide that:

“No person shall serve as a petit juror who is related to either party to a suit within the fourth degree of consanguinity or affinity. Provided, further, that any prospective juror who qualifies generally for service in a cause, and is found to be related within the fourth degree of consanguinity or affinity to any attorney engaged in the trial of the case may be peremptorily challenged for cause by any attorney or attorneys representing the other side of the case.”

As we understand appellant’s reasoning in support of the above contention it may be considered more clearly under two separate divisions.

1. It was too late, says appellant, to discharge Blackard after the jury was completed and sworn in, citing Ark. Stats. § 43-1914 and § 39-115. The first section provides that a challenge to a juror “must be taken before he is sworn in chief, but the court, for good cause, may permit it to be made at any time before the jury is completed.” The latter section provides exceptions shall not be taken to any juryman for cause after he is taken upon the jury and sworn as a juryman. It is urged by appellant that the statutes mean what they say and must be followed. The conclusion then drawn by appellant is that he had been placed in jeopardy, and therefore the court’s action violated his constitutional right of a trial by jury. This reasoning however has been discarded by this court. In the case of Harris v. State, 177 Ark. 186, 6 S. W. 2d 34, the jury had been impaneled, sworn to try the cause, the opening statement of counsel made, and the testimony of one witness heard, when the court discharged a member of the jury (who was replaced by another juror) because it was disclosed that the challenged juror was on the defendant’s bond. It was there held that the defendant had not been placed in jeopardy. In so holding the court relied on § 359, Crawford & Moses’ Digest (Ark. Stats. § 43-1919) which reads:

“Actual bias is the existence of such a state of mind on the part of the juror, in regard to the case or to either party, as satisfies the court, in the exercise of a sound discretion, that he can not try the case impartially, and without prejudice to the substantial rights of the party challenging. ’ ’

Also in Franklin v. State, 149 Ark. 546, 233 S. W. 688, and Martin v. State, 163 Ark. 103, 259 S. W. 6, we upheld the trial court in discharging a juror after the jury had been completed and sworn, denying the plea of former jeopardy. It follows therefore that the trial court, in this instance, did not commit reversible error in discharging Blackard, if he was in fact related to the defendant by affinity within the fourth degree, as found by the court.

It is urged by appellant, however, that Blackard was not so related. The facts as to the relationship, as set forth in appellant’s argument, appear to he: Appellants’ uncle married a sister to Blackard’s father. If this is correct, then Blackard was not related by affinity to appellant, because his wife was no blood relation of appellant. We stated the applicable rule in North Arkansas and Western Railway Co. v. Cole, 71 Ark. 38, 70 S. W. 312, where it was said: “Affinity is the tie which arises from marriage between the husband and the blood relations of the wife, and between the wife and the blood relations of the husband.”

The trouble here, however, is that we find no competent evidence in the record to support appellant’s version of the relationship. The alleged relationship is shown in a note made by the reporter. This of course does not constitute testimony in the case, and, moreover, it is not shown that the same information was brought to the attention of the court. It would appear from that portion of the record heretofore copied that the court was merely informed that the two persons were related within the fourth degree. Also, attached to appellant’s motion for a new trial are two exhibits which show the alleged true relationship, but these cannot be considered as a new addition to the evidence taken at the trial. In Hyde v. State, 212 Ark. 612, 206 S. W. 2d 739, we said, “. . . a motion for new trial cannot be used to bring into the record that which does not otherwise appear of record.” Thus, viewed in the light of the decisions heretofore cited and the state of the record, we conclude that the action of the trial court in dismissing Blackard from the jury panel was not reversible error.

2. On the other hand, if we assume it to be true that appellant’s uncle was married to a sister of Black-ard’s father and that this relationship was made known to the trial court during the recess hour, still we think no reversible error would be shown. We must assume that the trial court acted in good faith and in the interest of justice, even though he might have been mistaken in thinking Blackard and the appellant were related within the fourth degree as defined and prohibited by statute. Likewise then, we must assume that appellant and Blackard were also mistaken as to the law or facts, because no effort was made, at that time, according to the record, to enlighten the court. In any event, it is conceded that some family relationship existed between appellant and the juror which was known by the trial court, and the situation called for the exercise of judgment and discretion by the court either as to the law or the facts. We cannot say the court abused its discretion. In Montaque v. State, 219 Ark. 385, 242 S. W. 2d 697, the court approved this statement: “The question of the impartiality of the jury, as guaranteed by' the Constitution, Art. 2 § 10, is a judicial question of fact within the sound discretion of the trial court.”

Two. When Blackard was discharged he was replaced by a juror from the special panel, referred to above, and this is assigned as reversible ■ error. We do not agree. The new juror was accepted by both sides, and there is no showing whatsoever that he was in any way disqualified. Moreover, the record shows that appellant had left at the time one peremptory challenge which he had not exercised. This being true appellant is in no position to complain. See: Washington v. State, 213 Ark. 218, 210 S. W. 2d 307. We have also often held that a litigant has no special right to any particular juror. See: Green v. State, 223 Ark. 761, 270 S. W. 2d 895.

We have examined all other assignments contained in appellant’s motion for a.nbw trial, but find no reversible error.

Affirmed.

RobiNSON, J., concurs.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    State National Life Insurance Company v. Stamper.
    5-1547
    312 S. W. 2d 441
    Opinion delivered April 28, 1958.

      Coleman, Gantt & Ramsay, by E. Harley Cox, Jr., for appellant.

      Reinberger & Eilbott, for appellee.
   Sam Robinson, Associate Justice.

In June, 1954, the appellant, State National Life Insurance Company, sold to Clara E. Stamper a policy covering hospital and other expenses growing out of sickness or an accident. It is stipulated that if appellee is entitled to recover under the terms of the policy it is in the sum of $222. The cause was tried before the court sitting as a jury, and from a judgment in favor of the policyholder the insurance company has appealed.

The applicable provision of the policy is as follows: “State National Life Insurance Company . . . hereby insures the person named as Insured . . . and . . . promises to pay the Insured toward the expense actually incurred by the Insured . . . necessitated by . . . (b) sickness suffered while this policy is in force, the cause of which sickness originates after thirty days from the effective date of this policy . . .” The appellant contends that the cause of the insured’s disability originated prior to thirty days following the effective date of the policy.

In July, 1955, a little over a year after Mrs. Stamper purchased the policy of insurance, she began to suffer pain in her neck and shoulders. At first she thought it was caused by her teeth, and had her teeth pulled, but this did not give relief. During most of her life she had a small bony growth or knot on the back of her head. Prior to July, 1955, she had suffered no ill effects whatever from this growth, but in August, 1955, it was determined that the bony growth had increased in size to the point where it was causing the pain suffered by Mrs. Stamper. According to the undisputed evidence the bony growth had not caused any trouble whatever until more than a year after the issuance of the policy of insurance, and it is apparent from the evidence that if this growth actually did cause Mrs. Stamper’s trouble it, did so because of increase in size subsequent to the time the policy was issued.

In Home Life Ins. Co. v. Allison, 179 Ark. 65, 68, 14 S. W. 2d 229, in holding that the insured was entitled to recover for disability due to sleeping sickness, although the cause of such sleeping sickness was an attack of flu occurring prior to the effective date of the policy, the Court said: “Certainly the parties did not contract with reference to latent germs or seeds of disease or illness existing in the body prior to the delivery of the policy.” There is an annotation on the subject in 53 A. L. R. 2d 687, and the weight of authority is that the sickness should be deemed to have had its inception at the time it first manifested itself or became active, or when sufficient symptoms existed to allow a reasonably accurate diagnosis of the case, so that recovery can be had, even though the disease, germs or infection was present in the body prior to the excluded time, if the condition was latent, inactive, and perhaps not discovered. In the case at bar it appears conclusive that Mrs. Stamper did not have any condition causing disability which manifested itself within thirty days from the effective date of the policy.

An attorney’s fee in tire sum of $100 was allowed by the trial court, and appellee asks that an additional fee be allowed for the appeal. We think the request should be granted in this case, and $100 additional is allowed.

Affirmed.


author: CarletoN Harris, Chief Justice.

text:
    Ark. La. Lumber Co. v. Causey.
    5-1546
    312 S. W. 2d 909
    Opinion delivered May 5, 1958.

      McKay, Anderson & Grumpier, for appellant.

      Jach Machen and Wendell Utley, for appellee.
   CarletoN Harris, Chief Justice.

Appellee, Bernadine Causey, was severely injured in a collision on the night of February 19, 1955. Mrs. Causey was driving her automobile from Shreveport, Louisiana, to Camden, Arkansas, on U. S. highway 79, and struck a truck, owned by appellant, Arkansas-Louisiana Lumber Company, a few miles north of Emerson, Arkansas. The collision was the result of the negligence of Haywood Doss, employee of appellant, and driver of the vehicle, in leaving the truck parked crossways in Mrs. Causey’s lane of travel. Doss was under the influence of intoxicating liquor at the time, and subsequently pleaded guilty to such charge. Doss ivas not acting within the scope of his employment at the time, but the case was tried on allegations that the Arkansas-Louisiana Lumber Company was negligent in entrusting the truck to Doss, alleged to be an incompetent driver by reason of being addicted to intoxicants, and driving while under such influence, a fact which was known to appellant, or could have been known by the exercise of ordinary care. On trial, the jury returned a verdict of $17,500, and this appeal is from the judgment of the court awarding such amount.

For reversal, appellant relies upon the following points:

1. There was insufficient proof to show that Doss was habitually addicted to intoxicants while driving and that this fact was known or should have been known by appellant.

2. Appellee’s Requested Instruction No. 3 was in error:

(A) In. stating that the law charges an owner “who has reason to believe” that a person is addicted to intoxicants is negligent in entrusting a vehicle to him.

(B) In failing to tie in the addiction to intoxicants with the driving of an automobile.

L

We cannot agree with this contention. Jim Holt, a witness for appellee, testified he had lived at Emerson for 15 years, and was city marshal for about 6 years. He stated he knew Haywood Doss, and had seen him on numerous occasions driving the company truck after work hours. On one occasion in 1951, he saw Doss drive the company truck up to a ‘ ‘ honkytonk, ” while under the influence of liquor . . . Doss got out staggering . . . he (Holt) told Doss he had better get the truck back . . . “You stay down here and finish getting drunk and you’ll run into somebody and kill somebody.” He further testified that about a week before the instant collision, he again saw Haywood Doss at Ben Moody’s store, and Doss “smelled just like a whiskey barrel” and was thick tongued. These instances were not reported to any official of Arkansas-Louisiana Lumber Company. Wade Blackwell testified that he had lived in Emerson for some 40 years, and he had frequently seen Haywood Doss driving the company truck outside of work hours . . . that he had seen him drive the company’s truck while under the influence of liquor. From his testimony:

“Well, he come in there one evening to my farm and he got stuck, and I had to take my truck and pull him out — took the tractor and pulled him out; and he was so drunk he didn’t know what he was doing, and I told him not to come back in there any more. He came there to get some of the hands on the place to go riding with him. I got tired of him coming there bothering my hands; it was a constant thing, him coming there with a truck and picking up somebody to ride with Mm on Saturday evenings and on Sndays.”

He testified that he told Mr. Bucks about this occurrence, and added:

“* * * I thought he ought to know it, that his truck driver was running around all over the country at night, and there was going to be some serious damages to somebody’s car if there wasn’t something done about it.”

He further testified that while serving as constable, he saw Doss driving the truck “a time or two” when he was drinking, and that Doss had been convicted of driving while intoxicated on one occasion. This was all the evidence as to a truck being operated by this man while drinking, and appellant asserts that these acts are unrelated, occurring over a period of several years, and are not sufficient to establish that Doss was in the habit of driving while under the influence of intoxicants. The leading Arkansas case with reference to the liability of a person, who permits a known reckless driver, or incompetent driver because of drunkenness, to operaté his vehicle, is Chaney v. Duncan, 194 Ark. 1076, 110 S. W. 2d 21. There, this Court said:

“There is no dispute about the law that if anyone permits another to drive his car, knowing such one to be a reckless or careless driver, or knowing that he is in the habit of becoming intoxicated and driving a car in this condition, he will be liable for any injury caused by the negligence of such driver.”

Appellant argues, that in the case before us, there is no testimony to show that Haywood Doss had a reputation of being an habitual drunken driver. It is conceded that, while proof of general reputation is preferable, such reputation may also- be shown by evidence of specific acts. "We think the four acts were sufficient to establish a pattern, though it be over a period of several years. From the evidence heretofore mentioned, it would appear that the first act of driving while under the influence of intoxicants occurred between 1949 and 1951, and the last about a week before the Causey collision. During the interim, the other two occurred. Certainly, it would appear that Doss had not changed his habits from the first time until the last. Mr. Rucks was frequently in Emerson, and it would seem that any sort of investigation would have revealed the conviction. However, we are not here concerned with whether an investigation by Rucks would have revealed Doss’s activity in driving the truck while intoxicated, nor are we even concerned with whether he should have made such investigation — for the testimony is positive to the effect that Rucks was told by Blackwell of at least one occasion where Doss was operating the truck “so drunk he didn’t know what he was doing.” It is true Mr. Rucks denied that this conversation took place, but the credibility of witnesses is a matter for the jury to determine. We conclude that the evidence was sufficient to submit the cause to the jury.

II.

At the request of appellee, the court instructed the jury as follows:

“You are instructed that an automobile in the possession of and driven by a person under the influence of intoxicating liquor is a dangerous instrumentality, and the law places the duty on the owner of an automobile to use due care in preventing such use of his automobile when such owner knows, or has reason to believe, that the person using his automobile is addicted to intoxicants. And, you are further instructed that if you believe from a preponderance of the testimony that the defendants, or either of them, knew, or by the exercise of ordinary care should have known, that Haywood Doss was addicted to the use of intoxicants then they owed to the plaintiff and to the public at large the duty of exercising due care in preventing the use of their truck by the said Haywood Doss; and, if you further believe that the said Haywood Doss was, at the time of the collision in which plaintiff was injured, under the influence of intoxicating liquor and that the said Haywood Doss was negligent and careless in the operation of defendants truck thereby causing the injuries to plaintiff, then your verdict will be for the plaintiff, unless you further find that the plaintiff was guilty of negligence contributing to her injuries.”

Appellant specifically objected, first because of the language “or has reason to believe.” Appellant states that the proper phraseology would have been “by the exercise of ordinary care should have known. ’ ’ Frankly, we do not see enough difference in the meaning of the language used and the language proposed, to ascertain how any prejudice could have resulted thereby. At any rate, this portion of the instruction complained of is practically identical with that offered in the Chcmey case, supra. There, the language used was “reasonable grounds for belief, ’ ’ which, in our view, has the same "meaning. Appellant argues that in the Chaney case, this alleged error was not called to the attention of the Court, nor the issue decided. However, a study of the transcript-reveals that a specific objection was made to this instruction, and in rendering its opinion, this Court said:.

“We have, examined carefully the instructions given and refused, and find that there was no error 'in -the court’s giving or refusing to give instructions.”

Appellant also complains that the balance of- the instruction is erroneous because of the reference to addiction to intoxicants, but not tying in such addiction with the driving of the truck. It is argued that this instruction told the jury that appellant had the duty of preventing Haywood Doss from using their truck, if Doss was addicted to intoxicants, even though Doss had never driven a motor vehicle in his life while under the influence of liquor. It is asserted by appellant that many people drink, who do not thereafter drive. It is not necessary that we determine whether evidence of intoxication, other than while driving, known to the owner of the vehicle, is admissible in a ease of this nature, though this same language was used in an instruction in the Chaney case, and such evidence there admitted. Here, appellee offered to introduce evidence of intoxication by Doss on other occasions, but the court would not permit it, and there was accordingly no evidence of intoxication in the record, except for times when Doss was driving the truck. With no such evidence to consider, this part of the instruction, even if appellant’s contention be correct, was mere surplusage, and could not have resulted in prejudice to the Arkansas-Louisiana Lumber Company.

Finding no reversible error, the judgment is affirmed.

       A partnership, composed of Conway Rucks, Carolyn Una Rucks, W. H. Boswell, Nevel Boswell, Tom R. Earle and Marie Earle.

       This was against company regulations. The employees were permitted to keep the trucks as a matter of transporting hands to and from work, but according to Mr. Conway Rucks, were not supposed to operate them for personal use. Rucks had, on one other occasion, caught Doss violating this rule when an automobile struck this truck one Sunday afternoon when Doss was on his own personal business.


author: J. SeaborN Holt, Associate Justice.

text:
    Lawrence v. Jones.
    5-1552
    313 S. W. 2d 228
    Opinion delivered May 5, 1958.
    [Rehearing denied June 9, 1958]

      John F. Gibson and Robert B. Gibson, for appellant.

      Robert Smith, Don Clarice and Herschel H. Friday, Jr., for appellee.
   J. SeaborN Holt, Associate Justice.

McGehee Sanitary Sewer District No. 1 was established in 1926, and bonds in the principal amount of $122,000 were issued to cover cost of construction and cost of maintenance. In 1942 refunding bonds were issued and in 1953 the last bond was retired. In 1956 a formal release was filed by the trustee of the refunding issue and there is now no outstanding bond indebtedness of the District, and no levies have been made on the assessment of benefits since payment of the bonds. There appear to be some outstanding delinquencies on levies. The surplus on hand from collections, in the amount of $2,020.06, has been turned over to the city of McGehee for maintenance work on the sewer system. It seems undisputed that the district has never paid out any money for maintenance or upkeep of the sewer system, but all maintenance and upkeep has been paid by the city out of its general fund.

The present suit was filed by appellants, as a class suit, as property owners and taxpayers of McGehee v. the Mayor, City Council, Members of the Sewer Committee and the Commissioner of the Sewer District for an accounting and distribution of its funds and for a declaration of invalidity of two ordinances, Nos. 343 and. 344.

A trial resulted in a decree in favor of appellees on all issues and this appeal followed. For reversal appellants rely on these points: “1. Only a property owner who owned property within the territory to be affected should have been allowed to vote in the election on Ordinances Nos. 343 and 344. 2. A difference should have been made between the rates to the users in the Sanitary Sewer District No. 1 (old district) and the users in the new additions. 3. That a proper accounting or audit of the affairs of Sanitary Sewer District Number 1 was not made as required by law.” Ordinance 343 and 344 were passed by the city on January 18, 1957. Ordinance 343 was a rate ordinance and 344 was entitled “An ordinance providing for the construction of extensions, bet-terments and improvements to the sewer system of the City of McGehee . . . ” Under the terms of Ordinance 344, there was included old Sewer District No. 1 and additional territory within the city limits, and authority to issue and sell $310,000 of sewer revenue bonds, which, added to government aid, would finance the cost of construction. Thereafter there was a referendum vote on these two ordinances, at which all qualified electors in the city, whether property owners or not, were allowed to vote, and both, ordinances were approved by a majority of more than two to one.

1.

On this point appellants claim that only property owners had a right to vote on the two ordinances in question. We do not agree. The record clearly shows that the city council of McGehee proceeded here under Act 132 of 1933 (Ark. Stats. 1947 Sec. 19-4101 et seq., the Sewer Revenue Bond Statutes), and not, as appellants argue, under Act 131 of 1933. Ordinance 343, the rate ordinance (in Sec. 3) makes reference to Sec. 19-4113 Ark. Stats. (Act 132), and Ordinance 344, the bond ordinance, throughout its provisions several times, refers to Act 132, which provides for an additional and alternative method of constructing and maintaining sewer systems.

Appellants say: “The nature of the charges under Ordinances 343 and 344 .of the City of McGehee is a tax which required the vote or consent of the majority of the property owners affected.” This court had occasion to construe the provisions' of Act 132 in the case of Jernigan v. Harris, 187 Ark. 705, 62 S. W. 2d 5, where we said: “By the provisions of Act 132 the cities and towns of the State are authorized to construct, own, equip, operate, maintain and improve sewage plants, and to authorize charges against the owners of real estate within such cities and towns for the use of same, and for the collection of such charges, and to authorize cities and towns to issue revenue bonds,, payable solely from the revenues from such systems. Section 13 of Act 132 directs the city and town councils to pass ordinances ‘to establish and maintain just and equitable rates or charges for the use of and the service rendered by such works, to be paid by each land owner whose premises are connected with, and use, such works by or through any part of the sewerage system of the city or town, or whose premises in any way use, or are served by, such works . . . ’ The liens which may arise under Act 132, and which may be enforced pursuant to its authority, are not taxes within a strict definition of that word, but they are of that nature. More properly, they are burdens imposed pursuant to the exercise of the police power, to and for the validity of which the consent of the property owner is not essential. It is a burden imposed pro tono publico.”

In a later case, Carpenter v. City of Paragould, 198 Ark. 454, 128 S. W. 2d 980, wherein this court had for consideration the question whether the action of a city council in enacting sewer ordinances, under Act 132, was legislative and therefore subject to a referendum and the vote of all the electorate, of the city under Amendment 7 of our State Constitution, or only administrative and not subject to referendum, we there held that the action of the city in passing the ordinances was distinctly legislative and subject to a vote of all the electorate. The opinion recites: “Appellees here are proceeding under authority of Act 132 of 1933, now Secs. 9977-9990 Pope’s Digest. The act provides the manner in which sewer projects may be constructed pursuant to ordinances passed by the city council. The improvement proposed originated in the city council itself. No petition is a condition precedent to action on the part of the city council. The action of the city council in the instant case, in enacting the ordinance and resolution in question is distinctly legislative, and not the exercise of a mere ministerial function. The council is not acting in an administrative capacity as would be the case where a municipal improvement district is created pursuant to a petition of a majority of the property owners affected in that district ... It will thus be noted that the right of referendum is granted to the people on legislation of every character, whether the legislation affects all or a part of the citizens of the municipality affected.”

2.

On this point appellants contend, in effect, that Ordinance 343 (the rate ordinance) was void because the city council did not charge the users of the sewer system situated within the boundaries of the old district (District 1) less than they charged users outside those boundaries. We do not agree. Again we must point out that we are here concerned with a sewer system to be financed and maintained with revenue bonds as provided in Act 132 of 1933. Section 13 of Act 132 (Ark. Stats. 19-4113) contains this language: “The council of the city or town shall have power, and it shall be its duty, by ordinance to establish and maintain just and equitable rates or charges for the use of and the service rendered by such works, to be paid by each landowner whose premises are connected with, and use, such works by or through any part of the sewerage system of the city or town, or whose premises in any way use or are served by, such works; . . .” Complying with this provision the city council in Ordinance 343 fixed the rates to be charged based on water consumption, which the trial court summarized as follows: “All customers are classified as either domestic or commercial. In the case of domestic customers the average monthly water consumption for the months of January, February, March, October, November and December of the calendar year preceding that in which bills are rendered is computed for each customer and a uniform monthly charge determined by applying the schedule of rates to the average monthly usage. In the case of commercial customers the average' monthly water consumption for the preceding calendar year is computed for each customer and the schedule of rates is applied thereto except that in the case of commercial customers using an appreciable percentage of water in such a manner that it does not reach the sewer the sewer committee is directed to determine the water usage that does reach the sewer system and the schedule of rates is applied thereto. The schedule of rates runs from 60 cents per 1,000 gallons for the first 2,000 gallons to 12 cents per 1,000 gallons for all above 100,000 gallons, with the minimum monthly charge being $1.75. In addition, among other things, the ordinance provides that under the provisions of Ark. Stats. 19-4113 a lien is fixed upon the land for any unpaid sewer service charge.”

Bate making being a legislative act, unless tbe city council lias acted arbitrarily and unreasonably in fixing these rates, there is a prima facie, presumption in favor of their correctness, and the burden is on complainant to show otherwise. “On the question of the reasonableness of rates fixed by the Corporation Commission for the transportation of gas by a pipe line company, there is a prima facie presumption in favor of such rates. The same presumption exists in favor of rates fixed by an ordinance,” Camden Gas Corp. v. Camden, 184 Ark. 34, 41 S. W. 2d 979; and “The burden of proving the city’s rate schedule to be arbitrary and unreasonable rested upon the plaintiffs, for the ordinance is entitled to the presumption of validity that legislative enactments ordinarily receive,” Delony v. Rucker, 227 Ark. 869, 302 S. W. 2d 287.

After consideration of the record presented, we hold that this rate ordinance is not discriminatory because it did not charge users in the old district (No. 1) less than those outside, and further, that appellants have not shown any arbitrariness on the part of the city council.

3.

Finally, appellants contend that there had not been a proper audit and accounting of the affairs of the District No. 1 as required in Sec. 20-228 Ark. Stats. 1947, and no proper distribution of those funds had been made. We do not agree.

The facts showed that from the establishment of District No. 1 in 1926 the city clerk had been the collector for the district, had all of the tax records together with receipt books and had deposited all collections, less a collection fee, in a McGehee bank. Mr. Faye Joyner, a former commissioner, testified that he and the attorney for the district filed a report showing all outstanding delinquencies as of September 4, 1956 and had turned over to the City of McGehee a total of $2,020.06. He further testified that a full report and accounting had been made for all money, bonds and coupons in 1931, 1937 and 1941. There is no charge or intimation, even, of any fraud or misconduct by the sewer commissioners, or the city, in the handling of these funds. It is not denied that the city had been operating and maintaining the system out of its general revenues with no expense to the district. The sewer bonds were issued for the "purpose of constructing and maintaining a sanitary sewer system.” The city has already spent far more than the $2,020.06 turned over to it in maintaining the system.

It was shown that it'would cost more than the amount of money on hand ($2,020.06) in fact, approximately $2,500.00, to have an accounting for refund purposes. The principle of law announced in City of Stuttgart v. McCuing, 218 Ark. 34, 234 S. W. 2d 209, applies with equal force here. We there said: ‘ ‘ From a practical viewpoint, since in all cases of refunds there must be necessary costs attached, such refunds would be subject to the burden of distribution. Obviously, in some instances where excess funds are to be dealt with, the overall cost of refunding might exceed the surplus, or it might be found that in respect of each taxpayer the rule de minimis non curat lex (the law cares not for small things) should apply. In such cases, where no taxpayer’s claim could be regarded as substantial, no refunds would be required.”

On the whole case, finding no error, the decree is affirmed.


author: Ed. P. McPaddiN, Associate Justice.

text:
    Citizens Coach Company v. Wright.
    5-1476
    313 S. W. 2d 94
    Opinion delivered May 5, 1958.
    [Petition to clarify opinion denied June 2, 1958]

      Rose, Meek, Souse, Barron & Nash, for appellant.

      Talley & Owen and James R. Howard, for appellee.
   Ed. P. McPaddiN, Associate Justice.

The appellant, Citizens Coach Company (hereinafter called “Coach Company”) is a corporation engaged as a common carrier in operating a transportation system in the City of Little Rock. The appellee, Mrs. Ereeda Wright, while a passenger on a bus of appellant, was assaulted by another passenger named Dorothy Payne. Mrs. Wright filed this action for damages against Dorothy Payne, for assault and battery, and against the Coach Company for its failure to accord Mrs. Wright the degree of safety and protection to which a passenger is entitled from a common carrier.

A jury trial resulted in these verdicts for Mrs. Wright for which judgments were entered: (a) against Dorothy Payne for actual damages of $500.00; (b) against Dorothy Payne for punitive damages of $1,000; (c) against Citizens Coach Company for actual damages of $5,000. The Coach Company is the only appellant and there is no cross appeal; so the only question before us is the correctness of the judgment for actual damages of $5,000 against the Coach Company. Among others, these points, now to be discussed, are presented by the Coach Company.

I. Sufficiency Of The Evidence. The Coach Company claims that the evidence is insufficient to sustain any verdict against it in favor of Mrs. Wright. Viewing the evidence in the light most favorable to the verdict, as is our rule in cases like this one, it appears that Mrs. Wright and Dorothy Payne were both passengers on one of the appellant’s buses. Some question arose as to. seats. Dorothy Payne called Mrs. Wright several ugly names; then later kicked Mrs. Wright, shoved her backwards, and otherwise assaulted her. Mrs. Wright testified that once while the cursing was taking place, and prior to the actual physical assault, the bus driver looked at the parties but did nothing further, and that it was several minutes later before the actual physical attack occurred. Here is Mrs. Wright’s testimony as to the inaction of the bus driver:

“Once when she was cursing me, he (bus driver) turned his head halfway around because I was expecting him to say something to her then, but he didn’t. He never moved from his seat or never said a word, but he did turn halfway around once and that is when I thought he was going to stop her.”

We have a number of cases stating the duty of the carrier to protect a passenger from assault or injury from other passengers. One such case is Hines v. Rice, 142 Ark. 159, 218 S. W. 851, and in that case our earlier cases are cited. The case of Ark. P. & L. Co. v. Steinheil, 190 Ark. 470, 80 S. W. 2d 921, involved a street railway as a common carrier. There a passenger brought an action against the carrier for damages because of injuries received from another passenger; and, in stating, the duty of the carrier, Justice Prank Gr. Smith said:

“Appellee quotes from the chapter on Carriers in 4 R. C. L., §§ 606, 607, and 608, as correctly declaring the law applicable to the facts of this case; and we concur in that view. It was there said that a carrier owes to its passengers the duty of protection from the violence and insults of other passengers or strangers, so far as this can be done by the exercise of a high degree of care, and will be held responsible for its own or its servants’ negligence in this particular, when, by the exercise of proper care, the act of violence might have been foreseen and prevented. That the negligence for which, in case of an injury to a passenger by a fellow-passenger or a stranger, the carrier is held liable, is not the tort of the fellow-passenger or stranger, since there is no such privity between the carrier, and such tort-feasors as to make the carrier liable, on the principle of respondeat superior; but it is the negligent omission of the carrier, through its servants, to prevent the tort from being committed which renders the carrier responsible. That the negligent failure of the servants off a carrier to prevent the commission of the tort being tile basis of the action, it follows that for this omission or failure to be actionable negligence there must be a failure or omission to do something which should have been done by the servant, and there ié, therefore, involved the essential ingredient that the servant had knowledge, or with proper care, conld have had knowledge, that the tort was imminent, and that he had that knowledge, or had the opportunity to acquire it, sufficiently long in advance of its infliction to have prevented it with the force at his command; . . . ”

In the Steinheil case,, it was held that the carrier was not liable because the injuries had already been sustained by the passenger before the carrier’s servant learned or could have learned of the affray. But in the case at bar there is evidence, as previously stated, from which the jury could well have concluded- — as it apparently did— that after the bus driver saw and heard the disturbance he did nothing to protect Mrs. Wright from the assault and battery subsequently afflicted on her by Dorothy Payne. Therefore, because of the testimony previously recited, and other in the record, we conclude that the evidence was sufficient to take the case to the jury and to support a verdict for some amount.

II. The Coach Company’s Request For Judgment Non Obstante Veredicto.' In this assignment the Coach Company says: “The'verdict against the Citizens Coach Company, particularly insofar as it exceeds the amount assessed against Dorothy Payne for actual damages, is a mistake which should be. corrected.”

As heretofore mentioned, the jury rendered these verdicts: “We, the jury, find in -favor of the plaintiff against Citizens Coach Company and assess her damages as follows: Actual Damages $5,000.” “We, the jury, find in favor of the plaintiff against Dorothy Mae Payne and assess her damages as follows: Actual Damages, $50(1.00; Punitive Damages, $1,000; Total, $1,500. ’ ’ The Coach Company moved that the judgment against it be for $500.00 actual damages non obstante veredicto. The Court refused the motion; and that is the assignment that we now consider.

A considerable portion of the brief of the appellant is devoted to the argument, that where separate verdicts are rendered against joint tortfeasors, the Court must enter judgment for the lower verdict. Appellant discusses in detail the old cases of Spears v. McKinnon, 168 Ark. 357, 270 S. W. 524; Wear-U-Well Shoe Co. v. Armstrong, 176 Ark. 592, 3 S. W. 2d 698, and S. W. Gas & Elec. Co. v. Godfrey, 178 Ark. 103, 10 S. W. 2d 894. Appellee says that the rule of these cases is changed by Act 315 of 1941, which is the Uniform Contribution Among Tortfeasors Act (§§ 34-1001 et seq. Ark. Stats.); and appellee says that our case of Shultz v. Young, 205 Ark. 533, 169 S. W. 2d 648, allows apportionment of judgments against joint tortfeasors.

Appellant cites and discusses our case of Little v. Miles, 213 Ark. 725, 212 S. W. 2d 935, in which we held that the smallest verdict against any of the joint tort-feasors must be entered as the judgment against the others. Appellee counters that case by calling attention to Act 35 of 1949, which it is claimed was enacted to overcome the effect of our holding in Little v. Miles.

We find it unnecessary to decide as between arguments on the point as just mentioned. Assuming that the purpose of the 1949 Act was to allow full apportionment among joint tortfeasors, and assuming that Dorothy Payne and the Coach Company are joint tortfeasors in the case at bar, nevertheless, we reach the conclusion that the verdict against the Coach Company is grossly excessive, when considered in the light of the fact that the verdict against Dorothy Payne was for only $500.00 actual damages. The defendant, Dorothy Payne, was a mal-feasor; and the Coach Company was a nonfeasor.

As pointed out in Section I of this opinion, the Coach Company,, as a common carrier, was liable for failure, after reasonable notice, to protect Mrs. Wright from damage inflicted on her by Dorothy Payne. The verdict finds that the Coach Company failed to afford such protection. Because of such, failure (nonfeasance) the Coach Company is liable for whatever damages Dorothy Payne inflicted on Mrs. Wright. Dorothy Payne committed an assault and battery (malfeasance) on Mrs. Wright, which might not have occurred if the Coach Company had not been guilty of nonfeasance. It is impossible for us to see how the failure of the Coach Company to protect Mrs. Wright could have caused more damage to Mrs. Wright than the actual damage that Dorothy Payne inflicted on Mrs. Wright. The jury found that the actual damages inflicted on Mrs. Wright by Dorothy Payne amounted to $500.00; and against that verdict there has been no appeal. We cannot see how the actual damages against the Coach Company (the nonfeasor) can possibly exceed the actual damages against the malfeasor.

In cases of derivative liability many States hold that the finding of nonnegligence against the principal actor is a protection against the person sought to be held derivatively liable. Our own case of Patterson v. Risher, 143 Ark. 376, 221 S. W. 468, looks in that direction. See also Annotation in 141 A. L. it. 1168; and see 52 Am. Jur. “Torts,” § 125. While the liability of the Coach Company in the case at bar is not derivative, still it somewhat resembles derivative liability because the Coach Company was guilty of nonfeasance in failing to exercise due care to protect a passenger from the malfeasance (assault) committed by another passenger; and there is no reason for assessing actual damages for non-feasance greater than the actual damages assessed for the resulting malfeasance. See 52 Am. Jur. “Torts” § 125. The verdict against the malfeasor for actual damages was $500.00; and the verdict against the Coach Company for any amount greater than $500.00 is grossly excessive and should be reduced to the amount of the actual damages committed by the malfeasor.

III. Trial Court’s Ruling On The Admission Of Evidence. There is an assignment made by the appellant which we now mention in order to clearly indicate that we are not ruling on the point; and it relates to the admission of certain evidence. Mrs. Wright did not see fit to call any doctor in order to establish the nature and extent of her injuries. Instead, she offered in evidence the reports of the Arkansas Baptist Hospital. She claimed that under Act 293 of 1949 these reports were admissible to establish the nature and extent of her injuries. The appellant objected to these reports, contending that Act 293 of 1949 does not allow medical symptoms and maladies to be shown by nurses’ reports on hospital records; and in arguing the point here appellant cites, inter alia, the following cases: Shearman Concrete Pipe Co. v. Wooldridge, 218 Ark. 16, 234 S. W. 2d 382; and National Life & Accident Ins. Co. v. Threlkeld, 189 Ark. 165, 70 S. W. 2d 851.

We have grave doubts as to the correctness of the ruling of the Trial Court on the point here at issue. But it is not necessary for us to decide the question because appellant has stated that if it prevails on the second point (that is, judgment non obstante veredicto) then appellant is willing to forego this assignment. Therefore, since we have sustained the appellant on the non obstante veredicto point, it becomes unnecessary to decide the question as to the admission of the evidence.

CONCLUSION

The judgment against the Citizens Coach Company for $5,000 is reversed and the cause is remanded with directions that the Trial Court set aside its judgment against the Coach Company for $5,000 and enter the judgment against the Coach Company for $500.00 as actual damages. All costs of the Trial Court are assessed against the Coach Company: all costs of the appeal are assessed against the appellee.

Millwee and Robinson, JJ., would affirm the judgment in its entirety.

George Rose Smith, J., not participating.

ORDER PER CURIAM OP JUNE 2, 1958

“Appellant’s motion to clarify the opinion is denied. Even though appellant’s motion may be premature, nevertheless we point out that the judgments are several, and under the facts in this case the appellant will not be entitled to any judgment over against Dorothy Payne.”

       The Trial Court did not submit to the jury any question of punitive damages against the Coach Company, and there is no complaint about such failure.

       See Life & Cas. Co. v. Kinney, 206 Ark. 804, 177 S. W. 2d 768; Rexer v. Carter, 208 Ark. 342. 186 S. W. 2d 147; and Ark. P. & L. Co. v. Connelly, 185 Ark. 693, 49 S. W. 2d 387.

       While the text in Am. Jur. is not identical with that in R.C.L., nevertheless the same general rules appear in 10 Am. Jur. “Carriers” §§ 1439, 1440, and 1441.

       In this connection, see the discussion on Act 35 of 1949 as found in 3 Ark. Law Review, page 371.

       Black’s Law Dictionary defines malfeasance as “. . . the commission of some act which is positively unlawful; the doing of an act which is wholly wrongful and unlawful . . .”

       Black’s Law Dictionary defines nonfeasance as “Nonperformance of some act which ought to be performed; omission to perform a required duty . . .”

       No punitive damages were returned against the Coach Company; so we do not consider that issue. Of course, if the punitive damages had been assessed against the Coach Company, then a different situation might be presented.

       There is a line of cases in Arkansas which holds that the corporation may be liable for damages even when its employee is absolved; but these cases are based on the distinction between contributory negligence and comparative negligence; and nothing in the present opinion affects in any way the holding in such cases as Mo. Pac. v. Morrison, 186 Ark. 689, 55 S. W. 2d 933; and Miss. River Fuel Corp. v. Senn, 184 Ark. 554, 43 S. W. 2d 255.

       In Davis v. Perryman, 225 Ark. 963, 286 S. W. 2d 844, our opinion was based on res judicata rather than on the theory of derivative liability.

       See 3 Ark. Law Review 359 for discussion of this Act No. 293.


author: MiNOR W. Mill wee, Associate Justice.

text:
    Hurst v. Flippin School Dist. No. 26.
    5-1562
    312 S. W. 2d 915
    Opinion delivered May 5, 1958.

      Thomas B. Tinnon, for appellant.

      J. Loyd Shouse, for appellee.
   MiNOR W. Mill wee, Associate Justice.

Appellant, Wayne Hurst, had been operating a school bus for ap-pellee, Flippin School District No. 26, for three years prior to June 19, 1956, when they executed a written contract for the ensuing 1956-1957 term on a form prescribed by the State Department of Education. It was the same form they had previously used and provided that appellant should drive appellee’s school bus in delivering children to and from school for $5.00 per day during the nine school months, beginning September 3, 1956, “over a route beginning at a point known as Oak Grove Bus Route and making stops as named on attached sheet and made a part hereof, taking on and letting off at each stop children designated by first party (district), on attached sheet. (Such schedule may be changed as necessity demands).” The Oak Grove Route began in the Oak Grove community where appellant resided and terminated at the school in Flippin, Arkansas. Under Section 7 of the contract appellant agreed to follow the instructions of the school principal “as to schedule, detours, or regulations governing the system of transportation.” Under Section 10 the appellee district reserved “the right to change the routing of any bus, not exceeding one mile, without extra compensation. ’ ’

A day or two after the beginning of school on September 3,1956, it was determined that the bus on another of the five routes of the district was overloaded. Ap-pellee decided to add 4 miles of this route to the one driven by appellant, which had less than a normal load, in order to properly apportion the number of pupils to the various buses and routes in accordance with departmental safety regulations. A controversy arose between the parties which resulted in appellant’s refusal to continue driving the revised route on September 13, 1956. He brought this action on June 17, 1957, seeking $1,000 damages allegedly resulting from a breach of the employment contract and his wrongful discharge by appellee. Appellee filed a general demurrer to the complaint and an answer which contained a general denial and asserted that appellant’s own misconduct and breach of the employment contract rendered its completion impossible. At the beginning of the trial before the court without a jury appellant accepted $44.10 tendered by appellee as payment for the 8 days he actually drove the bus in 1956.

This appeal is from a judgment for appellee based upon extensive findings to the effect that the written instrument constituted a valid and binding contract; that the proviso that a sheet be attached designating the bus stops did not constitute a material part of the contract and the failure to comply with it did not make the contract incomplete; that under Section 10 appellee had the right to make the four mile extension of appellant’s bus route by the payment of extra compensation; that appellee recognized its obligation to make such payment and was willing and able to do so, hut that appellant wrongfully refused to continue driving the bus before the parties had an opportunity to negotiate or reach the usual agreement concerning the amount of such extra compensation; that it could not he said from the testimony that appellee refused to pay additional compensation or that the amount thereof could not have been agreed upon had sufficient opportunity been given for a discussion of the matter; and that appellee did not discharge appellant without cause, nor in any manner breach the contract.

It is first contended by appellee that the trial court erred in refusing to hold that the writing relied upon did not rise to the dignity of a contract because: (1) It was never completed by attaching the route sheet as stipulated; and (2) it contained no formula for determining the additional compensation provided when a route was extended more than a mile. Appellant just as vigorously argues that the writing in plain and unambiguous language precluded the appellee from adding more than one mile to the Oak Grove Bus Route under any circumstances; and that the court’s holding that such right was implied from the language of Section 10 is contrary to the law of contracts in that it purports to obligate the parties to make an agreement other than the one they actually executed. There would perhaps be much merit in either of these contentions if the instrument in question is construed without regard to the construction the parties themselves had placed upon it, and identical writings, over a period of several years. It must be conceded that the meaning of Section 10 of the contract is indefinite and ambiguous as to appellee’s right to add more than a mile to a bus route and the method of determining the amount of extra compensation to be paid. We agree with the trial court’s finding that the right to add more than a mile to a route is implied from the language of the section, but the exact meaning is nevertheless doubtful.

It is well settled by our decisions that, in construing a contract the meaning of which is doubtful, the construction placed thereon by the parties to it, as reflected by their words and acts, must be given consideration. See cases cited in Lutterloh v. Patterson, 211 Ark. 814, 202 S. W. 2d 767, where we approved this statement from 12 Am. Jur. 787: “In the determination of the meaning of an indefinite or ambiguous contract, the interpretation placed upon the contract by the parties themselves is to be considered by the court and is entitled to great, if not controlling, influence in ascertaining their understanding of its terms.” We have also repeatedly approved the following rule in 6 E. C. L. 853 as set out in Temple Cotton Oil Co. v. So. Cotton Oil Co., 176 Ark. 601, 3 S. W. 2d 673: “In fact, where, from the terms of the contract, or the language employed, a question of doubtful construction arises, and it appears that the parties ‘ themselves have practically interpreted their contract, the courts will generally follow that practical construction. It is to be assumed that parties to a contract know best what was meant by its terms, and are the least liable to be mistaken as to its intention; that each party is alert to protect his own interests and to insist on his rights, and that whatever is done by the parties during the period of the performance of the contract is done under its terms as they understood and intended it should be. Parties are far less liable to have been mistaken as to the meaning of their contract during the period while harmonious and practical construction reflects that intention, than they are when subsequent differences have impelled them to resort to law, and one of them then seeks a construction at variance with the practical construction they have placed upon it of what was intended by its provisions. It has even been said that the practical construction of the ambiguous terms of a contract will be adopted, although the.language used may-more strongly suggest another construction.”

Another familiar rule is that where a jury is waived and the case tried before the judge sitting as a jury, his finding on a question of fact is as conclusive on appeal as a jury verdict and will not be disturbed, if there is any substantial evidence to support it. We must also give the evidence adduced on behalf of appellee the strongest force that it will reasonably bear in determining whether there is substantial evidence to support the judgment. Wallis v. Stubblefield, 216 Ark. 119, 225 S. W. 2d 322.

Under the undisputed testimony the parties waived performance of the provision relative to the attachment of a route sheet to the employment contract designating bus stops for the very practical reason that there was no way to determine in June what the schedule of stops might be in the following September.

There is also substantial evidence to support the conclusion that the parties themselves construed the ambiguous Section 10 as authorizing appellee to extend appellant’s bus route more than a mile by the payment of extra compensation. For several years, and under the identical contract, it had been a common practice, acquiesced in by the various drivers, to make such extensions and changes in routes by the payment of extra compensation fixed by negotiations between the driver affected and the board of directors of the district. In this connection it was shown that immediately prior to the change ordered by appellee in September, 1956, the appellant was driving a 48-passenger bus carrying 35 children while the driver on the Bull Shoals Boute was transporting 65 children in a 48-passenger bus in violation of departmental safety regulations. By addition of the four miles to appellant’s route the passenger, load was equalized and appellant was only required to drive 41.4 miles per day which was still 2.5 miles below the average of 43.9 miles for all the drivers. There is also persuasive evidence to the effect that appellant refused to drive tlie extended route, or to enter into any negotiations with the board of directors relative thereto, because the change required him to begin work 20 minutes earlier and to devote less time to his rather extensive farming operations; and not because of any possibility that he and the appellee might not reach an agreement on the amount of extra compensation to be paid. It is also clear that he studiously avoided any negotiations with the directors as to the amount of extra compensation to be paid, although he testified, on cross-examination, that he had never denied appellee’s right to make the 4-mile extension in question.

"When the instant contract is construed in the light of the interpretation given it by the parties themselves, as reflected by their acts and declarations, we are convinced the trial court correctly construed it; and that the evidence is substantial and sufficient to sustain the conclusion that appellee did not discharge appellant without cause or otherwise breach the employment contract.

~We agree that appellee’s supplemental abstract of the testimony was necessary and proper under rule 9, and the clerk will be directed to fix the brief costs in an amount sufficient to compensate for appellant’s noncompliance with the rule in this respect.

The judgment is affirmed.

George Rose Smith and RobiNsoN, JJ., dissent.


author: G-eorgb Rose Smith, J.

text:
    Rogoski, Admr. v. McLaughlin.
    5-1525
    312 S. W. 2d 912
    Opinion delivered May 5, 1958.

      Oioens, McHaney, Lofton & McHaney, for appellant.

      H. B. Stubblefield, for appellee.
   G-eorgb Rose Smith, J.

In 1951 the various owners of the Metzger Building in Little Rock conveyed the property to a trustee, who was to manage the building during the ten-year term of the trust, collect the rentals, and make quarterly distributions of the net income. Lulu Upton, the appellant’s testatrix, owned an undivided .11317 interest in the building and joined the other owners in the creation of the trust. Mrs. Upton died March 13, 1956, and by her will devised a life estate in her undivided interest to her husband, Harry Upton, who died a few months later, on July 21, 1956.

For the first three months of 1956, during which Mrs. Upton’s death occurred, the net income accruing from her interest in the trust amounted to $1,395.57. This money was paid by the trustee to the appellant, as administrator, and was inventoried as an asset of the estate. In 1957 the appellee, as executrix of Harry Up.ton’s will, filed a petition asking that this money he distributed to the Harry Upton estate and that it also receive its proportionate part of a reserve fund that had been built up by the trustee. The probate court granted the petition with respect to the first item and postponed consideration of the appellee’s claim to the reserve fund. An appeal and cross-appeal have brought both issues to this court.

On the first point the language of Mrs. Upton’s will must be considered. That instrument, after reciting the testatrix’s undivided interest in the Metzger Building, continues with these two paragraphs:

"Fourth: I give, devise and bequeath unto my said husband, Harry A. Upton, a life estate in and to all my said undivided interest, and in and to all of the rents, issues and profits which may accrue from the said undivided interest I own in the said George A. Metzger Building;
"Fifth: It is my intent and purpose, in giving to my said husband, Harry A. Upton, all of the income accruing from the rents, issues and profits from my said undivided interest in the said George A. Metzger Building, that the same shall be paid to him during his natural life, so long as he shall live, and so long as the said George A. Metzger Building is not sold or partitioned by the present owners.”

We are unable to agree with the trial court’s conclusion that these paragraphs of the will had the effect of bequeathing to the surviving husband the entire net income for the first three months of 1956, most of this income having already accrued before Mrs. Upton’s death on March 13. A will is ordinarily construed to speak as of the death of the testator, Weeks v. Weeks, 211 Ark. 132, 199 S. W. 2d 955, and as a general rule the beneficiary of a testamentary trust is entitled to the income only from the date of the testator’s death. Best., Trusts, § 234. Here the language of the will is not contrary to these principles, for the testatrix refers to the income which ‘ ‘ may accrue ’ ’ from the building. This reference is plainly prospective and rebuts the suggestion that the testatrix had in mind income .that had already accrued.

On this phase of the case the cause will be remanded with instructions that the trial court determine the amount of income that accrued from March 13 to March 31 and award that amount to the Harry Upton estate. In making this determination the court will apply the familiar common law rule that rent is not regarded as accruing from day to day, like interest; it is considered to accrue in its entirety on the day that the payment is due. Tiffany-on Real Property (3d Ed.), § 888; Thompson on Real Property (Perm. Ed.), § 286; Rest., Trusts, § 235. (As far as this case is concerned, this rule is not changed by Ark. Stats. 1947, § 50-501, which is applicable only when the lease is executed by a life tenant. Mrs. Upton owned her undivided interest in fee.) Consequently the Lulu Upton estate is entitled to retain all rents that were payable on or before March 13, while the Harry Upton estate is entitled to those that were due after that date.

Although the probate court did not pass upon the ap-pellee’s claim to a proportionate part of the trustee’s reserve fund, both parties have submitted this issue for our decision on this record. The trust instrument executed in 1951 conveyed the property to the trustee and also named an Advisory Committee of three persons. With respect to the reserve fund the instrument provides : ‘ ‘ The Trustee will accumulate and maintain a reserve for emergencies in such amount as may be fixed by the Advisory Committee.” It is also directed that the quarterly distributions be made after the deduction of expenses and amounts held for the reserve. This fund, Avhich seems to have been intended to take care of major repairs and of damage resulting from unforeseen casualty, amounted to almost $13,000 at the date of Harry Upton’s death. The appellee contends that Upton’s estate is entitled to a distribution of its part of this fund.

This contention is not well taken. Even when the terms of the trust do not expressly authorize the aceu-mulation of reserves the trustee is nevertheless empowered to create reasonable reserves, “and he can properly withhold enough of the income to meet present or future expenses which are properly chargeable to income.” Rest., Trusts, § 233, Comment e. Here the trustee’s authority is not open to doubt, for the settlors of the trust affirmatively commanded that the reserve fund be created and be withheld from the distributions of income. Mrs. Upton joined in the execution of the trust instrument and of course could not have revoked it, as she reserved no individual power of revocation. Rest., Trusts, § 330. Hence she could not herself have demanded a distribution of the reserve fund during the life of the trust, and the beneficiary of her will stands in no better position. The bequest of the income to Harry Upton must be taken to refer only to the net income, after the deduction of expenses and subject to the preservation of the reserve fund created by the settlors of the trust.

Reversed and remanded for further proceedings.


author: Paul Ward, Associate Justice. George Rose Smith, Associate Justice,

text:
    Miller v. Empire Rice Mills, Inc.
    5-1554
    312 S. W. 2d 925
    Opinion delivered May 5, 1958.

      Shaver & Shaver, for appellant.

      Barrett, Wheatley, Smith & Deacon and James Robertson, for appellee.
   Paul Ward, Associate Justice.

The principal issue, on this appeal relates to election of remedies. The record contains numerous pleadings and considerable testimony bnt, because of the conclusions hereafter reached,, a brief resume of each is deemed adequate.

On June 15, 1892 Charles M. Daggett and Leonard 5. Briggs (their wives joining) executed a deed to the St. Louis Southwestern Railway Company conveying a strip of land (part of wMeh is the subject of this litigation) 3,000 feet long north and south (or nearly so) and 350 feet wide. This strip of land is on the east side of and adjacent to the right-of-way of the Railway Company and a portion thereof lies within the corporate limits of the town of Fair Oaks in Cross County. Following the description, the deed contains these words: . . . “to be used exclusively for Eail Road yards and other Rail Road purposes.”

The seeds of this litigation were sown in 1948 when the Railway Company deeded a portion of the land to a company (or corporation) for the erection of a rice mill. This company was known by different names at different times, which is immaterial for this opinion, hut it is now known as the Empire Rice Mills, Inc. We shall hereafter refer to it as Rice Mills. On June 4, 1948 the first deed was executed to Rice Mills, conveying what we shall call Parcel No. 1. This parcel described in the deed by metes and bounds, is in the shape of a parallelogram, 450 feet north and south and 312 feet 8 inches east and west, consisting of 3.23 acres. It lies along the Railway Company’s right-of-way (in fact, includes a few feet of the said right-of-way) and extends east to within 60 feet of the east boundary line of the 3,000 foot strip first mentioned.

It seems that Rice Mills began construction of its plant on Parcel No. 1 a short while before it received its deed, and that soon after the deed was received its attorney discovered the restrictive language in the deed to the Railway Company. At any rate Rice Mills evidently thought it had not received a fee title to Parcel No. 1, and that the heirs of Charles M. Daggett owned a one-half interest in said parcel by virtue of said restrictive language in the deed to the Railway Company. It must be stated here that the Railway Company had by this time obtained quitclaim deeds from all the heirs of Leonard S. Briggs.

After the above situation became known, the Railway Company, on June 10,1949, executed its deed to Rice Mills reconveying Parcel No. 1 and also conveying Parcel No. 2. Parcel No. 2 liad exactly the same corresponding dimensions as Parcel No. 1 and adjoined it on the north side. In other words, the south boundary line of Parcel No. 2 coincided with the north boundary line of Parcel No. 1. According to the Daggett heirs, appellants herein, the last deed was a part of a plan by appel-lees to deprive them of their undivided one-half interest in the two parcels. Presumably appellants believe the “plan” was to force them to accept Parcel No. 2 in lieu of an undivided one-half interest in the value of both parcels, upon a partition suit. The record reveals that Rice Mills has placed improvements on Parcel No. 1 of a value approximating $250,000.

Pleadings and procedure. On August 25, 1949 Rice Mills instituted a partition suit against appellants involving Parcels No. 1 and No. 2. It was alleged that each party owned an undivided one-half interest in the two parcels consisting of 5.89462 acres. (The deed to Rice Mills described 6.46 acres, but allowance was made for the part overlapping the right-of-way). It was further stated that it would be for the best interest of all to divide the land in kind. The prayer was that appellants be given Parcel No. 2 and the Rice Mills be given Parcel No. 1 where the rice mill was located.

On September 26, 1949 appellants filed a general denial and Cross-Oomplaint, and also asked. that the Railway Company be made a party to the litigation. The Cross-Complaint sets out the deeds to the Railway Company with the restrictions and also the deeds from the Railway Company to Rice Mills; that the Railway Company used all the land for railroad purposes until it made the deeds to Rice Mills; that thereby it forfeited all its right to the entire strip of land; that the execution of the deeds by the Railway Company to Rice Mills was a scheme to deprive them of their rights. The prayer was that appellants be awarded a one-half interest in value in Parcels No. 1 and No. 2, and the same interest in the rest of the 3,000 foot strip of land. The Railway Company answered, admitting the execution of the deeds in question, but denying they had forfeited their right to the rest of the large strip or that they had planned to deprive appellants of any rights. The prayer was that appellants take nothing.

On July 26, 1955, Rice Mills answered appellants’ Cross-Complaint, admitting appellants’ interest in Parcels No. 1 and No. 2, hut stating it had made valuable improvements on Parcel No. 1 and that Parcel No. 2, not counting improvements, was equal in value to Parcel No. 1. The prayer was that Parcel No. 1 be given to Rice Mills and Parcel No. 2 be given to appellants.

A great deal of testimony was introduced at the trial on the above pleadings, and the cause was submitted to the court for its decision on July 27, 1955. Before the court announced its decision, and on January 5, 1956, Rice Mills filed a Motion in which it was stated that the appellants had refused to take Parcel No. 2 but wanted one-half in value of both parcels; and that the Railway Company paid value for the large strip of ground, which brought the case under consideration squarely within the holding in Davis v. St. Joe School District of Searcy County, 225 Ark. 700, 284 S. W. 2d 635. The prayer was that Rice Mills be given “. . . the permission of the court for the withdrawal of the submission of the above case on partition and permission to re-draft its pleadings in the light . . .’’of the above mentioned decision, and ask simply to have its title quieted against the Daggett heirs.

Over the strenuous objections of appellants, the court granted the above motion and permitted Rice Mills to file new pleadings in which it sought, to quiet title to Parcels No. 1 and No. 2. The basis of this new suit was the contention that the restrictive language in the deed to the Railway Company merely amounted to a covenant, for a breach of which an action for damages might lie if violated, and not to a defeasible conveyance which would revert to the grantors (the Daggett heirs in this instance) in the event the land was not used for railroad purposes.

The position taken at all times by appellants was that Rice Mills and the Railway Company had, by their first pleadings, elected their remedy by treating the deed to the Railway Company as a defeasible conveyance and by admitting appellants held a one-half interest npon breach of the condition therein, and that the conrt had no right to permit them to choose another remedy.

Without further testimony the trial court, on June 5,1957 (almost eight years after the filing of Rice Mills’ first complaint), (a) quieted title in Rice Mills to Parcels No. 1 and No. 2 against all claims of appellants, and (b) quieted title in Railway Company to the rest of the 3,000 foot strip of land. It is our conclusion that the trial court erred in both instances.

As to Rice■ Mills. When Rice Mills accepted the deed to the two parcels of land it then stood in the same position as to its title as the Railway Company. As to these two parcels, it is obvious that they were no longer used for railroad purposes. At that time it had the right and option to treat its title as a fee (subject to possible damages for a breach of covenant) and sue to quiet title, or it had the right and option to treat its title as de-feasible and sue for a partition. It is obvious, from the pleadings, that Rice Mills elected to pursue the latter course, and we think it is bound by that election. This court has on many occasions considered the question of election of remedies.

In Belding v. Whittington, 154 Ark. 561, 243 S. W. 808, appellant brought a suit in Circuit Court for breach of a contract relating to the purchase of real property, and then dismissed the suit without prejudice. Later he filed a suit in Chancery Court for specific performance of the same contract. This court, in holding that appellant by electing the first remedy was barred from maintaining an action for specific performance, approved the following statement from Bush v. Barksdale, 122 Ark. 262, 183 S. W. 171:

‘ ‘ The principle that an election of remedies is irrevocable seems too plain for argument to the contrary, and its application to the proceeding now under discussion is obviously proper. In 20 Corpus Juris, at page -38, the authors make this statement: £An election, once made between coexisting remedial rights which are inconsistent is not only irrevocable and cannot be withdrawn without due consent, even though it has not been acted upon by another to his detriment, but it is also conclusive and constitutes an absolute-bar.’ Among numerous authorities cited to support the text is the case of Bush v. Barksdale, supra.’’

Where a similar question was presented in Butterfield v. Burbridge, 223 Ark. 854, 268 S. W. 2d 900, the court, in holding the same conclusion, said:

“Appellants are correct in their contention that since Burbridge had made his election of remedies and sued for damages, he could not thereafter shift his ground and sue for specific performance, although he had taken a non-suit in the suit asking for damages.” Belding v. Whittington, 154 Ark. 561, 243 S. W. 808.

This court, in Bigger v. Glass, 226 Ark. 466, 290 S. W. 2d 641, approved the following rule from Elliott on Contracts :

“It is the doctrine of election of remedies that one having the choice of two or more inconsistent remedies for his relief is bound by his selection of the remedy he will pursue, and he cannot thereafter avail himself of the other remedies.”

In Roy v. Notestine, 216 Ark. 447, 226 S. W. 2d 66, it was noted “there was a conflict in the authorities as to whether the mere commencement of an action constitutes an irrevocable election to pursue alternative and inconsistent remedies. ’ ’ The court then adopted the rule heretofore announced.

Some authorities state that the above rule does not apply where the pleading is based on mistake of facts. We need not however pursue the implication of that exception here because it is not contended Rice Mills did not have knowledge of all material facts. It is obvious also we think, that the two attempted remedies were inconsistent. The choice of remedies open to Rice Mills depended on an interpretation of the legal effect of the restrictive language in the conveyance to the Railway Company. It can of course be said that the law pertaining to such interpretation was changed by the opinion in the St. Joe School District case, supra. Under Rice Mills’ first interpretation of the effect of said deed, reflected by its initial pleadings, it was conceded that appellants owned an undivided one-half interest in the two parcels of land. That remedy was certainly inconsistent with a pursuit of the second remedy which denied appellants any interest in the land.

We agree with Rice Mills that appellants are not entitled to an undivided one-half interest in the present value of Parcels No. 1 and No. 2. It appears to us from the record that Rice Mills acted in good faith in placing the valuable improvements on Parcel No. 1. The case has been fully developed on the relative value of the two parcels exclusive of the said improvements, and it appears that Parcel No. 2 is equal in location, size and value to Parcel No. 1, and the court is directed, on remand, to place the title to Parcel No. 2 in appellants, and Parcel No. 1 in Rice Mills.

We do not agree that appellants are now estopped to claim Rice Mills made its election of remedies merely because they refused to accept Parcel No. 2 in full settlement of their claim. The reason we do not agree is that appellants, under the first pleadings, were contending for an undivided one-half interest in both parcels and the improvements, and so their refusal to accept less was in no way inconsistent.

As to Railway Company. Under the view above expressed and under the original pleadings, the right of the Railway Company to peaceably continue in possession of the rest of the 3,000 foot strip was not in litigation. It was admitted by appellants that this land was being used by the Railway Company. Nor do we find anything in the pleadings indicating it made an election of remedies. It is still free to elect any remedy it chooses should the occasion arise. The Railway Company did ask for a declaratory judgment to quiet its title in an answer filed after the canse was re-opened, but we think that issue was not properly before the court at that time. No further testimony was taken after an attempt to raise the issue, and certainly it appears that appellants meant to rely on the issues as they were first joined. Under all these circumstances we think it would be preferable to postpone a construction of the deed to the Railway Company until there is a breach of the restrictive language therein, or until some other occasion makes such construction necessary. Consequently the decree of the trial court quieting title in the Railway Company to the remainder of the 3,000 foot strip in question must be, and it is hereby, reversed.

Therefore the decree is reversed, and the cause is remanded with directions to enter a decree in conformity with this opinion.

George Rose Smith and RobiNSON, JJ., dissent.

George Rose Smith, Associate Justice,

dissenting. I think it a mistake to say that the case involves an election of remedies; what we are concerned with is whether there has been an election between substantive rights. ‘ ‘ A choice between remedies for an injury must be distinguished from a choice between substantive rights and privileges.” Rest., Contracts, § 381, Comment cl.

The cases cited by the majority involve a true election between remedies. For instance, in Belding v. Whittington, 154 Ark. 561, 243 S. W. 808, 26 A. L. R. 107, the vendee in a contract for the sale of land had a choice between a suit for specific performance and an action for damages. It was held that the institution of an action for damages constituted a binding election which precluded the vendee from later bringing suit for specific performance.

That is not the situation here at all. In this case the appellees misconstrued the substantive effect of their deed and simply brought their suit upon an erroneous theory of substantive law. Upon discovering their error they were granted permission to amend, which of course was within the chancellor’s discretion even though the case had been submitted for decision. The amendment did not seek an alternative remedy for the original substantive right; it sought to enforce an entirely different substantive right.

An illustration will perhaps clarify the distinction I have in mind. A plaintiff may sue upon an insurance policy, alleging that the damage was caused by a flood. As far as I know there is nothing to prevent him from amending his complaint to assert that the loss was caused by windstorm. This is not an election of remedies; it is the assertion of a different cause of action. See Spurr v. Home Ins. Co., 40 Minn. 424, 42 N. W. 206. The majority opinion in the case at bar seems to say that when a plaintiff brings a suit upon a written instrument he is thereby precluded from amending his pleadings to assert a different cause of action based upon a different interpretation of the instrument. If that is the law, counsel must be very cautious in filing suit upon an insurance policy or any other contract, for their right to amend has been taken away.

I realize, of course, that there can be a binding election between substantive rights, ordinarily involving an estoppel of some kind. But here there is no estoppel, for even if the appellants can be said to have been misled by the allegations of the complaint, there was certainly no reliance by them that would give rise to an estoppel. It is therefore my view that there was no binding election, and I would affirm the decree.