author: ENGLISH, C. J. :

text:
    Little Rock & Fort Smith Railway Company vs. Barker and Wife.
    1. DaMAGKS : Measure of, for injuries resulting in death.

    The measure of damages to a mother for the negligent killing by a railway train, of her infant child, is, under the statute, the expense necessarily in-, curred by her for medical attendance, nursing, and burial of the child, and reasonable compensation for the loss of the probable services of the child during its minority. For the loss of companionship and association of the child, and the grief of the mother at its death, the statute gives no compensa-, tion.
    2. Practice at Law : Instructions.

    Where there is any evidence tending to prove the issue for the plaintiff, the. Circuit Court can not instruct the jury that there is no evidence on which, they can find a verdict for him.
    3. Same : Motion for new trial. Practice in Supreme Court.

    Where a motion for new trial does not object that the verdict is contrary to. the evidence, or is without evidence in support of it, the Supreme Court will, not consider the sufficiency of the evidence further than may be necessary in considering the correctness of the instructions based upon it.
    4. Same : Instructions.

    In basing an instruction on hypothetical facts, disputed facts should not be assumed to be true, nor should facts be stated hypothetically which do not appear in evidence.
    APPEAL from Lonolce Circuit Court.
    Hon. J. W. Martin, Circuit Judge.

      Olark & Williams, for appellant.

      Hughes and-, contra.

   ENGLISH, C. J. :

This action was commenced in the Circuit Court of Pulaski County, on August 14, 1875, by Emma O. Ammon against the-Little Rock & Fort Smith Railway Company.

The complaint alleges, in substance, that on April 26, 1875,.. while the plaintiff’s son, Alpheus D. Ammon, a child five years old, without discretion, and without any knowledge or-negligence of the plaintiff, was playing on or near the track of' the defendant corporation, in the town of Argenta, etc., the defendant, by its agents and servants, carelessly and negligently caused one of its locomotives, with a train of cars attached thereto, to approach said child with great and unusual speed, and then and there to pass rapidly over the track of' said company, and negligently and carelessly omitted while so-approaching said child to give any signal, by ringing the bell or sounding the steam whistle, in time for the child to be rescued from danger, or get from the track, and also negligently and carelessly omitted to stop said locomotive and cars, although it had ample time therefor before reaching said child. That by reason of said negligence of the defendant the said, locomotive struck said child, ran over and crushed both his-legs, and so severely bruised and lacerated them that it was. necessary to amputate both of them, and in consequence of' said injury said child suffered. great and indescribable bodily pain, and died from said bruising and crushing about ten hours, thereafter, on said April 26, 1875, before which time said child’s father had died, whereby an action accrued to plaintiff,, the mother of the child, against the railway company, and by which she has been damaged in the sum of $20,000, for which she prays judgment.

By an amendment to the complaint filed May 24, 1876, the-plaintiff alleged that a part of said damages accruing to her as alleged in said complaint was a large amount of money necessarily paid out by her for the attendance of a physician, and ■alt funeral expenses attending the child’s burial, amounting to -dollars, and a part consisted in the loss of the services, companionship, and association destined to be rendered by said ■child to plaintiff.

The defendant filed aii answer to the complaint, and on its application the venue was changed to the Circuit Court of Lonoke County.

In the Lonoke Circuit Court, September term, 1876, it appearing that the Clerk of Pulaski Circuit Court had failed to transmit the answer of defendant to the complaint, there was a consent order that defendant have leave to supply such answer, in short, upon the record, setting up contributory negligence on the part of plaintiff a id her child, and denying negligence on the part of defendant.

The plaintiff having, since the institution of the suit, intermarried with F. B. Barker, on her motion he was joined with her as plaintiff.

The cause was submitted to a jury, and, after the evidence was introduced, the court gave thirteen instructions to the jury, on motion of plaintiffs, “to the giving of which instructions,” the'bill of exceptions states, “especially the 3d, 6th, 9th, 10th, 11th, 12th, and 13th, the defendant objected, and the court overruled its objection.”

The defendant moved seven instructions, all of which the court gave.

The jury returned a verdict in favor of plaintiffs for f4,500 damages.

The defendant moved for a new trial, on the grounds :

1. The court erred in the rule of estimating damages, and in allowing funeral expenses to be estimated, and admitting evidence of such expenses.

2.' The court erred in instructing the jury as moved by plaintiffs.

3. The damages assessed by the jury are excessive.

The court overruled the motion for a new trial, and rendered final judgment for plaintiffs in accordance' with the verdict. The defendant took a bill of exceptions, setting out the evidence, instructions, etc., and appealed to this court.

I. By the common law the death of a human being could not be made the subject of a civil action. Baker v. Bolton et al., 1 Camp. 493; Sedg. on Dam. (6th Ed.), 551, 694.

By section 1 of the act of February 3,1875 (Acts of 1874-5, p. 133), “All railroads which are now or may hereafter be built and operated in whole or in part in this State, shall be responsible for all damages to persons and property done or caused by the running of trains in this State.” (See sec. 12, .art. 17, Const, of 1874; also, sec. 32, art. 5.)

By section 3 of same act, “When any adult person be killed by railroad trains running in this State, the husband may sue for damages to a wife. In all other cases the legal representative shall sue. If the adult be wounded, he may sue in his own name. When the person killed or wounded be a minor, the father, if living; if not, then the mother; if neither be living, then the guardian may sue for and recover such damages as the court or jury trying the case may assess.”

In this case the mother sued the appellant railway corporation for damages for the negligent killing of her infant son, and she may unquestionably maintain such action under the above statute, though she could not by the common law.

II. The first and third grounds of the motion for a new trial present the kindred questions — what is the measure of damages in this action, and, were the damages assessed by the jury excessive? And in connection with these questions, the substance of the evidence relating to the subject of damages may be stated.

Mrs. Barker testified that she was living in Argenta (on the north side of the Arkansas River, opposite Litttle Rock), on April 26, 1875, and that her son was killed on that day. That in the morning, after breakfast, her servant asked her little son to go with her to the telegraph office. He started out of' the house with the servant, and she supposed had gone with her. He was brought in in ten or fifteen minutes with both, legs cut off; near the knees. It was Monday morning about ten o’clock. She was then a widow, her husband being dead. The servant was trusty and careful. The telegraph office was. about 300 j'ards from her house. Her house was about 75* yai’ds from the railroad. An old shop in the view would have-prevented her from seeing the child at the place where the accident happened. It was about 150 yards from her house to-where the boy was killed. He lived, after he was hurt, until about eight o’clock at night; Dr. Skipwith attended him. He came within half an hour after the child was hurt. Other physicians were called in. They amputated the crushed leg just above the knee. The other leg was cut off entirely, before. Her circumstances were limited : had no property at the time. Kept boarders and supported her own house. The only ser-i vant she kept was her cook. Was not able to employ a nurse-for the boy. Her household business required her attention until after the housework was done. She was sewing at the-time the boy was brought in. Was poor. Her house was inclosed with a plank fence. The child was killed on the Little Rock & Fort Smith Railroad. She first called in Dr. Jones,, and Dr. Skipwith brought in several others.

Plaintiff’s counsel then asked witness as to the cost of funeral expenses, to which defendant objected, admitting that reasonable funeral expenses would be admissible. The court decided that reasonable funeral expenses were such as the jury could allow, if defendant were liable at all, and that proof of such expenses was admissible, to which ruling defendant excepted.

Witness (Mrs. Barker) then stated that the medical expenses wore $210, and that the funeral expenses did not exceed $90, and consisted of burial clothes, with coffin, carrying the child to Memphis by railroad, and there burying it with her relations. She hired Ihree carnages in Memphis, in one of which she rode Avith the coffin.

The court instructed the jury that the railroad expenses Avould ho disregarded, but Avhen the witness was asked how much it cost, she said that she herself had a free pass, but did no£ know what the other items of funeral expenses or transportation were ; that others paid it for her, and furnished the amount, Avhich aauis $90.

To all of this testimony the defendant objected, but it was permitted to go to the jury with the qualification and exception above stated, to Avhich defendant excepted.

Witness further testified that her child’s health was good, and that she had no other child. That the services of the child at the time of his death were not much, but would have been her main support, had he lived. Would have been of service to her at ten years of age. He would have been of some service from the time of his death. Her house was inclosed Avitli plank fence, and had a gate. She could have kept the child within the inclosure, and did do it when she thought it necessary. She had intermarried Avith Barker since she brought the suit.

Dr. E. H. SkipAvith, Avitness for plaintiff, testified that he Avas called to see the child. It had been terribly mutilated. The only hope of saving it Avas to amputate both legs. One Avas crushed from the joint above the knee doAvn. The other was cut off just below the knee, and so mangled that it Avas necessary to amputate both legs above the knees. Drs. Jones and Dodge Avere present and assisted in the operation. Witness first suav the child about nine o’clock, a. ai. Had been a regular practicing physician for fifteen years. The child died about- eight or nine o’clock, p. m., that night. Its death was caused by prostration from loss of blood from the crushed limbs. He practiced in the family nearly a year. The child was a sprightly, robust child. The services of the child from its death until twenty-one years of age were worth $10,000. The bill of witness was $200 for amputation, not including medicine. The funeral expenses, he supposed, were worth $50.

CROSS-EXAMINED EOR DEFENSE.

Q. How do you know what this child would have been' worth ?

A. I do not know exactly.

Q. Do you know much about it?

A. No, not much.

Q. Why do you then say that it is $10,000?

A. That is my idea under all the circumstances of this case, and that was the question I was asked.

Q. No-difference about the question. I ask you now, what do you think it is worth in money ?

A. I do not know exactly; perhaps you know more about it than I do.

Q. I am not swearing, you are the witness ; what do you say?

No answer.

Q. Doctor, you have a step-son about twelve years old; what would you consider him worth — $10,000 from five to twenty-one ?

A. Yes, I would; boys between twelve or sixteen and twenty are worth $75 or $80 per month.

Q. Is this not rather an unusual thing, and an extraordinary boy who will get it ?

A. I suppose it is not ordinary.

Q. From fifteen to twenty-one is six years. Do you suppose a boy would, on an average, earn more than $720 a year from fifteen to twenty-one ?

A. I think not.

Q. Would it not be an extraordinary ease that he would earn that ?

A. I think it would be extraordinary, but many boys are worth it, and some more.

Q. Would you not deduct from these earnings board and clothing ?

A. Yes.

Q. How much ?

A. I do not know exactly.

Q. Would $30 per month, or $360 per annum, be too much?

A. No, I think it would take that, at least.

Q. Doctor, taking $720 per'annum as the best rates a boy can earn on an average for the last six years of his minority, as you say, it would amount to $4,370. Deduct six years’ expenses at $360 per annum, making $2,160, and it leaves the net earnings $2,210 for the last six years.

A. I have not made the calculation ; you say so.

Q. What do you say ? *

A. I do not know.

Q. Well, doctor, how much could the boy have earned between five and fourteen ? Do you think it would have been $7,000 or $8,000, so as to make up your first rate of $10,000?

A. I do not know ; he could work a good deal.

Q. Do you think a boy is capable of earning anything, under twelve years old ?

A. It generally costs more to raise a child from five to twelve or fourteen than it can earn in that, period. I have known childreu at five or six to earn good. wages — $20 per month — as cash-boys in stores, and as news-boys, in New Orleans.

Q. Are these not rare cases ?

A. Very rare.

Q. Do you know of any at Little Eock ?

A. No.

Q. Was your estimate of $10,000 based on any pecuniary calculation ?

A. It was not, and I really know but little about it; in making my estimate I took into consideration that this was an only child, and considered the child as worth more on account of the relationship to its mother.

William Eichardson, witness for plaintiff, testified that he did not know precisely what the child’s services would have been worth. “After a child was ten or twelve years old, he would have been worth $25 or $30 per month; from seventeen or eighteen to twenty-one he would have been worth $75 or $80 ; from twelve to seventeen he would have been worth $60 to $70. From five to ten years old he was worth $8 or $10 per month, in excess of the expenses.” The child was an intelligent, sprightly, well-grown, healthy, and perfect child of its age, had no natural infirmity, and big enough to run errands, bring chips and wood, and carry a small bucket of water.

On cross-examination, he stated that he was nineteen years old, and brother of Mrs. Barker, mother of' the child. He got $35 per month wrhen he was between twelve and fourteen. At fourteen he got $2 per day. Was now getting $1.50 per day, at nineteen years old. When he got $35 per month, his board cost him $18 per month, and about the same when he got $2 per day. He helped support himself and sister from the time he was twelve. She had a husband part of the time, and when she was a widow she kept boarders, sewed and worked herself. His clothing cost him about $50 per year. No other expenses. His earnings were better than most boys. He would have felt satisfied had the child lived and done 'as well as he had.

Capt. W. C. Robinson, for defense, testified that a boy from five to twenty-one might be worth $100 per year, over and above expenses, and to a widowed mother double that sum; Rut he knew of no boy who was worth more than his living. He had raised one to eighteen years of age, and did not consider him worth more. He would not take an ordinary boy until twenty-one for his services ; he might be worth $100 per year and board and clothing; to a mother, double that sum.

The seven instructions which the court below gave to the jury on the motion of appellant, all relate to the subject of negligence on the part of the servants of appellant, and contributory negligence on the part of the plaintiff mother, and her child. None of them relate to the subject of damages, and appellant asked no charge on that subject. So all of the instructions given by the court at the instance of appellees, •except the tenth, relate to the subject of negligence.

The tenth follows:

“If the jury find for the plaintiff, they may assess damages for not only the medical attendance upon, and nursing of the deceased before death, and reasonable funeral expenses after •death, but such other pecuniary damages as, under all the circumstances proven, they may consider reasonable.”

In this country, under statutes similar to ours, as well as in England under Lord Campbell’s Act (9 and 10 Viet., ch. 93), the ground of recovery must be something beside an injury to the feelings and affections, or a loss of the pleasure and comfort of the society of the person killed ; there must be a loss to the claimant that is capable of being measured by a pecuniary standard. Exemplary damages are, therefore, not to be recovered unless the statute expressly, or by implication, allows them, as in some instances (California, for example: Meyers v. City of San Francisco, 42 Cal. 217) it does. Butin estimating damages, some departure from the standards applied in other cases is essential, as otherwise, in some cases, no recovery could be had at all, though the statute plainly gives the action. If a parent sues for the killing of a minor child who is yet too young to render service, it is manifest that for the time being there could be no pecuniary loss whatever; and whether the child, if living, would ever become servieeablé, must be matter for speculation only. Yet, as the statute plainly gives the right of action for the benefit of the parent,, without restriction as to circumstances, but manifestly assumes that there is some injury in every case, the right to recover in these cases must be deemed unquestionable. Cooley on Torts, 272.

The damages are not to be given as a solatium, but must be founded on pecuniary loss, actual or expected ; and mere injury to feelings can -not be considered. Ib. 473, and cases, cited; Sedg. on Dam. (6th Ed.), 696 and notes.

The statute giving the mother, the father being dead, the light to sue appellant for damages sustained by her by reason of the killing of her infant child, any necessary expenses incurred by her for nursing and medical attendance before its death, and for burial expenses afterwards, were proper elements of estimate by the jury in making up the damages to be awarded to her, if they found the appellant corporation guilty of the negligence imputed to it in the complaint. Pennsylvania R. R. Co. v. Barton, 54 Pa. St. 496; Cleveland & Pittsburg R. R. Co. v. Rowan, 66 Pa. St. 399.

The value of the services of the child, lost to the mother by the death of the child, was also a legitimate clement to be estimated by the jury in making up their verdict upon the question of damages.

The statute prescribes no rule for estimating such damages, but the construction which has been given to similar statutes, by the courts must furnish the guide. Nor does our statute-limit the amount of the recovery, as the statutes of some of the States do, but juries are not warranted in finding verdicts, for sums disproportionate to, or in excess of, the probable pecuniary loss of the parent, occasioned by the death of a child.. Reasonable damages only, in view of all of the circumstances, in evidence, should be awarded. Pennsylvania R. R. Co. v. Barton, supra.

We find no substantial error in the ruling of the court below in relation to the admission of evidence of funeral expenses y nor in giving the .tenth instruction, above copied, as far as it. goes.

Counsel for appellant submit that the damages allowed by the statute to the mother for the killing of her child are such-only as the child would have recovered at the moment of its death, and that nothing can be awarded to her for the loss of after-service ; that the loss of service in this case must be limited to the period that intervened between the time the injury was inflicted upon the child and its death,, which was ten hours. If this be true,- had the child been killed.instantly, the mother could have recovered nothing but such expenses as she necessarily incurred in the burial of the child, and this construction of the statute would render it nugatory.

Counsel also submit that no loss of after-service is alleged, in the complaint, and that therefore there could be no recovery for such loss, citing Gilligan v. New York & Harlem R. R.. Co., 1 E. D. Smith, 461.

It is true that in-the original complaint there is no allegation of loss of service, or special damages by reason of expenses; incurred; but in the amendment to the complaint the plaintiff: claims damages for money necessarily expended for medical attendance and in the burial of the child, and also for loss of the services, companionship, and association destined to be rendered by the child to the plaintiff.

For the loss of the companionship and association of the ■child, and for the grief of the mother on account of its death, the statutes, interpreted in the light of judicial decisions upon like statutes, afford the bereaved mother no compensation. ■Such loss and such grief would be difficult to measure and can not be compensated by money; and the court below, in its ■charge to the jury, should have so declared the law to be.

We close this branch of the case by announcing our conclu■sion,'that when a mother sues a railway corporation under the statute for the negligent killing of her infant child, the measure of damages is the expense necessarily incurred by her for medical attendance, nursing, and burial of the child, and reasonable compensation for the loss of the probable services of the child during the period of its minority, difficult as it may be to estimate the value of such loss.

■III. We will next endeavor to determine whether the damages awarded by the verdict in this case are excessive.

The jury fixed the damages at $4,500. The plaintiff mother testified that the medical expenses were $210. She thought proper to take the child to Memphis and there bury it with her relations, and the whole of the funeral expenses, including transportation, did not.exceed $90. The court instructed the jury that railroad expenses would be disregarded, and she then ■stated that others paid the funeral expenses for her. Whether they were paid as a gratuity, or the persons paying them looked to her for reimbursement, she did not state. Dr. Skip-with valued the funeral expenses at $50, and it may be supposed that the jury allowed that much under the charge of the court. Adding the medical bill and funeral expenses together, making $260, and deducting that from $4,500, the whole sum allowed by the verdict, and it leaves $4,240, as awarded for the loss of service.

The child was five years old when killed and sixteen years under majority. The verdict gave the mother (and her second husband) $265 for each year, or $22.08 for each month, or ■84 cents and 6 mills for every work day during the whole period of its minority, making no deduction for boarding, clothing, education, loss of time, expense of sickness, and assuming that the child would have lived, and served its mother until it was of age.

In Oily of Chicago v. Major, 18 Ill., 349, the suit was by the father as administrator of a child four years old, which fell into a water-tank constructed by the city, and was drowned, and its death was alleged to have been caused by the negligence of the city. The jury rendered a verdict for $800 damages. The court held that the father could maintain the action, under an Illinois statute, as administrator of the child, and said: “The rule is that the plaintiff’s damages must only be estimated for pecuniary loss suffered by the death of the deceased, without taking into account the mental anguish or bereaved affections, and the jury must make their estimate of such pecuniary damage from the facts proved, and that it was not necessary that any witness should have expressed an opinion of the amount of such pecuniary loss. In this case, as in all others, it was proper for the jury to exercise their own judgment upon the facts in proof, by connecting them with their own knowledge and experience, which they are supposed to possess in common with the generality of mankind. It is only when witnesses are supposed to possess a skill and judgment superior to the generality of mankind upon a particular subject that their opinions are allowed to go to the jury, for the purpose of supplying the supposed want of-experience and judgment of the jury: Where such aids are-not attainable or are not produced, then the jury must be-guided by their own best judgment, applied to the facts in proof, for the purpose of arriving at a conclusion.”

The court refused to -set aside the verdict on the ground that, the damages assessed were excessive.

In Louisville & Nashville Railroad Co. v. Connor, Adm’r’x, 3 Heiskill (Tenn.), the mother sued, under a Tennessee statute, as administratrix of her infant child, eighteeu months of age, which was run over and hilled by a train of cars on defendant’s road; the jury assessed the damages at $3,000 and the court below refused to grant a new trial. On appeal the judgment was affirmed, the court passing upon questions of law relating to negligence, etc., but saying nothing as to the amount of damages awarded by the jury,

In City of Chicago v. Scholten, 75 Ill., 469, the father, as administrator of his deceased son, sued' the city, under a statute, for causing the death of his son, twelve years of age, through negligence in respect to the side-walks of the city, and the jury gave a verdict for $2,833.33, and the city appealed. The court below instructed the jury that if they found that the-city had been negligent, etc., they had “a right to find for plaintiff and should assess the damages at such sum as will, in the judgment of the jury, compensate the plaintiff, and those-in whose interest he sues, for the loss of deceased.” Mr. Justice Scott, delivering the opinion of the Supreme Court, said: “Where the next of kin are collateral kindred of the deceased and have not received pecuniary aid from him, proof of such relationship would warrant a recovexy of nominal damages only; but when the deceased is a minor and leaves a father, entitled to his services, the law presumes there has been a pecuniary loss for which compensation, under the statute, may be given. In such cases the pecuniary loss may be estimated from the facts proven, in connection with the knowledge and experience possessed by all persons in relation to matters of common observation. No doubt the damages could be greatly enhanced by proof of the personal characteristics of the deceased. Evidence of mental and physical capacity to be of service to his father in his business, his habits cf industry and sobriety, where the deceased is old enough to have established a character, are elements to be considered in assessing the pecuniary loss. But the instruction may be liable to a just criticism because of its ambiguity as to the nature of the damages the jury were at liberty to award. It should have contained some words of limitation that would have expressly restricted the damages plaintiff might recover, to the pecuniary injury sustained.' No other damages are recoverable under this statute. The court should have added the •qualification indicated. In its present form, it stated the rule as to damages recoverable in such actions, too broadly, and may have made the impression damages could be awarded for bereavement and by way of solace for the affliction suffered. Such is not the law.”

The judgment was reversed.

It has been held that when the suit is brought for the benefit of the mother, an award so large that the interest upon it would exceed all the probable earnings of her son, is manifestly greater than the pecuniary loss could possibly be, when it appears that the deceased was without property or other expectations. Cooley on Torts, 274; Chicago R. R. Co. v. Bayfield, 37 Mich., 205; Rose v. Des Moines Valley R. Co., 39 Iowa, 254.

In this State it is allowable and customary to loan money at ten per cent conventional interest. The sum of ‡4,240, awarded the mother for loss of services of her son in this case, would, if safely invested at such rate, yield the mother an annual income of $424, not only for each year of her child’s, minority, but for after years, when, if it had lived, it would cease to owe her service. ’

In Rose v. Des Moines Valley R. Co., supra, the subject of the action was the killing of an unmarried man, twenty-four years of age, by occupation a harness-maker, whose expectancy of life was thirty-eight years. It was proved that he was a. man of temperate and industrious habits, and that his net. earning at the time of his death was $263.11, annually. The. action was brought by his administrator for the benefit of his. estate, and the jury awarded $10,000 damages. On appeal the Supreme Court held the damages excessive on the logic that one-half the sum awarded, at six per cent interest would produce annually, a net income greater than that earned by the-deceased, and at ten per cent (the customary rate in Iowa), would produce annually nearly double the sum that he would annually earn during the expectancy of life, and the court refused to affirm the judgment unless the plaintiff would enter a remittitur for $5,000.

In this case the mother had a claim upon the earnings of her child for sixteen years. At the time of its death it was earning nothing, and would probably, if it had lived, earned her but little over and above its support for half the remaining years of its minoi’ity ; and yet the jury gave her $265 for each of the sixteen years, a larger sum than the net annual earnings, of the unfortunate Iowa harness-maker; and the Supreme Court of that State would allow his administrator but $5,000-upon an expectancy of manhood life of thirty-eight years, when here the jury awarded the mother $4,240 upon an expectancy of sixteen years of the minority life of her son.

In Allen v. Atlanta Street Railroad Co., 54 Georgia, 501, it was decided that a father could not maintain an action for damages on account of the homicide of his infant child, which was, at the time of its death, incapable of rendering him any service (the child was two years old); that there could be no recovery for loss of future services.

Such a construction of our statute would render it of no-effect. If the minor is capable of service when killed, there is no loss to the father or mother'for past services, for he or she-has received them to the time of the killing, and if there can be no recovery for loss of probable future services, there can be no recovery at all, and the statute which gives the right of action would be worthless.

In Cleveland & Pittsburg R. R. Co. v. Rowan, 66 Penn., 395, Rowan and wife sued the company for killing a son of the Avife, eighteen years old. The court below instructed the jury that if defendant was guilty of gross negligence in reckless running of the train by which the son Avas killed, they might aAvard exemplary damages. The jury aAvarded $2,372.-93. The Supreme Court hold that this instruction was erroneous, that under the statute, pecuniary and not exemplary damages by way of punishment, avhs allowable. That the pecuniary value of the services of the son during minority Avas the measure of damages, Avhich the jury must discover and determine from all the evidence, etc. The judgment was reversed for error in the instruction.

Railroad agents may be punished criminally for gross negligence, resulting in death.

In Pennsylvania R. R. Co. v. Barton, supra, the mother,, a Avidow, sued for the killing of her son, thirteen or fourteen years of age, and the jury gave her $1,748, and, on error, the-Supreme Court affirmed the judgment.

In slavery times, for some years before the civil Avar, a boy live years old would not have sold for more than $500, and the purchaser would have acquired a legal right to his services for life.

A good-looking young man would sell for $1,500 to $1,800 ; the price was fixed by the common judgment of experienced men, in reference to the value of the probable services of the man, over and above expenses for life. Mechanics and skilled laborers were more valuable than ordinary hands, and age, health, intelligence, habits, etc., were considered in estimating values.

Reference is made to estimates put upon the value of slave labor for illustration only. We would not say that the services of a child to a mother, prompted by duty and affection, are not more valuable than services rendered by compulsion, nor that services stimulated by fair compensation are not more valuable than involuntary services rendered for mere maintenance. Nor do wre mean here to enter into a comparison of the relative value of the services of persons of different races ; the true value of human labor must be estimated by considering all circumstances and conditions attending it.

In this case the mother was a widow, poor, and kept a boarding house for a living. The son, her only child, was five years old when killed. He was intelligent, healthy, and promising. If he had lived, and remained obedient to his mother until he was of age, his services would have increased in value as he advanced in years. If given no education, he would have earned for her the wages of ordinary labor only. If sent to school or apprenticed to fit him for skilled employment, expense and loss of time would have followed.

An impartial jury, of sound judgment and experience, properly instructed as to the measure of damages by the court, would consider all the facts, circumstances and contingences in fixing a reasonable value upon the probable services lost to the mother by his death.

The opinions of the witnesses in this case are of no great value. Dr. Skipwith, who was the family physician and manifestly in sympathy with the bereaved mother, at the outset lumped the value of the child’s services from five to twenty-one years at $10,000. It was drawn from him on cross-examination that his estimate was not based upon any pecuniary calculation. He could not be made to figure up the value of the services, without putting rare instances, at more than $2,210.

Wm. Eichardson, the brother of the mother and uncle of the child, was only nineteen years of age, and could have had no experience in the raising of boys to the age of twenty-one years, and he had not lived long enough to make his observation of much value. He undertook to estimate the monthly value of a child’s services, in excess of expenses, from five to twenty-one years of age, and run it up from $8 to $80 per month, -without making any allowance for loss of time, or expense in schooling or apprenticeship to fit the boy for skilled ■employment, and an increase of wages over such as ordinary labor commands.

At the time he testified he was getting $1.50 per day, which was equal to $39 per month, allowing twenty-six work days to the month. He paid $18 per month for board, and $50 a year for clothing, which was a little over $4 per month. His expenses then were $22 per month, and his wages $39, leaving him a net monthly earning of $17.

The jury gave the mother of the child $22.08 for each month ■of the sixteen years of its minority.

Capt. Eobinson’s experience and observation in the raising of boys had not impressed him that it was a profitable business. A boy might be worth $100 per annum over and above his board and clothing, and to a widowed mother double that sum. If this be true, the verdict of the jury should not have been more than $3,200 for loss of service.

We are satisfied that if the facts of the case were submitted to one hundred impartial men, of sound, discriminating judgment, of experience and observation in the raising of children* properly instructed in the law as to the measure of damages, ninety-nine, if not all of them, would say that the damages-awarded in this case for loss of probable service were excessive,, and such is our judgment.

IY. As to negligence.

Counsel for appellant submit that the killing of the child,, under the circumstances disclosed by the witnesses, was an unavoidable accident; that the agents of appellant were guilty of no culpable negligence, and that upon all of the evidence-introduced the court below should have instructed the jury to-find for appellant, and that this court should reverse the judgment for its failure to do so.

The court below gave all of the instructions moved for appellant. It was not asked to declare, as matter of law, that there was no evidence on which the jury could find a verdict in favor of plaintiff; and, if such an instruction had been movedj the court could not have given it without encroaching upon the province of the jury, if there was any evidence tending to-prove the issue on the part of the plaintiffs.

Nor did appellant, in the motion for a new trial, ask the court to set aside the verdict on the ground that there was no evidence to support it, or that it was contrary to the evidence— the ground taken in the motion being that the damages awarded by the verdict were excessive. In other words, appellant did not object, in the motion for a new trial, that plaintiffs were not entitled to any verdict upon the evidence, but that the verdict was for too large a sum ; and that ground we have considered above.

We deem it unnecessary, therefore, to notice the evidence relating to the question of negligence further than it may be necessary to do so in considering such of the instructions given for appellees as were specifically objected to by appellant, disregarding the general objection made to the thirteen instructions in mass.

The special objection was to the third, sixth, ninth, tenth, eleventh, twelfth and thirteenth. The tenth related to the measure of damages, and we have considered it above.

On the morning of April 25, 1875, at the usual time, the train, consisting of locomotive, tender, baggage car and passenger coach, about one hundred and thirty-five feet in its entire length, was starting from Argenta to Fort Smith, moving at the usual speed in starting out, and the child in question, unattended by mother or nurse, got on to the track in front of the train, when it was passing through the yard of the machine shops of appellant, and was run over by the locomotive before the train was stopped. The engineer saw the child when it got on to the track, and whether he could have stopped the train before it struck the child, by the diligent use of means within his control, or was guilty of culpable negligence in not doing so, was a question mooted before the jury on the evidence. The witnesses differ about the distance between the child and the front of the train when it got on to the track ; one witness said 250 feet, another 75 yards, the engineer 40 yards, another witness 50 feet, and another 150 feet, etc. The witnesses agree that immediately upon the child getting upon the track, the steam whistle sounded down brakes, and the engine was reversed. The bell was also ringing. The child liad been seen frequently playing about the premises and the skiff landing on the river, and one witness had expressed the apprehension that the ‘£ little devil” (to use his language), would some day be killed.

The third instruction given for plaintiffs is as follows :

“ Contributory negligence cannot be imputed to a child of tender years, and if the jury believe from the evidence that Alpheus D. Ammon, deceased, who is alleged to have been killed by the defendant’s cars or locomotive, was only a little over five years of age, they will consider him as having been responsible only for that degree of care and diligence which would naturally and reasonably be expected of such a child of that age.”

This instruction is substantially in harmony with the rule laid down by the Supreme Court of the United States in Railroad Company v. Stout, 17 Wallace, 660, and approved by Mr. Wharton, upon a review of authorities, in his work on Negligence, sec. 315.

The court, by Justice Hunt, said: “It is well settled that the conduct of an infant of tender years is not to be adjudged by the same rule which governs that of an adult. While it is the general rule in regard to an adult, that to entitle him to recover damages for an injury resulting from the fault or negligence of another, he must have himself been free from fault ; such is not the rule in regard to an infant of tender years. The care and caution of a child is according to his maturity and capacity only and this is to be determined in each case by the circumstances of that case.” See also Railroad Company v. Gladman, 15 Wallace, 401.

The sixth instruction:

“Railroad companies, owing to the dangerous character of the business they engage in, are held to the greater care in the operation of their machinery and machines, especially in running through towns; and if the jury find from the evidence that the defendant’s agents or servants, in running the locomotive or other machinery, failed to use such care or caution, they will find for the plaintiff ; if they further find from the evidence that the son of plaintiff, Emma 0., was killed by the defendant’s engine when the killing might have been prevented by the nse of such diligence, if killed in town and without negligence of the mother or child being the proximate cause.”

This instruction is substantially in the language of one approved by the Supreme Court of Missouri in Brown v. Hannibal & St. Joseph R. R. Co., 50 Mo., 465, and we see no valid objection to it.

The ninth instruction:

“If the jury believe from the evidence that the plaintiff, the mother of the child was in fault, and that the child, while wrongfully on defendant’s track was killed by defendant’s engine or cars, but that defendant’s agents were aware, or by the use of ordinary diligence, might have been aware of the fact that the child was on the track in time to avoid injuring him, by reasonable diligence, the failure to use such diligence alone must be considered the proximate cause of the injury.”

IV e think the last clause of this instruction, construed with its context, is not subject to the objection that it assumes negligence on the part of the agents in charge of the train. Several of them swore that every exertion was used to stop the train and save the child when it got on the track, and this was a question of fact for the jury.

The rule of law expressed in the instruction is supported by authority. Evansville & Crawfordsville R. R. Co. v. Hiatt, 17 Ind., 102. State v, Railroad, 52 New Hamp., 528.

The eleventh instruction:

“If the jury believe from the evidence that the son of plaintiff, Emma O., was killed by defendant’s locomotive or cars, while on defendant’s track, and that defendant’s employes in charge of the locomotive or cars might, by ordinary care and skill, have perceived him in time to avoid injuring him, a failure to recognize the child and stop the train before running upon and injuring him, will make defendant liable, even though those having the child in charge may have been negligent in permitting him to go upon the railroad.”

We do not see why this instruction was given. It appears from the evidence that the engineer saw the child before and at the moment he got on the track, and sounded down brakes, etc. If there had been evidence that the child was on the track before the engineer saw him, and that he might have seen him if he had been on the lookout, and stopped the train before it reached him, the instruction might have been appropriate. See Louisville & Nashville Railroad v. Connor, Adm'rx, 9 Heiskill, 19.

There was no evidence that the child was in the immediate charge of any person when it got on the track. Its mother was at home. It left the house to go with the servant to the telegraph office, but when it got into the yard it refused to go, and the servant loft it there. After she had gone, it seems that it went upon the railroad premises of its own will, unaccompanied, and was playing there.

The real question before the jury was whether the train was properly manned, and whether it could have been stopped in time to save the child after it got on the track, by such prompt and diligent use of its appliances as the emergency required. All of the witnesses agree that the child had plenty of time to get from the track after the sounding of the alarm-whistle, etc., before the train reached it, but it seems to have become confused. One witness thought the train might have been stopped by the time it moved a distance equal to its length, and before it reached the child. Others disagreed with him. We express no opinion on the subject, nor do we deem it necessaLy to state all of the facts disclosed by the bill of exceptions which bear on the question. We only state so much of the evidence as is deemed necessary in order to pass upon the instructions complained of.

In busing an instruction on hypothetical facts, disputed facts ■ought not to be assumed to be true, nor should facts be stated hypothetically which do not appear in evidence. Such an instruction might mislead the jury.

The twelfth instruction:

‘ ‘ If the jury find from the evidence that the engineer in •charge of the engine on defendant’s road at Ai-genta, on the 26th day of April, 1875, saw or might, by the use of ordinary ■care and caution, have seen the plaintiffs child approaching the railroad track, and very near the same, and had reasonable ground to believe it was going upon the track, in time, by the use of ordinary care and diligence, to have stopped the train before reaching the point when the child was approaching, it was the duty of the engineer to have at least checked said train so as to have had it under control, and if he failed to do so, and the jury find that the child, by such failure, was run over and killed by the engine, the railroad company are liable in damages.”

If the evidence before the jury warranted them in finding to bo true the facts stated hypothetically in this instruction, the legal conclusion thereupon might have been as announced.

The thirteenth instruction:

“If the jury believe from the evidence that plaintiff had taken reasonable precaution to restrain her child and guard it against damage, reference being had to all the surrounding circumstances, including the parent’s condition in life, and'that the child escaped and went upon the defendant’s railroad track, and was injured by the negligence of the defendant’s agents, servants or employes, no negligence can be imputed to the plaintiff; and if the child exercised ordinary care for one of his years and capacity, no blame attaches to him; and if, on account of his tender years, the child was incapable of exercising any care or discretion, none could be required of him.”

If tbe mother was blameless of contributory negligence, the fact that a child below the age of discretion got recklessly upon the railroad track, in front of the train would not excuse appellant from liability, if by the negligence of its agents in the management of the train it was run over and killed. But it would be otherwise if the killing of the child could not be avoided by diligence on the part of such agents. Wharton on Negligence, secs. 309-314; Cooley on Torts, 680-3.

Upon the whole the instructions given for appellees, to which appellant particularly objeets, with the exceptions indicated above, were well enough when considered in connection with the seven instructions given for appellant relating to negligence and contrioutory negligence, to which no objection was made by appellees.

The judgment must be reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: EakiN, J.:

license: Public Domain

text:
    Stirman vs. Cravens.
    1. PRACTICE IN Equity : Parties, when new should be made.

    Whenever it is discovered in the progress of a cause that the rights of the parties already before the court cannot be finally determined without other parties, they must be brought in.
    2. Realty : Souse of one on land of another, is not.

    A house erected by one on land of another, with his consent, may be considered as personal property, distinct from the land. In such ease the value of each maybe referred to a master, and on the coming in of his report, if the parties will not agree for a purchase by one from the other, the court should order a sale of lot and house together, and divide the proceeds in proportion to their respective values found by the master.
    APPEAL from Washington Circuit Court.
    Hon. J. M. PittmaN, Circuit Judge.

      -Davidson, for appellant.

      J. D. Wallcer,-Or egg, contra.

   EakiN, J.:

This cause is the same reported in 32 Ark., 548. After it was. remanded to the Washington Circuit Court, the plaintiff below, by leave of the court, and against the objections of defendants, filed an amended complaint, and, upon their motion, the cause was transferred to the equity docket. The complaint alleged : That in 1866 James W. Stirman owned and possessed lot six (6), in block No. 16, in the town of Fayetteville, and at the same time Brooks and James E. Trott, partners in the mercantile business, found it necessary to erect a new store-house, but had no ground, nor sufficient means to purchase. They had received a large portion of their stock in trade from McKee & Co., of Eort Smith, on a credit, and expected to build out of the proceeds of the goods. Brooks declined to build unless he- or his partners could procure title to a lot. They proposed to. J. W. Stirman to go into business with them, and convey his-lot for the purpose. This he declined ; but finally, to accommodate Trott, with whom he was very intimate, and in view of a future partnership with Trott after Brooks should retire, he-made the deed. Trott promised to make it all right, by and. by. The deed was not witnessed nor recorded, nor intended so to be. There was no consideration, and Trott, amongst his friends, did not claim it as his property. In consideration of said privilege of building, Trott & Brooks agreed to pay for-the use of the lot, and a small building formerly on it, $15 a month as long as they should use it, and to erect a house worth $800, to be accounted for by Stirman when he should after-wards become a partner, or when the lot might be returned. Afterwards Brooks & Trott built a house worth over twice as much. Afterwards Stirman advanced to Trott large sums of money, amounting in all to more than $2,700. About a year after the erection of the house Brooks sold out to Trott, who continued to occupy it until his death, in March, 1870, and his. ■•administrator, E. J. Stirman, afterwards, until April, 1873, without payment of rent by either, and without paying said J. W. Stirman for his services as clerk in the store, which had 'been rendered on a contract for $75 per month.

No partnership had ever been entered into, as contemplated. ■James W. Stirman declined to do so on account of the embarrassed circumstances of Trott, but remained a clerk in Trott’s 'Store until Trott’s death, as aforesaid.

During his life Trott urged Catherine W. Stirman to accept "from said James W. (who was her son), a deed of the lot, assuring her that his own deed was not acknowledged nor recorded, and would not stand in the way of her title. It is further alleged that Trott destroyed his deed. The value of the house erected has depreciated to $700 or $800.

After the death of Trott, said James W., on March 9, 1872, conveyed the lot to his mother. The deed is exhibited, and shows that it was made for love and affection and for one dollar. The deed conveys the lot, “except the two-story frame store-house occupying the front portion of said lot, and belongs to the estate of J. E. Trott, deceased.”

Afterwards, on June 18, 1872,-said Catherine W. Stirman, with her husband, James H. Stirman, conveyed to plaintiffs, Cravens and Smith, apart of said lots by metes and bounds, for $1,000, Comparing the two deeds, it appears that James W. conveyed to his mother (saving the house in front) a lot fronting 30 feet on the square and running back, north, 155 feet to ■an alley. This is given as the description of said lot No. 6. The deed to plaintiff cornos 20 feet 9 inches off the east portion of this lot, without any reservation, leaving 9 feet 3 inches off the west side still in Mrs. C. W. Stirman.

The complainant alleges that said E. J. Stirman, as administrator of Trott, claims the right and possession of the part ■conveyed to complainants by said last named deed. The widow and heir of Trott are made parties. It is alleged that the purposes of the original conveyance to Trott have been accomplished, and that the rents due from said Trott, and his representatives, to J. W. Stirman, exceeded the value of the house when it came into possession of complainants. Besides, there was due Stirman from Trott the money loaned, and clerk’s hire.

The prayer is for an account of the transactions between «aid Trott and J. W. Stirman, and that all claims of Trott’s representatives regarding the improvement be declared satisfied and extinguished; that Trott’s deed be declared void; and that complainant’s title be quieted ; with the usual prayer for .general relief.

The widow pleaded the statute of limitation and the minor put in a general denial bjr guardian. The administrator demurred generally and moved to strike out portions of the •complaint. The demurrer was overruled, and the administrator answered.

The answer denies that Brooks & Trott were unable to procure another lot, that Trott desired a partnership with J. W. Stirman, or held out any inducements therefor. Admits the execution of the deed to Trott and asserts that it was intended to convey title in fee simple. Admits that Trott was in embarrassed circumstances and so continued until his death. Puts in issue the alleged promise to pay rent, and the agreement to recouvey. Admits the erection of the house worth •$2,200 and that Stirman had loaned money and rendered services as clerk as alleged, but says all these claims have been ■duly probated against the estates of Trott. Denies all knowledge or belief as to the fact that Trott urged Mrs. Catharine W. Stirman to take a conveyance of the lot, or asserted that his own title was invalid; or of the destruction of the deed by Trott. Admits his possession until the common law suit was determined and writ of possession issued ; but sets up the reversal of that judgment and claims that plaintiff held possession wrongfully under said writ, after the execution had been superseded. Without further recapitulation, it may suffice to say that the answer admits all the conveyances, and puts in issue all material allegations to the effect that the original conveyance to Trott was in trust and not bona fide for the purpose of vesting title.

After the former decision of this court as to the effects of an acknowledged deed, the remedy of complainants was no longer clear and unembarrassed at law. The legal title was in Trott, and the remedy was in equity to show that the conveyance' was made under such circumstances as to create an implied or resulting trust between the parties in favor of the grantor. It was within the discretion of the court below to permit the amended complaint to be filed, and to transfer the cause to the equity docket — and the discretion was wisely exercised. It did not make a new suit. The contest for the property was substantially the same, only changed in form to. meet the new aspect of the cause resulting from the decision of this court. It would not have been in furtherance of justice to have compelled complainants to commence denovo ; and new parties not only may, but must, in all cases be brought in whenever, in the progress of a cause, it is discovered that the rights of the parties alreadjr before the court cannot be finally determined without them. These views dispose of the demurrer, and the objection to the practice.

The theory of the bill was that the moneys owed by Trott to Stirman should be applied as payments upon the improvements made by Trott. If there could be proved any such understanding between the original parties, of which complainants could take advantage, it might have been proper to show it in this suit; but it is essential to an account of such an appropriation that J. W. Stirman should be made a party. Without him all parts of the bill framed with reference to such an account, should be disregarded. The equity of the bill rests upon the allegagation of a trust in Trott, to the benefits of which complainants had succeeded, and which entitled them to the possession and enjoyment of the property as against Trott’s estate, independent of any adjustment with J. W. Stirman. In no other view can the bill stand, unless Stirman be made a party. But in this view with regard to the lot, excepting the house, the bill was good against a .general demurrer. The view already announced of the proper practice disposes also of the plea of the statute of limitation. It was a continuation of the same suit against the terre-tenants.

The answer puts in issue facts material to the equity of the bill. These facts, as revealed by the pleading, exhibits and •deposition, are substantially as follows :

In the year 1866 Trott & Brooks were doing a mercantile business in Fayettville, upon goods furnished them by McKee ■& Co. of Fort Smith. They desired to build a more commodious business house, in doing which it would be necessary to use means derived from the goods furnished by McKee & Co. Brooks declined to build unless upon a lot to which they might have title, and it was further desirable that they or one of them should own the land, for the satisfaction and securing of McKee & Co. J. W. Stirman was the intimate friend of Trott, and made him a conveyance of the lot in question for the purpose — that is, principally, to induce Brooks to consent to the building and for the security of McKee & Co., but in some respects for the benefit of Trott also. No consideration passed ; but it was understood that in the future transaction between Stirman and Trott the expenses of the latter in building were to be allowed. The understanding was that the house was to cost $800; but the firm, with Stirman’s knowledge and without his dissent, proceeded to erect a two-story-frame building at a cost of about $2,200. These understandings were by parol, but the deed was absolute for the nominal consideration of $1,000. Afterwards, Stirman lent a considerable amount of money to Trott and served him for about twenty-five months as clerk at $75 per month, only five or six hundred dollars of which were repaid by credit of a store account.

It was further agreed that, meanwhile, the firm should pay Stirman rents on the lot and an old warehouse on it at the rate of $15 per month. The firm took possession, built the house- and occupied it a few months, when Brooks sold out to Trott, who occupied until his death in 1870, and his administrator-after him, until dispossessed by writ of possession upon the-rendition of the first judgment below, which was afterwards, reversed.

During Trott’s lifetime, he urged Mrs. C. W. Stirman (the-mother of James W.) to take a deed of conveyance of the lot in question from her son, who seems to have been considered in danger of wasting his property, assuring her that the purposes of his own deed had been accomplished; that it had never been recorded and would not stand in her way. No action was taken at the time upon these assurances. Trott was then, or soon after became, the son-in-law of Mrs. Stir-man. After Trott’s death in 1870, James W. Stirman probated against his estate his claim for money loaned, which was filed on the 9th day of June, 1871, and afterwards allowed for-$3,028.87. Also his account for clerk’s hire filed on the 2d day of September, 1871, and afterwards allowed for a balance of $899.81. Both these allowances were assigned by Stirman to his mother, Catherine W., on the 15th day of May, 1872.. No settlement of rents appears ever to have been made.

Previous to this, on March 9, 1872, J. W. Stirman conveyed tbe lot to his mother for love and affection and the nominal' consideration of one dollar, “ except the two-story frame storehouse occupying the front portion of said lot, and belonging to the estate of J. E. Trott, deceased.” Afterwards, on the 18th day of June, 1872, Mrs. Catharine Stirman, with her-husband, conveyed a part of said lots by metes and bounds to-said complainants for $ 1,000. Her conveyance leaves off about. ten feet of the west side, running from the front back.

■The Chancellor found, upon these facts, that Trott held the-lot in trust for Stirman,' and to secure McKee & Co., and not. adversely; that he afterwards disclaimed all title, in a conver--sation with Catherine W. Stirman, and that in pursuance of said advice Mrs. Stirman took the conveyance to herself; whereby the representatives of Trott were estopped from setting up title, and have no legal or equitable title left, nor right of possession. Further, that the rents of the said lot and the-house thereon during the time the same was occupied by Trott. were worth $1,080, and that the store-house so built was not worth more, and that such rents should go to the benefit of plaintiffs, who are the legal and equitable owners of that part, of the lot. Whereupon the title to the whole part of said lot. sold to them by Mrs. Stirman was decreed to complainants.

This decree was certainly erroneous in this, that it overlooked the reservation of the house in favor of Trott’s estate, made in the deed to Mrs. Stirman. No interest therein passed to the-complainants by the deed from her to them, nor any interest in any rents that might then be due from Trott or his estate to-J. W. Stirman. Ho had never appropriated nor claimed that there should be appropriated any rents due him from Trott, to-the extinguishment of Trott’s interest in the house.

Such rent did not belong to complainants. They did not. take the right to them by deed from Mrs. Trott, nor any right, to the house itself. Mrs. Stirman never had either to convey. After the conveyance to Mrs. Stirman, excepting the house and declaring it to be the property of Trott’s estate, it remained the property of the estate, and any claim against the estate for past rents remained in Stirman. The question as to whether the rents due Stirman extinguished Trott’s right to the house, remained a question between the estate and J. W. Stirman. Mrs. Stirman never acquired the right to that account, because the house never passed to her at all, much less to her vendees, who certainly had no rights to appropriate, for the payment of a house never conveyed to them, rents due to another person. In short, complainants never had any such right to the house vested in them as would authorize a court of chancery to decree them the absolute property upon ascertaining that an in-cumbrance had been remoAred. They took the lot subject to the easement of supporting another man’s house; if indeed, they acquired any title at all to the ground upon which the house stands. The decree attempts to compel a sale to them of property to which they had no claim, at a price determined by the court, and for a part consideration, the greater part of which they did not furnish nor ever owned.

Inasmuch as further proceedings must be had below, and the case is somewhat anomalous, it seems proper to indicate the views of the court with regard to the equities of the parties and the most advisable course to be pursued in adjusting them.

Although at common law the grant of a house carried the land upon which it stands (Sheppard’s Touchstone, p. 90; Washburn on Real Property, book III, chap. 5, sec. 4, par. 26), and an exception of a house in a grant would be so construed, to retain it, this doctrine has been attended with many exceptions to meet the requirements of more complicated arrangements and modern usages of business. This court has held directly (in the case of Witherspoon and Gilliam v. Nicholas, Sheriff, 27 Ark., 332), “that a house erected upon the land of another, with the owner’s consent, maybe considered as personal property, distinct from fllie land. When the house in this case was erected, there was no agreement nor presumed intention that it should ever be removed ; and from the nature of the ease it cannot be, without serious detriment and loss to the owner. The evidence leaves it somewhat vague and uncertain as to how the rights of the parties were to be adjusted in future. Any supposed arrangement for a future partnership was never carried out, and the property meanwhile stood thus : That Stirman owned the land, and Trott the house upon it— their interests being .distinct, though indivisible. If there was any understanding that Stirman should pay for the house and take it, that was never done. Neither the money lent nor clerk’s services were so applied. At the time of the conveyance to his mother, Stirman expressly recognized Trott’s ownership as still existing, and neither his mother nor his vendee took any interest in it. Stirman had elected to consider his claim as personal against the estate of Trott, save as to rents; and as to them Ms reservation in the deed indicates that he did not intend to claim an interest in the house on that account.

After the purchase by complainants on June 18, 1872, this distinct but indivisible interest continued between Trott’s estate and complainants, and it devolves upon the court to devise a scheme for final adjustment and separation of their rights in accordance with the principles and practice of courts of equity. These are very flexible, and may be moulded by the court to suit each particular case.

It would be unjust to compel cither party to sell to the other at a valuation, and equally so to compel the administrator of Trott to remove the property.

An account should be taken against the estate, of the rents of the lot and warehouse at $15 per month from the date of complainant’s purchase to the date of the complainant’s possession under the writ of possession, and against complainants for the-value of the rents of the two-story house (independent of the-lot and warehouse) from the date of their possession to the time of taking the account, unless they choose sooner to redeliver, and a balance should be struck. On the same reference the master should be directed to take proof and report the-several values of the house and the land upon which it stands. Upon the coming in of the report the parties should be allowed to agree upon a purchase of the interest of Trott’s estate by complainants, and a decree entered to incorporate and confirm the agreement. Otherwise the court may order a sale of the house and lot together, and divide the proceeds in proportion to their respective values found by the master. In the adjustment of the proceeds the balance for rents, on the one side or the other, may be taken into the account, and the whole cost may be in the discretion of the court. Under the circumstances it would appear equitable to burden the house and land together with all the costs before partition of the proceeds, but. the court does not mean to make this imperative on the Chancellor. He will exercise his sound discretion. So much of the decree as gives the lotto complainants, irrespective of the store buildings, is correct. So much of the decree of the court below as vests in complainants the property in the lot and all buildings thereon save the two-story building erected by Trott. for a store-house, and the portion of the lot it stands ujjon* is affirmed. In other respects the decree must bo reversed and the cause remanded for further proceedings, not inconsistent with this opinion.


author: Moore, S. J.:

text:
    Mitchell et al vs. Badgett.
    1. Lease: When a Mortgage.

    A lease executed by lessor and lessee reserving a lien to the lessor on the crop produced on the land, is a chattel mortgage; and a written agreement, properly executed, stipulating that the amount due for rent of land should he paid before the removal of the crop, is a mortgage of the crop.
    2. Mortgages : Priority of Record.

    Between conflicting mortgages, the one first filed for record will have priority
    APPEAL from Pulaski Chancery Court.
    Hon. J.. R. EakiN, Chancellor.

      Fletcher for appellants.
    —-*, contra,

   Moore, S. J.:

This suit was brought in the Pulaski Chancery Court to the spring term, 1877, by O. K. Badgett against W. J. Mitchell and Eletcher & Barron.

The object of the suit was to obtain a decree against Mitchell for a balance of f 600, claimed as due for rent of land, and against Eletcher & Barron to compel them to account for the proceeds of certain cotton the produce of the land, alleged to have been received by them from Mitchell, and on which Bad-gett claimed to have had a lien for his rent.

The material allegations of the bill are : That O. K. Badgett, and one N. H. Badgett entered into a written contract with Mitchell on the 7th day of April, 1876, whereby they leased, to him certain land for the year 1876, for which he was to pay $900, as rent, for which amount he executed his note due and payable on the 1st day of November, 1876. Mitchell joined, in and signed this contract, which inter alia, contained these-words, after referring to the note for $900: “And a lien is; hereby given and retained upon the crops grown upon said, land for the year 1876.”

Mitchell farther bound himself in the contract, not to remove or dispose of any part of the crops until the note had been paid, or the consent of the lessors obtained, except six bales of cotton which the contract expressly permitted him to remove and dispose of.

There were stipulations, also, of a minor character relating to the building of a cabin, and putting up and making rails on the land, etc.

Mitchell was also to be allowed a deduction for any overflow of a portion of the land, not to exceed three acres, at the rate of $9 per acre.

The contract was duly signed and properly acknowledged by all the parties, O. K. and N. H. Badgett and Mitchell, on the day of its execution.

It was not filed for record till the 7th day'of October, 1876.

On the day of the execution of the note and contract, an endorsement was made on the note whereby it was agreed that half the amount of the same should be paid November 1st, and half, December 1st, 1876, and on the same day N. H. Badgett, by endorsement on the note assigned all his interest therein to O. K. Badgett, who consequently sued alone.

The bill charges that during the months of September, October and November, Mitchell, without the permission and against the protest of Badgett, removed and disposed of the greater portion of the crop, whereby it was lost to him, and that the sum of $600 remained, due from Mitchell after allowing him all credits for improvements, overflowed lands, etc. That after diligent search all the cotton that could be traced up was eleven or more bales that had been sold and delivered by Mitchell to Fletcher & Barron, and which were received by them with a knowledge of Badgett’s rights, and appropriated by them on a debt due to themselves.

Sundry intoi-rogatories were propounded to all the defendants, and tho bill prajm for decree against the defendants for the amount that may be ascertained to be due, and that the proceeds of the cotton in the hands of Fletcher & Barron be declared and made subject to the lien of Badgett in respect to his debt, and for general relief.

Fletcher & Barron answered, denying all knowledge.or notice of Badgett’s lien on the crop of Mitchell, and ayer that Badgett never protested against nor forbid Mitchell selling or removing the crop, though they do not aver he knew of the sale of any of the cotton to them. They admit that they purchased fifteen bales of cotton from Mitchell, during the months as charged in tho bill, which they supposed was raised on the Badgett plantation, and in response to the interrogatories they file an account of the same, showing the dates and amounts, and prices paid.

They allege that they are merchants in the City of Little Eock, and engaged largely in buying cotton ; that they bought tho cotton in question from Mitchell in tho regular course of business, and at regular market prices; that they furnished supplies to Mitchell to make his crop, and that on the 17th day of June, 187(5, he executed to them a mortgage of his corn and cotton crops to secure advances already made and to be made to him.

This mortgage was filed for record on the 24th of October, 187(5, which, as will be seen, was after the contract between Badgett and Mitchell had been filed.

Mitchell also answered the bill. He admits the execution of the contract with and the note to Badgett. He denies that Badgett was ignorant of his removing and disposing of his crop, and further, he denies any intention or desire to defraud Badgett, and sets up his mortgage to Fletcher & Barron given to secure indebtedness for supplies, and avers that believing he would have enough to pay his rent and the amount due for supplies, and being anxious to pay off Fletcher & Barron as soon as possible, he from time to time sold and delivered to them fifteen bales of cotton. That contrary to his expectation his crop fell short, and that after the sales to Fletcher & Barron, a garnishment and attachment was issued against him from the United States court on a judgment against hi. H. Badgett, and the balance of his crop seized thereunder. By this proceeding his crop was much wasted. The cotton and corn which was seized, was afterwards released by the United States Marshal and turned over to O. K. Bad-gett, and by him credited as a payment on the rent.

It is proper to state that previous to filing the answers, a general demurrer was filed to the complaint which was overruled.

Demurrers were also filed to the answers but they seem to have been abandoned, as the case (as the transcript shows) was heard and decree rendered on the bill, answers and depositions.

The evidence is voluminous and much of it entirely foreign and irrelevant to the issues.

The following seems to be clearly established by the proof:

Mitchell, early in the year 1876, rented the land by written lease from N. II. Badgett, and whilst his tenant, he worked on houses, etc., to the value of $20, and in making fences to the value of $75, and he claimed that he should be allowed these amounts as a credit on his rent. O. K. Badgett, in his testimony, denies all knowledge of or responsibility for this claim for credit. O. K. Badgett purchased the land from N. H. Badgett and wife in February, 1876, and filed his deed for same for record on the 7th of that month.

On the 7th of April the contract of lease, etc., referred to in the bill was executed, and the lease first made between N. H. Badgett and Mitchell was cancelled and destroyed.

The only payments on the rent that are proven to have been made since the date of this last contract, are $65 in cash, $183.95 received from the United States Marshal, and $27 deducted on account of the overflow of three acres of the land.

There is some evidence tending to show that, after the new lease was executed, O. K. Badgett agreed verbally, to allow Mitchell $95 for work done whilst he was in possession under the first lease from N. H. Badgett. The new lease, however, 'having been reduced to writing, and the old one cancelled, pa-rol evidence, in the absence of fraud, or mistake, which is not charged nor proved, could not be regarded to vary the terms -of the new lease.

The evidence tends to establish clearly that Fletcher & Barron, when they gave credit to Mitchell, knew that he. was a •tenant on Badgett’s farm. Their mortgage, which is made an ■exhibit to their answer, describes the land on which the crop was growing, as being part of “what is called the N. H. Bad-igett place, in Pulaski county, etc.”

Their place of business’and the residence of the Badgetts was in the city of Little Bock, and it is in proof that they were acquaintances and occasionally held conversations on business matters. They had constructive notice of O. K. Badgett’s ownership of the land by the recording of his deed to the land i©n February 7, 1876.

On the hearing, the Chancellor decreed the defendant, Mitchell, personally liable to Badgett in the sum of $600 — the credits allowed not reducing the amount of the rent note below that .sum — with interest at the rate of 6 per cent from January 1, 1877, and that he be ordered to pay that sum, and that execution issue,

Also decreed that Badgett had a lien on the proceeds of cotton in the hands of Fletcher & Barron, to the extent of '$429.53, with interest at 6 per cent from January 1, 1877. This amount is arrived at by allowing them to retain the proceeds of six bales of cotton, which Mitchell was authorized to-sell by the terms of the contract of lease, and charging them with the proceeds of the balance of the fifteen bales received from Mitchell, making an average of the value of all the bales from the prices as shown by the account of same filed by Fletcher & Barron.

The decree further provides that if the debt due from Mitchell be not-paid nor made by execution against him, that execution issue against Fletcher & Barron for any deficiency to the extent of $429.53.

The costs were imposed primarily on Mitchell,-aiid if not collected on execution against him, ordered that they be imposed on Fletcher & Barron, and included in any execution against them.

Defendants all appealed.

The questions presented for determination are not numerous> nor very difficult of solution.

We are first to inquire, what is the nature and force of the contract of April 7, 1876, executed by Mitchell and Badgett? for it is by virtue of that instrument only that the appellee, must prevail, if at all.

It is not claimed by the bill, nor in argument, that appellee-has any right to recover under the statutory lien of the landlord — by which he might have attached Mitchell’s crop on his attempting to remove it — in the absence of this contract. Though he seems to have known of the crop being removed,, when he could not stop it by request or protest, he chose to-depend upon such lien and rights as he might have by his contract.

That this contract has none of the characteristics of a mortgage, is insisted and earnestly and ingeniously maintained by counsel for appellants.

Wo are referred to the case of Barnett et al. v. Mason et al., in 7 Ark. Rep., as directly in point.

In that case the instrument by which a lien was claimed was. a bill of sale of a steamboat, executed only by the vendors,, and in which they used language very similar to that in the contract in this case, viz. : “they (the vendors) are to retain a, lien,” etc., for the unpaid purchase money. This court say in passing on the instrument, that this phrase, as used there, “is a mere suggestion of the vendors, no stipulation, and was entirely nugatory,” and add that “ even supposing the plaintiff' had a lien on the boat, they lost it forever when they parted, with its possession.” There the instrument was not given by the vendee, was neither acknowledged nor recorded, and the-benefit of the lien was claimed in an action of detainer, and. the poesession of the boat having been parted with, the court correctly decided that in such a case they could claim nothing-by their supposed lien.

The case of Roberts et al. v. Jacks, in 31 Ark. Rep., is also-cited and relied on by appellants.

In that instance there is simply the statement made in a promissory note that the amount of the note was a lien, etc., and the court say: “ It is certainly not a contract, no undertaking- or agreement, * * * but simply the declaration of the effect of a contract made.” Unquestionably, this was right. If such a statement in a promissory note could create a valid, lien, where would be the necesshy for ever taking a mortgage-to secure a note, or the necessity or value of ever recording-any instrument?

Other cases are referred to by appellants, but on close examination they are all found to rest or turn on some particular circumstance and facts, and to be totally different from the case at bar.

Here we have a formal written instrument executed by both. parties, the lessors and the lessee, and duty acknowledged at the date of its execution by all the parties to it, and afterwards • duty recorded ; an express lien is reserved by the one and given by the other party.

It is unquestionably a lease to Mitchell; is it a mortgage from Mitchell ? In addition to the express lien given and reserved, it contains this clause: “ No part of which (the crops) shall be removed or disposed of in any way by the party of tile second part (Mitchell) or his agents until said note has been paid or the consent of the said party of the first part (Badgett) obtained.”

Herman, in his late work on Chattel Mortgages, p. 68, says : ‘“Leases, with conditions, are mortgages. Any condition in a lease giving the lessor a lien upon the tenant’s property as ■“ security for the rent, is a chattel mortgage. * * * So a ’“written agreement, property executed, stipulating that the ‘ ‘ amount due for rent of laud should be paid before the crops •“ are removed, is a mortgage- of the crop.”

The same doctrine is asserted in Johnson v. Crofoot, 53 Barbour (N. Y.), p. 574. It is there held that a lease providing "that the lessor was to have full title, with the privilege of taking possession of the produce of the farm in payment of •any balance due on rent, was a chattel mortgage, and if not re-morded, was invalid as against an attaching creditor of the lessee.

The case under consideration falls distinctly within the doctrine above announced. The instrument here is not only a lease with a condition, and containing a stipulation that the crop -should not be removed till the rent was paid, but it is also executed by the lessee, and duty acknowledged by him. It is to -all intents and purposes a chattel mortgage.

And now, having decided the contract to be in effect a mort,-gage from Mitchell to Badgett, we are next to inquire, how are 4he other defendants, Fletcher & Barron, affected by it?

That they had a valid mortgage, also from Mitchell, is not disputed. Badgett’s mortgage, whilst of course it is binding and conclusive as against Mitchell, without being recorded or even acknowledged, could only affect Fletcher & Barron, or any other third party, from the date of its being filed for record.

Both appellant and appellee were extremely negligent in regard to recording their mortgages. Appellee may have considered his as only a cumulative or additional security to his statutory lien as landlord, and not regarded it as all important until hé found the crop was being removed. Having filed it, however, prior to that of Fletcher & Barron, his rights were preserved.

All the circumstances, as well as the proof, tend to show that Fletcher & Barron g*ave credit to Mitchell, knowing that he was the tenant of appellee. This alono was enough to advise them that, as landlord, he would have a statutory lien on the •crop of Mitchell, and sufficient to put them on inquiry as to the amount he would be due to appellee, and the extent and exact nature of the lien.

Having a valid subsisting mortgage lien on the crops of Mitchell after the cotton was removed and disposed of, appel-lee had the right to follow and recover the property or its value from Fletcher & Barron, who received it with constructive notice of appellee’s lien by the filing of the mortgage or contract for record.

They were affected with a trust upon every pai’t of the cotton which they received after the filing of appellee’s mortgage for record, except enough to make the amount of six bales, which Mitchell was authorized to dispose of. ’

This principle is elementary. Herman, p. 345, states the general doctrine in few words, as follows : “A mortgagee may “recover the propert3r, or its equivalent in whosesoever hands it may be at the time he is entitled to it, for the purpose of satisfying his debt.”

See also Grouler v. Asseler, 22 N. Y., 225; Duke v. Stickler, 43 Ind., 494.

There is nothing in the evidence to lead to the belief that the appellee, by any act of his, ever waived his lien and rights acquired under it, or estopped himself from asserting his lien rights. The evidence nowhere shows that he was ever present, or had any actual knowledge of the sale of any of the cotton, when made to Fletcher & Barron, or that he' did or suffered any other act that would amount to an estoppel.

The calculation by which the Chancellor in the court below arrived at the amounts specified in the decree seems to be correct, and warranted by the pleadings and "evidence.

Finding no error in the ■ decree of the Pulaski Chancery Court, the same is, in all things, affirmed.

Hon. J. R. EakiN, J., did not sit in this case.


author: English, C. J.:

text:
    McCabe, Ex Parte.
    Statutes Construed : County Collectors are Officers.

    County Collectors are officers under “ an act to provide f jr the approval of official bonds of county and township officers,” approved March 1, 1875.
    PETITION' for Oertiorciri.

      Howard and Redmond for Petitioner.

      Henderson, Attorney-General, contra.

   English, C. J.:

This is an application to this court by M. D. McCabe for certiorari.

The petitioner states, in substance, that on September 2, 1878, he was elected Sheriff of Pulaski county, and on the 12th of October following was commissioned by the Grovernor •as such.

That on January 4, 1879, he presented his bond as collector of taxes for said county, in duplicate, to the County Court for approval, which was approved by the court, and one copy tiled with the Auditor of State, and the other in the office of the Recorder of the county to be recorded, etc.

That the Clerk of the Circuit Court and ex-officio Recorder, ■without the knowledge of petitioner, presented said bond to the Circuit Court of said county, for approval, and said court, •on February 8, 1879, disapproved said boud, and ordered petitioner to file a new bond as collector.

The petitioner submits that the Circuit Court acted without authority of law in the matter, and prays that the record of its proceedings be brought before this court on certiorari, and its order disapproving his bond, and requiring him to execute a new bond be quashed.

The transcript accompanying the petition shows, that on February 8, 1879, the matter of the approval of the bond of McCabe as collector, was taken up in the Circuit Court, it being in term, and on behalf of McCabe it was objected that the County Court had approved the bond, and that the Circuit Court had no jurisdiction of the matter, but the court ■overruled the objection.

Then follows this order :

“And it further appearing that said bond is in the penal sum of $350,000, and that the sureties are qualified in the aggregate sum of only $177,000, it is ordered, considered and adjudged that said bond be rejected, and that said McCabe be directed to furnish a good bond, with qualification of sureties to the full sum of $350,000, within fifteen days herefrom.”

On behalf of Pulaski county, a demurrer was interposed to the petition for certiorari, and the cause submitted on the-demurrer.

At the time of the adoption of the present constitution, the-law provided that the bond of the collector, as well as the-bonds of other county officers, should, be approved by the Board of Supervisors, which had taken the place of the County Court. See Gantt’s Digest, secs. 5154-6.

On March 1, 1875, after the adoption of the present constitution, which restores the County Courts to our judicial system, the Legislature passed “an act providing for the-approval of official bonds of township and county officers,” which repealed all laws in conflict with the act. Acts of' 1874-5, p. 192.

By the first section of this act it is provided: ‘ ‘ That the-official bonds of county and township officers shall be approved by the Circuit Court; provided, however, that the-judge of the Circuit Court, or the judge of the County Court; in vacation, subject to confirmation or rejection by the Circuit Court, may approve the bonds of such officers in vacation,” etc.

This act has not been repealed, but is still in force.

The counsel for the relator submits that collectors are not. embraced by the provisions of this act.

The constitution provides that the Sheriff shall be ex-ofeio-collector of taxes, unless otherwise provided by law. Sec. 4„ art. 7.

The relator, under existing laws, holds two offices ; he holds, the office of sheriff, and he holds the office of collector.. They are distinct offices though held by the same person, and. he is required to give bond as sheriff, and also to give bond as. collector. Gantt’s Digest, chap. 123, and Ib. secs. 5154-6. See Lee County v. Abraham, 31 Ark., 571. Miller’s Digest,, secs. 107-9, etc.

In tbis county, as in others, the collector is a very impor-. tant county officer. He collects, not only the revenue of the-county, but of the State, the city, and the district schools, and whatever motive induced the Legislature to require the bonds, of county officfers to be approved by the Circuit Court, applies., with full force to the bond of a collector. There is no good reason why the collector should be excepted out of the provis---ions of the act.

It is manifest that Auditor Miller, in making up sections-105 and 106 of his Digest of the Revenue Lems of the-State, overlooked the act of March 1, 1875, but this digest has not been enacted as law, and it repeals nothing.

The demurrer to the petition is sustained, and the writ of' certiorari refused.