text:
    Taylor v. Viner.
    Opinion delivered March 7, 1932.

      John G. Ashley and Gus Causbie, for appellant.

      Geo. T. Humphries and W. P. Smith, for appellee.
   Butler, J.

This is an action begun in the circuit court of the northern district of Sharp County by the appellant, Farmers ’ Bank of Hardy, against J. T. Viner, Lee Weaver and Eliza Weaver, to recover on a promissory note executed on the 4th day of December, 1926, which was past due and unpaid. From a judgment adverse to Taylor, the commissioner in charge of said bank, he has appealed.

The appellee, J. T. Viner, defended on the ground that his signature to- the note was conditioned upon the procurement of the signature of one Wess Weaver on the note, that this person’s signature was not obtained, and therefore he was not liable. He testified that Lee Weaver came to him one evening, and requested him to sign the note; that he agreed to sign it if Lee Weaver would get Wess Weaver to sign it, and, having received the promise .that this would be done, he signed the note; that early the next morning about the time the bank opened he went to Mr. Turner, the cashier of the bank, and informed him of the understanding between himself and Lee Weaver and told him that if Wess Weaver did not sign the note not to take it.

It appears from the testimony of the assistant cashier of the bank who testified from the records that this note was given in renewal of another note for the same amount executed on March 6, 1925, and due ninety days after date.

The president of the bank, who became active as an official in 1928, testified that when he took chargé he began efforts to collect the note from Viner and Lee Weaver; that Viner did not deny liability, but said to let the note run along and see what would be the outcome- of the bankruptcy proceedings in which Weaver was then involved.

On rebuttal, Viner stated that he had never acknowledged liability on the note, and did not know until after Lee Weaver died that Wess Weaver had not signed it.

This case is ruled by the case of Halliburton v. Cannon, 160 Ark. 428, 254 S. W. 687, in which it was held that, where a note is given signed by an accommodation maker, and afterward a note is executed in renewal of the first note, it-is a good defense by the accommodation maker to his liability as signer of the renewal note that his signature was affixed thereto upon the express condition that other persons should sign the note before it should become binding on him, and that the payee was notified of the condition on which the note was signed before it was delivered to him.

The court correctly instructed the jury that the burden of proof was upon Yiner to prove by a preponderance of the evidence in order to escape liability that he had signed the note on condition that the signature of Wess Weaver should be obtained and also that he had notified the bank before the note was accepted by it.

It is insisted by the appellee that the case of Halliburton v. Cannon, supra, does not govern because there is a lack of evidence that the bank was notified of the condition before it accepted the renewal note. The evidence in this case is very brief. Yiner informed Turner, the cashier of the bank, of the condition about the time the bank was opened and just what was said between the two is uncertain. Yiner, in answer to a question as to whether or not Turner said anything about turning the note over to Lee Weaver, answered, “No, he talked like they had though,” and, when asked if Turner had the note then, answered, “I asked him about it, and he didn’t seem to have it and didn’t claim that Wess Weaver had signed it.” On cross-examination witness stated that he told Turner about the condition upon which he signed the note and told him not to take it unless Wess Weaver signed it. He was asked, “You don’t know if he had the note at that time,” and answered, “No, sir.”

This was all the testimony relative to the notice given the bank, and, while not conclusive, we are of the opinion that the reasonable inference might be drawn that the notification was given the bank before the note had been delivered to it by Lee Weaver and accepted by it in renewal of the note of March 6,1925.

After the verdict was returned, the appellant filed a motion for judgment, notwithstanding the verdict, on the note dated March 6,1925, for which the renewal note was given, on the theory that the renewal note did not extinguish the obligation of the former. It is true that, without an agreement to that effect, the renewal of the note will not operate as a payment of the original note, but there was no evidence regarding any agreement at the time the note was renewed or as to whether it was surrendered or retained by the bank. Moreover, the note of March 6, 1925, was not declared on, and therefore the court did not err in overruling the motion.

We find no error in the record, and conclude that there was substantial evidence to support the verdict. The judgment of the trial court is therefore'affirmed.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Trent v. Johnson.
    Opinion delivered March 7, 1932.

      Karl Greenhaw, for appellant.

      Ulys A. Lovell, for appellee.
   Butler, J.

The appellee, as trustee in succession,brought suit against the appellant and a number of other defendants for judgment on a note executed on the 7th day of June, 1911, and for foreclosure of a mortgage on certain lands in Washington County, to secure payment of the same. The appellant, Trent, demurred to the complaint, and, his demurrer being overruled, filed an answer in which he raised the defense of the statute of limitations and of laches.

The court, sitting as a jury, heard the case upon an agreed statement of facts, overruled the appellant’s plea of limitation and laches, entered a decree foreclosing the mortgage, and rendered a personal judgment against the appellant, from which judgment is this appeal.

The facts as agreed upon are as follows:

“1st. That A. L. Trent borrowed the sum of $1,250 on June 7, 1911, from M. F. Croxdale, cleric and trustee, and executed his note therefor due and payable five years after date and bearing eight per cent, interest from date until paid, and, to secure said note, the said A. L. Trent and wife executed and delivered to said payee in said note their certain real estate mortgage upon certain lands in Washington County, Arkansas, sought to be foreclosed herein.

“2d. That the said A. L. Trent sold and conveyed said lands to J. M. Hamilton, who died more than one year before the institution of this suit, said lands hav- ■ ing been sold to the said J. M. Hamilton, by warranty deed, December 31, 1913, and in said deed the said J. M. Hamilton assumed and agreed to pay said mortgage indebtedness sued on herein; that thereafter the said J. M. Hamilton sold said lands to Finis L. Trimble, on the 16th day of September, 1914, who assumed and agreed to pay said mortgage indebtedness, and that thereafter said lands changed hands many times, and that the grantees in most of the deeds assumed and agreed to pay said mortgage indebtedness.

“3d. That A. L. Trent had no further connection with said note or mortgage nor said lands after he conveyed the same to Hamilton on December 31, 1913, and that, at the time Trent conveyed said lands, he owed no delinquent interest. That all interest due and payable on said note and mortgage was kept paid by various owners of said lands from and after the date Trent sold it until and including June 7,1929. That the interest due June 7, 1930, was unpaid, and that this suit was brought to foreclose after the failure of'the interest, payment due on June.7, 1930, for the preceding year.

“4th. That the said A. L. Trent did not make any payment of interest after he sold said lands in 1913, and that he knew nothing whatever about said interest payments, and did not know that said note and mortgage were still running or that said interest payments were being made each year after he sold said lands in 1913.

“5th. That said note became due according to law June 7, 1916, and would have become barred by law.as to Trent on June 7, 1921, unless the acts of the various grantees in the various deeds, the owners of said lands, in paying the interest thereon through all these years up to and including June 7,1929, served to toll the statute of limitations as to A. L. Trent.

“6th. That the first A. L. Trent knew said mortgage and note had not been paid and satisfied was in the year 1930, at or about the time the foreclosure suit was filed herein.

“7th. That said mortgaged lands have depreciated in market value since the year 1921, and would not sell for near as much money now as they would have brought had said mortgage been foreclosed and the land sold prior to June 7, 1921.”

The question raised by the appellant’s plea of the statute of limitations is whether or not the payments by the grantee will interrupt the running of the statute as to the personal liability of the mortgagor. This question has never before been presented to this court for decision. It may be said, first, that it is well settled that the assumption by a grantee and the agreement by him to pay the mortgage debt does not, within itself, change the relationship of the mortgagor and the mortgagee nor release the mortgagor from payment of the mortgage debt, and its collection may be enforced as long as tbe debt remains unpaid or until barred by limitation or laches.

It is also the settled rule that partial payments will &eep alive the lien as between the parties and also as to third parties when the memorandum; thereof is indorsed upon the record in the manner provided by the statute. However, the theory on which partial payments keep alive the debt is that these imply a new promise to pay the debt. Consequently, to bind the mortgagor the payments must have been made by him in person or by some one authorized by him to make a new promise in his behalf. Abbott v. Johnson, 130 Ark. 7, 195 S. W. 676; Chase v. Carney, 60 Ark. 491, 31 S. W. 43; Johnson v. Spangler, 176 Ark. 328, 2 S. W. (2d) 1089, 59 A. L. R. 899.

It is the contention of the appellee that by the agreement to pay the mortgage debt the grantee became the agent of the mortgagor, and therefore. the payments by him will be imputed in law to be that of his principal, the mortgagor, and these payments be effectual to suspend the statute as if made by the mortgagor himself. He argues that this is the effect of our decision in Felker v. Rice, 110 Ark. 70, 161 S. W. 162, and in the cases of Walker v. Mathis, 128 Ark. 317, 194 S. W. 702, and Farrell v. Steward, 135 Ark. 617, 204 S. W. 423, which approve the doctrine announced in Felker v. Rice, supra. A critical examination of those cases does not warrant the contention made. In Felker v. Rice, supra, it was held that the grantee assuming the mortgage “stood in the position of surety for the debt.” It is evident from the context that the court merely intended to hold that, not only was the mortgagor primarily liable because of his promise to pay the debt, but by the assumption of the grantee of the mortgage debt and his promise to pay he became also liable personally for its payment, and therefore the mortgagee had, in addition to the security of the mortgage lien and the promise of the mortgagor, the security created by the promise of the grantee; and in those cases where the court said that the grantee became the surety of the mortgagor the word “surety” was not used in its proper and technical sense, but to mean that the mortgagee, in addition to the liability of the mortgagor, had as a security for the payment of his debt the promise of the grantee to which the law imputes the same force as if made directly to the mortgagee.

This view is strengthened by an examination of the cases of Kirby v. Young, 145 Ark. 507, 225 S. W. 970; Wallace v. Hammond, 170 Ark. 952, 281 S. W. 902; Boone v. Trezevant, 181 Ark. 504, 26 S. W. (2d) 582. Those cases but reiterate the well-settled doctrine in this State that the grantee of mortgaged lands who assumes and agrees to pay the debt secured by the mortgage becomes personally liable to the mortgagor for its payment; and where default is made by' the grantee, the mortgagor, upon paying the debt assumed by his grantee, may recover it from him and be entitled to be subrogated to the rights of the mortgagee in the lien on the property contained in the mortgage.

On the question as to whether an acknowledgment of the continuance of the mortgage debt by partial payments made on it by the grantee of mortgaged premises who has assumed and agreed to pay the debt interrupts the running of the statute of limitations as against the liability of the mortgagor, the authorities are in conflict. The weight of authority, however, is to the effect that no act of a grantee who has assumed a mortgage will toll the statute of limitations as to the mortgagor. 17 R. C. L., p. 916-917; 18 A. L. R., note IIIa, p. 1033; Fitzgerald v. Flannigan, 155 Iowa 217, 135 N. W. 738, Ann. Cas. 1914C, 1104; Regan v. Williams, 185 Mo. 620, 84 S. W. 959; Ann. Cases, 1914C, p. 1113, note; Cottrell v. Shepherd, 86 Wis. 649, 57 N. W. 983, 39 Am. St. Rep. 919. We are of the opinion that the better reason supports the view taken in the authorities above cited. The grantee is personally liable to the mortgagee because of his assumption and agreement to pay the debt secured by tbe mortgage, the payments are made by the grantee for his own benefit and not as the agent of the grantor, as their liabilities are separate and distinct. Old Alms-House v. Smith, 52 Conn. 434. Therefore, the' grantee cannot, by any act of his, impute to his grantor the effect of his act or subject him to a new liability. Hence we adopt the prevailing view and hold that the trial court erred in overruling the appellant’s plea of the statute of limitations. As more than seven years elapsed since the debt became due, we hold that the statute bar attaches. As the grantee was personally liable for the debt secured by the mortgage, his payments of interest interrupted the running of the statute, the debt remained enforceable against him, and therefore the lien remained in existence, and the trial court correctly decreed its foreclosure, but erred in rendering a personal judgment against the appellant.

For these reasons the decree of the trial court rendered against the appellant is reversed, and the cause remanded with directions to dismiss the complaint as to him.


author: Smith, J.

text:
    Arkansas County Road Improvement District No. 5 v. Taylor.
    Opinion delivered March 14, 1932.

      John W. Moncrief and R-. E. Wiley, for appellant.

      Coleman «É Gantt and G. E. Conéray, for appellee.
   Smith, J.

This cause was heard in the court below upon an agreed statement of facts from which we copy the following essential recitals.

The Home Bank of DeWitt suspended business on January 4, 1929, and its assets are now in charge of the State Banking Department for purposes of liquidation. At the time of the bank’s suspension, Arkansas County Road Improvement District No’. 5 (a road improvement district created by special act of the General Assembly) had on deposit $19,799.21, which was a general deposit subject to check.

The deposit was made pursuant to the supposed authority conferred by act 182 of the Acts of 1927 (Acts 1927, page 634). At the time of the deposit the bank held certain warrants drawn bjr the board of directors of Special School District No. 1 of DeWitt, Arkansas, on the county treasurer in the sum of $10,572.59.

It is recited in the agreed statement of facts that “the sum of $11,699.80 has been paid on the deposit by delivery of $9,000 in U. S. bonds which had been separately pledged on June 22, 1927, to secure $9,000 of the aforesaid deposit, and by a twenty-five per cent, dividend by the successor to and purchaser of the assets of the Home Bank of DeWitt, leaving unpaid $8,099.41 of said deposit, and the school warrants aforesaid are worth their face value of $10,572.59, and thereby have excess value of $2,473.18 over the unpaid balance of the deposit.”

The school district was a legally organized school district under the laws of the State of Arkansas, and the deposit was made under a contract for the payment of three per cent, interest on daily balances.

The deposit was made under a written contract whereby the school warrants and the Government bonds were deposited in the First National Bank of DeWitt, to be delivered to the road improvement district npon the failure of the Home Bank to repay the funds upon the check or order of the road district.

The school warrants deposited in escrow had been drawn by the school district for teachers ’ salaries, janitor service, and other small necessary supplies. The school warrants were in regular form and such as are in general use throughout the State, and were valid orders for the payment of the indebtedness of the school district upon presentation to the county treasurer out of any funds in his hands belonging to the school district, and would have been paid upon presentation to the county treasurer when settlement had been made by the collector of taxes collected for the school district.

Upon these facts it was decreed that the State Bank Commissioner “is the owner of all the school warrants described in the pledge, * * * and that all said school warrants be surrendered and delivered by the escrow agent, First National Bank of DeWitt, to Walter E. Taylor, State Bank Commissioner, and be held by him free of all claim of the said Arkansas County Road Improvement District No. 5, or any of the other parties to this action,” and this appeal is from that decree.

It is said that 'the decree from which this appeal comes was rendered upon the ■authority of the case of Arkansas-Louisiana Highway Improvement District v. Taylor, 177 Ark. 440, 6 S. W. (2d) 533, and in our opinion the law there announced was correctly applied to the facts herein stated.

In that case the Bank Commissioner brought suit to recover the assets of an insolvent bank which was in his hands for the purposes of liquidation. • The insolvent bank had, a short time before closing its doors, pledged certain notes payable to its order for the purpose of securing a general deposit made by a road improvement district. In that case, as in this, the deposit had been made under the supposed authority conferred by act 182 of the Acts of 1927, supra, and that case depended, as does this one, on the construction of that act.

Section 1 of this act provides that the officers of road and other improvement districts shall, before depositing money belonging to such districts in any bank, require a surety bond, conditioned for the apt, full and complete payment of all funds so deposited, together with interest thereon. It was provided, however, that in lieu of such surety bond the bank might “deposit United States bonds or notes of the State of Arkansas, the bonds of any legally organized school, levee, drainage, or other improvement district of the State of Arkansas, which bonds and all proceedings concerning the issuing* of same have been approved by some reputable attorney who is recognized by the bond buyers of the United States as such, as collateral security, and such bonds shall be deposited in escrow with some other bank than the depository of the funds of such .district to be delivered to such district only on failure of the depository of such funds to repay the said funds to the district or to pay same on the order of the district.”

It was held in the former case, above cited, that this act should be strictly construed for the benefit of stockholders and depositors, and that the power to deposit assets as collateral by a bank should not be held to extend beyond the express authority there given by the act. This holding was made upon the view, there expressed, that: “If a bank could pledge any portion of its assets to secure deposits, it could pledge all of its assets, because, if the authority to pledge its assets exists at all, it is without limit. And a few large depositors might be able to secure the entire assets of the bank as a pledge for their deposits, to the injury of every depositor and the stockholders. The act relied on should be strictly construed for the benefit of the stockholders and protection of the depositors, and the power to deposit assets by a bank should not be held to extend beyond the express authority given in the statute.” The 'Bank Commissioner was permitted in that case to recover the assets which had been pledged contrary to the provisions of the act.

The attempt is made to distinguish that case from the instant case, upon the ground that the warrants of the school district are, in legal effect, the same as the bonds of the district, and that as the authority is conferred to pledge bonds to secure deposits, the authority also exists to pledge school warrants for the same purpose. The correctness of this contention is the controlling question in the case.

The opinion in the case of Gaster v. Dermott Special School District, 184 Ark. 536, 42 S. W. (2d) 990, is decisive of this question. There a school district sought to refund both its bonded and floating indebtedness under the authority of §§ 59 and 60 of act 169 of the Acts of 1931, page 476.

By § 59 of this act all school districts are authorized to borrow money for certain designated purposes and “for funding any indebtedness created for any purpose and outstanding at the time of the passage of this act, as provided in this act.”

Section 60 of the act of 1931 reads as follows: “No bonds shall be issued at any time that would make the' total of outstanding bonded indebtedness of the district at that time, exclusive of interest, exceed seven per cent, of the assessed valuation of the real and personal property in the district as shown by the last county assessment. This shall not prohibit bond issues refunding present bonded indebtedness that exceeds seven per cent.”

It was there held that the Dermott district might issue bonds in excess of seven per cent, of the last county assessment only for the purpose of refunding' the bonded indebtedness of the district, and that bonds could not be issued in excess of the seven per cent, limitation for the purpose of paying the floating indebtedness of the district evidenced by school warrants, such as those pledged to the Home Bank in the instant case. It was there said: “Here, under the allegations of the complaint, the school district has outstanding thousands of dollars of warrants, issued for teachers’ salaries and other current expenses, attached to notes given for this borrowed money, and, while this is indebtedness of the district, it is not bonded indebtedness, and there is therefore no authority to issue bonds to cover those debts, for the reason that the district has now outstanding bonds in excess of seven per cent, of the assessed value of the property of the district.”

School bonds and school warrants are not synonymous terms. The characteristics of each are well known, and so also is the difference between them.

- In the case of Shelley v. St. Charles County Court and Another, 21 Fed. Rep. 699, Mr. Justice Brewer (later an associate justice of the Supreme Court of the United States) said: “There is a vast difference between bonds and warrants. Warrants are general orders payable when funds are found, and there is propriety in the rule providing that they shall be paid in the order of presentation, the time of presentation to be indorsed by the treasurer on the warrants. But bonds are obligations- payable at a definite time, running through a series of years. They are payable when the time of their maturity arrives, independent of any presentation.”

The obligations of school districts which the act of 1927, supra, authorizes the banks to use as collateral security are bonds, “which bonds and all proceedings concerning the issuing of same have been approved by some reputable attorney who is recognized by the 'bond buyers of the United States as such.” These bonds have a defined security- behind them, and, with the interest thereon, are payable at fixed definite periods, whereas the ordinary school warrant is payable on presentation when funds for that purpose are available. These school warrants are not ordinarily subjected to that scrutiny which precedes the approval of a bond issue, The Legislature evidently intended to require, and lias required, a higher form of security than a mere school warrant, and the deposit in question was not therefore authorized by the act of 1927. This being true, there was no authority in law for the pledge, and the opinion in the former case, above cited, applies and sustains the decree here appealed from. It is therefore affirmed.


author: Humphreys, J.

text:
    Missouri Pacific Railroad Company v. Womack.
    Opinion delivered March 14, 1932.

      Thos. B. Pryor and H. L. Ponder, for appellant.

      John E. Miller and G. E. Yingling, for appellee.
   Humphreys, J.

Appellee recovered damages against appellant in the circuit court of White County in the sum of $75 for killing his cow in the operation of its passenger train en route to Memphis on the 5th day of August, 1930, near bridge No. 4 between mile posts 291 and 292. The right of recovery was based upon the alleged negligence of appellant’s employees engaged in the operation of said train in failing to give warning of the approach of the train and to stop said train after discovering the cow upon its track.

Appellant requested the court to instruct a verdict for it upon the theory that the undisputed testimony reflected that the cow came suddenly onto the top of the track from under the east end of the trestle about 150 or 200 feet in front of the train, which was running at a speed of about sixty miles an hour, rendering it impossible for the engineer to have stopped the train and avoided hitting the animal. This was the effect of the testimony of the engineer, who swore that, although keeping a constant lookout, he did not discover the cow until he was within 150 or 200 feet of her as she came from under the east end of a trestle onto the track; that he immediately blew the whistle to frighten her off, but that he struck her before she cleared the track. He further testified that the train was the fast passenger train out of Memphis to Little Rock, and that he struck the cow about 5:30 p. m. According to the testimony of the section foreman, he found the cow on the north side of the track about 100 yards east of the trestle and buried her the next morning.

Had the testimony of the engineer been undisputed, appellant would have been entitled to its request for an instructed verdict. His testimony was disputed, however, by the testimony of witness Sawyer. This witness testified that the track was straight for a long distance each way at the point where the cow was struck; that several cows had crossed the track ahead of the cow owned by appellee and that she was the last one to cross the track from the south side to the north side thereof, and that, just as she was about to clear the track, she was struck by a fast passenger train en route to Memphis about four or four-thirty o’clock p. m.

If the cow in question was killed at four or four-thirty o ’clock p. m. by a fast east-bound passenger train, then the engineer who testified was not operating the train that killed appellee’s cow, for he was operating a west-bound train en route to Little Rock. The place where the carcass was found tended to corroborate the testimony of Sawyer rather than that of the engineer.

The jury accepted the testimony of witness Sawyer as true, and the conflict in testimony warranted the submission of the issue of fact to the jury for determination. The court did not err in refusing the peremptory. request of appellant.

Appellant also contends for a reversal of the judgment because the court refused to give its requested instruction No. 3, which is as follows:

‘ ‘ The jury are instructed that the engineer and fireman and other employees of the defendant company have a right to testify in this cause, as to how this accident happened, and you are further instructed that you are t.o take their testimony along with the other testimony in the case, and that you have no right to disregard said testimony unless the same is contradicted by other testimony in this case.”

The giving of this instruction would have singled out and given undue prominence to the testimony of the engineer. The court therefore properly refused to give the instruction.

No error appearing, the judgment is affirmed.


author: Meuaffy, J.

text:
    Atkinson v. Reid.
    Opinion delivered February 15, 1932.

      Frank C. Douglas and W. Leo.n Smith, for appellants.

      G. A. Gimninghain, for appellees.
   Meuaffy, J.

The Blytheville Feed & Coal Company was an Arkansas corporation. J. W. Adams was president and owned 98 shares of the stock. His wife, Love B. Adams, owned 2 shares of the stock. Gaines jasper was secretary-treasurer and owned 99 shares of stock. His wife, Pauline D. Jasper, owned 1 share of stock.

Insurance policies in the sum of $10,000 each were carried on the lives of J. W. Adams and Gaines Jasper. J. W. Adams died October 31,1926, and shortly thereafter the insurance company paid to the Blytheville Feed & Coal Company $10,000.

Love B. Adaims was appointed administratrix of the estate of J. W. Adams, deceased.

In order to ascertain the value of the stock, an audit and an appraisement was made on November 19, 1926. The audit and appraisement showed the net worth of the company to be ’$14,559.09. The liabilities of the Blytheville Feed &• Coal Company at that time were $10,328.44 and the assets $24,887.52. $2,559.09 was deducted to cover depreciation and loss on collections, leaving a balance -of $12,000 as the net value of the property of the corporation, and this was the basis used to determine the value of the stock.

The capital stock was $20,000, and Jasper purchased the stock belonging to the estate of J. W. Adams and the 2 shares belonging to Mrs. Adams, paying therefor $60 a share, and the stock was transferred to Gaines Jasper. This sale and transfer of the stock was authorized and approved by the probate court of Mississippi County. The order of the probate court was December 9, 1926.

Gaines Jasper thereby became the owner of the entire capital stock of the corporation, and the corporation, in the early part of January, surrendered its charter as provided for in § 1823 of Crawford & Moses’ Digest.

Thereafter Gaines Jasper continued the business as an individual, but using the same name of the corporation.

On September 17, 1927, Gaines Jasper filed a petition in bankruptcy, and Max Reid was appointed trustee and brought this suit against Gaines Jasper, Love B. Adams, and Blytheville Feed & Coal Company.

The suit was filed February 3, 1928. The complaint alleged that Max Reid was the duly elected and qualified trustee for Gaines Jasper, bankrupt; that the Memphis Coal Company, which was joined as a plaintiff, was a corporation with its principal business at Memphis, Tennessee; that the Blytheville Feed & Coal Company was an Arkansas corporation; that the .¿Etna Life Insurance Company, after the death of J. W. Adams, paid $10,000 to the Blytheville Feed & Coal Company; that prior to December 11, 1926, the stock of the Blytheville Feed & Coal Company was owned by Gaines Jasper and wife and Love B. Adams personally and as the administratrix of the estate of J. W. Adams, deceased; that Love B. Adams and Gaines Jasper knew that the insurance money was a trust fund; that the Blytheville Feed & Coal Company owed various creditors and owed the Memphis Coal Company $1,547.45; that said insurance ¡money was appropriated-by Love B. Adams and Gaines Jasper for their personal use, and that they knew this would render the Blytheville Feed & Coal Company insolvent.

It was alleged that Gaines Jasper attempted to pay Love B. Adams the sum of $6,000 of the funds of the Blytheville Feed & Coal Company for stock in said company; that said Love B. Adams then undertook to pay Gaines Jasper $2,000 of said insurance money for an undivided interest in lots 1 and 2 in block 1 in Davis’ 2d Addition to Blytheville, Arkansas; that, at the time the trust funds were misappropriated, Love B. Adams and Gaines Jasper were officers of the Blytheville Feed & Coal Company; that Gaines Jasper assumed the liabilities of said company and attempted to dissolve the corporation on the theory that he owned all of the stock; that he continued to operate said business as Blytheville Feed & Coal Company and that said Blytheville Feed & Coal 'Company was never dissolved, but still exists as a corporation; that Gaines Jasper dissipated the funds of the corporation in fraud of his creditors and the creditors of said corporation, and that Jasper filed a petition in bankruptcy in September, 1927, and he is liable now for misappropriating the funds of the corporation; that Love B. Adams is liable for misappropriating the funds to the extent of any portion of the insurance money which she received; that the $2,000 paid by her to Jasper was a part of the insurance fund, and that she holds the real estate as trustee for the corporation and its creditors.

The prayer of the complaint was that Max B. Reid be appointed receiver for the Blytheville Feed & Coal Company with authority to take charge of the undivided half interest in the above described real estate and such other assets as he might locate; that he collect rents and profits and distribute same as directed by the court; that plaintiffs have judgment against Love B. Adams and G-aines Jasper for the sum of $10,000; that a trust be impressed upon the real estate, and that the same be sold to satisfy the judgment herein rendered.

The Memphis Coal Company prayed that it be paid the sum of $1,547.45 and for general relief.

Love B. Adams filed answer denying the allegations of the complaint and alleging that she sold the stock, but was not guilty of any fraud in its sale.

After hearing the evidence the chancellor entered a decree that the plaintiff have and recover of and from Love B. Adams, (now Love B. Atkinson), and Gaines Jasper the sum of $6,000 with interest thereon at the rate of 6 per cent, per annum from December 11,1926, for the use and benefit of the creditors of the Blytheville F,eed & Coal Company as of that date. A list of such creditors is contained in the audit report of Neville Audit Company, covering a period from January 1, to November 19,1926. The decree also said: “Whether the money of the corporation, converted by the parties, was used in the purchase of property belonging to Love B. Atkinson, is reserved.”

There is practically no dispute about the material facts. The appellees contend, and the court found, that G-aines Jasper and Mrs. Atkinson became liable to all the creditors of the_ Blytheville Feed & Coal Company to the extent of money taken from its treasury. And it is contended that the corporation was never dissolved. The appellee does not say why it was not dissolved, but makes the contention that it was not.

Section 1823 of Crawford & Moses’ Digest reads as follows: “Any corporation may surrender its charter by resolution adopted by the majority in value of the holders of the stock thereof and a certified copy of such resolution filed in the office of the Secretary of State and a copy thereof filed in the office of the county clerk of the county in which such corporation is organized shall have effect to extinguish such corporation.”

After Gaines Jasper became the owner of all the stock, he complied with the above statute, and the corporation was thereby extinguished. It is said that a corporation is an entity, irrespective of and entirely distinct from the persons who own its stock. All of the shares of stock in a corporation may be held by a single person, and yet the corporation continue to exist, and if the charter or bylaws should require certain acts to be done by imore than one shareholder, the sole owner may transfer a portion of his shares so as to conform to the letter of the rule, and the fact that one person owns all the stock in a corporation, does not make him and the corporation one and the same person.

A corporation does not lose its legally distinct and separate personality by reason of the ownership of the whole of its stock by one person. Commonwealth ex rel. Atty. Gen. v. Monongahela Bridge Co., 216 Pac. 108, 64 Atl. 909; Parker v. Bethel Hotel Co., 96 Tenn. 252, 34 S. W. 209; Newton Mfg. Co. v. White, 42 Ga. 148; Re J. D. Belton, 47 La. Ann. 1614, 18 So. 642, 30 L. R. A. 648.

This court said: “And when from death or disfranchisement so few remain that by the constitution of the corporation they cannot continue the succession, to all purposes of action át least, the corporation itself is dissolved. As long,' however, as the remaining corporators are sufficient in number to continue the succession, the body remains; as though all the -monks of an abbey died, yet, if the abbot was aliye, the corporation was not determined, since the abbot might profess others.” Blackwell v. State, 36 Ark. 178.

Gaines Jasper became the owner of all the stock of the Blytheville Feed & Coal Company, but this did not either dissolve the corporation or make him and the corporation the same person. He had a right to comply with the law and dissolve the corporation; and, when he did this, the corporation no longer existed. It could neither' sue nor be sued, nor hold nor convey property. In fact, as said by the statute above quoted, such corporation is extinguished. Of course, this could not prevent a suit by the proper parties against the stockholders for misappropriating funds which belonged to it before its dissolution.

The Blytheville Feed &' Coal Company did not go into bankruptcy. In fact, the appellees contend that the corporation was never dissolved, and that it is still in existence, but it is not contended that it was in bankruptcy, or that any trustee in bankruptcy was ever appointed for its creditors. Max B. Beid was appointed in the bankruptcy proceedings of Gaines Jasper, and this would give him no authority to sue for the benefit of the creditors of any one except Gaines Jasper. He therefore had no authority to bring or maintain a suit for the creditors of the Blytheville Feed & Coal Company.

It is also alleged by appellees and not disputed that, when Gaines Jasper surrendered the charter of the corporation, he assumed the debts of the corporation. He would be liable for the debts, of course, whether he assumed them or not, to the extent of the value of the property he received.

The undisputed evidence shows that the Memphis Coal Company knew all about the facts; it knew that Gaines Jasper was operating as an individual, and was attempting- to pay the prior debts of the corporation. The undisputed evidence shows that there was an effort made to form a new corporation, and that the articles were actually signed. One of the officers of the Memphis Coal Company was a party to this, and the Memphis Coal Company agreed to it. This corporation, however, was not perfected, and the Memphis Coal Company continued to sell to Gaines Jasper, individually, although he was operating- under the name of the old corporation.

Mrs. Atkinson and Jasper, if they misappropriated the funds of the corporation, as found by the court, would be liable to the creditors of the Blytheville Feed & Coal Company, but not liable to the creditors of Gaines Jasper.

The undisputed evidence also shows that more than the amount due the Memphis Coal Company at the time of the surrender of the charter of the Blytheville Feed & Coal Company was paid to it after the surrender of the charter. There is no dispute about this, and/if "the Memphis Coal Company’g debt owed by the Blytheville Feed & Coal Company had been paid, it could not collect a debt against G-aines Jasper, either from Mrs. Atkinson or from the property of the corporation. Its remedy would be against Gaines Jasper.

The payments made to the Memphis Coal Company should be applied to the oldest items, unless there is some reason for making a different application, and the evidence shows none in this case. The evidence does not show the application of the payments; that is, there is no evidence tending to show whether either the debtor or creditor gave any directions as to how the payments were to be applied.

“Subject to some limitations, the general rule is that, in case of a running account, where fhere are various items of debt on one side, and various items of credit on the other, occurring at different times, and no special appropriation of payments has been made by either party, the successive payments are to be applied in discharge of the items of debit antecedently due, in the order of time in which they stand in the account. In other words, each item of payment is applied in extinguishment of the earliest items of debit until the payment is exhausted.” 48 C. J., 657; 30 Cyc. 1243; Jones v. Dowell, 176 Ark. 986, 4 S. W. (2d) 949.

Applying this rule, the debt due from the Blythe-ville Feed & Coal Company to the Memphis Coal Company was paid before this suit was brought, unless it is shown by the evidence that a different application was made by the parties.

If the creditors knew nothing’ about the surrender of the charter, and did not know that Caines Jasper had acquired all the stock, but still extended credit with the belief that they were selling to the corporation, they would be entitled to recover, and, if the funds had been misappropriated by Jasper and Mrs. Atkinson, they would be entitled to recover against them.

The suit, however, could not be maintained by Reid, as trustee for the creditors of Gaines Jasper, but the suit would have to fee brought fey the creditors.

Jasper and 'Mrs. Atkinson could not appropriate or dispose of the property belonging to the corporation without being liable to the creditors of the corporation to the extent of the value of the property appropriated by them.

The court decreed that the plaintiffs were entitled to recover for the use and benefit of the creditors of the Blytheville Feed & Coal Company as of the date December 11, 1926.

The only showing about creditors of the corporation is the audit report of the Neville Audit Company, which was from January 1, to November 19, 1926. There is no showing whether payments were made after this time on behalf of the corporation, and in a retrial of the case it will be necessary to show the indebtedness, if any, due each one.

A recovery may be had in a suit by proper parties against Gaines Jasper and Mrs. Atkinson for the debts of the Blytheville Feed & Coal Company, due at the time of the beginning of this suit, not exceeding the sum misappropriated by them.

The pleadings show that there was a prayer for a receiver, but the abstract does nof show whether a receiver was appointed. But the suit for the benefit of the creditors of the corporation would have to be brought, not against the corporation which has been dissolved, but against the parties misappropriating the funds of the corporation.

The decree of the chancery court is reversed, and the action in favor of Max B. Reid, trustee, is dismissed, and the cause of action by the Memphis Coal Company is remanded with directions to permit proof to be taken as to the application of payments, and to determine the amount of indebtedness, if any, due from the Blythe-ville Feed & Coal Company to the Memphis Coal Company at the time this action was begun.


author: MoIIaney, J.

text:
    Arkansas Baking Company v. Wyman.
    Opinion delivered February 22, 1932.

      A. W. Taylor and DeWitt Poe, for appellant.

      Compere <& Compere, for appellee.
   MoIIaney, J.

Appellee sued appellant for damages for the injury and death of his infant son, seven years of age, caused by the alleged negligence of appellant in driving its automobile truck against that of appellee while driving along a highway between Warren and Monticello, both traveling in the same direction. The accident occurred on the 26th day of December, 1930. The appellant’s bread truck was driven into the rear end of appellee’s truck with such force and violence as to dislodge and throw to the ground several persons riding on the rear of appellee’s truck. Appellee, his wife and three children were riding in the cab of the truck, the little son, Wayne, sitting between his mother and father with his feet hanging down and his back some distance from the back of the seat. It is alleged that the impact from the collision threw the child back against the back of the seat in such a way as to injure the back of his head and neck near the base of the brain, causing a severe and painful injury, from which he died on January 16, 1931. Appellant denied the material allegations of the complaint, and the case was tried to a jury, which resulted in a verdict and judgment against appellant in the sum of $5,000 for the benefit of the estate for pain and suffering, and in the sum of $3,806.50 “for the benefit of the next of kin for medical bills, funeral expenses and loss of services during minority. ”

For a reversal of the judgment, it is first insisted that the evidence is insufficient to support the verdict; that it does not show that the deceased received any injury in the accident; and that it was impossible for the deceased to have received an injury at the place alleged by reason of the accident. It is true that at the time of the accident, which is undisputed, appellee did not know that his son had received an injury and did not know it for some days thereafter, although he knew that his little son was complaining* about his head hurting him. At the time of the accident, as stated above, four or five persons riding on the rear of the truck were thrown out, and all the others except the deceased got out of the car on account of the accident. Appellee soon discovered that there was no .substantial damage to his car, and, although his car was knocked 40 or 50 feet down the road and they were all considerably shaken up, appellee did not know any person had been seriously injured. Dr. Smith, who examined the child about eighteen days after .the accident, testified that the child had an injury at the back of his neck, about the edge of the hair and that such injury was caused from a lick received in that place. The evidence further shows that the child began complaining about his head shortly after the accident, and that he continued so to complain until his death. Shortly after the accident appellee discovered that bloody water was coming from the child’s ears and nose, took the child to a physician who made a perfunctory examination and prescribed a wash for the bloody discharge. This physician was not advised that the child had been in an accident, as it did not occur to appellee at that time that lxe was suffering from an injury received therein. We think the evidence was sufficient to take this question to the jury under all the facts and circumstances, especially so in view of the fact that the child did not get out of the truck with the others during the excitement caused by the accident, and began to complain of his head hurting him only a short time after leaving the place of the Occident. Nor do we think we can say as a matter of law that' it was impossible for the child to have received the injury it did receive in the place and in the manner stated. This was a question for the jury. The evidence when viewed in the light most favorable to appellee, as we must do in determining its sufficiency, was such that the minds of reasonable men might differ as to the cause of the injury, and we cannot set the verdict aside on this account.

It is next insisted that there is no sufficient showing that the truck that caused the accident was appellant’s property, was being used at the time of the accident in its business, or' that the driver of the truck was in its employ and that he-was engaged in the business of appellant at the time of the accident. It is undisputed that the truck that caused the accident had appellant’s name printed or -painted thereon. It is further undisputed that this truck, or a like truck bearing* the name of appellant, ^raveled over this highway daily. The evidence further shows that a short time prior to the accident, while appellee and another were in Warren they saw this same truck and the same driver who caused the accident delivering bread or other articles of merchandise to a customer in Warren. We think this evidence sufficient to establish the fact that the truck belonged to appellant, and that it was being operated at the time of the accident by its employee, and that this was sufficient to raise the inference that at the time of the accident he was acting within the scope of his employment and in the furtherance of his master’s business. Casteel v. Yantis-Harper Tire Co., 183 Ark. 912, 36 S. W. (2d) 406; Mullins v. Ritchie Grocery Co., 183 Ark. 218, 35 S. W. (2d) 1010; Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S. W. 6. The facts established were sufficient to take this question to the jury, aside from the admissions of appellant’s counsel made in his opening- statement to the jury.

It is next argued that the verdict, both for the value of the services of the deceased during minority and for pain and suffering, was excessive. It appears that appellee incurred $56.50 for medical attention and funeral bills. There was a net amount of recovery for loss of services of $3,750. It is argued that this amount is excessive because it amounts to nearly $400 a year or approximately $1.25 for every working day for fourteen years. In Morel v. Lee, 182 Ark. 985, 33 S. W. (2d) 1110, we allowed a recovery for pecuniary damages in the sum of $2,500. In this case, however, the child was the son of a small farmer, well developed and a strong able-bodied boy. While he had not reached that age that his services would be of very great value, he was able to run errands, do chores and numerous other things about the farm of value to appellee. It is well known that a boy, so reared by a father in poor or moderate circumstances, is required to work, and, when quite young, must do a man’s work in assisting his father to make a living for the family. It is true that they are required to go to school a portion of the year, but it is quite usual in farm communities to so arrange the terms of school as to permit the children to assist their parents in the growing and gathering of crops. We have reached the conclusion that the amount of the verdict in this respect was a question for the jury, and it does not appear to be so excessive under the circumstances stated as to justify us in reducing it. Neither can we say that the judgment for pain and suffering is excessive. On the contrary, it appears to us to be a moderate allowance. The child lived 21 days after its injury, and a number of witnesses testified that it suffered continuously, having to be rested on a feather bolster and that although during this time it was taken to physicians for examination two or three times, it finally reached the point where the physician had to come to see it, and at that time it was too near death to be taken to a hospital for an X-ray.

The only other question we find it necessary to discuss is that relating to the hypothetical question asked Dr. Wm. B. Grayson, an expert witness. 'Before putting Dr. Grayson on the stand, a number of witnesses had testified regarding the accident, how it occurred, the actions and demeanor of the child, its complaints of injury and to other facts and circumstances relating to the manner of the supposed injury. There was no conflict in any of this testimony. Dr. Smith was examined and testified that he had personally examined the child and found a bruised place on the back of his head near the base of the brain which was caused from an injury. Dr. Grayson was then put upon the stand and asked whether he had been sitting in the court room all day and had heard all the witnesses testify, and he answered that he had been in the court room, and thought he had heard them all; whether he had paid attention to the testimony as given by all the witnesses with reference to the manner of the alleged injury to the child, the symptoms that were shown by him, the appearance of his body, and he answered that lie liad. He was then aslced this question: “If this testimony is found to be true, Dr. Grayson, we want to ask you what, in your opinion, based on this testimony as you have heard it, and upon your experience and knowledge as a physician and surgeon, was the cause of the death, in your opinion of Wayne Wyman?” The witness was permitted to answer the question over the objections and exceptions of appellant that the child’s death was caused by traumatism which is considered an injury due to a blow direct or indirect. Appellant objected to the question on the ground that numerous witnesses had testified to different conditions and symptoms, and that the evidence was in conflict so that it was impossible for his answer to show what testimony he believed or accepted or what he did not, or upon what conditions or symptoms he based his answer. We have read the testimony carefully, and we fail to find any substantial conflict in the testimony as to how the injury occurred. In addition, it is argued here now that his answer was based in part upon the testimony of Dr. Smith, but at the time it made no objection to the question on that ground. It is true that the better practice is, in eliciting the opinion of an expert witness, to ask a hypothetical question detailing all the undisputed facts which must be included and all the facts assumed to have been established by the party propounding the question may be included, if relevant. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Newport Mfg. Co. v. Alton, 130 Ark. 542, 198 S. W. 120; Mo. State Life Ins. Co. v. Fodrea, ante p. 155. An expert cannot be asked his opinion upon disputed questions of fact except upon hypothetical statement, unless he is personally acquainted with the material facts in the case. Ringlehaupt v. Young, 55 Ark. 128, 17 S. W. 710. It was held in that case that there are two methods of eliciting the opinion of an expert on matters not depending upon general knowledge, but on facts not testified of by himself, and one of them is that the witness is present and hears all the testimony, and the second is to ask a hypothetical question. The same rule was announced in St. L. I. M. & S. R. Co. v. Williams, 108 Ark. 387, 158 S. W. 494, where it was said: “If the expert has been present and heard all the evidence as to the symptoms and appearances, detailed upon the trial, he may give his opinions upon the fact so stated, if they be found true by the jury, but cannot himself judge of their truth.” Appellant argues that the holdings in both cases are dicta, but, whether they are or not, such seems to be the general rule where the witness is present and heard all the testimony, which is not in conflict. It is argued that Dr. Norman testified that the child was suffering from infantile paralysis, but Dr. Norman did not testify until after Dr. Grayson had given his opinion on the facts then in evidence. Assuming that appellant’s objection to the question asked Dr. Grayson covered the testimony of Dr. Smith and that his argument now made against the expert’s testimony as being based on another expert’s opinion, our holding in the Mo. State Life Ins. Co. case, supra, is contrary to appellant’s contention. Dr. Smith did not testify as an expert witness. He gave his diagnosis from a personal examination. He was not asked any hypothetical question, and the opinion of Dr. Grayson cannot be said to be based in part on another expert’s opinion.

Other assignments of error are suggested and urged for a reversal which we have examined and cannot sustain. No useful purpose could be served by a discussion of them, and we therefore refrain from doing so.

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


author: Hart, C. J.

text:
    Koss Construction Company v. Vanderburg.
    Opinion delivered March 7, 1932.

      Busbee, Pugh dt Harrison, for appellant.

      Arthur Cobb and Murphy & Wood, for appellee.
   Hart, C. J.

This is an appeal by Koss Construction Company, a corporation, from a judgment rendered ag’ainst it for damages on account of the personal injury of G. L. Vanderburg, one of its employees, alleged to have been caused by the negligence of appellant.

G. L. Vanderburg was a witness for himself. According to his testimony, he was twenty-eight years of age at the time he was injured, and had been engaged as an employee on construction work since he was fourteen years of age. He commenced to work for appellant some time in August, 1930, and continued to work for it until he ivas injured along about the 23d day of December, 1930. He was employed as a concrete finisher at the time he was hurt. Appellant was engaged in building a bridge across a stream on a public highway; and, at the particular time in question, was finishing concrete on the bridge. After the concrete is poured, it is necessary to smooth it up and finish it, to prevent it from setting in a rough and irregular way.

Herbert Legler was superintendent of construction for appellant. He was over all the employees and could tell each one what part of the work to do, and whom to obey. About three or four weeks previous to the accident, Legler told appellee to help W. E. York at any time he might need assistance". At that time, the construction company had taken over the ferry at the stream over which the bridge was being constructed, and York was operating the ferry. On the occasion in question, the river was rising, and York had to have assistance to raise the cable by which the ferry Ayas operated. Appellee was not called upon by York at any other time until the date- of the accident..

On that day, Ira Ware was left in charge of finishing the concrete after the day’s work was done. At the same time, Leg’ler told appellee to stay and help Ira Ware smooth the concrete. W. E. York was night watchman, and he had charg’e of furnishing the electric light by which Ware and appellee worked. Between eight and nine o’clock in the evening, York called to Lee Ware to come down there because the water ivas out of the boiler. Ware told appellee to go down and do whatever York told him to do. When appellee got down to the pumping place, York had turned the lights off and was throwing the fire from the boiler in order to prevent it from exploding. Appellee went down and started the pump, but could get no results.

York then told appellee to go up on the hill, climb upon the tank, and see why the water wasn’t passing into it. The' tank was sitting upon beams about sixteen or eighteen feet above the ground. There were cross braces nailed to the beams in order to strengthen and support them. At the top of the beams and surrounding the bottom of the tank were pieces of lumber two by six inches in diameter with the edge side up. These were placed there for the purpose of steadying the tank. There Avas a piece of two-inch pipe fastened about six feet from the bottom of the tank through which the Avater' Avas carried to the top of the tank. The water pipe was not fastened at the top of the tank on the occasion in question, but appellee did not know of this fact.

Pursuant to the directions of York, appellee climbed upon the cross braces, and put his left foot up on one of the two by six pieces, and then caught hold of the two-inch water pipe to brace himself, so that he could climb up on by the two by six pieces and look into the tank to see if the Avater was flowing into it through the pipe. There was nothing- to stand upon except the two by sixes, which, as above stated, were placed around the tank to keep it from rocking*. York did not explain the conditions surrounding- the tank to appellee, and he did not know what they were. When he caught hold of the water pipe with his left hand, it pulled off of the tank at the top and caused him to fall and strike on some lumber about eighteen feet below, injuring him severely. On cross-examination, appellee stated that he had worked for three years for the Texas Utilities Company, which used the same kind of tanks. This company required the water pipes to be securely fastened to the tank. When appellee caught hold of the water pipe, his foot slipped, and he went downwards, carrying the pipe over the edge of the tank with him. He was shaken loose and fell on a piece of timber on his right'hip. ' His head was about a foot and a half or two feet above the top of the frame at the time. He had hold of the pipe with his left hand, and when his foot slipped, he started falling, and the pipe came over with him.

According to the testimony of Ira Ware, Legler told him to stay there and finish smoothing the concrete, and that he was leaving appellee there to help him. Ware supposed that he was the one to see that the concrete was finished, and that it was his business to direct appellee in the work. He does not know what happened after he told appellee to leave the bridge and go to the1 assistance of York. Other testimony for appellee tended to corroborate the above.

W. E. York was one of the witnesses for appellant. According to his testimony, he was night watchman at the time of the accident, and also ran the ferry boat. He did not boss appellee or any one else. On the evening of the accident, York asked appellee to come down and help start the pump. After starting the pump, they did not know whether or not the water was flowing into the tank. York first went up and listened and could not hear the water flowing into the tank. He then told appellee, who had had more experience in matters of that sort, to go up and see about it. He did not tell him, to climb* up on the tank.

According to the testimony of Herbert Legler, he was superintendent of appellant, and appellee and Ira Ware were common laborers. W. E. York was night watchman. He had no authority over any of the men. The water pipe was placed up the side of the tank in order to carry water to it. It was not necessary nor was it intended to be used for the purpose of climbing upon the tank. There was a ladder near there which could be used for that purpose, for it was necessary to find out whether the water pipe was stopped up with sand or other matter. The ladder was standing within ten feet of the tank at the time- the accident occurred.

In rebuttal, another employee of the company testified that he had climbed the cross braces two or three times in the daytime to see if the water pipe had become clogged up. He said that there were ladders around there but none at the tank.

The principal contention of appellant for a. reversal of the judgment is that York was not its vice principal, and had no authority to direct or to command appellee to climb upon the tank in the night on the occasion he was injured.

On the other hand, it is sought to uphold the judgment on the ground that the service which appellee undertook to perform at the time he was injured was required by a superior servant, and was such as to demand that he act at once. Hence, it being an emergency calling for promptness and rapidity, it would be unreasonable to require of him that care and scrutiny of his place of work as would be the case where there was time for observation and deliberation. The claim is that the case falls squarely within the doctrine announced in Southern Cotton Oil Company v. Spotts, 77 Ark. 458, 92 S. W. 249; and Michigan-Arkansas Lumber Company v. Bullington, 106 Ark. 25, 152 S. W. 999, and other cases of this court.

It is insisted that the fact that appellee was directed by York to climb the tank and see if the water pipe had been clogged np created an emergency, and that he had no opportunity to examine the place and discover the danger he was about to encounter. In this situation, it is claimed that the doctrine of assumed risk is inapplicable, and that appellee cannot be held to have assumed the risk of a danger about which he knew nothing and had no opportunity to inform himself.

Many other cases calling for the application of the doctrine above announced have been decided by this court, and the doctrine has been applied according to the facts of each particular case. Therefore we do not deem it necessary to cite or review these cases.

We do not think this is a case calling for the application of the doctrine. There was no evidence from which the jury might have found the existence of facts to make either Ware or York a vice-principal. The most that can be said of Ira Ware is that he was left in charge of smoothing out the concrete, and had no other duty to perform on the occasion in question. Appellee was left to help him in this work, and there is nothing to show that Ware had the control or jurisdiction over the other employees. There was nothing about the work which would require Ware to be in superintendence and control of the other workmen as vice-principal. It is not the law that, because two or more men are engaged in the same work, the duty of supervision of one of them over the others, follows as a legal obligation. To put the mere details of the work under one man does not make him a vice-principal over the others. If such was the case, in every piece of work, whether hazardous or not, it would be necessary to employ one person to oversee the others. Ware was merely the leader of the work of smoothing the concrete, and appellee was left to assist him. It is a matter of common knowledge that, in plough gangs and persons engaged in hoeing cotton, one of them is usually the leader; but this does not give him any control or supervision of the others. If Ware was not the vice principal of appellant, he could not have directed appellee to have gone into a place of danger, and thereby have relieved him from the doctrine of assumed risk.

But, it is earnestly insisted, York was a vice principal. To sustain this theory, it is pointed out that Legler, the regular superintendent of appellant had on one occasion three or four weeks before the date of the injury, directed appellee to help York whenever he might need assistance in his work of operating the ferry. It is claimed that the general direction given on that occasion warranted the jury in finding that York had general supervision and control over appellee in any part of the work intrusted to his care. In the first place, we think that the only legitimate construction that could be put upon the direction of Legler would be that appellee was to help York in raising the cable by which the ferry was operated, and in other work pertaining to the ferry. As far as the service of York was concerned, there was nothing in the circumstances from which the jury might have inferred that he had any dominion or control over appellee. Ware, appellee and York were all engaged in finishing up the concrete so that it could not set in an irregular manner. The work was harmless and required no supervision. Ware and appellee were directed to smooth the concrete, and York was engaged in pumping water to furnish light for that purpose, and also for the purpose of enabling him better to discharge his duties as night watchman. There is a difference between a leader of a crew of men, merely charged with the duty of overseeing the work, and one in which authority is given to one man to have superintendence, control and dominion over the other men, in order to properly carry on the work.

We think the case falls squarely within the principles of law decided by this court in Williamson & Williams v. Cates, 183 Ark. 579, 37 S. W. (2d) 88. Ware, appellee and York were all fellow-servants, and neither York nor Ware had supervision, control or dominion over appellee in the sense that either was a vice principal of appellant. Therefore it was error for the court helow to refuse to direct a verdict in favor of appellant under the doctrine of assumption of risk.

It is also insisted that the judgment should be upheld under the rule laid down in Booth & Flynn v. Price, 183 Ark. 975, 39 S. W. (2d) 717, 76 A. L. R. 957, where it was held that where an emergency exists requiring immediate action to protect the master’s interest, the servant has implied authority to employ help, and that the person so called upon is not required to exercise the same care for his own safety as in ordinary cases where no such emergency exists. We do not think that case has any application to the facts of the present case. Appellee was not engaged in an effort to save the property of appellant or to protect the lives of any one for it. As we have had occasion to say in former opinions, courts cannot trespass upon the power and functions of the Legislature. This was an unfortunate accident, which is another case illustrating the justness of a reasonable compensation act; but we can not encroach upon the power of the Legislature by judicial fiat.

The views we have reached above render it unnecessary to consider or to determine the other assignments of error argued in the briefs of counsel. Inasmuch as the case seems to have been fully developed, no useful purpose could be served by remanding it for a new trial. Therefore the judgment will be reversed, and the cause of action will be dismissed here. It is so ordered.


text:
    Purvis v. Hornor.
    Opinion delivered March 7, 1932.

      W. G. Dinning, for appellant.

      Bevens ■«& Mundt and Moore, Daggett «£ Burke, for appellee. '
   Smith, J.

This suit was brought at law to recover possession of a life insurance policy which was issued upon the life of C. H. Purvis on December 31, 1894. for $2,500.

On January 8, 1900, Purvis became indebted to S. H. Hornor in the sum of $1,650, evidenced by two notes each for the sum of $825. These notes represented a portion of the purchase price of a home that was then being purchased by Purvis, and were secured by a second mortgage on that property. Purvis and Hornor had numerous other financial transactions. It was shown, and not denied, that the home which Purvis was purchasing was mortgaged to a building and loan company, and that this loan was discharged by monthly payments made by Hornor extending over a period of years in accordance with the building and loan plan of payment.

On January 9, 1900, the insurance policy was twice assigned to Hornor. One of these assignments appears to have been made by filling in the blank spaces printed on the policy designed for use in case of assignment, a copy of which was sent to the insurance company. This assignment reads as follows:

“For value received I do hereby assign, transfer and set over the above-described policy of assurance, and all sum or sums of money, interest, benefit, and advantage whatsoever, now due or hereafter to become due by virtue thereof, unto S. H. Hornor as his interests may appear.
“Subject to all the terms and conditions expressed in said policy.
“Witness my hand and seal this 9th day of January, 1900.
(Signed) “C. H. Purvis.
“Signed in presence of
“B. A. Dunlap.”

In the space reserved for the name of the assignee in the blank upon which the above assignment was made there was a * calling attention to a direction at the bottom of the assignment as to how the assignment should be made, which reads as follows:

“*Insert here full name and relationship of person to whom policy is assigned, and, if a creditor, state amount of indebtedness.
“The company does not guarantee the validity of any assignment.”

Attached to this assignment were two canceled internal revenue stamps of one dollar each.

On the back of the policy there was written the following assignment:

“For value received I hereby assign, transfer and set over to Sidney H. Hornor and authorize the payment of the within policy to him or his assigns, whenever the same becomes due under the terms of said policy. This January 9th A. D., 1900.
“Signed in duplicate.
(Signed) “C. H. Purvis.
“Witness:
“B. A. Dunlap.”

It thus appears that there are two assignments indorsed upon the policy, both under date of January 9, 1900, and each was witnessed by B. A. Dunlap. One is conditional; the other is unconditional. - The conditional assignment was written with pen and ink, and was shown to have been in the handwriting of J. J. Hornor, who at that time was one of the leading lawyers of the State. J. J. Hornor died in 1905. S. H. Hornor, the assignee, died November 18,1900, and Dunlap, the witness to both assignments, died some years before this suit was begun, and. only the assignor, the plaintiff in the case, is now-living. It was shown, and not disputed, that all premiums on the policy were paid after its assignment by the representative of the estate of S. H. Hornor.

No explanation was made by Purvis of the two assignments except that the purpose of both was to secure the indebtedness of Purvis to Hornor. Much testimony was offered as to the state of the accounts between them. The testimony on behalf of Purvis was to the effect that the policy was assigned as additional security for the current debts of Purvis to Hornor, and that the indebtedness thus secured was finally paid in full. The testimony on behalf of the defendant, who is the son of S. II. Hornor,.and who claims the right to retain the policy as a part of his father’s estate, was to the effect that the assignment was unconditional, and that the entire indebtedness due from Purvis to Hornor had never, been paid.

Upon this issue of fact the court charged the jury at the request of the plaintiff that, if the policy had been assigned as security for debt, and the debt had been paid, the. plaintiff was entitled to the possession of the policy. The court also charged the jury upon his own motion that this finding might be made by a preponderance of the evidence.

The court gave, at the request of the defendant and over the objections of the plaintiff, two instructions, which read as follows:

“II. The undisputed evidence in this case shows that one of the assignments of the policy sued for herein, absolute in its terms, was executed by the plaintiff to S. H. Hornor, January 9, 1900. The plaintiff seeks to avoid the effect of such absolute assignment by the introduction of evidence to the effect that such assignment was, in fact, made for the purpose of securing an indebtedness which then existed between him and the said S. H. Hornor, which said indebtedness was afterwards discharged by him. You are instructed that the law presumes an instrument to be what it seems to be upon its face, in this case, an absolute assignment and not an assignment to secure an indebtedness. Therefore, before you could be warranted in returning a verdict for the plaintiff herein, the evidence that the absolute assignment was in fact not an absolute assignment, but conditional for the purpose of securing an indebtedness, the evidence to that effect must be clear, satisfactory and convincing to your minds.”

“V. You are instructed that the assignment ‘to S. H. Hornor as his interest may appear’, shown on the policy herein, is merged into the absolute assignment appearing on the policy in the handwriting of J. J. Hornor dated January 9, 1900, unless you find that the intention of the parties at the time of the absolute assignment was to secure the payment of the plaintiff’s indebtedness to the said >S. H. Hornor.”

We think these instructions are erroneous under the testimony in this case. It must be remembered that there were two assignments, and that they both bore the same date, and the case presents just two questions of fact. The first is, which assignment reflected the intention and agreement of the parties? and the second is, whether the indebtedness which the policy was pledged to secure has been paid, if the assignment was, in fact, conditional?

If the second assignment set out above had been the only assignment, it would, of course, have been proper to tell the jury that it could not be treated as a mere pledge unless the testimony to that effect was clear, satisfactory and convincing. But there is another assignment, and, according to it, the policy was pledged as security for debt, and was not transferred in satisfaction of the debt.

It would be true, of course, that the plaintiff could not recover possession of the policy unless the debt had been paid, even thoug’h it had been transferred conditionally, as plaintiff insists.

The jury should have been permitted to find from a preponderance of the testimony only which assignment reflected tlie agreement between the parties, and then, if it be found that the assignment was conditional, and not absolute, whether the condition had been performed— that is, whether the debt which it was intended to secure had been paid.

The testimony is legally sufficient to support a finding either way on these questions, and the verdict of the jury would be conclusive of these questions of fact, had the instructions not imposed the requirement that the plaintiff must establish his case by testimony that was clear, satisfactory and convincing.

In our opinion a preponderance of the testimony only was required, and for this reason the judgment must be reversed, and it is so ordered.


author: Kibby, J.

text:
    School District No. 10 v. County Board of Education.
    Opinion delivered March 7, 1932.

      Jack Machen, for appellant.

      Ezra Garner, for appellee.
   Kibby, J.

This appeal comes from a decision of the circuit court denying a petition for certiorari to bring up and quash the order of the county board of education changing the boundary lines between School Districts 10 and 66 in Columbia County.

The petition was filed for the change of the boundaries between said districts on May 5, 1931, before the board of education, accompanied by a map showing the proposed changes.

The purpose of the petition and its effect, if granted, was to take from School District No. 10 a strip of territory, varying in width from one-fourth to one-half mile and extending across the entire west side of the district, and annex same to Emerson School District No. 66. Within this territory was located a tank farm with an assessed valuation of $57,380, the Southwestern Bell Telephone Company’s transmission lines with an assessed valuation of $872, the Louisiana & Northwest Railroad with an assessed valuation of $16,500, the Arkansas Transit Company with an assessed valuation of $860, “or property, exclusive of the value of the territory proposed to be detached, of the total valuation of $75,74-2.”

The county board of education called a joint meeting of themselves with the directors of the two districts concerned for the purpose of making the change of the boundary lines, and the board of directors were unable to agree to the change proposed, and the board of education changed and adjusted the lines as prayed for in the petition. School District No. 10 was present with its entire board of directors, and its attorney on May 15th, had notice of the action of the board of education, but took no appeal from the order changing the boundaries.

On June 30, appellant filed its petition in the Columbia Circuit Court for a writ of certiorari which was by the court denied, final order being entered on August 25, 1931, from which this appeal was prosecuted.

It is insisted that the county board of education was without jurisdiction to make the order because no petition was filed by a majority of the qualified electors in District No. 10 asking for a change of boundaries, nor any election held to ascertain whether a majority of the electors of the territory affected favored the change, nor was a petition filed by qualified electors asking the detachment of the territory from District No. 10 to be annexed to District No. 66, nor any legal notice given relative to the proposed change of boundaries.

Decision of the question necessitates a construction of §§ 44 and 52 of act 169 of 1931, which appear to be in conflict about the procedure required. Under the terms of said § 44 the board is given the same authority for a change of boundary lines of school districts, the formation of new districts, the dissolution of existing districts, the transposition of territory of old districts, and the law requires that it can exercise such authority on the consent of the majority of electors in each school district affected as shown by petition or elections as herein provided, and also provides the method for holding the elections or presenting the petitions, the giving of notice, etc. Section 52 appears to provide for an adjustment or change of boundary line or lines between adjoining districts upon application' made by the directors of any district after 10 days’ notice of a call for a joint meeting of the directors of the districts affected with the county board of education, and that the chairman of the board may make the order changing the boundary line or lines between the districts upon approval of a majority of the members of the school boards of the districts-, and, if they are not able to agree to the proposed change of boundary lines, the county board-may either change or fix the boundary line or deny the relief asked and let the boundaries remain unchanged.

Appellant insists that appellee wrongfully attempted to- annex some of its best revenue producing territory to appellee district under the guise of asking a change of boundary lines between the districts and in violation of the law providing for annexation, of territory.

" Said § 44 of said act gives plenary authority to change the boundary lines of school districts on consent of the majority of electors in each school district affected, and, if such change is in effect taking territory from one district and adding it to another, it cannot be done otherwise than in accordance with the provisions of said section and the procedure as for dissolution of districts, taking territory from one and adding to another, and making new districts therefrom.

Said § 44 is virtually a re-enactment of the old statute, § 8823 of Crawford & 'Moses’ Digest, subsequently amended by act 156 of 1927, requiring a majority petition from, the electors of each district affected by the change in boundary lines, instead of a majority of electors from the districts divided in order to confer jurisdiction upon the board. Under either of these statutes the consent of a majority of the electors, as shown by the petition filed with the- board, was necessary to give it jurisdiction to change the boundary line between the school districts. Stephens v. School Dist., 104 Ark. 145, 148 S. W. 504; District No. 45 v. District No. 8, 119 Ark. 149, 177 S. W. 892; Hughes v. Roebuck, 119 Ark. 592, 179 S. W. 163; Consolidated Dist. No. 2 v. Special District 19, 179 Ark. 822, 18 S. W. (2d) 349.

No notice was given of the proposed change of the boundaries amounting to annexation of territory, in accordance with said § 44, nor any petitions presented or election held for that purpose, and the county board was without jurisdiction nr authority to make the order changing the boundary lines, in effect taking a very substantial part of the territory of one district and annexing it to the other under the guise and procedure as for a change of boundary lines only. Having no such jurisdiction, the board’s order was void, and could be quashed on certiorari, and the court erred in not granting the desired relief. The judgment is reversed accordingly, and the cause will be remanded to the circuit court with directions to grant the petition for certiorari and quash the order of the county board of education changing the boundary line of the districts petitioned for. It is so ordered.


author: Mehaffy, J.

text:
    Mutual Life Insurance Company v. Marsh.
    Opinion delivered March 7, 1932.

      Frederick L. Allen and Rose, Hemingway, Cantrell Loughborough, for appellant.

      Martin $ Martin, for appellee.
   Mehaffy, J.

The appellee brought suit on an insurance policy for $3,000 and 12 per cent, penalty and attorney’s fees.

The appellant is a citizen of the State of New York and the appellee is a citizen of the State of Arkansas. The appellant filed its petition for removal to the Federal court, alleging diversity of citizenship, and that the amount in controversy exceeds the sum of $3,000.

The appellant filed a bond and prayed that the court proceed no further, and that the cause be removed to the United States District Court.

The circuit court denied the petition, and appellant filed answer, the case proceeded to trial, and there was a judgment for $3,000 and $360 penalty, and a $500 attorney’s fee. Motion for a new trial was filed and overruled, and an appeal granted to the Supreme Court.

The only question we find it necessary to determine is, whether the cause was removable to the Federal court. The Federal statute provides: "Any suit of a civil nature at law or in equity, arising under the Constitution or laws of the United States, or treaties made under their authority, of which the district courts of the United States are given original jurisdiction in any State court, may be removed by the defendant or defendants therein to the district court of the United States for the proper district.

“Any other suit of a civil nature at law or in equity, of which the district courts of the United States are given 'jurisdiction, in any State court may he removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of the State.” Title 28, § 71, U. S. Code, Annotated.

It is also provided by the Federal statute: “The district courts shall have original jurisdiction as follows: (1) Of all suits of a civil nature at common law or in equity where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and is between citizens of a State and foreign States, citizens or subjects.” Title 28, § 41, U. S. Code, Annotated.

The diversity of citizenship is not disputed, but appellee contends that the cause was not removable because, he says, under the decisions of the Federal court, § 6155 of Crawford -& Moses’ Digest, is unconstitutional. The contention is that, while this court has held the statute valid, the Federal court has held that it is void.

If this section is valid, it necessarily follows that the amount in controversy exceeds $3,000, exclusive of interest and costs. He sues for $3,000 and 12 per cent, damages and attorney’s fees. Section 6155, supra, provides that the attorney’s fees shall be taxed as costs, but it does not provide that the 12 per cent, penalty shall be taxed as costs. Therefore the amount in controversy was $3,360.

Appellee calls attention to> Standard Accident Ins. Co. v. Rossi, 35 Fed. Rep. (2d) 667. That case does not hold that the Arkansas statute for penalty and attorney’s fees is invalid, but the court said in that case: “In view of the fact that the case must be tried again, we think some remarks upon the imposition of penalties and attorney’s fees, under § 6155, supra, of the Arkansas Digest, are pertinent. It is true that the language of the statute, strictly' construed, imposes these penalties in all cases where the company fails to pay — within the time specified in the policy, after the demand made therefor. However, the rigor of this language has been somewhat relaxed by the Supreme Court of Arkansas, in Pacific Mutual Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384. # * * In the absence of any decision of the Arkansas court of last resort to the contrary, and none has been cited, we are of the opinion that the statute in question should not be construed to demand the imposition of its penalties where the refusal to pay without suit is based upon an honest and fairly debatable difference of opinion as to the law involved; should be confined to cases of vexatious and inexcusable neglect and failure to respond to contract obligations, as is the rule in other jurisdictions.”

There is nothing in the decision relied on indicating that the law is unconstitutional. There might be cases, of course, where the company refused to pay without incurring the penalty. If demand was made for more than one was entitled to recover, the insurance company would not be subject to the penalty imposed by 'statute.

The next case relied on by the appellee is Inter-Southern Life Ins. Co. v. McElroy, 38 Fed. (2d) 557. In this case, the court repeated what was said in the opinion in Standard Accident Ins. Co. v. Rossi, supra. The court did not hold the statute invalid, but said that the facts in the case did not warrant or justify the assessment of penalty and attorney’s fees.

The next case cited and relied on by appellee is North American Transportation & Trading Co. v. Morrison, 178 U. S. 262, 20 S. Ct. 869. The only thing the court said in that case that is relied on by the appellee was: “Where the plaintiff asserts as his cause of action, a claim which he cannot be legally permitted to sustain by evidence, a mere ad damnum clause will not confer jurisdiction on the circuit court, but the court on motion or demurrer, or of its own motion, may dismiss the suit. ’ ’

But the court also said in that case that it was obvious on the face of plaintiff’s complaint that if he was not entitled to recover the money which he alleged he could have earned and secured by obtaining employment and engaging in business at or about Dawson City, the amount necessary to give the court jurisdiction was not involved.

It cannot be said in the present case that either under the decisions of this court or the Federal court the amount necessary to give the court jurisdiction was not involved. The right to recover 12 per cent, damages was an issue. Of course, it might be found, either by this or the Federal court, that the plaintiff was or was not entitled to recover, but that is not the question. The question is the amount in controversy.

•Appellant calls attention to several -authorities which we do not think it necessary to review, because if the amount in controversy exceeded the sum of $3,000 exclusive of interest and costs, the appellant was entitled to a removal of the cause. The statute expressly provides for the removal where the amount in controversy exceeds $3,000, and we hold that the amount in controversy in this case exceeds $3,000.

The judgment of the circuit court is reversed, and the cause remanded with directions to grant the petition for removal.


author: McHaney, J.

text:
    Missouri State Life Insurance Company v. Snow.
    Opinion delivered March 7, 1932.

      Allen May and Bose, Hemingway, Cantrell $ Lough-borough, for appellant.

      J. S. TJtley and Wm. T. Hammock, for appellee.
   McHaney, J.

Appellee holds two life insurance policies issued by appellant for $1,000 each, with like “total and permanent disability” provisions for the payment of $10 per month per $1,000 of insurance for total and permanent disability as defined in the policies. This disability is defined as follows:

“Total and permanent disability may be due either to bodily injuries or to disease, which must occur and originate while this policy is in full force after the first premium has been paid, and must be such as to prevent the insured then and at all times thereafter from engaging in any gainful occupation. Total disability as defined above, which exists and has existed continuously for not less than three months shall be presumed to be permanent. At any time after approval by the company of the aforesaid proof and from time to time, but not oftener than once a year after disability has continued for two full years from the date of approval, it may demand of the insured proof of the continuance of such disability and the right to examine the person of the insured. Upon failure to furnish such proof or if it appears that the insured has recovered so as to be able to engage in any gainful occupation, the company’s obligations to pay further disability benefits shall cease and the insured shall be required to pay the premiums becoming due on this policy thereafter in accordance with the original terms hereof.”

In December, 1924, appellee became disabled by reason of ankylosis of the right hip. He filed a claim which was approved, and he was paid $20 per month to July 1, 1929, when payments were stopped because appellant concluded that he had recovered to such an extent that he was no longer totally and permanently disabled within the above quoted provision of the policies. This suit followed to recover the present value of such monthly payments over the period of his expectancy. A recovery was had, and this appeal comes from the judgment based thereon.

The first assignment urged for a reversal is that the court erred in refusing to direct a verdict for appellant at its request. This challenges the sufficiency of the evidence to support the verdict. We think this assignment must be sustained, as we are of the opinion that the undisputed evidence shows that appellee is not totally and permanently disabled as this term is defined in these policies. There can be no question that he is partially disabled, that he has a stiff hip which seriously impairs its usefulness, that he cannot stand or walk as he once could, but it does not follow from this that his disability is covered by the policies. The total and permanent disability therein defined “must be such as to prevent the insured then and at all times thereafter from engaging in any gainful occupation.” That is the hazard insured against under this clause and against no other, except that certain injuries specified “shall be considered total and permanent disability within the meaning of this provision,” none of which were suffered by appellee.

By his own testimony appellee is shown to be performing the material and substantial duties of a “gainful occupation,” and that his disability is not such as to prevent him from engaging therein and has not been since July 1,1929, unless it may be said that the business of operating a country store with an average stock of $2,000 and the business of leasing and operating a 400-acre plantation near England, Arkansas, is not a “gainful occupation. ’ ’ Such an occupation has been regarded as “gainful” in the past, whatever might be said to the contrary in the last year or two: The proof shows that appellee does conduct the business of a country merchant, with the assistance of his wife all the time or nearly all, and of his daughter a part of the time; that he drives his own automobile, purchases his goods in England and Little Rock, waits upon his customers and does all the work when his wife and daughter are out; that he is unable to do heavy lifting, but his goods are trucked to his store and delivered therein by the drivers; that in the year 1930 he farmed through tenants 80 acres of land and in 1931, 400 acres of land; that he furnishes his tenants and sharecroppers supplies, takes mortgages on their crops and other personal property, travels to Lonoke in his car to see the agent of his landlord and to record his mortgages and transact other business; and that in the farming end of his occupation he has no help from his wife, daughter or any one else. He attends to that himself. He says that he engaged in the farming business to help his store business, but that does not change the situation. It is also true that he cannot handle a plow, walk over the fields and see after his business as well as he could without the stiff hip, but he is able to drive along the turn-rows, direct the tenants as to how, when and what to do, and to give his farming business the same general care and management as do others. He was asked this .question: “Q. Hid you take 400 acres this year thinking you could attend to it yourself and that you would make a profit on it?” He answered: “A. I thought I could. Certainly I did.” The evidence further showed that the business of the store was such as to require help in its operation, and it appears certain that, with appellee away purchasing goods, or attending to his farming business, the store could not be kept open without some assistance in the capacity of clerk.

This, in substance, is appellee’s condition as testified to by himself, and we hold.that it shows conclusively that he was not totally and permanently disabled from “engaging in any gainful occupation.” It shows positively that he engaged in the farming business and attended to all the duties connected therewith without help, and that he engaged in the mercantile business and attended to all the substantial and material acts connected with that business. The rule in this State is. quoted from Kerr on Insurance, §§ 385 and 386, in Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N. S.) 635, 21 Ann. Cas. 1029, as follows: “Total disability does not mean absolute physical disability on the part of the insured to transact any land of business pertaining to his occupation. Total disability exists, although the insured is able to perform occasional acts, if he is unable to do any substantial portion of the work connected with his occupation. It is sufficient to prove that the injury wholly disabled him from the doing of all the substantial and material acts necessary to be done in the prosecution of his business, or that his injuries were of such a character and degree that common care and prudence required him to desist from his labor so long as was reasonably necessary to effect a speedy cure. ’ ’

This statement of the law has been followed many times since, the latest cases being Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335, and Ætna Life Ins. Co. v. Spencer, 182 Ark. 486, 32 S. W. (2d) 310. Of course, such a provision in a policy does not require that the insured shall be absolutely helpless or insane, but there must be such disability as renders him unable to perform all the substantial and material acts in the prosecution of a gainful occupation.

As we have already seen appellee was not so disabled. There being no question of fact to be submitted to the jury, the request for a directed verdict should have been granted.

Reversed and dismissed.