text:
    Lerner v. Lutes.
    Opinion delivered January 18, 1932

      A. A. Hornsby and Lowell W. Taylor, for appellant.

      Reid, Evrard ■<& Henderson, for appellee.
   Humphreys, J.

This appeal from the circuit court of Mississippi County involves a question of priority between appellants as garnishers and certain appellees and subsequent garnishers of a fund of $2,305 paid to the clerk of the court by the garnishee, Liverpool & London & Globe Insurance Company of Liverpool, England, under the allegations and answers joining the issue of priority and the following stipulation in substance:

On May 20,1931, a stipulation was "filed by all parties to the effect that appellants obtained a judgment in the circuit court of said county on January 31, 1930, against Henry Lutes for $1,302.40; Lutes had an insurance policy with said insurance company in the sum of $2,500 on a building which was destroyed by fire; that on January 28, 1930, appellants caused a writ of garnishment to be served on said insurance company; that intervener, Arkansas Grocery Company, brought suit against Henry Lutes in the circuit court of Mississippi County on December 2, 1930, for $1,080.50, and caused a writ of garnishment to be served on said insurance company; that the other interveners subsequently brought suit in the common pleas court of said county, against Henry Lutes, and caused writs of garnishment to be served on said insurance company. It was further stipulated that a compromise had been reached between Henry Lutes and said insurance company by which the insurance claim had been settled for $2,305; that upon payment of said sum to the circuit clerk of Mississippi County, said insurance company would be discharged of all liability; that E. L. Gaines, clerk of the circuit court of Mississippi County, be substituted as garnishee in place of said insurance company, as of the day and date of the service of the respective writs of garnishment on said insurance company, and that the rights of the respective plaintiffs to the said settlement be determined by the court just as though said moneys were in the hands of said clerk, on the date of the service of the respective writs of garnishment, and the same, as though the writs of garnishment had been served on him on said dates, and that the rights of the respective plaintiffs to said money be determined by the court just as though said insurance company had not been released from liability and such settlement had not been made.

The several appellees who obtained writs of garnishment against said insurance company subsequent to the writ of garnishment by appellants alleged that their garnishments created paramount and prior liens on said fund to the lien obtained by appellants because they each filed allegations and interrogatories required by § 4910 of Crawford & Moses’ Digest at the times their several writs of garnishment were sued out, and that appellants failed to do so, and, by reason of such failure, acquired no lien on or right to the fund.

Appellants filed an answer denying that their failure to file allegations and interrogatories required by the statute prevented them from acquiring a lien on the fund prior to the lien of said appellees.

The statute relied upon by appellees to establish their alleged priority to said fund is as follows:

.' ‘ ‘The plaintiff shall, on the day on which he sues out his writ of garnishment, prepare and. file all the allegations and interrogatories, in writing, with the clerk or justice issuing such writ, upon which he may he desirous of obtaining the answer of such garnishee touching the goods and chattels, moneys, credits and effects of the said defendant, and the value thereof, in his hands and possession, at the time of the service of such writ, or at any time thereafter.” Crawford & Moses' Dig., % 4910.

This section of the statute was under construction in the case of Little Rock Traction & Elec. Co. v. Wilson, 66 Ark. 582, 53 S. W. 43, wherein the court ruled that judgments against garnishees without allegations and interrogatories were irregular but not void. .It is manifest that the statute was passed for the benefit of the garnishee, and not as a prerequisite to acquiring a lien on funds in the hands of third parties belonging to the defendant. Attention is called by appellees to the case of Wilson v. Overturf, 157 Ark. 385, 248 S. W. 898, in support of their contention that allegations and interrogatories are necessary prerequisites to the validity of judgments against garnishees. All that the court held in that case was that no default judgment could be taken against a garnishee without sufficient allegations, and interrogatories first being filed. A default judgment against the garnishee had not been rendered when appellees intervened and sought to have their garnishment liens declared prior and paramount to the supposed lien of appellants. No default judgment could have been rendered against the garnishee because the substituted garnishee answered, admitting the indebtedness of the original g’arnishee to Henry Lutes, against whom appellants obtained judgments upon which writs of garnishment were issued.

Appellants’ writs of garnishment were issued and served upon the garnishee prior in time to the writs of garnishment of appellees, and hence were prior and paramount liens upon the funds deposited with the substituted garnishee.

The judgment is reversed, and the cause is remanded with directions to the trial court to so declare.


source: Caselaw Access Project

author: Kirby, J.

license: Public Domain

text:
    Hargis v. Jordan.
    Opinion delivered January 18, 1932.

      E. D. Chastain, for appellant.

      J. B. Perrymore and Starbird d Starbird, for appellee.
   Kirby, J.

This appeal is prosecuted from an order quashing an execution alleged to have been improvidently issued after the judgment had been paid.

On the first appeal of the cause, judgment was affirmed by this court on January 8, 1923, in Jordan v. Hargis, 156 Ark. 408, 246 S. W. 476. On March 16, 1925, a judgment on the mandate was entered against Jordan, and oh April 10, 1931, an execution was issued thereon and levied upon 80 acres of land belonging to him on the 9th day of May, 1931. Jordan filed a motion to quash the execution, alleging it was improvidently issued after the judgment had been paid. A temporary order was entered staying the execution, and the case continued for a hearing until the 3d of July, and, on the 8th of July, an order was made quashing the execution and directing the judgment to be satisfied on the record. The motion to quash alleged that the judgment was paid or satisfied soon after rendition of the judgment in the case by the Supreme Court in 1923.

■S. M. Jordan testified that he had paid the judgment to Mr. J. E. London, attorney of record for plaintiff, about “strawberry time” in 1923. Paid about $260 or 65 in Van Burén, and that he was given a receipt showing the fact, 'but that the receipt had been misplaced or lost.

Judge J. L. Smith, a former county judge, brother-in-law of defendant Jordan, testified that Jordan showed the receipt, of London for money in payment of the indebtedness to him; that he was thoroughly acquainted with London’s signature, and that he was sure that the receipt was signed by London, and it was for about the amount Mr. Jordan claimed was paid. Witness said that he had been engaged in the abstract and title business; that the receipt was shown to him sometime in 1923, and he told Jordan that he ought to have the judgment satisfied on the record as he might lose the receipt. He also said that the receipt had been lost.

It was shown that, after the death of Mr. J. E. London, his unfinished business was turned over to appellant’s attorney, and that no attempt had been made by London to collect the judgment.

The court found the .judgment had been paid, and ordered the execution quashed, and the appeal is from that order.

Appellant waived the verification of the petition for quashing the execution by not objecting thereto before the final hearing thereon. The question of payment and satisfaction of the-judgment was one of fact, and questions of fact arising on motions to" quash an execution are tried by the court and not by a jury, and on such questions of fact the circuit court’s findings are as conclusive on appeal as the verdict of a jury. Woolum v. Kelton, 52 Ark. 445, 13 S. W. 78; Little River County v. Buron, 165 Ark. 540, 265 S. W. 61.

The testimony is amply sufficient to sustain the finding that the judgment for which the execution quashed was issued had already been paid.

The judgment is affirmed.


author: Mei-iaffy, J.

text:
    Arkansas State Life Insurance Company v. Perry.
    Opinion delivered January 18, 1932.
    Appellant pro se.

      W. P. Strait, for appellee.
   Mei-iaffy, J.

The appellant, Arkansas State Life Insurance Company, issued its policy to Mary Perry, who was the wife of the appellee, Robert Perry. Robert Perry was the beneficiary. The amount to be paid upon the death of the insured was $250. All premiums were payable on or before the first day of each month, and in default of such payment, after five days of grace allowed, the policy became ineffective.

The policy further provided that if the company accepted past-due premiums, such acceptance would reinstate the contract, but only to cover accidental injuries thereafter received, and such sickness as !may begin more than twenty days after the date of such acceptance.

The premium due August 1 was not paid until August 22. On September 13, 1929, sick claim was made by Mary Perry, the attending physician certifying that her illness had been contracted five days prior to his examination at the time he made the certificate. The physician’s report stated the nature of her illness to be chills, fever, prostration.

On October 19, the physician made another report on the illness of Mary Perry and stated that she had pellagra, and in his opinion that had been contracted thirty days prior1 to Ms examination. The same physician also made a report of disability on November 12, in which he stated the illness that he then reported had been contracted three or four days before his examination. She was then suffering with malaria and pellagra.

On December 23, the same physician made another. report of illness and disability in which he stated that her illness was influenza and bronchitis, and she had been suffering with this for six or eight days. The same physician again, on January 12, reported to the company that Mary Perry had influenza and bronchitis and had had for fourteen or fifteen days.

On January 24, the physician reported that she had acute tuberculosis, following influenza, and that she had contracted this illness fourteen or fifteen days prior to the examination.

On February 20, 1930, the same physician made a certificate in proof of the death of Mary Perry in which he stated that death was caused by acute pulmonary tuberculosis, contributing influenza; that she had been affected :by this disease two months. She died on February 17,1930.

Proof of death was made and shortly thereafter a representative^ of appellant called on the appellee, Robert Perry, at his home near Morrilton, for the purpose of settling the claim.

Mr. E. J. Johnson, one of the officers of the appellant, was the adjuster who called on appellee. The attorney for the appellant was with Johnson, but was not with him for the purpose of seeing Perry, or taking any part in the .discussion or adjustment of the claim, and he did not take any part.

Johnson told appellee that the company was not due him anything; that the premiums were due on or before the first of the month, and he explained to Perry that the August premium was not paid until the 22d, and that he could not allow him anything for the death claim. They discussed the- funeral expenses and the premiums which had heen paid, which amounted to $19.80 and then he told Perry that he would pay him $50.

The appellee is an ignorant negro, 38 years old, and testified that he knew nothing about insurance; he thought that Mr. Johnson knew about it, and that Mr. Johnson told him the policy was dead, and that they did not owe him anything, and told him the reason- that they did not owe him anything was that the policy was lapsed. The appellee did not have an opportunity to discuss the matter with any one else, and, believing what the agent of the insurance company told him, he agreed to a settlement and accepted check for the $50.

At the time the settlement was made, Perry signed a receipt in full on the policy and surrendered the policy and took the check, but Perry and Johnson both testified that Johnson, the agent, told Perry that, if he was not satisfied with the settlement, to give him, Johnson, back the check, and he would give Perry the policy. This was on March 12, 1930.

Two or three days after the settlement was made, Perry went to the office of Mr. Strait, stated the facts to him, and Mr. Strait immediately wrote to the company and shortly thereafter received a letter from the attorney for the company, who claimed that the policy had lapsed, and that they did not owe the appellee anything, giving as a reason, that Mary Perry died on February 17, 1930, from tuberculosis which had its inception prior to September 22, 19291.

There is no claim that the policy was void for any reason except the failure to pay the August premium on time, and it is contended that the ailment which caused Mary Perry’s death had its inception within 20 days after Augmst 22, the time the August premium was paid.

All premiums had been paid prior to that time, and all the monthly premiums subsequent to August, 1929, including the premium due in February, 1930. It was paid on the first of February, and Mary Perry died on the 17th of February.

After the company refused to make any further settlement, the appellee, through his attorney, brought suit in the chancery court of Conway County, asking that the settlement be set aside as fraudulent, and that he have judgment against the appellant for $250, 12 per cent, damages, and attorney’s fees.

Before bringing the suit, the attorney wrote the company that the check had not been cashed, and that he held it subject to the order of appellant. The check was never cashed.

The court held that the settlement and release were procured by fraud and misrepresentation, and were not binding,- and set them aside, and gave judgment for $250, 12 per cent, damages and attorney’s fees.

We think it unnecessary to determine whether the settlement and release were procured by fraud, for the reason that the undisputed proof shows that Perry was induced to believe, and did believe, that if the settlement was not satisfactory, he would not be bound by it. As soon as he could get to the attorney’s office at Morrilton, he took the check to the attorney, stated the facts, and immediately thereafter the attorney wrote the insurance company advising it that the settlement was not satisfactory and offering to return the check.

The appellee never tried to cash the check, but, as soon as he could do so, procured advice as to his rights under the policy, and notified the insurance company that he would not accept the check and demanded payment of the amount he claimed to be due him under the policy.

We think under the facts, as testified to by both par ties, the release and settlement were conditional, and that Perry was entitled to a reasonable time to consult with somebody who could advise him.

There is practically no conflict in the evidence. There is no evidence as to what caused Mary Perry’s death except the statement of the physician, which was introduced by appellant. There is no evidence about how long she had suffered with the disease which caused her death except the statement of the physician, and his statement shows that she died of tuberculosis, and that in his opinion she had been affected with the disease that caused death twojnonths. She died on the 17th of February, 1930, and, if she had been affected with the disease which caused her death two months, she must have contracted it about December 17, 1929.

Mary Perry became ill the first time, so far as the record shows, September 13,1929, but she recovered from this ailment, and thereafter, until the time of her death, the evidence of Perry shows that she was up and down.

The insurance company had all of the reports made by the physician in its possession. The evidence does not show that the appellee knew anything- about the reports of the physician. Appellant, having these reports in its possession, knew that the disease that caused her death was not contracted within twenty days after the payment of the August premium. It does not claim that it had any information about her illness, when it was contracted, and what caused her death, except the information contained in the physician’s reports.

Of course, if she contracted the first illness on the 13th of September, this would have been more than 20 days after the payment of the August premium, but while the physician visited her only once, and this was on the 13th of September, his report states that in his opinion she had contracted the illness about five days before his examination. But the reports received by the company clearly showed that the disease that caused her death was not the ailment for which she was treated the 13th of September, and the insurance company had received these reports as made by the physician, knew the facts therein, and continued to receive the monthly premiums up to and including February 1, 1930, which was 16 days before her death.

According to the undisputed proof, the policy was not lapsed, and appellee is entitled to recover. The decree of the chancery court is affirmed.


author: Hart, 'C. J.,

text:
    Price-Snapp-Jones Company v. Brown.
    Opinion delivered January 18, 1932.

      Raymond J ones, for appellant.

      Walter A. Isgrig, for appellee.
   Hart, 'C. J.,

(after stating the facts). The only error argued for a reversal of the judgment is that the action of the court in overruling the motion for a new trial brings the case within the rule announced in Twist v. Mullinix, 126 Ark. 427, 190 S. W. 851, and later cases following the rule there announced. In that case it was held that, when the trial court is convinced that a verdict is not sustained by the preponderance of the evidence, then it is Ms duty to set aside the verdict; and if the trial court finds and announces that the verdict of a jury is against the preponderance of the evidence on a material issue of fact, then he must set the verdict aside. Numerous cases might be cited to the effect that it is the duty of the trial court, where it is of the opinion that the verdict of the jury is contrary to the weight of the evidence, to set it aside. This is a matter to be addressed to the trial court, and furnishes no ground for reversal in this court where there is substantial evidence to support the verdict. St. Louis Southwestern Railway Company v. Ellenwood, 123 Ark. 428, 185 S. W. 768; and Louisiana & Arkansas Railway Company v. Muldrow, 181 Ark. 674, 27 S. W. (2d) 516.

It is earnestly insisted by counsel for appellant that the record in the case affirmatively shows that the trial court found and announced that the verdict of the jury was against the preponderance of the evidence, and that it therefore erred in not setting it aside. We do not so construe the verdict. We have copied the verdict in our statement of facts, and it shows that there was a question mark or interrogation point after the amount found by the jury due the plaintiff. Written instructions were given by the court to the jury, and among them was the form of the verdict. It is immaterial to determine whether the interrogation point indicated was placed there by the stenographer who transcribed the written instruction of the court or whether it was placed there by the jury, as indicating some doubt as to the exact amount due the plaintiff. The record shows that the verdict was returned into court and delivered to the clerk and was announced by him. The court asked the jury if the verdict read by the clerk was their verdict, and the jury replied that it was. The clerk, in reading the verdict, did not call attention to the question mark. This was not discovered until after the jury had been discharged.

In arguing the matter before the court upon the presentation of the motion for a new trial, we quote from the record the following':

“Court: Well, I think the questions in dispute were questions for the jury to pass on absolutely. I think the clerk properly wrote up the judgment on that verdict. The motion for a new trial will be overruled.”

There is nothing whatever in the remarks of the court that it was of the opinion, or intended to announce it as the opinion of the court, that the verdict of the jury was contrary to the preponderance of the evidence. Hence the case at bar does not fall within the principles announced in the cases cited above and relied upon by counsel for appellant for a reversal of the judgment in this case.

Under our Code of Civil Procedure, it is provided that the verdict shall be written, signed by the foreman, and read by the clerk of the court to the .jury, and the inquiry made whether it is their verdict. Then, if no disagreement is expressed and neither party requires the jury to be polled, the verdict is complete, and the jury is discharged from the case. Crawford & Moses ’ Digest, § 1300. This section of the statute was explicitly followed in the present case.

As said by the trial court, the meaning of the jury was clearly shown by the verdict, and is not to be set aside because it was uncertain or indefinite. There being no expression of the court that would indicate that the verdict of the jury was contrary to the weight of the evidence, his finding that the motion for a new trial should be overruled is binding upon us upon appeal, for it is the settled rule of this court not to disturb a verdict upon appeal where there is any substantial testimony to support it, and the testimony of the plaintiff warranted the jury in finding a verdict in his favor for the amount claimed to be due under the contract. Therefore the judgment will be affirmed.


author: Smith, J.

text:
    Southeast Arkansas Levee District v. Turner.
    Opinion delivered January 18, 1932.

      Streett $ Burnside, for appellant.

      Golden <& Golden and Poff <& Smith, for appellee.
   Smith, J.

Appellees are landowners in the Southeast Arkansas Levee District, hereinafter referred to as the district, and they brought this suit to enjoin the collection of an alleged excessive assessment against their property.

The district was created by act 83 of the Acts of the ■ General Assembly of 1917, which was amended in 1919, and further amended by act 139 of the Acts of 1923 (Special Acts 1923, page 261).

Section 8 of the original act of 1917 contained a legislative finding as to the extent of the betterments to be assessed against the property of the district, and, pursuant to the authority of this section of the act, the assessment against the lands was made on an acreage basis, whereas it was provided that real estate in said district, “within the limits of any town” in the district, should be taxed on the basis of the assessed value thereof “as the same appears assessed for State and county taxes.”

This § 8, which had been amended by the act of 1919, was further amended by § 1 of act 139 of the Acts of 1923, supra, and, as thus amended, the portions thereof relevant to this case read as follows:

“It is hereby ascertained and declared that all real estate subject to overflow in said district (except the real estate included in the limits of any town or city in said district) is benefited annually to the extent of thirty cents (30c) per acre; and there is hereby levied and assessed against each aiid every acre of such real estate in the district, outside the limits of any town or city and subject to overflow, a tax of thirty cents (30c) per year.
‘ ‘ That each and all of the parcels of real estate subject to overflow included in the limits of any town or city in said levee district is benefited annually not less than thirty (30) mills on the dollar of the assessed value thereof, as the same is assessed for State and county taxes; and there is hereby levied and assessed' against each and all of such parcels of real estate in said district within the limits of any city or town, annually, a tax of thirty (30) mills on the dollar of the assessed value thereof, as the same appears assessed for State and county taxes.”

The question involved in this case is the one of fact, whether the lands of appellees are “.real estate included in the limits of any town or city in said district.” Upon this issue of fact, testimony was heard by the court,- and this testimony was summarized by the court in a finding of fact made a part of the decree, which we accept as correct, and such facts as we find necessary to state are taken from this finding or from the stipulations of fact filed in the case.

The court found that the property in question was situated in Friedman & Willoughby Additions Nos. 1, 2, 3 and 4 to the city of MeG-ehee, but that no part of any of these additions were within the corporate limits of the city, and that the city of McGrehee as a municipality exercises no control over these additions in the way of taxation or otherwise, and that the owners of these additions who reside therein have no vote in the government of the city of . McGrehee.

Additions 1, 2 and 4 are platted into five-acre tracts which were designated as lots, the plat of the survey thereof being duly recorded, and addition 3 is platted into lots and blocks of five acres to the lot, and the survey and plat of this addition was also duly recorded. The lots in all these additions are contiguous, and, “but for a bayou and a road which traverses the property and streets as shown on the plats and maps, the four several platted additions comprise one solid body of land,” bounded by the outer lines of the several additions.

The plats of the additions 1 and 2 were filed for record in March, 1921; that of addition 3 on November 11, 1924, and of addition 4 on October 6,1927, and the respective additions, after the plats thereof had been filed for record, were assessed for general taxes as town lots and as additions to the city of McGehee.

It appears from a map of the city of McGehee and the plats of the additions thereto and the stipulations of counsel concerning them that all the territory in said four additions is bounded by the outer lines of said additions, and that the northwest corner of the tract of land thus divided into additions is directly south of the southeast corner of the city of McGehee and separated therefrom only by the right-of-way of the Missouri Pacific Railroad. The map further shows that the Arkansas & Louisiana highway, which is the main artery of travel and commerce into and through the city, is a concrete pavement 14 feet wide and is a 'continuation south and east of the main street of the city and passes between additions 1 and 2, and the lots of said two additions front thereon. A branch of this pavement running south to Dermott forms the street upon which certain lots of the 2nd addition and the western part of all the lots in the 4th addition front, thus connecting up and giving easy access to all parts of the city of McGehee to the residents within said four additions.

Addition 1 is divided into 16 lots and contains 19 residences, a public garage and one store building; the 2nd addition contains 13 .lots, upon which there are 16 residences. There are 6 residences in the 3rd addition, and only 1 in the 4th addition, but that addition contains only 4 lots.

There appears therefore to be 42 residences with the usual improvements on the four additions. Some of these residents have truck patches, orchards, gardens, or chicken farms, and most of these residents are engaged in pursuits related to and carried on in the city of McG-ehee. The residences are of a permanent and substantial character, and the occupants thereof are furnished with gas, water, electricity and telephone service from the city of McGehee.

The court found the fact to be that none of these additions had been platted when the original act of 1917 was passed, and that additions 3 and 4 were platted subsequent to the passage of the act of 1923. We regard these facts as unimportant, for the reason that all the assessments here in question were made subsequent to the passage of the act of 1923. This act was, of course, prospective in its nature, and was intended to govern all assessments thereafter made, and to apply to the conditions then existing. Section 24, chapter “Statutes,” 25 R. C. L., page 778; Nations v. State, 64 Ark. 469.

The question for decision is therefore whether the lots in the four additions are real estate included in the limits of any town in said district within the meaning of the act of 1923. The chancellor found in an able opinion that they were not, and that “in the instant case the Legislature had used the word Gown’ in its popular sense, and that it was the legislative, intention to recognize that towns, as ordinarily understood, had limits within which it exercised local government,” and that the Legislature intended to embrace for assessment purposes as tow property only such real estate as was actually situated within the corporate limits of a town.

We concur in the view that the word “town”' was employed in all the acts relating to the district in its popular sense. At the time of their enactment we had a statute defining the terms “town or city” as employed in our taxation statute. The General Assembly of 1883 passed a comprehensive act “to revise and amend the revenue laws of Arkansas” (Acts 1883, page 199), and § 75 thereof defined the terms “town or city” as follows: “For the purposes of this chapter the terms town or city, and towns and cities, shall apply to all cities, or towns, incorporated or not incorporated; also, to all blocks or lots, or parts thereof, assessed for taxation as such, whether the same is situated in an incorporated city or town or not.”

This section appears as § 9939, Crawford & Moses’ Digest. This act of 1883 relates, of course, to the revenue laws of the State, and not to improvement district legislation, but it contains a legislative recognition of the fact that there were towns (as there still are) in the State not incorporated, and that the fact of incorporation was not the test as to whether a community was in fact a town.

We must assume that the General Assembly was familiar with this definition in the enactment of the legislation pursuant to which the district has assessed betterments against the property lying within the district, and none of these acts make any distinction between incorporated and unincorporated towns, but contain the direction that real estate be assessed as urban if it is within a town.

We are cited to numerous cases from various .jurisdictions in which the word “town” has been defined, but we do not review them, as we think the word has been sufficiently defined in our own cases.

One of the latest is the case of State v. Haynes, 175 Ark. 645, 300 S. W. 380, which construed an act placing motor vehicles under the control of the Arkansas Railway Commission when operating between cities and towns. It became necessary to define the word “town,” and this was done by adopting a definition from 38 Cyc. 596, and we there said: “Hence it may be said that the word ‘town,’ as used in the statute, is to be considered in its popular sense as an aggregation of houses so near one another that the inhabitants may fairly be said to dwell together.” In a note to the text quoted from Cyc., supra, our own case of Murray v. Menefee, 20 Ark. 561, was cited as authority for the definition given.

This Arkansas case construed a statute relating to the granting of a ferry license, which provided that not more than one ferry permit should be granted except at or near cities or towns, and the court said: “In this country there seems to be no precise legal definition of the term ‘town,’ and we suppose it was used in the statute in its popular sense.”

It is true the court held that the place there claimed to be a town was not a town, but that holding was made upon the facts there stated as follows: “In the case before us, the proof is substantially the following: The place claimed to be a town is designated ‘Cadron,’ situate on the Arkansas Eiver, below the mouth of Cadron Creek; the courts for Conway County were held there from 1826 to 1828, but never afterwards; in the language of the witness, it was ‘abandoned’ in 1831, and continued ‘abandoned’ until 1845 or ’6. In 1855 — when the ferry was established — there was at ‘Cadron’ one store, which did business to the amount of about $4,000 per annum; dwelling houses for two families, and outhouses; the population consisted of two families, numbering in all, six persons; one warehouse, from which, in 1855, produce to the value of $200 was shipped, the trade of that year being injured in consequence of drouth and low water. In 1854- — -which was a favorable year — the exports amounted to the value of about $1,500. To call this a town, in any sense, would be an obvious misapplication of the term.”

Here the facts are essentially different. We have here a compact community of 42 houses, occupied by persons who may fairly be said to dwell together, and who are separated from a city of the second class only by the city’s incorporation line, and who have all the conveniences which proximity to the city affords, and whose property is assessed for general taxation as additions to this city.

In the case of First National Bank of Owatonna v. Wilson, 62 Ark. 140, 34 S. W. 544, Mr. Justice Riddick, speaking for this court, said: “On the other hand, there may he towns that have overg-rown their corporate limits, so that one may dwell within the town, and still be outside the corporate limits.”

The map of the city of MoGehee which we have before us shows such to he the case here. The city of Mc-Gehee has grown in various directions, and is now, and was at the time the assessments in question were made, a larger town than its corporate limits indicate. In other words, many persons are residents of the town of Mc-Gehee within the popular meaning of the word “town” who do not reside within the corporate limits thereof. See also Spaulding v. Haley, 101 Ark. 299, 142 S. W. 172; Rogers v. Galloway Female College, 64 Ark. 635, 44 S. W. 454, 39 L. R. A. 636; Clements v. Crawford County Bank, 64 Ark. 7, 40 S. W. 132, 62 Am. St. Rep. 149.

We conclude therefore that the lots in each of the four additions to McGehee are within that town within the meaning of the act of 1923, or, in any event, that these additions themselves constituted a town, the people thereof dwelling together as residents of a community called McGehee, and therefore residents of a town within the meaning of the act of 1923.

The decree of the court below is therefore reversed, and the cause will he remanded with directions to enter a decree in conformity with this opinion. It is so ordered.


author: Butler, J.

text:
    Southwestern Loan & Finance Corporation v. Arkansas Transportation Company.
    Opinion delivered January 18, 1932.

      Claude A. Rcmkm, O. A. Featherston and Finnix <& Pinnix, for appellant.
   Butler, J.

The appellant corporation was authorized by its license certificate from the Bailroad Commission to operate an intrastate passenger bus line from Hot Springs, Arkansas, to Nashville, Arkansas, and return, over Highways Nos. 70' and 27. The appellee company was doing an interstate business of a like nature over the same route, but did not have any permit to do an intrastate business. The appellant brought suit in the Pike Chancery 'Court against the appellee company and secured a decree of that court enjoining the appellee company, its agents and employees, from operating or attempting to operate an intrastate passenger bus line or business over the route of the appellant corporation. This decree was entered on October 15,1930, which decree has not been superseded or any permit obtained thereafter by the appellee Company to do an intrastate business over said route.

The case here is an appeal from the decree of the chancery court on a citation for contempt of the defendant for a willful violation of the above said injunction, wherein it was adjudged that the facts established at the hearing on the citation for contempt did not constitute a willful violation of the injunction, and the relief prayed by the appellant corporation in the last proceeding was denied.

The petition alleged that the appellee company had violated the injunction and order of the court made on the 15th of October, 1930, by thereafter operating an intrastate passenger bus line over the same route as that used before the order restraining it from doing so was made. The preponderance of the testimony adduced at the hearing tended to show that, after the injunction order was made and entered and after the application of the appellee company for a permit to do an intrastate business had been denied by the Railroad Commission, the appellee company carried passengers from points between Hot Springs and Nashville to the latter town in the following manner: one would purchase a ticket from an intermediate point between Hot Springs and Nashville to a destination beyond Nashville when it was the purpose only to g’o to the town of Nashville and return and the fare charged and paid was from that point to Nashville; that the appellee company’s agents knew that the passenger intended to go only as far as Nashville. The court found that this was not a violation of the injunction, and further found that the appellee company had permitted a “few people to ride its busses between-Nashville and Hot Springs without pay since the rendition of the decree making the injunction perpetual,” but held that “it does not constitute contempt for defendant’s servants and employees to invite guests to ride with them on the route between Nashville and Hot Springs.”

The testimony of a witness, one J. C. Young, who had kept a memorandum of the names of parties who took passage from Grlenwood, an intermediate point between Hot Springy and Nashville, to Nashville and Hot Springs during the months of December, 1930, and January and February, 1931, and to other intermediate points in the same months, was to the effect that these amounted to thirteen or fourteen persons. There were other witnesses who testified as to either themselves having been carried along the route enjoined by the appellee company or others that had been so carried. The appellee company had in its employ two drivers on this route, both of whom testified that they were authorized to haul anybody they pleased without charging any fare. Indeed, Mr. Mitchell, the president of appellee company, admitted that the drivers had been given this authority, and that any of appellee company’s agents had the right to issue passes. He stated that these agents and drivers “generally always know who they are giving the passes to and what they are giving them for. They don’t give them to everybody that comes along’,” but generally the passes were given to those who performed some service for the company. He testified that after the injunction he advised his drivers regarding taking on passengers between Hot Springs and Nashville and the agents about selling tickets, advising the agents not to sell'any local tickets between Nashville and Hot Springs, and stated further, “I have not intentionally violated the injunction issued here by the court. In issuing passes I didn’t think it was a violation of the injunction.”

We are of the opinion that the only reasonable inference dedueible from this testimony is that there was a persistent attempt made by the appellee company after the injunction order has been made to interfere with, and injure, the business of the appellant corporation, and that this conduct was a violation both of the letter and spirit of the injunction.

It is a rule of universal application that, in determining* whether there has been a violation of an injunction, the order for the injunction is to be construed with reference to the nature of the proceeding’s and the purposes of the injunction, and it is important to consider the objects for which relief is granted as well as the circumstances attending it. 32 C. J. 492, notes 33, 34 and 35.

Courts entertain proceedings for contempt for two purposes — one, to preserve the power and dignity of the court and to punish for disobedience of orders, and the other, to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court has found them to be entitled. In holding that the conduct of the appellee company shown by the evidence was not a contempt of the order of the court, the learned chancellor doubtless had in view the first class of proceedings, and' his judgment would, in that view, not be the subject of review unless the facts established showed such flagrant violation of the order as to suffer it would bring all courts in disrepute. But the proceeding in this case has to do with the second class of contempt proceedings and was instituted primarily, not to vindicate the dignity of the court, but to preserve the rights to which the court had found the appellant entitled in its decree of October 15, 1930. The act complained of was the unlawful interference with appellant’s business by appellee company’s operation of a bus line over the route of appellant, and this was the action restrained by the court. Therefore, any act on the part of the appellee company which would continue to interfere with or render less valuable the conduct of appellant’s business, would be a breach of the injunction, and it is a violation of the injunction to do through subterfuge that which will produce the same effect and accomplish substantially that which it was prohibited from doing. Ex parte Miller, 129 Ala. 130, 30 So. 611, 87 Am. St. 47; Gibbs v. Morgan, 39 N. J. Eq. 79.

The business of appellant corporation was that of carrying passengers for hire on its busses running between Hot Springs and Nashville, and the object of the order restraining the appellee company from conducting a like business between those points was to preserve the business of appellant corporation from the interference of the appellee. It is therefore immaterial whether the appellee derived a profit from carrying passengers or whether it carried them without pay. In either event the harm to appellant would be as g-reat and the spirit of the injunction violated. The true test is not whether the unlicensed operator is deriving a profit, but whether his acts are necessarily a direct injury to the certificate holder. Norris v. Farmers & Teamsters Co., 6 Cal. 590, 65 Am. Dec. 535; Vallejo Ferry Co. v. Salano Aquatic Club, 165 Cal. 255, 131 Pac. 864; Davis & Banker Inc. v. Nickell, 126 Wash. 421, 218 Pac. 198. It is very true, as concluded by the chancellor, that a private individual has the right to run his car over the highway and to invite guests to travel with him if he so chooses without charge, but it does not follow, as found by the chancellor, that, since a private person has such right, to deny such right to a corporation would deny its equal protection of the law. For in this case the rights of the corporation offending and of a private individual stand upon a different footing" the former has a right common to every one, but that right is in no sense the same to a corporation, a public carrier, who makes the highway his place of business and uses it for its private gain. The distinction is elementary and fundamental, and one of such universal recognition as to render the citation of authorities unnecessary.

In the instant case the preponderance of the evidence, indeed, the uncontradicted evidence, renders it apparent that the ad libitumi authority given to the bus drivers to haul any one they might choose without exacting pay, the liberal use of passes, the selling of tickets to places beyond the prohibited points where it was known the passenger only intended to travel to Nashville or Hot Springs, all indicate a mere subterfuge to evade the letter of the injunction and to continue the impairment of the business of appellant and to render it unprofitable.

Nor can it avail the appellee to say that it did not intend to violate the order of the court or that it instructed its agents not to sell tickets from intermediate points between Nashville and Hot Springs, for the other conduct which has been shown was to do indirectly that which it denied it was doing directly. “It is to be observed that the violation of the spirit of an order or writ, even though its strict letter may not have been disregarded, is a breach of the mandate of the court.” Weston v. John Roper Lumber Co. 158 N. C. 270, 73 S. E. 799; Baker v. Cordon, 86 N. C. 116, 41 Am. Rep. 448.

It follows that the trial court erred in dismissing the citation for contempt for want of evidence to support it. The decree is therefore reversed, and the cause remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.


author: Smith,-J.

text:
    Mahaffey v. Glover.
    Opinion delivered January 25, 1932.

      Raymond Jones and W. G. Rodgers, for appellant.

      Floyd Terral, for appellee.
   Smith,-J.

Appellant, for her cause of action, alleged that an automobile owned by W. G. Glover and driven by his son, W. H. Glover, in which she was riding as an invited guest, was negligently driven into and against a truck owned by B. H. Sullivan, which was being driven by his son, Harold, and that, as a result of this collision, she sustained serious injuries. She brought this suit against the Glovers, and has alleged that the collision, and her consequent injury, was occasioned by the negligence of the driver of the car in which she was riding, and she prayed judgment for damages to compensate her injury. The complaint and the amendments subsequently filed thereto recite the particulars in which young Glover was negligent, and allege that this negligence was the sole cause of her injury.

In response to a motion filed by the Glovers, a certain writing was produced and offered in evidence, in which it was recited that, for and in consideration of the sum of $317.50, paid her by B. H. Sullivan for himself and for his son, Harold, the plaintiff had released them from any and all claims or demands for damages on account of the collision in which she had been injured. This instrument contained the following recital: “It is further understood and agreed that the acceptance of the aforesaid $317.50 by said O. E. Mahaffey (the father of the plaintiff) and Miss Mattie Mehaffey will not, in any way, operate as an accord and satisfaction of any claim which they, or either of them, may have or claim against W. H. Glover, the operator of the automobile in which Miss Mahaffey was riding at the time of the collision.” Upon this writing being produced and offered in evidence, the defendants, Glover, father and son, moved to dismiss the cause of action upon the ground that the writing operated as a release to them also of any liability. In response to this motion, plaintiff offered testimony to the effect that the money received by herself and her father from Sullivan was voluntarily advanced, and was to be repaid if they became able to do so; that she did not at any time assert, and does not now allege, that Sullivan was responsible for or had contributed to her injury, but that, on the contrary, the parties made defendants to this suit were solely responsible therefor.

The trial court was of the opinion that this testimony varied the legal effect of the writing, which he construed to be a release, and therefore declined to consider it. The motion to dismiss the cause of action was sustained upon the ground that it had been compromised and settled, and this appeal is from that judgment.

It may be first said that the question of the legal effect of the writing referred to as a release was not raised by the parties in whose favor it was executed. They are not parties to this suit. The plaintiff has alleged as her cause of action an injury occasioned solely by the negligence of the parties whom she had made defendants, and has also alleged that their negligence was the sole cause of her injury. She does not question that the paper writing would bar a suit against the Sullivans, if, indeed, she had had such a cause of action against them. She offered only to show that she had no cause of action against them nor any intention to sue upon any such supposed cause of action against them, and that the writing as against the Sullivans was nothing more than a covenant not to sue them.

We think the testimony was competent for this purpose. It was not offered to defeat the writing as a contract, and its binding effect between the parties thereto is not questioned. The rule that parol testimony may not be offered to vary the effect of a valid and sufficient written contract does not therefore apply and operate to exclude this testimony.

We are also of the opinion that the writing called a release is not such in fact, but is in legal effect a covenant not to sue the Sullivans.

In the recent case of Magnolia Petroleum Co. v. McFall, 178 Ark. 596, 12 S. W. (2d) 15, it was said that, “in the case of joint tort-feasors, the essential unity of the injury, and the fact that the injured party is entitled to but one compensation therefor, make it impossible for the injured person to settle with one tort-feasor without discharging the other. Therefore it is held that a release of one tort-feasor releases all, for the reason that the cause of action is satisfied, and no longer exists.”

In addition to a number of our own cases on the subject, we there cited the case of Young v. Anderson, 33 Idaho 522, 196 Pac. 193, which is annotated in 50 A. L. R. 1056. The annotation to this case is extensive and exhaustive.

It is stated in the annotator’s note that, “by the great weight of authority, a covenant not to sue one joint tort-feasor is held not to amount to-a release, and therefore such an agreement is held not to discharge the 'other tort-feasor. ’ ’ And among the numerous eases cited as sustaining what is said to be the majority rule as there announced are our own cases of Dardanelle & R. Rd. Co. v. Brigham, 98 Ark. 169, 135 S. W. 869, and Texarkana Telephone Co. v. Pemberton, 86 Ark. 329, 111 S. W. 257. These cases and other cases by this court 'therein cited sustain this rule.

One of the leading cases on this subject, and one which has been frequently cited, is that of Carey v. Bilby, 129 Fed. 203, 63 C. C. A. 361. This case recognizes the well-established rule, in an opinion by Circuit Judge Thayer, that the release of a cause of action as against one of two or more joint tort-feasors is a release of all, and that the rule is based upon the theory that, when one has received full compensation for a wrong, no matter from which wrongdoer or from what source, the law will not permit him to recover further damages.

After thus stating the general rule in regard to releases, the court proceeded to say: “'Sometimes, however, as in the case in hand, a release executed in favor of one wrongdoer is accompanied with the reservation of the right to sue others who were jointly concerned in the wrong, and in such cases the question has frequently arisen, how shall such an instrument be interpreted? Shall the reservation of the right to sue others be ignored, and the instrument treated as raising a conclusive presumption that full compensation for the wrong has been made, as though it were a technical release under seal, or shall the reservation of the right to sue others be taken to mean that full compensation has not been received by the injured party, and that he merely intended to agree with the released party not to pursue him further, but without releasing his cause of action against the other wrongdoers, or admitting that he has received full compensation for the injury? With reference to this question, the authorities are not in accord. Some courts are disposed to hold, and have held, that, when such an instrument contains apt words releasing one of the joint wrongdoers, it operates to release all, and that any clause inserted therein reserving a right to sue others after one has been released is repugnant to the release, in that it defeats, or attempts to defeat, the natural legal effect of the instrument; and that it should therefore be ignored. (Citing authorities.) Other courts hold, however, that such an instrument should be given effect according to the obvious intent of the person executing it, and that it should not be treated as a technical release operating to destroy his cause of action as against all of the joint tórt-feasors, but rather as a covenant not to .sue the party in whose favor the instrument runs. (Citing' authorities.) We are of the opinion that the doctrine enunciated in the cases last cited is supported by the greater weight of authority, and is founded upon the better reasons. It has the merit of giving effect to the intention of the party who executes such an instrument, which should always be done when the intention is manifest and it can be given effect without violating any rule of law, morals, or public policy. Besides, we are not aware of any sufficient reasons which should preclude a person who has sustained an injury through the wrongful act. of several persons from agreeing with one of the wrongdoers, who desires to' avoid litigation, to accept such sum by way of partial compensation for the injury as he may be willing to pay, and to discharge him from further liability without releasing his cause of action as against the other wrongdoers. The law favors compromises generally, and it is not perceived that an arrangement of the kind last mentioned should be regarded with disfavor. The release which was read in evidence in the case at bar plainly shows that the sum paid by Hysham was not accepted by the plaintiffs as full compensation for the injury which they had sustained; that it was not in fact full compensation for the injury; and that they had no intention of releasing their cause of action as against Carey. Why, then, should it be given an effect contrary to the intent of the one who executed it? We perceive no adequate reason for giving it such effect, and accordingly agree with the lower court that it did not release Carey.”

This court has, in its opinions above referred to, approved the distinction stated by Judge Thayer between a release and a mere covenant not to sue one or more tort-feasors, and it is unnecessary therefore to further review the authorities.

The case of Coleman v. Gulf Refining Co., 172 Ark. 428, 289 S. W. 2, is cited as sustaining the contrary view. But such is not its effect. In that case the plaintiff was injured through the concurring negligence of the servants of a railroad company and of another corporation, and, in a release executed by the plaintiff to the railroad company, it was recited that “the within settlement also includes every claim of every class or character, past, present and future, arising from or growing out of the above-mentioned accident; consideration $1,500,” and no reservation was made of the right to sue the other tort-feasor, as was done in the instant case. We therefore held in the Coleman case, supra, that the writing was a release, and not a covenant not to sue the railroad company.

We conclude therefore that the trial court was in error in dismissing appellant’s complaint, and that judgment will be reversed, and the cause will be remanded.


author: Mehaeey, J.

text:
    East End School District No. 2 v. Gaiser-Hill Lumber Company.
    Opinion delivered January 25, 1932.

      W. A. Utley, for appellant.

      Tom Digby and Malcolm Gamvaway and McDaniel \& Nall, for appellees.
   Mehaeey, J.

The appellant is a school district in Saline County, formed by the consolidation of three districts. It became necessary for the appellant to erect and equip a new school building, and arrangements were made for borrowing the money from the revolving loan fund. An election was had, and tax voted for the payment of the loan. The amount borrowed was $10,000.

The district undertook to purchase the material and have some person to supervise the work. The directors of appellant agreed with W. H. Rodgers that they would furnish the material and pay the labor, and allow him $55 per week for his services. This agreement was entered into on April 7, 1930.

Bodgers further agreed that he would complete the building in seventy-two working days, and that he would execute an acceptable bond as a guarantee that said building would not exceed in total cash the amount set and agreed to by party of the first part, the expense of said bond to be paid by party of the first part.

On the same date, April 7, 1930, the directors of the district signed the following instrument:

“April 7, 1930.
“We hereby, the parties of the first part, do here this day enter into an agreement with W. H. Bodgers, of the second part, to furnish all material which is to be used in said school building, subject to rejection if not delivered on job according’ to plans and specifications. Parties of the first part further agree to assist in buying' all material that goes into said building, and also agree to furnish the necessary money each Saturday noon to pay off all employees which party of the second part shall have time and payroll made out. We further agree to pay party of the second part the sum of $55 per week, straight time, and to furnish gasoline and oils to be used for the purpose of transacting business for the parties of the first part.
(Signed) “W. B. Garner,
“W. W. White,
“ J. T. Wilkerson,
“L. A. Ashley,
“T. B. Wells,
“W. M. Haynes.”

Thereafter the directors of the district concluded that it would be necessary to advertise for bids and to let the contract to the lowest and best bidder. They advertised for bids, and Bodgers made a bid that was accepted, and executed a bond with the Home Accident Insurance Company as surety.

Bodgers’ bid was accepted, but no new contract was made with him. The bid was $8,229.73.

• The bond was executed by Rodgers as principal and the Home Accident Insurance Company as surety, in the sum of $8,229.73.

The following statement is in the bond:

“Whereas, the principal has entered into written contract dated April 7, 1930, and amended by a supplemental agreement dated May 2, 1930, whereby the principal agrees to supervise the construction of a school building in East End School District No. 2 of Saline County, Arkansas, said district agreeing to furnish and pay for all material entering into the construction of said building, and to furnish the necessary funds each week to pay the labor employed on it,- a copy of which is hereto annexed, and which contract is made a part hereof, as fully as if recited at length herein.”

Before the work was completed Rodgers quit the job, left the country, and the building was completed by agreement between the directors and surety company.

Suit was filed in the 'Saline Chancery Court by Gaiser-Hill Lumber Company and M. J. Keteher, trading as M. J. Keteher & Company, against the school district, its directors, W. H. Rodgers, and the Home Accident Insurance Company.

The suits brought by Gaiser-Hill Lumber Company and M.' J.- Keteher & Company were brought as separate suits, but were consolidated and tried together. There was also a suit brought by the Benton Supply Company, and this suit was by agreement consolidated here for the purpose of appellant’s brief.

The facts and principles of law are the same in each case, and there is therefore no necessity for more than one opinion.

Each of the suits was for material furnished which entered into the construction of the building. There is but little dispute about the facts. It is not contended that the materials were not furnished, and there is no' contention that the materials furnished did not go into the building.

The school district, in its answers, denied liability; alleged that the building was erected by Rodgers, and not by the school district; that Rodgers was not merely a supervising' contractor. It says that the supplies were sold to Rodgers, and that the bond was a statutory bond, and that the building was a public building, and that appellees knew, or could have known, that it was a public improvement. It also alleged that all of the funds received from the revolving loan fund were expended by the district in accordance with the contract entered into between said district and Rodgers; that, if appellees had any claim for material furnished, it was a claim against the contractor and bonding company, and not against appellant.

The court entered a decree in favor of Gaiser-Hill Lumber Company for $676.96, together with 6 per cent, interest from July 26,1930, and for costs. It also entered judgment in favor of M. J. Ketcher for the sum of $601.50, with interest at the fate of 6 per cent, per annum from July 10, 1930, and costs. There was a judgment entered in favor of the Benton Supply Company for $681.48.

The claim for lien upon the school building and land upon which it was located was denied in each case, and the complaints for liens dismissed for want of equity.

The district prosecutes an appeal in each case.

It is contended by the appellant that it is not liable for the payment of these claims, and that appellees should look either to the contractor or to the bonding company for payment, and appellant states that the correctness of the decision of the chancellor, holding. the district liable, depends in a great measure on the construction of §§ 6913 and 6914 of Crawford & Moses’ Digest. The sections referred to read as follows:

“Section 6913. Public buildings. Whenever any public officer shall, under the laws of this State, enter into a contract in any sum exceeding one hundred dollars, with any person or persons for the purpose of making any public improvements, or constructing any public building, or making repairs on the same, such officer shall take from the party contracted with a bond with good and sufficient sureties to the State of Arkansas, in a sum not less than double the sum total of the contract, whose qualifications shall be verified, and such sureties shall be approved by the clerk of the circuit court in the county in which the property is situated, conditioned that such contractor or contractors shall pay all indebtedness for labor and material furnished in the construction of said public building, or in making said public improvements.
‘ ‘ Section 6914. Bond. Such bond shall be filed in the office of the clerk of the circuit court in the county in which said public improvement is to be made, or such public building is to be erected, and any person to whom there is due any sum for labor or material furnished, or his assigns, may bring an action on said bond for the recovery of said indebtedness; provided, that no action shall be brought on said bond after six months for the completion of said public improvement or buildings.”

. It is true that school directors are public officers and derive their powers from the statute.

“The law is well settled that school districts are not only authorized to exercise the powers that are expressly granted by statute, but also such powers as may be fairly implied therefrom, and from the duties which are expressly imposed upon them, and such powers are implied when the exercise thereof is clearly necessary to enable them to carry out and perform the duties legally imposed upon them.” American Exchange Trust Co. v. Trumann Special School Dist., 183 Ark. 1041, 40 S. W. (2d) 770; A. H. Andrews Co. v. Delight Special School Dist., 95 Ark. 26, 128 S. W. 361.

■School directors are expressly authorized by statute to build, hire, or purchase school houses, and to furnish the same with necessary seats, desks, furniture, fixtures, and fuel. Crawford & Moses’ Dig., § 8942.

It is the contention of the appellant that the bond executed by Eodgers as principal and the Home Accident Insurance Company as surety is a statutory bond, and that it is liable to persons who furnish materials or labor, and that the district is not liable.

Attention is called to the case of Reiff v. Redfield School Dist., 126 Ark. 474, 191 S. W. 16: That was the first case where § 6913 of Crawford & Moses’ Digest was construed. There have been a number of cases since that time construing this section.

In the case of Reiff v. Redfield School Dist., 126 Ark. 474, 191 S. W. 16, it was hold that, in the absence of a statute, the right to sue on a public contractor’s bond is dependent entirely on the terms of the bond. It held that an action on such bond could not be maintained without some provision in the bond promising to pay laborers and materialmen. The bond involved in that case was made to the school district instead of the State of Arkansas, and the court held that a mistake in naming the obligee was not a fatal defect in a bond which is executed pursuant to the requirements of a statute in the interest of the public, when it clearly appears from the bond taken as a whole, that it was intended to be such a one as is required by the statute; but it was also said in that case that the undertaking of the bond follows the statute. It was filed in the office' of the clerk of the circuit court in the county where the schoolhouse was to be erected, and was approved by the clerk. One of the conditions of the bond also was that the surety would pay for all the labor and material for the building, but there is no such undertaking in the bond in the instant case.

The bond in the instant case clearly shows that it was not intended as a statutory bond. It recites that the principal has entered into a written contract dated April 7, 1930, and amended by supplemental agreement dated May 2, 1930, whereby the principal agrees to supervise the construction of the building, said district agreeing to furnish and pay for all materials entering into the construction of the building, and to furnish the necessary funds to pay for labor.

After reciting the agreement that the contractor had entered into with the school district, the bond continues:

“Now therefore the condition of this obligation is such that, if the principal shall indemnify the obligee against any loss or damage directly arising by reason of the failure .of the principal to faithfully perform said contract, then this obligation shall be void; otherwise, to remain in full force and effect.”

It will be observed that the undertaking was to indemnify the obligee, the school district, against any loss or damage by reason of the failure of the principal to perform the contract. But what contract was to be performed? Evidently the contract mentioned in the bond, showing that the principal was to supervise the construction of the building, and that the district was to pay for the material and labor. There is no provision in the bond anywhere for the payment for material or labor. On the contrary, it clearly appears that the district was to pay for the labor and material, and there is- no undertaking on the part of the surety to pay for either labor or material. Moreover it is expressly provided in the bond that no right of action shall accrue upon or by reason hereof to or for the use and benefit of any one other than the obligee named in the bond.

The statute provides that the bond shall be conditioned that such contractor or contractors shall pay all indebtedness for labor and material furnished in the construction of said public building. "When the bond itself recites that it will not be liable for the things mentioned in the statutes, this indicates that it was not intended to be a statutory bond.

Appellant calls attention to the case of Blanchard v. Burns, 110 Ark. 515, 162 S. W. 63, 49 L. R. A. (N. S.) 1199, which held that the statute provided that the bond be placed of record, so that all persons dealing with the contractor may know whether the bond has been executed, and that appellant was chargeable with notice whether or not the bond had been given. However, in that case it was sought to hold the directors liable. There was a demurrer interposed to the complaint, and the court held that the allegations of the complaint must be taken as true for the purpose of testing the sufficiency of the demurrer.

It is also true that, in the case last mentioned, the directors had entered into a contract with the contractor, not to supervise the work, but to construct the building. That being a contract for a public building, the directors were held not liable for material furnished to a contractor.

In this case there was no contractor for the construction of the building, but the district, through its directors, expressly agreed that it would furnish material and labor. If the appellant and its directors had entered into a contract for the construction of the building, and had taken a bond as provided by statute, then the contractor and surety alone would have been liable.

It is also true that, if the boai'd of directors had entered into a contract for the construction of a public building and had not given a bond, the contractor alone would have been liable. The directors would not have been personally liable, and, they having contracted with a contractor to construct the building, the contractor to furnish labor and material, there would, of course, be no liability of the directors or district where the material was sold to the contractor.

If the directors had entered into a contract for the construction of the building, it would then have been their duty to take a bond from the contractor, as required by § 6913. But they did not do this. It is true that, when they concluded they would have to let the contract to the lowest bidder, they took bids, but they never did enter into any contract with Rodgers except the one above mentioned, where they employed him at $55 per week to supervise the construction of the building.

Under the contract, the most that the directors would have been required to pay Rodgers was $660; $55 a week for not exceeding seventy-two working days, and the statute provides that, when they let a contract for the construction of a 'building, the bond shall be in a sum not less than double the sum total of the contract.

If they had entered into a contract for the construction of the building, the principles announced in Blanchard v. Burns, supra, would apply. But they had a right to make the contract they did make, and construct the building in that way, and, having decided not to let the contract for the construction, but to furnish the labor and material themselves, and hire some one to supervise it for them, they were not required under the statute to require any bond at all, and the principles of Stewart-McGehee Co. v. Brewster, 171 Ark. 197, 284 S. W. 53, apply. In that case it was said:

“It will be observed that it is not obligatory upon' the owner of the improvement to require the principal contractor to execute a bond. He may do so or not, as he deems it to his interest. Likewise, the contractor is not required by virtue of the law to execute a bond. He may refuse to do so. It is entirely a matter between the contractor and the owner as to whether the bond required by statute shall be executed. But, where such bond is required by the owner and executed by the principal contractor, then the persons for whose use and benefit the bond is executed must look to the bond as their security for the payment of their claims, and not to a lien on the improvement.”

In the instant case, if the bond had provided that the contractor should pay for labor and material, then the surety would be liable, but there is no such provision in this bond.

In the case of Stewart-McGehee Construction Co. v. Brewster, supra, the bond, by its express terms, bound the contractor and sureties for the use of material furnishers, and other persons having claims which might be the basis of liens, etc. The same is true of the bond in Lena Lumber Co. v. Brickhouse, 173 Ark. 348, 292 S. W. 1007.

In the case of Ætna Casualty & Surety Co. v. Big Rock Stone & Material Co., 180 Ark. 1, 20 S. W. (2d) 180, the condition of the bond was that the contractor should pay off and discharge claims for labor and material.

Id the case of Mansfield Lumber Co. v. National Surety Co., 176 Ark. 1035, 5 S. W. (2d) 294, the bond was not approved by the clerk nor filed as required by statute, but the bond contained the provision for satisfying all claims and demands, and the court said:

“While the bond is not a statutory bond, in that it was not executed in the manner provided by the statute, its provisions and conditions are broad enough to cover the liability imposed by the statute, had it been executed as the statute provides. We are of the opinion therefore that the bond was not executed for the sole benefit of the owner, but for the benefit of materialmen and laborers as well.”

In the instant case, the bond does not provide for the payment of either labor or materials, but expressly states that it is made for the sole benefit of the obligee, the school district, and this court, in a recent case construing § 6913 of Crawford & Moses ’ Digest, said:

“Here the statute simply makes it the duty of the public officers to take a bond of a certain character, and does not impose any regulations whatever upon the contractor, and does not provide expressly or impliedly that the parties shall not enter into any bond except pursuant to the statute, or which would, in any way, modify or annul any provisions of the statute.” Fidelity & Deposit Co. of Maryland v. Crane Co., 178 Ark. 676, 12 S. W. (2d) 872.

The bond in the instant case does not contain any provision showing that it was intended to be executed in obedience to the provisions of the statute, but, on the contrary, expressly negatives that idea.

It is next argued by appellant that a contract entered into beyond the powers conferred by statute is null and void. The statute, however, as we have already said, expressly authorizes school directors to build schoolhouses and equip the same. ;

The decree of the chancery court in each case is correct, and is therefore affirmed.


text:
    Deans v. Legg.
    Opinion delivered January 25, 1932.

      Rice & Rice, for appellant.

      Earl Blamett, for appellee.
   Mehaeey, J.

The appellee brought suit in replevin in the justice of the peace court of Boiler’s Bidge Township, Benton County, Arkansas, alleging that appellant had possession of six head of cattle belonging to him; that he was entitled to the immediate possession, and that the value of the cattle was $300. He filed the regular affidavit to obtain delivery, and also filed bond. An order of delivery and summons were issued.

The appellant filed an affidavit for change of venue, and the case was transferred to an adjoining township. After the case was transferred, the appellant filed an independent suit against appellee in the justice of the peace court, to which the former case had been transferred.

The appellant alleged in his complaint that there was in effect a stock law in the township where appellant’s suit was brought and where both parties lived, forbidding cattle to run at large; that he had on his farm two acres of tomatoes; that the appellee permitted six head of cattle belonging to him to go upon the premises of appellant and destroy said tomatoes; that he impounded said live stock and held same for fees; for taking up' and impounding, $3; for feeding same two days, $6; for giving written notice to owner, $1; amounting to $10; and $125 for damages to his crop.

Appellee filed a motion to dismiss appellant’s complaint, alleging that the damage sought was to real estate, and the justice had no .jurisdiction.

The justice court rendered judgment against appellant in favor of appellee for $20. The appellant appealed to the circuit court, where appellee presented his motion to dismiss for want of jurisdiction. The circuit court sustained the motion and dismissed the cause for want of jurisdiction. The case is here on appeal from the circuit court.

The record does not show whether the replevin suit brought by appellee has ever been tried, and the only question for us- to determine is whether the justice of the peace court had jurisdiction of the subject-matter of the suit brought by appellant. Both parties argue the question as to whether the justice of the peace had no .jurisdiction because the suit involved trespassed-on land. We find it unnecessary to determine this question.

As to the jurisdiction of justice of the peace courts, the Constitution provides, among other things: “And in all matters of damage to personal property where the amount in controversy does not exceed the sum of $100. ” Article 7, § 40, of the Constitution.

Appellant states that there may be some question as to whether the tomato crop was within the jurisdiction of the justice of the peace court, but states that, if it was personal property, it could not be maintained in the justice court for damages exceeding $100. If it was trespass on real property, it is conceded that the justice court would have no jurisdiction.

An early case, probably the earliest one deciding this question, is Hunton v. Luce, 60 Ark. 146, 29 S. W. 151. 28 L. R. A. 221, 46 Am. St. Rep. 165. The court in that case held that a plaintiff might bring his action within the jurisdiction by remitting a portion of his claim, but stated that the amount claimed by plaintiff is the sum in controversy, and determines the jurisdiction.

This court again, in the case of Kilgore Lumber Co. v. Thomas, 95 Ark. 43, 128 S. W. 62, and in the case of Barron-Fisher-Caudill Co. v. Rhoda, 126 Ark. 554, 191 S. W. 229, reached the same conclusion, approving the doctrine announced in Hunton v. Luce.

It is therefore settled by the decisions of this court that the justice of the peace has no .jurisdiction where the suit is for damages to personal property, and the amount in controversy exceeds $100. Therefore, whether the suit was for damages to personal property or trespass to real estate,. the justice of the peace had no jurisdiction.

Appellant, however, says that his complaint should not have been dismissed, because he also sued for cost and fees amounting to $10, which was within the jurisdiction of the justice of the peace. These items, however, were necessarily involved in the original suit brought by appellee, and could not, in the same court, be the basis of another and independent suit for these amounts.

The suit, being for $125 damages, was not within the jurisdiction of the justice of the peace court, and the judgment of the circuit court is therefore affirmed.


author: McHaney, J.

text:
    Kearns v. Steinkamp.
    Opinion delivered January 25, 1932.

      Leo P. McLaughlin and Richard M. Ryan, for appellant.

      Murphy & Wood, for appellee.
   McHaney, J.

Appellant brought this action to recover damages from appellees for the injury and death of her son, Joe Kearns, which occurred on the 13th day of July, 1930, at a swimming- pool and resort owned by appellees and known as Ozark Lithia Springs, near Hot Springs, Arkansas. Joe Kearns was a frequent visitor, and had been for some years prior to its purchase by appellees, to the swimming* pool at Ozark Lithia Springs, and was well acquainted with said pool and its condition. On the above date, while swimming therein, he dived off the concrete wall, some 14 to 18 inches above the surface of the water, and struck his head on a raft provided by the owner for the amusement of his patrons and safety and convenience of inexperienced swimmers, breaking his neck, from which he died some hours later. Three grounds of negligence were alleged: (1) in not keeping the swimming pool free from obstructions, making it a safe place for swimmers; (2) by permitting said wooden raft to be in the pool; and (3) in permitting the raft to become water-soaked causing it to sink below the surface of the water and not plainly visible to bathers in the pool. Appellees denied that they were guilty of any negligence, and stated that the injuries received by Joe Kearns which resulted in his death were caused by his own negligence in diving against said raft because it was plainly visible above the surface of the water and could have been seen by him if he had looked. They also pleaded that deceased assumed the risk. The case was tried on the theory that appellees permitted the raft to become water-soaked which caused it to be submerged below the surface of the water and not easily visible to swimmers in the pool, and that it was a dangerous instrumentality in this condition. The court instructed a verdict for appellee, Sophia Steinkamp, but submitted the liability of William Steinkamp to the jury. There was a verdict and a judgment for him, and the appellant has brought the case to this court for review, charging a number of errors of the trial court for a reversal.

The first argument made is that “the proof in the case preponderated that the Steinkamps were guilty of what we might deem gross negligence in this case. The verdict was wrong.” We do not understand that appellant contends there was no substantial evidence on which to base the verdict, but only that it is against the preponderance of the evidence. Even though we might think that the verdict was against the preponderance of the evidence, this would be no cause for this court to reverse the judgment. The rule in this court is that the verdict of the jury will not be disturbed unless there is no substantial evidence to support it. A number of appellant’s witnesses testified that the raft had become water-soaked and submerged so that it would not float above the surface of the water, and on the other hand, a similar number of appellees’ witnesses testified exactly to the contrary — that the raft floated two or three inches above the surface of the water, was plainly visible, and being four or five feet wide and ten or twelve feet long, would support several swimmers at the same time without sinking, and the undisputed proof is that when Joe Kearns dived against the raft he fell across one corner of it, and that it supported his body which was paralyzed from the arms down. This made a conflict in the evidence which the jury has settled against appellant, and under the settled rule of this court it must be permitted to stand.

Error is also assigned because the court directed a verdict in favor of Mrs. Steinkamp. The undisputed proof is that Mr. Steinkamp purchased the property and took the deed in their joint names creating an . estate by the entirety, but that he was in the entire charge of operating the property, especially the swimming pool, with which she had nothing to do. There was no relation of master and servant or principal and agent subsisting between them, and therefore the doctrine of respondeat su-perior has no application, and the court correctly instructed a verdict in her favor.

Error is also assigned because the court did not excuse certain jurors in forming the petit jury to try the case. It is said that these jurors were incompetent to serve under the provision of act 135 of the Acts of 1931, which became effective June 20, 1931. This act provides in § 1 that no citizen shall be eligible to serve on grand and petit juries oftener than one regular term of the court every two years, and it is said that some of the jurors had served within the past two years. Appellant made no objection to any of these jurors for this or any other reason before the trial of the case, but raised it for the first time in the motion for a new trial. The objection therefore came too late. Litigants will not be permitted to thus speculate on the verdict of the jury. Durben v. Montgomery, 145 Ark. 368, 224 S. W. 729; Mo. Pac. Rd. Co. v. Bushey, 180 Ark. 19, 20 S. W. (2d) 614; Fones Bros. Hdw. Co. v. Mears, 182 Ark. 533, 32 S. W. (2d) 313.

Error is assigned because the court excluded the testimony offered by two witnesses relating to an injury to the hand of one of them by coming in contact with the raft some time prior to the injury in question. We think the court properly excluded the testimony of these witnesses because it was not shown that the injury was caused by the water-soaked or submerged condition of the raft, and this is the ground the court excluded it on.

It is also argued that the court erred in refusing to permit appellant to prove by two witnesses that the raft was taken out of the pool after the accident and why. This testimony was not relative or material to the inquiry, as the negligence alleged and relied upon was whether appellant was negligent in keeping a water-soaked and submerged raft in the pool. Subsequent precautions taken to prevent a recurrence of an injury cannot be proved to establish negligence in the first place. Prescott & N. W. Ry. Co. v. Smith, 70 Ark. 179, 67 S. W. 865; Ft. Smith L. & T. Co. v. Soard, 79 Ark. 388, 96 S. W. 121; Collison v. Curtner, 141 Ark. 122, 216 S. W. 1059, 8 A. L. R. 760. Also Frank Eveland’s testimony was properly admitted, as it was directed to the point in issue, that is the condition of the raft.

A number of objections are made to instructions given and instructions refused, all of which we have examined carefully and do not find them open to the objections made. As to the refusal to give appellant’s No. 7, it was properly refused, as it assumed that the raft was water-soaked and submerged- — the very question at issue in the -case. We think the court fully and fairly instructed the jury on every question at issue, and that the instructions as a whole were correct. It would take too much space in the opinion to set them out and comment on them separately.

The objection made to the language used by one of the attorneys of appellee in his argument to the jury we think is without -merit, and could have resulted in no possible prejiidice. The language used was: “George Leatherman was out there when this happened. He- is an officer of the county. He is human, and his sympathy would have been with the boy who lost his life.” This statement was made in connection with the failure of appellant to produce available witnesses, and we think was proper under the circumstances.

It is finally insisted that the court erred in failing to grant a new trial on account of newly discovered evidence. This newly discovered evidence appears to he cumulative merely, and the court did not err in refusing to grant a new trial on this ground, as it is well settled that the newly discovered evidence must be more than merely cumulative, and that due diligence must he shown in an effort to get the evidence before the trial. We find no error, and the judgment is affirmed.


author: Mehaffy, J.

text:
    Ross v. Clark County.
    Opinion delivered January 18, 1932.

      McMillan d McMillan, for appellant.

      D. E. Crawford and J. E. Loohadoo, for appellee.
   Mehaffy, J.

On October 22, 1930, the appellant, J. B. Ross, filed a claim in the county court of Clark County for damages to his land and crop, caused by taking- land for right-of-way, damage to land other than that taken, and damage to crops, totaling $13,000. The claim was disallowed by the court, and an appeal was taken by Ross to the circuit court, where .judgment was rendered in favo! of Ross for the sum of $187.50.

Motion for new trial was filed and overruled, and the case is here on appeal.

Prior to filing the claim in the county court, Ross, the appellant, had signed the following agreement, with other landowners:

“We and each of us agree to the following-agreement, that if all fences are moved and replaced in the proper place necessary for the protection of our property caused by the building of the said highway at the expense of the county or State, and. all houses in or immediately adjacent to the proposed right-of-way are moved at the expense of the State or county and located on the spot of ground selected by the owner, to be a reasonable distance from the present site and from the proposed right-of-way across bur property, we will give the right-of-way across our property.” (Signed by appellant and others.)

The evidence does not show when this agreement was signed, but the State Highway Commission filed a petition in the Clark County Court for changing and widening State highways, and on September 25, 1930, there was an order of the county court of Clark County granting the petition of the Highway Commission.

It was after the filing of the petition by the Highway Commission and-the order of the county court thereon, that the appellant filed his claim in the county court of Clark County asking damages as above mentioned.

The evidence was in conflict as to the market value of the land taken and damaged, and was in conflict as to the amount of damages caused by the construction of the highway. It is not necessary to set out the evidence in this opinion.

The agreement set out ábove, which was signed by appellant, does not show either the location of the road or the width of the right-of-way donated, and it is impossible to tell from the record what changes were made, if any, through appellant’s land, by the order of the county court. This, however, is immaterial. The evidence shows that the right-of-way mentioned in the agreement was to be 100 feet wide. It also shows that the county was to pay all the damages caused by the construction of the road, and that the county was to remove and rebuild the fences, and it is claimed that this was not done.

The evidence that the county agreed to remove and rebuild the fences is undisputed. Ross testifies positively that it was agreed at the time the agreement above set out was signed that the county would build the necessary fences, and, if any damages occurred, the county would pay for them and leave the land in just as good shape as they found it; that it would be necessary to build about one-half mile of fence on both sides. He also testified that it would cost from $100 to $150 to build the fences.

It is true the county judge testified that he made no agreement outside of the written agreement, but he admitted that he had a conversation with Mr. Ross in regard to the matter, and said, if Mr. Ross spoke to him about the fences, he did not have any recollection of it. He therefore does not dispute Ross’ testimony, but simply says he does not remember it.

Wells testified that the right-of-way was to be 100 feet. ' This is not in the written agreement, and he therefore must have made some agreement in addition to what was written. The agreement to donate the land was never carried out.

At the request of the appellee, and over the objections of the appellant, the court gave the following instructions :

“No. 1. If you should find for the plaintiff, the measure of his damages is the fair market value of the land actually taken for the roadway, other than the amount of land donated by the plaintiff to sepure said roadway, plus the damages, if any, to the remaining land of plaintiff not taken, caused by the construction of the new highway, less the benefits to the land, if any, by reason of the construction of the new highway.

“No. 2. You are told that, in arriving at the amount of plaintiff’s damages, it is your duty to consider the benefits which have accrued to his land hy reason of the construction of the new highway, if you find that the land was benefited thereby, and that you should deduct said benefits, if any, from any damage you may find has been caused to plaintiff’s lands by reason of the construction of said highway. And, if you find that the benefits derived equal or exceed the damages, you should find for the defendant Clark County.”

These instructions were erroneous, and should not have been given, for the reason that the court told the jury that they could consider the market value of the land taken other than the amount donated, plus damages, if any, to the remaining land, not taken, caused by the construction of the road, less the benefits to the land, if any, by reason of the construction of the highway. The correct measure of damages is the market value of the land taken, including that donated, plus the damages, if any, to plaintiff’s land not taken, less the special benefits, if any, by reason of the construction of the highway. In other words, the appellant was entitled to recover the market value of all land taken, and the damage done to land not actually taken, less the special benefits to appellant’s land, if any, by reason of the construction of the highway.

The Constitution provides that private property shall not be taken for public use without compensation. It has, however, been settled by the decisions of this court that, in taking private property for public use, the benefits accruing to the owner’s land may be taken into account in measuring his damages. Holt v. Crawford County, 169 Ark. 1069, 277 S. W. 520; Hempstead County v. Huddles ton, 182 Ark. 276, 31 S. W. (2d) 300; Weidemeyer v. Little Rock, 157 Ark. 5, 247 S. W. 62; Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707.

The benefits mentioned in the decisions mean special benefits.

This court said: “The view which seems to us to accord with reason, and which is supported by high authority, is that where the public use for which a portion of a man’s land is taken, so enhances the value of the remainder as to make it of greater value than the whole was before the taking, the owner in such case has received just compensation in benefits. And the benefits which will be thus considered must be those which are local, peculiar, and special to the owner’s land who has been required to yield a portion pro bono piMico.” Paragould v. Milner, 114 Ark. 334, 170 S. W. 78.

The State or county or any other agency taking private property for public use has no claim against the owner of such property because the improvement benefited the owner. It is only permitted to set off the benefits against the damages to the owner’s-land. Where a public improvement is made by assessing benefits against property, of course the benefits may be set off against any damages, but when private property is taken for public use, under power of eminent domain, it must, under the provisions of our Constitution, be paid for. The owner must be compensated for the property taken or damaged, and he is not compensated by benefits which all other landowners receive without any payment therefor. The benefits therefore which may be set off against the damages are special benefits accruing to the land of the particular owner.

To hold that benefits that accrue to all landowners could be set off against the damages would not only be unjust, but it would violate the Constitution which prohibits the taking of private property for public use without compensation. The constitutional provision reads as follows:

“The right of property is before and hig’her than any constitutional sanction; and private property shall not be taken, appropriated, or damag’ed for public use without just compensation therefor.” Article 2, § 22, of the Constitution.

“And it has been held that the opinions of non-experts who have had an opportunity of special observation are admissible in cases where the facts are stated and are such as to permit a nonexpert to reach an intelligent opinion, and it appears that the opinions derived therefrom are more valuable to the triers than those of scientific men personally unacquainted with the facts. To preclude nonexpert opinion in such cases would be to close a wide and important avenue to the truth.” Jones on Evidence, vol. 3, 2294.

The general rule is that the opinion of a witness cannot be given — the witness relating the facts' from which the jury form their opinion. The rule, however, is not universal. Where the witness has had the means of personal observation, and the facts and circumstances which lead the mind of a witness to a conclusion are incapable of being detailed or described so as to enable any one but the observer himself to form an intelligent conclusion from them, the witness is often allowed to add his opinion or the conclusion of his own mind. Lawson on Expert and Opinion Evidence, 2d ed. 509; Fort v. State, 52 Ark. 180, 11 S. W. 959; Galveston H. & S. A. Ry. Co. v. Daniels, 9 Tex. Civ. App. 253, 28 S. W. 548; McLeod v. Lee, 17 Nev. 103, 28 Pac. 124; 22 C. J. 531-561.

If there were crops growing on the land at the time it was taken or damaged, it would of course be proper to take into consideration the value of the crops destroyed or damaged.

We have not discussed the instructions requested because in another trial of the case the parties will be governed as to the measure of damages by the rule above announced.

The judgment of the circuit court is reversed, and the cause remanded for a new trial.