author: Johnson, C. J. Smith, J., Mehaffy, J., Mr. Justice Smith,

text:
    Shepard v. McDonald.
    4-3181
    Opinion delivered April 9, 1934.

      Lee Miles and Trieber Lasley, for petitioner.

      Owens & Fhrman, Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for respondent and interveners.

      Rose, Hemingway, Cantrell <& Loughborough, amici curiae.

   Johnson, C. J.

This proceeding is a continuation of the case of Shepard v. McDonald, 188 Ark. 124, wherein we said: “It has been specifically agreed between counsel for petitioner and respondent that the question of the sufficiency of the ballot title in the instant case be reserved for decision until the jurisdictional questions have been determined. Therefore we do not here decide or discuss the sufficiency of the ballot title, etc. ’ ’

The question thus expressly reserved for future determination is here presented, and we now proceed to its determination.

The ballot title submitted with the referendum petition is as follows:

“The purpose of this act is to abolish the State Board of Education elected by the people; to create a new State Board of Education appointed by the Governor; to create the office of State Superintendent of Public Instruction; and to repeal certain sections of the ‘school law’ which fix a regular time of meeting for the State Board of Education and requires said board to serve without remuneration.”

In Westbrook v. McDonald, 184 Ark. 740, 44 S. W. (2d) 231, in reference to the sufficiency of a ballot title submitted with a petition to refer, we stated the rule as follows: “The ballot title should be complete enough to convey an intelligible idea of the scope and import of the proposed law, and it ought to be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and it must contain no partisan coloring. ’ ’

The rule thus stated is broad enough to be all inclusive and flexible enough to afford ample relief in all meritorious cases, therefore we reaffirm it without citing or discussing authorities from other jurisdictions,

The only question here presented is, does the ballot title under consideration fall within or without the rule stated?

The first phrase of the submitted ballot title contains the following: “elected by the people.” The only purpose for the use- of these words was to lend partisan color to the position assumed by. the petitioners. It was and is wholly immaterial whether or not the abolished board was elective or appointive. The Legislature has plenary power to create and abolish such boards and commissions.

The second phrase of the submitted title is likewise partisan and colored. The undue emphasis placed upon “appointed by the Governor” does not add to or detract from the merits or demerits of the act.

Not only is this phrase colored and partisan, but it is misleading and contains a half truth only. The act provides that the new State [Board of Education shall be appointed by the Governor with the advice and consent of the Senate. Thus it appears that the elective Senate of the State is a part and parcel of the appointive power, but this is skillfully withheld by the proponents of the referendum petitions.

The third phrase of the submitted title is likewise partisan, colored and misleading. It provides, “to create the office of State Superintendent of Public Instruction.” This language is partisan and colored because it withholds from the voters the fact that the superintendent is to be elected by vote of the people, and this, in the face of the fact that undue emphasis has just been placed upon the facts that the “abolished board is elected by the people,” and that the new board is “appointed by the Governor.” If it were important to advise the voters that the old board was elected by the people, and that the new board would be appointed by the Governor, certainly it was equally important to advise the voters that the superintendent would be elected by the people.

The third phrase of the submitted title is misleading because it creates the impression that a new office, that of superintendent of public instruction, is being created. This office has been in existence for the past fifty years, although, for the past few years operating under the appellation of Commissioner of Education. The effect of the language employed in the act is to substitute the office of Superintendent of Public Instruction for that' of Commissioner of Education under existing law, and this should have been reflected in the title instead of the converse, as was done.

The fourth and last phrase of the submitted ballot title as follows: “And to repeal certain sections of ‘the school law’ which fix a regular time of meeting for the State Board of Education and requires said board to serve without remuneration” is likewise misleading, partisan and colored. It is misleading because the fact is the members of the abolished State Board of Education do receive actual expenses while attending meetings of the State Board of Education. It is partisan and colored because it is immaterial whether or not such members are compensated. The inference sought to be conveyed by the use of the language thus employed is that the new State Board of Education to be appointed by the Governor will receive compensation when such is not the fact. If the language thus employed in the title is of importance to the voters, it was of equal importance that they be directly advised that the new State Board of Education to be appointed by the Governor would likewise be required to serve without remuneration.

Thus it appears that each sentence and phrase of the proposed title is either misleading, colored or partisan, and that each and all falls squarely within the prohibition announced in the Westbrook case, cited supra.

It is argued that the language contained in the proposed title is true, therefore cannot be considered as misleading, colored or partisan. The willful withholding of a material fact is equally as reprehensible as the misstatement of a material fact. This was fully recognized in the Westbrook case just referred to. There we had under consideration a proposed ballot title as follows: “To permit the granting of decrees of divorces to applicants who have resided in the State for a period of only three months.” Each word, phrase and sentence of this proposed ballot title was literally true, yet we held it misleading because it did not directly advise the voters that it would be necessary for applicants for divorces to establish by evidence a legal cause for divorce in addition to the required three months’ residence. Thus it definitely appears that this contention was decided and determined adversely to respondent’s contention here.

Our conclusion is therefore, that the submitted ballot title in the instant case falls within the prohibition of the Westbrook case and is insufficient.

After the filing of this suit, one W. E. G-reene et al. were permitted to intervene upon the theory that they were offering as a part and parcel of the petition for referendum a supplemental and substituted ballot title. Prior to the submission of this cause, however, interveners requested permission to withdraw said intervention. We have concluded that interveners have the right to withdraw said intervention and substituted or supplemental ballot title. ■ Therefore this question passes out of the case.

It follows from what we have said that the respondent, McDonald, Secretary of State, should have denied the petition for referendum, because of the insufficiency of the ballot title submitted therewith, and his actions in submitting and referring same is quashed, and a peremptory writ of prohibition is awarded in behalf of petitioners.

Justices Smith, Mehaeey and McHaney dissent.

Smith, J.,

(dissenting). If the majority opinion in the case of Westbrook v. McDonald, 184 Ark. 740, 44 S. W. (2d) 231, was critical in construing the requirements of the Initiative and Referendum Amendment in the matter of the sufficiency of the ballot title, as was said of it in the dissenting opinion in that case, then the majority opinion in the instant case is hypercritical in the same respect. If only those ballot titles may. be approved which are above and immune from criticism, the amendment has lost its value in both initiative and referendum features, as ballot titles must be submitted in either case. It is beyond contemplation or comprehension that the ballot title should advise the voter fully what the exact state of the law will be if the majority vote is cast for the legislation, which is called ‘ ‘ the measure ’ ’ in the amendment. If such a, test is to be applied, it would be equally important to advise the elector what the state of the law will be if the majority vote is not cast for the proposed measure.

Act 78 of the Acts of 1933, hereinafter referred to as act 78, here sought to be referred, amends, in several particulars, act 169 of the Acts of 1931, hereinafter referred to as act 169. Suppose it had been attempted to refer this act 169? How could a ballot title ever be prepared which could meet the tests to which the majority have here subjected-the ballot title relating to act 78? Act 169 consists of 198 sections, and extends from page 476 to pag'e 588 in the Acts of 1931. It repeals 320 sections of Crawford & Moses’ Digest and 8 sections of Kirby’s Digest, and either repeals or amends 19 separate acts of the General Assembly. What kind of a ballot title could be employed or devised which would advise the bewildered elector, when he saw the ballot which he was about to cast, what the effect of these changes would be? It must be remembered that the general election law provides that: “No elector shall be allowed to occupy a booth or compartment for the purpose of voting for a longer time than five minutes.” Section 3800, Crawford & Moses’ Digest. Several times that length of time would be required to read even a synopsis of act 169, even though the voter was not interested in any other question being voted on or in any candidate for office.

The answer to all such suggestions is that the Initiative and Referendum Amendment does not contemplate the particularity and certainty which would be required to meet the objections which the majority have found to the ballot title here submitted. The requirement of the amendment is that “at the time of filing petitions, the exact title to be used on the ballot shall by the petitioners be submitted with the petition.” Now, as was said in the Westbrook case, supra: “The ballot title should be complete enough to convey an intelligible idea of the scope and import of the proposed law, and ought to be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and mnst contain no partisan coloring.” These requirements could in most cases he met by employing as a ballot title the same title given to legislation by the General Assembly. The same rule, based upon the same reason, applies alike to legislation or measures initiated by or referred to the people. It would not be fair to permit the proponents of an initiated act to give it a title which was calculated to deceive the elector when he came to vote, and induce him, by reason of the misleading title, to vote for the measure; nor would it be fair to permit the opponents of the measure who had caused it to be referred to the people, to encompass its defeat by reason of a misleading title. It ought to convey an intelligible idea of the scope and import of the proposed law, without misleading tendency, and should contain no partisan coloring having that effect.

Now, under this test, it occurs to me that holding the ballot title insufficient and. defective in the Westbrook case, supra, affords no justification for holding the ballot title insufficient in the instant case. There the suggested title read as follows: “Referendum of the act of the Legislature of 1931, amending § 3505 of Crawford & Moses’ Digest of the laws of the State of Arkansas so as to permit the granting of decrees of divorce to applicants who have resided in the State for a period of only three months.” The act there sought to be referred did not permit the granting of decrees of divorce to applicants who had resided in the State for a period of only three months, and the majority thought it unfair and misleading to so state. What the act did — and all it did — -was to shorten the time — which had previously been a year— during which one must reside in this State before having the right to sue for a divorce in the courts of this State. Unlike that title, the ballot title in the instant case contains no misstatement of a fact, and there is no omission or amplification or partisan coloring- calculated or intended to mislead, in my opinion.

The first statement of the- ballot title here under review is that “The purpose of the act is to abolish the State Board of Education elected by the people.” And so it is.

The first section of act 78 repeals §§ 3, 6, 7, 8 and 22 of act 169. Section 3 of act 169 created a State Board of Education, composed of one member from each Congressional district, and by § á it was provided that the members “shall be elected by the qualified electors of each Congressional district at' the regular annual school election.” In other Avords, the electors of each Congressional district elect their own member, so that they are elected by the people.

The second statement of the ballot title is to “ create a new State Board of Education appointed by the Governor. ” And so it is. Section 2 of act 78 reads as follows: “The State 'Board of Education as iioav constituted by laAV is hereby abolished, and there is hereby created a State Board of Education to be composed of seven members to be appointed by the Governor by and with the advice and consent of the Senate.” This means, of course, that the appointment made by the Governor must be confirmed by the Senate, and, as stated in the ballot title, the appointments are made by the Governor, and if, for any reason, the appointments made are not confirmed, the Governor makes other appointments. The appointing power abides in the Governor.

But, again, I beg to suggest that if such mere matters of detail must be recited in the ballot title, as that an appointment made by the Governor must be confirmed by the Senate, then it Avill be difficult, if not impossible, to prepare a practical ballot title. It should not be required to employ a title of such length and intricacy as to cause the despair, if not the disgust, of the elector in the five minutes he is allowed to prepare and cast his ballot. This statement appears to me to be equally applicable to other objections made to the ballot title.

The third purpose stated in the ballot title is “To create the office of State Superintendent of Public Instruction.” And so it is. The first paragraph of § 3 of act 78 reads as folloAvs: “The office of Commissioner of Education is hereby abolished and the office of State Superintendent of Public Instruction is hereby created.”

The fourth purpose is stated in the ballot title to be “To repeal certain sections of the School Law which fixes the regular time of meeting for the State Board of Education, and requires said board to serve without remuneration.” Section 6 of act 169 reads, in part, as follows: “The State Board of Education shall meet annually on the second Monday in September in the office of the Commissioner of Education, and shall also hold regular quarterly meetings on the second Monday in December, March, and June.” This section is expressly repealed by act 78, as stated in the ballot title.

Section 8 of act 169, which is expressly repealed by act 78, provided that: “The members of the State Board of Education shall serve without remuneration, other than their actual expenses while attending meetings of the Board,” so that the 4th statement of the purpose of the act appearing in the ballot title is literally true, except that the members of the State Board of Education under act 169 were allowed their actual expenses while attending meetings of the board. Being allowed this and nothing more, it may well be questioned whether the board members were to receive any remuneration. They were paid nothing for their services, and were only allowed expenses incurred while attending meetings to perform their otherwi.se unremunerated duties. This must be de minimis.

Now, it may or may not be wholly unimportant whether the board which is- to administer the educational affairs of the State is elected or appointed, as the majority say. It is not, in my opinion, our function to say that there is no difference, when the number of electors required by the constitutional amendment to invoke its aid, have done so, for the purpose of retaining an elective rather than an appointive board.

It is said that the ballot title is partisan and colored, because it withholds from the voters the fact that the State Superintendent of Public Instruction, provided for by act 78, is to he elected by the people, because it had stated that the “abolished board is elected by the peopie,” whereas the new board is “appointed by the Governor.”

The majority opinion furnishes what appears to me to be a satisfactory answer to this objection, and that is, that the office of Superintendent of Public Instruction was not an innovation in the educational history of this State. We had had such an office for more than fifty years; in fact, since December 7, 1875, until it was abolished by recent school legislation, during all of which time that official had been elected as other State officers were elected. Section 8793, Crawford & Moses’ Digest.

However, had the ballot title recited, as the majority say it should have done, that upon the re-creation of this office it would be filled as it had been during its former existence, it might have been objected that the statement was not accurate, but was partisan and colored, for the reason that § 3 of act 78 provides that: “Immediately after this act has taken effect and is in force, the State Board of Education herein created shall elect a State Superintendent of Public Instruction, who shall serve until the next general election and until his successor is duly elected and qualified.”

Can it be imagined that any one could prepare a ballot title to which no objection could be found, and which would be approved by all persons who considered it? On the contrary, it is impracticable, if not impossible, except in very simple matters of legislation, to advise the elector what the exact state of the law will be after the measure has been adopted or rejected by the people, and no such requirement should be imposed if the Initiative and Referendum Amendment is to produce the results, the anticipation and expectation of which induced its adoption.

The majority have said nothing about the substitute ballot title which was submitted in anticipation of the possible rejection of the original title submitted along with the petition, and I shall not, therefore, consider its sufficiency, as, in my opinion, the original title was sufficient. But I feel constrained to say that it was expressly held in the former opinion in this case to which the majority opinion refers, that the ballot title is a part of the petition. Shepard v. McDonald, 188 Ark. 124. The amendment expressly provides that the petition may be amended; therefore, the ballot title, which is apart of the petition, may be amended. The amendment provides that: “If the Secretary of State * * * shall decide any petition to be insufficient, he shall, without delay, notify the sponsors of such petition, and permit at least thirty days from the date of such notification * * * for correction or amendment.”

Prior to the decision in this case there was no occasion to invoke this provision of the amendment, because the title had not been held insufficient. On the contrary, the Secretary of State held it to be sufficient. He must now, under the majority opinion, hold the ballot title insufficient, and, this being true, an opportunity to amend, for which the amendment itself provides should be afforded.

I therefore most respectfully dissent and am authorized to say that Justices Mehaepy and MoHaney concur in the views here expressed.

Mehaffy, J.,

(dissenting). I do not agree with the majority in holding that the ballot title is insufficient because it is misleading, colored or partisan, or that it is insufficient or defective for any other reason. I wrote a dissenting opinion in the case of Westbrook v. McDonald, in which I reviewed the authorities, and I do not deem it necessary to review all those authorities again. The dissenting opinion in the Westbrook case may be found in 184 Ark., beginning at page 753, 44 S. W. (2d) 331.

Mr. Justice Smith,

in his dissenting opinion in this ease, has called attention to the law which prohibits any elector from occupying a booth or compartment for the purpose of voting for a longer time than five minutes. During that time, the voter must cast Ms vote for State, district, county and township officers. It would be unreasonable to expect any voter, within that time, to, have any time to study ballot titles or anything else, except simply to cast his vote.

The law provides that, when' a petition is filed to refer any act to the people, there must be filed with the petition an exact copy not only of the title, but of the act itself, and the only useful purpose of the ballot title is to enable the voter to identify that with the act filed in the Secretary of State’s office, or the one published in the newspapers. It would be entirely unreasonable to expect a voter, in five minutes, to study the ballot title for any other purpose than to identify it with the act which he is supposed to have read.

The Constitution simply provides that the exact title to be used on the ballot shall be, by the petitioners, submitted with the petition. There is no intimation or suggestion in the Constitution or the law as to what the title shall contain.

I have no doubt that a ballot title might be prepared by each of a dozen lawyers, and that they would all be different, and I submit that no one could prepare a ballot title that every one would agree was correct. Voters are not expected, within five minutes, to get information about the merits of an act and decide whether they want to vote for or against itthey are supposed to have that knowledge before they go into the booth to vote. That is the reason that the law requires an exact copy of the act to be filed with the petition, and that is the reason that the act is required to be published in every county in the State for four months. The voters get their information as to the purpose of the act from the act itself, and not from the ballot title.

I think the decisions of this court have annulled the amendment to the Constitution providing for referendum. It should not be required that the ballot title should be such that the voters could learn the purpose and effect of the act from it. It should be such only as identifies it with the act filed in the Secretary of State’s office and published in each county. I do not believe that any lawyer could prepare a ballot title that some one would not object to.

The Supreme Court of Oregon, in discussing ballot title, said:

“There is nothing in the Constitution as amended implying that the full title as appears in the proposed measure shall appear upon the ballot, nor does the act under consideration so require. The method provided is adequate to identify the bill, as indicated on the ballot, with the proposed measure on file in the office of the Secretary of State, the full title and text of which appear in pamphlets, a copy of which, under the law in force at the time the local option law was voted on, was presumably in the. hands of each voter. The method then in use, and as since improved upon, was, and is, analogous to the proceeding before the legislative assembly. There, before the roll call for voting on a proposed measure is had, the presiding officer announces that “We are about to vote on House (or Senate) Bill No. 104, or whatever number the bill may have, which number as thus announced identifies the bill to be voted upon with the printed bill on the desk of each member. True, the title is previously read, as is the entire bill, and so it is presumed to have been previously read by each voter under the initiative system.
“The only question, then, to determine is, Does the title as designated and used on the ballot come within the purview of the Constitution as amended and supplemented by the act of 1903? We think it does. * * * As above stated, the title of a. bill before the legislative assembly is required to be read with the measure to be voted upon, and the full title is presumed to appear thereon. This method under the initiative would be impracticable ; for, as manifest from the length of the title of the act under consideration, if many measures should be submitted to the voters at one time, to print upon the ballot a full title to each would require the ballot to contain many pages of printed matter, which cumbersome method was plainly intended to be avoided. To recognize the rule invoked by appellant would defeat the very purpose contemplated by the adoption in our fundamental laws of our direct, and additional, system of lawmaking. The system provided, as above considered, was obviously designed to take the place of that employed by the Legislature, and accomplishes the same result.” State v. Langworthy, 55 Ore. 503, 104 Pac. 424, 106 Pac. 336.

The Oklahoma Supreme Court said: “As to the ballot title prepared and filed with the Secretary of State and with the Attorney General, it appears that the parties submitting’ the proposition have complied with the law. The ballot title was prepared by the Attorney General, acting’ in conjunction with the attorney for the parties submitting the proposition, and contains the gist of the measure, without any argument or statement either for or against it. The protestant has offered no substitute title for the one prepared and filed, as required by section 3377.” In Re Referendum Petition No. 30, State Question No. 94. 71 Okla. 91, 175 Pac. 500.

The protestants here have offered no substitute title and the court offers none. If the title is defective, as the majority holds, then it would seem to be fair that either the protestants or the court should prepare a title that would be sufficient. That is especially true in this case because, since the decision, the Secretary of State is compelled to hold that the ballot title is insufficient; but whenever he makes that holding, the law provides that the parties shall be notified and given an opportunity to amend.

What could be accomplished by amending, if the amended or substituted ballot title is to be attacked with no reason to believe that it will be held sufficient? If the court would prepare a substitute ballot title, the people would then be permitted to vote on the act and the constitutional amendment providing for referendum would not be made ineffective. The purpose of the amendment was to permit the public to vote on measures like this; and if the ballot title is held insufficient by the court, the court certainly should tell them what would be a sufficient ballot title.

In the case of State v. Duluth & N. M. Ry. Co., 102 Minn. 26, 112 N. W. 897, it was claimed that the act did not repeal the provisions of prior statutes. The Supreme Court of Minnesota said: “It is perfectly obvious from a mere reading of this statute, and we so hold, that it was intended to and did repeal all classifications of railroad companies in the matter of taxation,” etc.

In the case of Wagoner v. City of LeGrande, 89 Ore. 192, 173 Pac. 305, the court, in discussing the ballot title, said: “We think that the title of the act is sufficient.

“The ballot title expressly directed attention to the amendment to the charter authorizing these assessments. It was sufficient within the rule announced in State v. Langworthy, 55 Ore. 303, 104 Pac. 424. The amended complaint admits that the election at which the charter was adopted was duly and regularly held. It follows from this admission that every voter received a copy of the proposed amendment with the official arguments, if any, for and against its adoption. We must assume that the electors voted intelligently, and there is nothing in the record to impeach the validity of their action.”

In this State the act must be published in every county, and every voter has a right and an opportunity to read it', and, as said by the Oregon court, we must assume that they will vote intelligently.

I think the Westbrook case is wrong and should be overruled, but, if that is not done, this case can be clearly distinguished, in my judgment, from the Westbrook case, and this ballot title should be held sufficient, so as to permit the people to vote on the question. If, however, the ballot title is insufficient, the court should prepare one that meets with its approval, to the end that the people may be permitted to vote on this act.

The North Dakota court said:

“Distinction must be made between the ‘ballot title’ and the statement of the question to be voted upon. The proposed ‘ballot title’ is not misleading. It does not purport to be a statement of the question — it is merely the title. It is possible it could be improved. It may not be labeled the way others may label it; but the. only way it could have been stated at the time the petition was circulated was as ‘Senate Bill No. 100,’ and, in addition, to prevent any misunderstanding it stated this bill provided for the tax of 4 cents per gallon. * * * Strenuous objection is made to the form of the ‘ballot title,’ as if this constitutes the manner in which the electors will be apprised of the contents of the law referred.” Schumacher v. Byrne, 61 N. D. 220, 237 N. W. 741.

In this case more than 25,000 voters signed the petition for the referendum, and yet, because the leaders of the movement failed to prepare a ballot title in the manner this court thinks it should have been prepared, these more than 25,000' voters are not permitted to have the act referred. The Secretary of State, whose duty it is to pass on the ballot title, thought it was sufficient; the petitioners thought it was sufficient, and three members of this court think it is sufficient.

I think when there is such difference of opinion about it that the doubt, whatever it is, should be resolved in favor of the ballot title, thereby enabling the people to vote on this measure.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Poulas v. Kumpures.
    4-3440
    Opinion delivered April 9, 1934.

      T. P. Oliver and Coulter Coulter, for appellant.

      Brown & Bradley, for appellee.
   Humphreys, J.

This suit was brought by appellant against appellee in the municipal court of Little Bock to recover $300 principal and $108.94 interest, or a total of $408.94, upon four out of a series of rent notes executed by Peter Kumpures to N. Brastos, alleging that he (appellant) was the owner thereof for a valuable consideration, and that no part of said notes had been paid.

Appellee filed an answer admitting the execution of the notes to N. Brastos, but denied that Brastos transferred them to appellant for a valuable consideration, and denied that no part of said notes had been paid, and, by way of further answer, alleged that the notes were executed as rent notes subject to the terms and conditions of a lease entered into on the 6th day of May, 1928, by and between Christine M. Bryan, lessor, and Peter Kumpures, lessee, under the terms -of which the rent should cease and all unpaid rental notes should become void in the event the leased property should be destroyed by fire and rendered untenantable.

Upon a trial of the cause, the municipal court rendered judgment in favor of appellee, from which an appeal was duly prosecuted to the circuit court of Pulaski County, Second Division.

In the circuit court, appellee was permitted, over the objection and .exception of appellant, to file an amended answer and counterclaim, in which he adopted a part of his former answer, and, by way of counterclaim, alleged that on or about December 19, 1930, the appellee paid the sum of $600-to appellant for $700 worth of the unpaid notes, which were a part of the same series as those sued upon, under agreement with appellant that, should the building be destroyed by fire, he would refund said amount to him.

The cause was submitted upon the pleadings, the evidence adduced, and instructions of the court, resulting in a judgment dismissing appellant’s complaint, from which is this appeal.

The facts reflected by the record are, in substance, as follows:

Brastos had a lease on certain property in El Dorado belonging to Mrs. Christine M. Bryan. He ran a billiard hall therein, and Mrs. Bryan desired to make a five-year lease on the property to appellee and was compelled to buy the Brastos lease in order to do so. Appellant had advanced .(Brastos money with which to conduct his business, and was anxious to collect same. Appellant and Brastos were willing to accept $1,000 in cash and take a certain number of appellee’s rent notes for the Brastos lease and billiard hall. Mrs. Christine M. Bryan, acting through her husband, purchased the lease and billiard hall from Brastos and leased a part of the premises thus acquired to appellee. Her husband ran the billiard hall and cut off a space therein for appellee’s hat shop. The lease for which appellee executed the series of rent notes provided that they should become void in case the building should be destroyed by fire. The series of rent notes were made payable to Brastos. He turned them over to appellee without indorsing them. The check for $1,000 was indorsed by both appellant and Brastos when they cashed it. Appellant afterwards proposed to discount a part of the rent notes which he had received, and appellee accepted his proposition and paid him $543 in cash for them on condition, according to testimony introduced by him, that he (appellant) would refund the money in case the building should be destroyed by fire. Appellant testified that they were discounted and turned over to appellee unconditionally, and that he made no promise to return the money in case the building was destroyed by fire. There is a dispute in the testimony as to whether appellant took the notes originally from Brastos with knowledge that they were to be void in case the building should be destroyed by fire. Appellant denied such knowledge, but two witnesses testified on behalf of appellee that the lease was read to appellant twice before the notes were assigned and delivered to him, and that he knew such a clause had been inserted in the lease. The record also reflects, without dispute, that appellee refused to execute the lease and sign the rent notes until such a clause was inserted in the lease, and that, after same was inserted therein, he delivered the rent notes to Brastos and took possession of the part of the space he was entitled to under the lease and occupied same until the building was destroyed by fire. The lease itself was not signed by appellee after said clause was inserted in accordance with his request and demand. The building was destroyed by fire on May 31, 1931. Three of the notes sued upon matured before the fire and one thereafter. The notes which were discounted and turned over to appellee by appellant had not matured at the time of the fire.

At the conclusion of the testimony, appellant requested the court to instruct a verdict in his favor for the full amount, principal and interest, covered by the notes sued upon, which was refused. Then he requested the court to instruct a verdict for the amount, principal and interest, covered by the three notes which matured before the building was destroyed by fire, which was refused.

These instructions were requested by appellant on the theory that he was an innocent purchaser of the notes for value before maturity, and the refusal of the court to give these instructions and the submission of this issue to the jury constitute the main contention of appellant for a reversal of the judgment. These instructions could only be justified on the ground that the undisputed testimony showed that appellant was an innocent purchaser for value of the notes before maturity; whereas there is testimony in the record showing that appellant knew all about the transaction, and that the lease contained a clause to the effect that the rent notes should be void in case the building should be destroyed by fire.

Appellant also contends for a reversal of the judgment on the ground that the written lease does not refer to the written notes nor the written notes to the lease, and that the court committed error in admitting oral evidence to show the connection between them. Oral testimony showing the connection between them does not have the effect of contradicting the terms of either as argued by appellant. The effect of the testimony was to show that they were parts of the same agreement and not for the purpose of changing or modifying the provisions of the written instruments. Again, it is always permissible “to show the consideration for a promissory note by oral proof for the purpose of showing want or failure of consideration, or illegality of consideration. ” Vinson v. Wooten, 163 Ark. 170, 259 S. W. 366.

Appellant also contends for a reversal of the judgment because the undisputed evidence reflects that the lease was never signed by appellee. It is immaterial under this record whether the lease was signed by appellee or not. It was signed by the lessor and accepted by the appellee, who went into possession under it and remained in the building until it was destroyed by fire.

Appellant also contends for a reversal of the judgment because appellee was permitted to plead a counterclaim for the first time in circuit court. It is true the written answer filed in the municipal court did not set out the counterclaim, but that does not necessarily mean that it was not orally pleaded. In fact, the judgment rendered by the municipal court could not have been rendered upon any other theory than that the counterclaim was pleaded. Oral pleadings are permissible in municipal or justice’s courts, and it was within the discretion of the circuit court to allow appellee to embody in the amended answer the counterclaim pleaded orally in the municipal court.

No error appearing, the judgment is affirmed.


author: Kirby, J.

text:
    Ford v. Harrington.
    4-3411
    Opinion delivered April 9, 1934.

      Partlow $ Rhine, for appellant.
   Kirby, J.

The sole question for determination here is whether lands in Arkansas purchased with money paid by the United States Government to World War veterans as adjusted service compensation or bonus are subject to taxation.

The section of the United States statute (§ 454, title 38, USCA) upon which the claim is based reads as follows: “The compensation, insurance and maintenance and support allowance payable under parts II, III, IV, respectively, shall not be assignable; shall not be subject to the claims of creditors of any person to whom an award is made under parts II, III or IV; and shall be exempt from all taxation. Such compensation, insurance and maintenance and support allowance shall be subject to any claims which the United States may have, under parts I, III, IV and V against the person on whose account the compensation, insurance or maintenance and support allowance is payable.”

In Wilson v. Sawyer, 177 Ark. 492, 6 S. W. (2d) 825, this court held that money paid to a disabled soldier under guardianship by virtue of the World War Veterans’ Act was not subject to garnishment whether in the hands of the soldier or his guardian.

In Stone v. Stone, 188 Ark. 622, it was held that the guardian of a war veteran, appointed by the State court, is not an agent or instrumentality of the United States; any payment to such guardian vested title in the ward discharging the obligation of the United States in respect to such installments. That money paid by the United States as a pension to the guardian of a war veteran, who had been adjudged incompetent, and by him deposited in the bank for his ward, was the property of the ward and subject to apportionment between the ward and his divorced wife under the provisions of our statute, the award to the wife of a portion of such money not creating the- relationship of debtor and creditor within the meaning of the provisions of the Veterans’ Act and was not exempt thereunder.

In Spicer v. Smith, 288 U. S. 430, it was held that compensation funds paid to World War veterans on deposit in a bank at the time of its insolvency were not entitled to priority ‘ ‘ as debts due the United States ’ ’ under § 191, title 31, USCA. That a guardian appointed by a State court for an insane World War veteran was not an agent or instrumentality of the United States, and payment to the guardian for such ward vested title to such funds in the ward.

The exact question raised by this appeal has already been determined by the United States Supreme Court in Trotter v. Tennessee, 290 U. S. 354, 54 Supreme Court Reporter, No. 3, page 138, where it was held that real estate purchased with compensation money was not exempt from taxation. The court there said: “We think it very clear that there was an end to the exemption when they lost the quality of moneys and were converted into lands and buildings. The statute speaks of ‘compensation, insurance and maintenance and support allowance payable’ to the veteran, and declares that these shall be exempt. We see no token of a purpose to extend a like immunity to permanent investments or the fruits of business enterprises. Veterans who choose to trade in land or in merchandise, in bonds or in shares of stock, must pay their tribute to the State. If immunity is to be theirs, the statute conceding- it must speak in clearer terms than the one before us here.”

It thus appears from the above decision of the United States Supreme Court that the exemption does not follow the compensation money after its investment in lands or other forms of securities, nor relieve the owner from regular taxation thereon. The decree is affirmed.


author: Butler, J.

text:
    Sewell v. Reed.
    4-3437
    Opinion delivered April 9, 1934.

      Haynie, Parks $ Westfall, Nash & Ahern, Neioby, Rathburn \& Bwditt and Coleman «3 Riddick, for appellants.

      Nace B. Crawford, Remington Rogers and Coulter <3 Coulter, for appellee.
   Butler, J.

On the 23d day of May, 1933, Joe Reed, appellee, filed his complaint in the Ouachita Chancery Court, in which he alleged “that he, George Reed, Mary Reed Gaskin, Arthur W. Sewell and John W. Sewell, minors, heirs at law of Parthenia Berry Sewell, deceased, and certain other parties, the heirs at law of Millie Reed Weaver, deceased, were the owners as tenants in common of the west half of the northeast quarter and the east half of the northwest quarter of section 33, township 15 south, range 15 west, in Ouachita County, Arkansas, and that they derived title to said lands through Fannie Reed, the common source, to whom a patent was issued from the United States on or about January 15, 1885.

“He stated that Fannie Reed died intestate in Ouachita County on April 2, 1885, seized and possessed of the lands above described, and leaving surviving as her heirs at law the following named persons: the plaintiff, Joe Reed, a son; George Reed, a son and defendant; Mary Reed Gaskin, a daughter and defendant; Millie Reed Weaver, a daughter, and Nannie Reed Berry, a daughter, defendants.

“That Nannie Reed Berry died possessed of her interest in the property and leaving as her sole heir at law a daughter, Parthenia Berry Sewell, who later died without having alienated her interest in the property and leaving surviving as her sole heirs at law defendants Arthur W. Sewell and John W. Sewell, minors; that Millie Reed Weaver died intestate, leaving surviving numerous heirs at law who were made parties defendant, but who are not parties to this appeal.

“That title to the above-described property is now vested in the following persons as tenants in common as' follows: In Joe Reed, plaintiff, an undivided one-fifth interest; in George Reed, an undivided one-fifth interest; in the minors, Arthur W. and John W. Sewell, through their mother, Parthenia Berry Sewell, heir at law of Nannie Reed Berry, an undivided one-fifth interest. In numerous defendants, heirs at law of Millie Reed Weaver, an undivided one-fifth interest.

“That the defendants have at all times mentioned been in possession of the lands described for the benefit of the plaintiff and said defendants; that on or about October 16, 1922, defendants sold a commercial oil and gas mining lease on the property for the sum of $70,000, but failed to account to the plaintiff for his interest; that since the sale of the lease the defendants have collected royalties under the lease amounting to more than $100,-000, for which they have refused to account.

“That defendant, Chicago Title & Trust Company, holds certain sums of money for its wards, Arthur W. and John W. Sewell; that certain defendant oil companies [later dismissed by plaintiff], unless restrained, would continue to pay over the royalties to plaintiff’s cotenants to plaintiff’s irreparable injury.

“Plaintiff prayed for an accounting and judgment for a one-fifth share in the sum realized from the sale of oil and gas from the property; for a decree of partition of the lands between himself and his defendant cotenants; and for the impounding of the other interests in the land for the satisfaction of his claims.”

To this complaint, certain oil companies which had been made defendants filed their answers, but these pleadings need not be noticed since the suit as to these defendants was dismissed by the plaintiff. The guardian of the appellants, Arthur W. and John W. Sewell, made answer, denying the allegations of the complaint and setting up as an affirmative defense that “Fannie Reed, at the time of her death, was the owner of the land described; that after her death an administrator was appointed to administer upon her estate, that certain claims were filed and probated and that the probate court of Ouachita County, Arkansas, ordered a sale of the lands involved to secure funds with which to discharge the claims. That, in pursuance to the order of the probate court, the lands described were sold to one Chandler, and an administrator’s deed executed and delivered to him. A copy of the deed was attached as a part of the answer and marked Exhibit A. It alleged the sale by Chandler of the property involved to Nannie Reed Berry, attaching his deed as Exhibit B and making it a part of the answer. It alleged that Nannie Reed Berry went in possession of the land under her deed from Chandler and remained in possession until her death, claiming to be the owner thereof; that, upon the death of Nannie Reed Berry, the land passed into the possession and ownership of Parthenia Berry Sewell, who remained in open, notorious and exclusive possession, claiming ownership for more than seven years. It alleged the death of Parthenia Berry Sewell, the vesting of the title in the minors, Arthur W. and John W. Sewell, and their subsequent open and notorious possession under claim of ownership. The defendant prayed the dismissal of the complaint for want of equity.”

On the pleadings and evidence adduced, the trial court found the issues of law and fact in favor of the plaintiff, and rendered a decree in accordance with the prayer of the complaint. From that decree, this appeal is prosecuted.

The correctness of the decree is challenged on the following’ grounds: (1) that the proof is not sufficient to establish that Joe Reed was the child of Fannie Reed; (2) that his claim as a tenant in common is barred by limitation; (3) that the appellee is barred by his laches; and (4) that the sale of the land by the Ouachita Probate Court divested the title out of all the heirs of Fannie Reed.

We are of the opinion that the contention last made is sound, and there is therefore no necessity for us to deal with the other questions presented by the appellant and to discuss the evidence relating thereto.

On April 19, 1892, the probate court of Ouachita County, by its order, duly entered of record, approved the appointment of J. O. Russell as administrator of the estate of Fannie Reed, deceased, made by the clerk in vacation. On January 17, 1894, said court made and entered an order reciting the application by the administrator for an order to sell the lands of the intestate to pay debts probated against the estate, it being alleged that there was no personal property of the estate out of which the debts could be paid. .The prayer of the administrator’s petition was granted, and the sale ordered to be held on February 28, 1894. At the April term of the probate court, on April 16, 1894, an order was duly made and entered of record confirming the sale of the lands to D. W. Chandler for the sum of $190. On August 2, 1895, an administrator’s deed containing the proper recitals was executed, conveying the lands to the purchaser, Chandler, which deed was duly acknowledged and recorded on August 29, 1895.

The judgment of the probate court is sought to be set aside on the theory that the grant of letters to Russell was improvidently made by the court because the heirs of Fannie Reed, who were sui juris and lived within the county, had not been served with citation under the provisions of the statute giving a preferential right to administer to one entitled to a distributive part of the estate of the intestate; and, second, because there were in fact no debts due by the estate, or any other necessity for an administration, and, in consequence thereof, the administration proceedings on the estate of Fannie Reed are void.

The. evidence shows that on the 11th day of February, 1904, 'Chandler, the purchaser at the administration sale, by his quitclaim deed of that date, his wife joining therein, duly executed and acknowledged, conveyed said land to Nannie Berry, a daughter of Fannie Reed and the mother of the Sewell appellants. It is the contention of the appellee that, if the validity of the administration proceedings be conceded, since Nannie Berry, after the death of her mother, Fannie Reed, was a tenant in common with the appellee, the purchase by her inured to his benefit, and that their status as tenants in common was not changed by reason of her purchase from Chandler.

A probate court has exclusive original jurisdiction in matters relative to the estates of deceased persons, executors and administrators. Therefore, in the administration proceedings, it was acting within its jurisdiction. As to all such matters, it is a court of superior jurisdiction, and its judgments import the same degree of verity as that of other superior courts. Flowers v. Reece, 92 Ark. 611, 123 S. W. 773. Jurisdiction is specifically given probate courts to order a sale of real estate of an intestate to pay debts. Stumpff v. Louann, 173 Ark. 193, 292 S. W. 106; Sullivan v. Times Publishing Co., 181 Ark. 27, 24 S. W. (2d) 865. Since the court had jurisdiction in the proceedings, errors and irregularities would not render its judgment void. Therefore the fact that the heirs had no notice would be an error which might have been corrected in that court or by appeal. If there was an error in granting the letters to Russell without notice to the heirs, it was such one as did not render the proceedings void. Jackson v. Reeve, 44 Ark. 496. The fact also that there might have been no debts due by the estate was not sufficient to render the judgment void. Stuart v. Peay, 21 Ark. 117. The judgment of a probate court as to the necessity for an administration is conclusive on collateral attack. Sharp v. Himes, 129 Ark. 327, 196 S. W. 131; Turley v. Gorman, 133 Ark. 473, 202 S. W. 822.

The appellee contends, however, that the instant proceeding is not a collateral, but a direct, attack upon the judgment of the probate court for fraud in its procurement. It will be observed by reference to the complaint filed by the appellee that the action was for a purpose independent of the judgment of the probate court and contemplated other relief than the setting aside of that judgment. The rule announced and approved in Cassady v. Norris, 118 Ark. 449, 177 S. W. 10, is as follows: "If the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important or even necessary to its success, then the attack upon the judgment is collateral.” In Woods v. Quarles, 178 Ark. 1158, 13 S. W. (2d) 617, this court said: "A direct attack on a judgment is an attempt to amend it, correct it, reaffirm it, vacate it, or enjoin the execution in a proceeding instituted for that purpose.” The judgment of the probate court was pleaded by the appellants in bar of the appellee’s right to have the lands partitioned, and for an accounting for the proceeds derived from the land by the appellants. Although it was necessary to appellee’s success in the suit which he had filed that the judgment of the probate court be overturned, this did not change the proceedings from a collateral to a direct attack. Since this is a collateral proceeding, the judgment of the probate court could only be avoided for lack of jurisdiction, and that must be apparent on the face of the record. Blanton v. Forrest City Mfg. Co., 138 Ark. 508, 212 S. W. 230; St. L.-S. F. R. Co. v. Wardell, etc., Rd. Imp. Dist., 157 Ark. 557, 249 S. W. 17. See also Sullivan v. Times Publishing Co., 181 Ark., supra.

It is next contended by the appellee that, when Nannie Berry bought the lands from Chandler, the purchaser at the administrator’s sale, she must be deemed to have purchased it for herself and for the benefit of her co-tenants, and states his contention as follows: "In any event, the purchase of an outstanding title against the community property by one tenant in common would inure to the benefit of all cotenants.” A number of cases of our court are cited to support this contention, among them being Britton v. Handy, 20 Ark. 381; Ferguson v. Etter, 21 Ark. 160; Moore v. Woodall, 40 Ark. 42; Clements v. Cates, 49 Ark. 242, 4 S. W. 776; Cocks v. Simmons, 55 Ark. 104, 17 S. W. 594; Sanders v. Sanders, 145 Ark. 188, 224 S. W. 732; Tompkins v. Tompkins, 151 Ark. 572, 273 S. W. 103. Without discussing these cases at length, it may be said they do not sustain the appellee’s contention. The general principle is laid down in Britton v. Handy, supra, which prohibits a purchase by parties placed in a situation of trust or confidence with respect to the subject of the purchase, and therefore no one may be permitted to purchase for his own benefit an interest where he has a duty to perform which is inconsistent with his character of purchaser. There was no relationship of trust existing between Nannie Berry and her brothers and sisters,.nor any duty to discharge the debt due by the intestate. She was not the purchaser at the administrator’s sale, but from the purchaser at that sale, and she bought from him the lands 10 years subsequent to the administrator’s sale. By reason of the sale by the administrator, an outstanding title was created, and, although Nannie Berry had been a tenant in common of her brothers and sisters subsequent to the death of Fannie Reed, their mother, and preceding their divesture of title by such sale, her purchase of the same from Chandler was not void, nor did that interest then acquired vest in her cotenants. Freeman on Cotenancy, § 156.

Moreover, a preponderance' of the evidence clearly indicates that Nannie Berry, the mother of the appellants, minors, held the land after her purchase from Chandler adversely against all the world. She, acting through her husband, exercised rights of dominion over it, such as cutting and removing the timber, selling the same and executing mortgages, which manifested exclusive ownership in her, and that she was claiming adversely to her former co-tenants is conclusively shown by litigation between them in 1911, when all her known brothers and sisters brought suit alleging that they and Nannie Berry were the sole heirs at law of Fannie Reed, deceased, and asking for a partition of the lands. This suit was resisted by Nannie Berry, and a decree rendered by the Ouachita Chancery Court denying the prayer of the plaintiffs in that case, and confirming title in Nannie Berry. In 1926 the same litigation was again instituted by the same parties plaintiff, and in the lower court and this court it was held that their rights were concluded by the judgment of the chancery court rendered in 1911. See Reed v. Rumph, 170 Ark. 258, 280 S. W. 357.

Our conclusion being that the judgment -of the probate court authorizing and approving the sale of the lands by the administrator is valid on collateral attack and served to divest the title of the heirs of Fannie Reed, and that title acquired by Nannie Berry thereunder was not for the benefit of her co-tenants, it follows that the decree of the trial court must be reversed, and the case is remanded with directions to dismiss the complaint for want of equity.


author: Johnson, C. J.

text:
    Burton v. Tribble.

      4-3442

    Opinion delivered April 16, 1934.

      Will Steel and Frmh S. Quinn, for appellant.

      Martin, Wootton S Martin, for appellee.
   Johnson, C. J.

Appellant instituted this suit in the Garland Circuit Court against appellee, alleging, that appellee was, at all the times hereinafter stated, and is now, a duly practicing physician and surgeon; that in the year 1926 appellant employed appellee to perform, and that he did perform, a major operation upon her abdomen or abdominal cavity; that, at the conclusion of said operation, appellee carelessly and negligently left remaining in her abdominal cavity a ball of gauze 1% inches in diameter, and that appellee carelessly and negligently closed the incision into her abdominal cavity without first removing. said ball of gauze and thereby inclosed same within her body; that thereafter appellee continued to treat appellant as physician and surgeon, but carelessly and negligently withheld from appellant any and all information or knowledge in reference to her abdominal cavity containing said foreign substance; that appellant had no information, and did not know, that said foreign substance was left in her abdominal cavity until 1933, at which time she was compelled to undergo another operation at Texarkana for the removal of said foreign substance. Appellant further alleged continuous pain and suffering from the date of the operation in 1926 until the date of the second operation in 1933, and laid damages in the sum of $35,000.

Appellee interposed, and the trial court sustained, a demurrer to appellant’s complaint upon the theory that the alleged cause of action accrued at the time of the operation in 1926, and was barred by limitation three years thereafter. Judgment was entered dismissing appellant’s complaint, and this appeal is prosecuted to reverse this judgment.

But one question is presented for determination: Is appellant’s alleged cause of action barred by the three-year statute of limitation?

In Field v. Gazette Publishing Co., 187 Ark. 253, 59 S. W. (2d) 19, we announced the applicable rule of limitation in tort actions as follows: That in all tort actions arising in this jurisdiction, not otherwise limited by law, and where the means of information in reference to the cause of the injury were equally accessible to each party, and there was no fraudulent concealment of the cause or extent of the injury, the three-year statute of limitation was applicable and barred the action. The rule thus stated is the inevitable conclusion deducible from the following language which was employed in the Field case. “As we understand this record, appellant does not contend that appellee fraudulently concealed any fact with reference to his injury, and he does not contend that appellee had knowledge of facts or information other than those well known to appellant.” Thus it certainly appears that the alleged facts in the instant case do not necessarily fall within the rule of limitation as announced in the Field case.

By his demurrer, appellee admits that he carelessly and negligently left remaining in appellant’s abdominal cavity a ball of gauze 1% inches in diameter, and continued to treat her thereafter without disclosing to her this unfortunate condition until more than three years had elapsed. It is the well-established doctrine in this jurisdiction that a practicing physician and surgeon must exercise that degree of care, skill and learning ordinarily possessed and exercised by members of their profession in good standing in the community, and that they must exercise reasonable care in the exercise of their skill while attending their patients. Gray v. McDermott, 188 Ark. 1.

It cannot be said as a matter of law that appellee did not know that this foreign substance was left in appellant’s abdominal cavity because, under the rule just stated, he was required to exercise ordinary care in the performance of said operation, and, when thus measured, might have known that the foreign substance was left remaining in appellant’s body; if, in the exercise of ordinary care and skill, appellee knew that the foreign substance was left in appellant’s abdominal cavity, it then and thereupon became his imperative duty to apprise appellant of this fact and not conceal it from her until the statute of limitation had attached. Appellee had the duty resting upon him not only to perform the operation with ordinary care and skill, but also to make immediate disclosure to appellant of any injury inflicted by or through his carelessness and negligence in the performance thereof, and his failure to make this disclosure was a continuing act of negligence.

Not only is this case distinguishable from the Field case in the particulars just mentioned, but it is otherwise distinguishable in this: Appellee performed the operation upon appellant and knew, or by the exercise of ordinary care might have known, that the foreign substance was left remaining in her abdominal cavity. The information thus known to appellee was unknown to appellant, and the duty rested upon appellee to make known to appellant all facts within his knowledge in reference to the injury. The cause of action alleged in appellant’s complaint grows out of a breach of duty which the law implies from the physician’s and surgeon’s employment in undertaking to perform the operation. It was a constant and daily obligation to use ordinary care and skill, and if, by omission or negligence, he has left a foreign substance within the walls of the abdominal cavity at the operation, it behooved him to afford timely relief. The neglect of this duty imposed by a continuous obligation was a continuous and daily breach of the same. Gillette v. Tucker, 67 Ohio 106, 65 N. E. 865, 93 Am. St. Rep. 639; Bowers v. Santee, 99 Ohio 361, 124 N. E. 238; Groendal v. Westrate, 171 Mich. 92, 137 N. W. 87, Ann. Cas. 1914B, 906.

Cases from several jurisdictions have been cited in support of the doctrine that in all tort actions the cause of action arises upon the infliction of the injury and tending to support the contention that the applicable statute of limitation cannot be tolled or held in abeyance in its application. Among the cases cited are Johnson v. Nolan, 105 Cal. App. 293, 288 Pac. 78; Schmidt v. Esser, 183 Minn. 354, 236 N. W. 622, 74 A. L. R. 1312.

Upon examination, it is found that a number of cases cited, notably Johnson v. Nolan, are based upon specific statutes -which expressly provide that all malpractice suits shall and must be brought within a certain period of time after the infliction of the injurj7-, but we have no such statute in this State. Other cases cited are based upon general principles of law, but we believe they are not sound in principle, therefore decline to follow them.

Our conclusion is therefore that appellee’s acts of leaving the ball of gauze in appellant’s abdominal cavity and his failure to apprise appellant thereof were such fraudulent concealments and continuing acts of negligence as toll the statute of limitation until appellee performed his duty of removing the foreign substance or appellant learned or should have learned of its presence.

It results from what we have said that the trial court erred in sustaining appellee’s demurrer to appellant’s complaint, and for this reason the judgment will be reversed and remanded, with directions to overrule the demurrer and for further proceedings not inconsistent with this opinion.


author: Smith, J.

text:
    General Motors Acceptance Corporation v. Hicks.
    4-3420
    Opinion delivered April 16, 1934.

      Dixon <& Williams and W. A. Leach, for appellant.

      A. G. Meehan and John W. Moncrief, for appellee.
   Smith, J.

On May 26, 1930, Mrs. G. P. McDonald, who resided in Brinkley, purchased a Frigidaire from J. E. Freeman, a local dealer at Helena. The purchase price was $598, of which $64 was paid in cash. The balance was to he paid in monthly installments of $22.25 each, the first payment being due June 26,1930. The purchase was made under a written conditional sales contract, whereby the title was reserved by the seller until the purchase money had been fully paid, and the right was reserved upon default in any payment to retake- the possession of the Frigidaire, wherever found and without notice to the purchaser.

This contract of sale was executed upon a printed form, which was prepared in contemplation of its assignment to the, General Motors Acceptance Corporation, hereinafter referred to as the corporation, and that assignment was made by Freeman, who guaranteed that deferred payments would be made, in consideration for which assignment and guaranty the dealer was paid his profit in the transaction, and the appellant corporation became the owner of the sales contract retaining the title and giving the right to repossession upon default in payments. •

The Frigidaire was purchased for and used in a store in Brinkley in which Mrs. K. E. Hicks had an interest, and she testified that she made most of the payments while she and Mrs. McDonald were jointly interested in the Frigidaire, and that she later acquired Mrs. McDonald’s interest, after which time she alone made payments. The sales contract provided that the purchaser should not resell the Frigidaire except with the consent of the owner of the sales contract, and that a transfer charge of ten dollars should be paid for that consent. Upon being advised that Mrs. McDonald had sold her interest in the Frigidaire to Mrs. Hicks, the corporation’s general agent at Memphis, Tennessee, wrote Mrs. Hicks and demanded payment of the ten-dollar transfer charge. Upon being shown this letter, Freeman advised Mrs. Hicks that the transfer charge would be waived, and it was not paid, nor was further demand of payment made.

The sales contract prohibited the removal of the Frigidaire from Brinkley, the place of its original installation, without the consent of the owner of the contract, but Freeman gave this consent to Mrs. Hicks, and the Frigidaire was removed to 'Clarendon by her and installed there. She discontinued the business in connection with which the Frigidaire was used and placed it in storage. Payments were made and accepted after the removal of the Frigidaire to Clarendon, and the testimony sustains the finding by the jury that, if Freeman did not possess the authority which he exercised, his unauthorized acts had been ratified and confirmed by the corporation.

The payments were not made on or before the 26th of each month as the sales contract required, and Mrs. Hicks testified that Freeman agreed she might have a month’s indulgence, that is, that the payments thereafter to be made might each be made one month later than when due. -Several, in fact, a number of payments appear to have been so made, .which were accepted by the corporation, and were duly credited. On December 29, 1931, Mrs. Hicks deposited in the mails at 'Clarendon a postoffice money order for $22.25 to cover the payment which, according to the sales contract, was due November 26. This payment was accepted and credited by the corporation. In the forenoon of January 26, 1932, Mrs. Hicks remitted from Clarendon another postoffice money order for $22.25, which, in due course of the mails, would have been received by the corporation at its Memphis office not later than January 27. The -corporation had from time to time written Mrs. Hicks about her payments, but in none of those letters had it been intimated that the corporation would take possession of the Frigidaire if the payments were not made in strict accordance with the sales contract.

On the afternoon of January 27, after the money order had been mailed in the forenoon of the preceding day, an agent of the corporation broke into and entered the building where the Frigidaire was stored and removed it. This was done without demand or notice to Mrs. Hicks. Through the failure to properly lock the building where the Frigidaire had been stored other trespassers entered the building and committed other trespasses, removing certain articles of personal property belonging to Mrs. Hicks which were also stored there. These consisted of lumber, a meat pan, a meat saw, knives, and a pair of scales, alleged'to be worth $102.50. The corporation had no interest in any of this property except the Frigidaire, and removed nothing else. At the time of taking possession of the Frigidaire, there was a balance of $66.75 due, and it was sold to Mrs. Hicks’ son by the corporation for that amount. This son testified that he bought the Frigidaire for his own, and not for his mother’s, account, and that she was not advised of nor interested in his purchase. Mrs. Hicks gave testimony to the same effect.

Mrs. Hicks brought suit for the conversion of the Frigidaire, and for the loss of the other personal property, and prayed judgment for $612.50, which was alleged to be the value of the property, less the balance due the corporation. There was a verdict and judgment in Mrs. Hicks’ favor, from which is this appeal. The verdict awarded $321.95 on account of the Frigidaire and $12.50 for the other property.

The court submitted the issues raised by the testimony herein summarized, over the objection of the appellant corporation, under an instruction reading as follows:

“The contract by which defendant held title to the motor and coils required plaintiff to pay certain installments of the purchase price at certain times, and under the contract defendant had the right to take possession of the property on a default in payment of any installment, unless the defendant had waived that provision of the contract by agreeing to an extension of the time, and unless it had established a long course of dealing in disregard of that provision of the contract and payments had been made pursuant to such agreed extension and such established course of dealing, if any. Plaintiff had not made her payment of installments according to the terms of the contract, so the plaintiff must prove a waiver of such terms of the contract in order to recover. The mere fact that plaintiff offered to accept a return thereof would not necessarily defeat her right, if any, under the evidence and instructions of the court to recover. If the defendant, without notice, wrongfully and unlawfully broke and entered the building in which property of the plaintiff, if any, was lawfully stored, and, if at such entry the building in which it was stored had been and was securely locked, closed and fastened, and if defendant negligently and wrongfully and without authority left the'building open and unlocked and left the property of plaintiff, if any, unprotected and open to trespassers, and if, because of such acts and conduct of defendant, if any, any property of plaintiff was taken away and lost to plaintiff, without any fault on the part of plaintiff, then defendant would be liable to plaintiff for damage, if any, thereby caused to plaintiff by defendant.
“If you find for plaintiff on account of the Frigidaire equipment, motor and coils, you may so state in your verdict, and there state the amount of your verdict; and, if you find for the plaintiff as to the other property, you should so state in your verdict, and state the amount you find. In other words, your verdict may show the amount of the two separate items, in the event you find for the plaintiff.
“If you find for the plaintiff, you may add interest to your verdict at the rate of 6 per cent, per annum from July 1, 1932.” This was the date of the conversion.

We think there was no error prejudicial to the appellant corporation in this instruction. The court gave correct instructions on the measure of damages, and directed the jury, if there was a finding for the plaintiff, to allow credit for any balance of purchase money unpaid. The court also charged the jury that: “If you find fyom the testimony that Freeman had the authority to grant extension on monthly payments, and the company ratified it, then the company would be bound by his acts.” This instruction is a correct application of an elementary principle of the law of agency, except, of course, that Freeman’s acts would not require ratification if he acted with authority.

It is conceded by appellee that the vendor may grant an extension of time, and may change the means of payment without waiving his reservation of title, provided he does not cancel the debt thus -secured. Hollenberg Music Co. v. Bankston, 107 Ark. 337, 154 S. W. 1139; Summers v. Carbondale Machine Co., 116 Ark. 252, 173 S. W. 194. It is conceded also that, if the right to repossess the Frigidaire existed at the time that action was taken, the fact that appellant corporation wrongfully entered the building would not make it liable for the value of the Frigidaire as for conversion, whatever the liability for the trespass may have been. Berger v. Miller, 186 Ark. 58, 109 S. W. 1015. See also chapter on Sales, 55 G. J., page 1288, and cases there cited.

But it is also the law, as was said by the Supreme Court of Washington in the case of Lundberg v. Switzer, 146 Wash. 416, 263 Pac. 178, that (to quote a headnote): “The right to forfeit a conditional sales contract for overdue payments cannot be exercised without demand and a reasonable opportunity to comply, after there has been a waiver of strict performance by the acceptance of delayed payments.” This case is annotated in 59 A. L. R. 131, where many other cases to the same effect are cited.

The testimony abundantly supports the finding, if, indeed, it is not undisputed, that there had been a waiver of strict performance by the acceptance of delayed payments. Indeed, according to Mrs. Hicks’ testimony, she was not in arrears with her payments, because of the one-month extension granted her by Freeman. This being true, the corporation should have given reasonable notice of its intention to thereafter demand strict compliance, and must have given reasonable time in which to comply, before taking possession of the Frigidaire. However, thbre was no notice that strict performance would be required, and the instruction set out above correctly states the principle of law upon which the corporation was held liable for conversion.

This principle is that one may lose the right to enforce a contract strictly according to its terms if he induces the other party to the contract to believe that he will not strictly enforce it, unless, after inducing this belief, he gives reasonable notice that the indulgence will not be continued and a reasonable opportunity is given to comply after such notice.

This principle is not confined in its application to questions arising under conditional sales contract. It was recently applied in the case of Columbian Mutual Life Ins. Co. v. High, 188 Ark. 798, 67 S. W. (2d) 1005, which involved the payment of a monthly insurance assessment, which the insurer had been accustomed to accept at a later date than was'provided for in the contract-of insurance. We there said: “After such custom had been established, appellant could not change the custom and lapse the policy where payment was made within the customary time, without notice of its intention to abandon the custom. Sovereign Camp W. O. W. v. Condry, 186 Ark. 129, 52 S. W. (2d) 638,”

Other questions are discussed in the briefs which are of minor importance. One of these is that there was no proper and sufficient proof of the market value of the Frigidaire at the time and place of the conversion. This assignment of error may be disposed of by saying that the testimony shows the market value of this Frigidaire, when new, to have been $598, and that it was in sound and undamaged condition, and was described by the witnesses as being as good as new. Moreover, the purchaser of the Frigidaire testified that he knew its market value, which he stated to be largely in excess of its value as found by the verdict of the jury.

There appears to be no error prejudicial to appellant, and the judgment must therefore be affirmed, and it is so ordered.


text:
    Missouri Pacific Railroad Company v. McKinney.
    4-3423
    Opinion delivered April 16, 1934.

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

      Tom W. Campbell, for appellee.
   Humphreys, J.

Appellee brought suit against appellant in the circuit court of White County to recover damages for the death of his son, Owen McKinney, who was struck by appellant’s train through the alleged carelessness and negligence of its employees in operating same. The alleged negligence consisted in the failure of its employees to exercise ordinary care to protect appellee’s son or to prevent injuring him while he was crossing appellant’s track south of the town of Beebe, along a well-defined footpath crossing from the east to the west side thereof.

Appellant filed an answer specifically denying any negligence on its part in killing appellee’s son, but alleging that the cause of his death was the result of the boy’s own negligence.

The cause was submitted upon the pleadings, evidence introduced by each party, and the instructions of the court, which resulted in a verdict and consequent judgment against appellant in the sum of $3,000, from which is this appeal.

The railroad track runs north and south through the town of Beebe. About a quarter of a mile south of the depot, a well-defined footpath crosses the track in a diagonal direction from the northeast to the southwest. This footpath had been used by the public for many years in crossing from one side of the track to the other. It was not a road crossing at which the statute requires railroad companies to sound their whistle or ring their bell in approaching same. At this point, appellant maintained three tracks on a dump some ten or twelve feet high. The main tracks were about eight feet apart, one being two feet higher than the other, and the side track east of the other two some six feet lower than the main tracks.

The testimony introduced by appellee tended to show that appellee’s son left home on the morning of July 29, 1932, to visit a boy who lived on the opposite side of the tracks; that, as he approached the dump or tracks, traveling in a southwest direction, an engine and tender running north was approaching the footpath appellee’s son was walking in, and that it crossed the footpath just as his son reached the crest of the dump, and that, in passing around it onto the next track, a fast south-bound freight train, without giving any warning of its approach, struck the boy and cut off one leg and an arm, and broke the other leg in two places, from which injuries he died in about two hours; that the north-bound engine prevented him from seeing the south-bound train, and that the noise therefrom prevented him from hearing the south-bound freight as it approached; that the boy was struck and fatally injured while in the footpath.

The evidence introduced by appellant tended to show that appellee’s son, in company with a companion, had decided to catch the south-bound freight for Little Rock and from there to go to an uncle who lived in the northwest; that, in an effort to catch the moving train, he caught hold of a box car some ten or twelve cars in the rear of the engine and was thrown under the train and injured, not in the footpath, but some considerable distance north of it; that the north-bound engine and tender had neared the depot before the south-bound freight reached the footpath, and that the trains did not meet at or near the footpath, and that same could not have prevented appellee’s son from seeing the south-bound freight as it approached the footpath.

At the conclusion of the testimony, appellant requested an instructed verdict on the ground that the testimony was insufficient to show liability on its part. Of course, if the undisputed evidence showed that, after the engine passed appellee’s son, he tried to board the fast-moving freight train and was thrown under it and injured, there would be no liability on the part of appellant, and the evidence would be insufficient to support the verdict and judgment, or, if the undisputed evidence showed that appellee’s son stepped in front of the south-bound freight when he could have seen or heard it as it approached the footpath, the evidence would be insufficient to support the verdict and judgment. The evidence was, however, in conflict on both points, and presented questions for determination by the jury and not by the court. The jury found adversely to appellant’s theories, and it is bound by the finding.

Appellant contends, however, that appellee’s son was a trespasser on its right-of-way and not entitled to any protection except not to wantonly injure or kill him after discovery. It is argued that the statutory signals are not required to be given by railroads in approaching footpaths; that railroads are required to sound whistles and ring bells only when approaching a road or public crossing. Although this is true, it does not follow that railroad companies owe no degree of care to pedestrians who pass over its tracks on well-defined footpaths with its knowledge and implied consent for a long period of time. This court said in the case of St. Louis, I. M. & S. Ry. Co. v. Hudson, 86 Ark. 183, 110 S. W. 590, that: “The question in dispute was whether or not the railroad company, at the time of appellant’s injury, was permitting the public to use the path through the yards. If it was, then appellee enjoyed the license, with the balance of the public, of traveling the path, and the employees of the company owed her the duty of ordinary care not to injure her while crossing the tracks.” This declaration finds its origin in the common law, which is in full force and effect in this State. The rule is general and has application where the signal statute has none. In 22 R. C. L., the rule is stated in the following words: “It is clearly the duty of a railroad -company at common law to give notice of the approach of trains at all points of known or reasonably apprehended danger. And failure to do so will render the company liable where such failure was the proximate cause of injury to one not guilty of contributory negligence.” See also White on Personal Injuries, vol. 2, pp. 1288-1290 and 1293; Thompson on Negligence, vol. II, § 1725; Houston & Texas Central Railroad Company v. Boozer, 70 Tex. 530.

The evidence is ample to sustain the verdict -and judgment under the rule of law declared in the authorities referred to, and, under this rule, the instructions given by the court relative to liability were correct.

Appellant also contends for a reversal of the judgment because the court instructed the jury as to the law of comparative negligence. It is argued that there was no negligence at all on the part of the appellant; hence no negligence on its part to compare with the negligence of appellee’s son. The record, according to the evidence introduced by appellee, tended to show that the southbound freight approached the footpath, where appellee’s son was killed, at a fast rate of speed without giving any warning and without regard to the danger incident to passing or meeting another train which might obstruct its view of the footpath and the view of its approach by any one in the footpath while in the act of crossing the track. The testimony justified the instruction given on comparative negligence.

Appellant also contends for a reversal or reduction of the judgment on the ground that it is excessive. Appellee’s son was 18 years of age when killed, and had been a dutiful and hard-working son. He not only assisted his father on the farm, but worked out when he could find work, and contributed practically all his earnings to his father and the support of the family. The testimony tended to show he had an earning capacity of about $500 a year. We do not understand the rule to be’, as contended by appellant, that the parent is limited absolutely to a recovery for damages, in case of the wrongful killing of his child, to its earning capacity during the remainder of its minority; but, on the contrary, is entitled to recover such sum as the parent would have received had the child continued to live, considering all the facts and circumstances in the particular case. 8 R. C. L., p. 839, § 113.'

No error appearing, the judgment is affirmed.

Justices Smith, McHaney and Butler dissent.


text:
    Fairview School District No. 7 v. Mammoth Spring School District No. 2.
    4-3444
    Opinion delivered April 16, 1934.

      E. A. Northmtt and B. L. Bickley, for appellant.

      Oscar E. Ellis and John G. Ashley, for appellee.
   Humphreys, J.

This proceeding to annex appellant school district to appellee school district was brought by proper petition in the -county court of Fulton County and there tried, with the result that said districts were consolidated.

An appeal from the order of consolidation was prayed and granted to the circuit court of said county upon the filing of a proper affidavit and a purported bond, as follows:

“In the Fulton County Court, August Adjourned Term, 1933.
“Mammoth Spring School District No. 2, Plaintiff, v. Fairview School District No. 7, Defendant.
“The undersigned, E. L. Stevenin, Lee Burrow and L. F. Burrow, as directors of Fairview School District No. 7, of Fulton County, Arkansas,, acknowledge ourselves to be indebted as said directors of said district in the sum of $100, to be void upon the following conditions:
“Whereas, Fairview School District No. 7 of Fulton County, Arkansas, has appealed from the judgment of the Fulton County Court in an action pending wherein Mammoth Spring School District No. 2 is plaintiff and Fairview School District No. 7 is defendant.
“Now, if the said Fairview School District No. -2 shall prosecute this appeal with due diligence to a decision, and on such appeal said judgment he affirmed, or if, in a trial thereof anew in the circuit court, judgment be given against the said Fairview School District No. 2, they shall pay all costs, not to exceed the sum of $100, then this bond shall be null and void, otherwise to remain in full force and effect.
“L. F. Burrow,
“President of Board of Directors, Fairview School District No. 7. '
“E. L. Stevenin,
“Secretary of Board of Directors, Fairview School District Nq. 7.
“John L. Burrow,
“Treasurer of Board of Directors of Fairview School Dist. No. 7.”

Upon the filing of the transcript in the circuit court of the proceedings had and done in the county court, which transcript contained the bond copied above, appellee moved to dismiss the appeal because the bond did not conform to the statute governing appeals in this class of cases. The statute is, in part, as follows: “* * * Any person or persons, being a party to the record or proceeding in a matter brought before any county board of education (county court), who feels aggrieved by any final order or decision of any such board of education (county court), may prosecute an appeal from any such final order or decision, provided, any such person or persons shall within thirty (30) days from the date of the final order or decision complained of make an affidavit that the appeal taken from such final order or decision of any such county board of education (county court) is not taken for the purpose of delay, and enter into a bond with good and sufficient surety thereon, * * V’

It is argued that the bond contains no filing mark indicating that it was filed within thirty days from the final order or decision of the county court, and was not signed and executed by any surety. The purported bond appears in the transcript of the proceedings of the county court in said cause, so we must presume it was left with the county clerk or court for filing. It is true that the bond was not signed by any surety, but the record before us reflects that appellee offered to amend the bond in this respect and to meet any other defect therein when the motion to dismiss the appeal was filed. Under § 797 of Crawford & Moses’ Digest, this request to amend the bond should have been granted. That section of the statute reads as follows: “Where any bond provided for by the Code is adjudged to be defective, a new and sufficient one may be executed in such reasonable time as the court may fix, with the same effect as if originally executed. ’ ’

Appellee argues that the rule to amend does not apply because the bond herein was no bond at all. We cannot agree that it was or is a scrap of paper. It is in form a bond, but defective because not signed by sureties. Being a defective bond, it was subject to amendment. Morrison v. State, 40 Ark. 448.

On account of the error indicated, the judgment is reversed, and the cause is remanded with directions to permit the bond to be amended and to proceed with the trial thereof.


author: Kirby, J.,

text:
    Meyer v. McKenzie.
    4-3446
    Opinion delivered April 16, 1934.

      Reinberger Reinberger and Arnold Finh, for appellant.

      Ren J. Altheimer and Rowell S Rowell, for appellees.
   Kirby, J.,

(after stating the facts). It was not necessary that there should be a waiver by the landlord in writing of his lien for supplies furnished. Griggs v. Horton, 84 Ark. 623, 104 S. W. 930; 36 C. J., p. 521; Wilson v. Citizen’s Bank, 170 Ark. 1194, 282 S. W. 689.

B. J. Altheimer and others testified to the effect that Meyer, the agent of appellant, orally agreed with him that he would waive the landlord’s lien up to $2,000, if they would help his tenant to get merchandise and supplies for the purpose of making and gathering the crop. Altheimer also testified that he had to indorse the account with the Altheimer Agricultural Credit Corporation as they could not get the money without the indorsement, and that he furnished the remaining $3'50 himself.

It is true that Meyer, the agent of appellant who executed the lease, denied making the oral agreement for the waiver of the landlord’s lien, hut his testimony cannot be said to have been uncontradicted; and McKenzie corroborated the testimony of B. J. Altheimer.

There is no doubt about the supplies having been furnished in the amount as stated, nor that the credit corporation authorized the furnishing of the additional $350 by appellees.

On the whole case the testimony is sufficient to support the chancellor’s findings that there was an oral waiver of the landlord’s lien for said amount and that the credit company had the right to do the furnishing up to the amount specified in the lease, $2,000, and upon its consent, or rather arranging for the loan of the balance of the amount necessary for making the crop, it cannot be said that the amount of this account, $350, furnished by Altheimer, Bowen & Clary was furnished only upon an open guaranty.

A careful examination of the whole record does not disclose the chancellor’s findings contrary to the preponderance of the evidence, and the decree will not be disturbed here. Affirmed.