text:
    Temple v. Hamilton.
    Opinion delivered November 19, 1928.

      Claude V. Holloway, for appellant.

      Morris & Barron, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for the defendants seek to defeat any recovery by the plaintiff on the ground of usury. There is no contention between the parties that the plaintiff did not advance to the defendants the sum of $7,520.67 for the’purpose' of making a crop on the lands rented from the plaintiff by the defendants, and that this amount is shown by an itemized statement in the record. The renewal note of $2,860.98, which was dated February 28, 1927, and secured by the crop and mule mortgage executed on the same date, was intended to represent the balance of the indebtedness due by the defendants to the plaintiff under the first mortgage. It appears that the amount of the note was arrived at by charging ten per cent, per annum interest on all the advances made by the plaintiff to the defendants during the fall of 1925 and the whole of the year of 1926. According to the testimony of the defendants, the transaction on this account was usurious. According to the testimony of all the parties, there was no agreement between them as to what interest was to he charged, and the plaintiff testified that he accepted the sum of $2,860.98 to be the balance 'due because one of the defendants stated to him that was the amount due under their contract. The plaintiff testified that he was sick at the time, and that Ben Temple, one of the defendants, went over the account of the defendants and added up the different items on an adding machine, and told him that $2,860.98 was the amount due under the first mortgage. While this is denied’by the defendant Temple, we think the chancellor was justified in finding for the plaintiff on this question.

In the first place, the burden of proof is upon the party who pleads usury to show that the transaction was usurious. Smith v. Mack, 105 Ark. 653, 151 S. W. 431; and Cammack v. Runyan Creamery, 175 Ark. 601, 299 S. W. 1023. In the second place, it is the settled law of this iState that the charge of an excessive amount of interest through mistake of fact on the part of the lender does not render the contract usurious. Garvin v. Linton, 62 Ark. 370, 35 S. W. 430, 37 S. W. 569; Tompkins v. Vaught, 138 Ark. 262, 211 S. W. 361; and Hinton v. Brown, 174 Ark. 1025, 298 S. W. 198.

'The substance of the whole transaction was that the plaintiff rented to the defendants about 500 acres of land and agreed to supply them to enable them to make a crop. The supplies were duly furnished, and an itemized account of the same was rendered. 'None of the items of the account are disputed. It was the intention of the parties that the defendants should give their note to the plaintiff for the balance due after the crop season of 1926. The amount of this note was to be secured by a mortgage on the same mules and on the crop to be grown by the defendants on the plaintiff’s land during the year 1927. The amount of the balance due, according to the testimony of the plaintiff, was furnished by one of the defendants, and there was no intention whatever to charge or receive an illegal rate of interest. It is true that, according to the testimony of the defendants, more than ten per cent, was charged, but the chancellor was justified in- finding, .under the circumstances, that this was due to a mistake of fact. Hence we are of the opinion that the chancellor was right in not sustaining the complaint of the defendants of usury.

The chancellor was wrong, however, in the amount which he found to be due. As we have already seen, the substance of the whole transaction was that the plaintiff rented to the defendants 600' acres of land and agreed to make certain advances to them to enable them to make a crop. Advances in the sum of $7,520.67 were made during the fall of 1925 and during the year of 1926. The plaintiff appears to' have 'Charged ten per cent, interest on these supplies. This he had no right to do. An agreement to pay interest on an account at a rate exceeding six per cent, will not be enforced as to such excess, unless the agreement be in writing. Johnson v. Hull, 57 Ark. 550, 22 S. W. 176. Hence in no event could the plaintiff charge ten per cent, interest on the advances made by him.

In the first mortgage, which was executed on the 4th day of January, 1926, there is recited an indebtedness of $3,500, evidenced iby a promissory note. Although the mortgage on its face was for the sum of $3,500, evidenced by a promissory note of that date, parol evidence was admissible to show that it was really intended to secure advances already made and future advances to be made from time to time. Parol evidence is always admissible to show the true character of a mortgage, and for what consideration it was given. Jones on Mortgages, vol. 1, 8th ed. § 451 (367a); McKinster v. Babcock, 26 N. Y. 378; and Louisville Banking Co. v. Leonard, 90 Ky. 106, 13 S. W. 520.

As we have already seen, there was no agreement, in writing or otherwise, that the plaintiff should charge interest on the supplies furnished or the advances made by him to the defendants. Hence he was not entitled to 'charge any interest on such advances until the end of the year 1926. The parties had a settlement at that time', and on February 28, 1927, the defendants gave to the plaintiff a new mortgage for what was believed to be the balance due on the old mortgage and to' secure future advances. While a mistake was made in the amount then due, the plaintiff will be entitled to charge interest on the amount actually due at the rate of ten per cent, per annum from the date the note was given, because the note recites that ten per cent, interest thereafter was to be charged from the date of the note until its payment. On the advances to be made during the year 1927 no interest should be charged until the end of the year, because the account was not due until that time. No interest should be charged on the mule note of $1,200 at all, because the plaintiff agreed to take the mules back and charge no interest. The fact that the mules were agreed to be returned to him was a sufficient consideration for this, new agreement, , and he should not*have charged any interest at all on the mule note.

From what we have said it is evident that the amount found !by the chancellor was greater than that due by the defendants to the plaintiff. Because the chancery court erred in finding the amount due by the defendants to the plaintiff, the decree will be reversed, and the cause will be remanded with directions to the chancellor to enter a decree in favor of the plaintiff against the defendants for the amount actually found due in accordance with the directions of this opinion and for further proceedings in accordance with the principles of equity, and not inconsistent with this opinion. It is so ordered.


source: Caselaw Access Project

author: Hart, C. J.,

license: Public Domain

text:
    State use Crawfordsville Special School District v. Huxtable.
    Opinion delivered November 19, 1928.

      Charles D. Frierson, for appellant.

      S. V. Neely and Rose, Hemingway, Cantrell & Loughborough, W. B. Scott and A. B. Shafer, for appellee.
   Hart, C. J.,

(after stating the facts). In the first place, it is contended by (counsel for the Crittenden County Bank and the Bank 'of Crittenden County that there was no liability on their part. The Bank of Crittenden County was organized for the purpose of purchasing the assets and assuming the liabilities of the Crittenden County Bank, which had become insolvent. The contract for the purchase of the assets and the assumption of the liabilities of the Crittenden County Bank was made on February 5, 1927. It is sought to hold both of these banks liable upon the theory that the Crittenden County Bank had purchased the assets and assumed the liabilities of the Crittenden County Bank & Trust Company. Of course, if there was no liability on the part of the Crittenden County Bank, there could be none on the part of the Bank of Crittenden County.

Now, it is sought to hold the Crittenden County Bank liable under its contract to purchase the assets and assume the liabilities of the Crittenden County Bank & Trust Company, which was approved by the chancery court on the 3d day of February, 1926. The Crittenden County Bank & Trust Company was organized as a trust company, and, under subdivision 7 of $ 747 of Crawford & Moses’ Digest, it had the power to sign the bond of Frank Huxtable. as county treasurer of Crittenden County. It did sign his bond as one of his sureties, and, on that account, became liable for the faithful discharge of the duties of'his office. On December 17, 1923, the Crittenden County Bank & Trust Company became insolvent, and its affairs were wound up by the State Bank Commissioner under the statute. At this time no liability had accrued against any one on Huxtable’s bond. The liablity of Frank B. Huxtable and his bondsmen for the $5,306.97, belonging to the Crawfordsville Special School District, did not accrue until nearly a year afterwards. This money was lost because of the failure of the Bank of Commerce of Earle, in which the money was deposited. Prior to the failure of the Bank of Commerce, the Crittenden County Bank was organized for the purpose of purchasing the assets of the Crittenden County Bank & Trust Company and assuming its liabilities. The contract of purchase and sale was approved by the chancery court on February 3, 1926; and it is contended by counsel for the appellants that the liability of Frank B. Huxtable and the sureties on his bond as county treasurer included the amount belonging to the Crawfordsville Special 'School District, which was lost by the failure of the Bank of Commerce.

We cannot agree with counsel in this contention. It is true that the Crittenden County Bank & Trust Company had the power to sign as surety the bond of Frank B. Huxtable as county treasurer of Chittenden County. Subdivision 7 of 747, Crawford & Moses’ Digest. This power, however, was taken away by the Legislature of 19'23. Acts of 1923, p. 515. Section 10 of that act expressly repeals par. 7 of § 747 of the Digest. Besides, corporations organized to do a general hanking business never had the power to sign the bond of a public officer as surety. At the time the affairs of the Crittenden County Bank & Trust Company were placed in the hands of the Bank Commissioner, and sold by him under the order of the chancery court, neither a corporation organized to- do business as a trust company nor that organized to do .a general banking business had the power to sign the bond of a public officer as surety. Therefore it could not be said that, under the contract in question, the 'Crittenden County Bank should be held to have taken the place of the Crittenden County Bank & Trust Company as one of the sureties on the bond of Frank B. Huxtable. No liability had accrued on his bond at that time.

The Bank of Commerce did not fail until nearly a year afterwards. The money involved in this suit was lost by its failure. Hence there was no existing liability on the bond of Frank B. Huxtable at the time the Crittenden County Bank purchased the assets and assumed the liabilities of the Crittenden County Bank & Trust Company.

We are of the opinion that the terms of contract of purchase and sale of the assets of the Crittenden County Bank & Trust Company only included existing liabilities of the latter, and that no attempt was made to include a default on the bond of the treasurer which might accrue in the future.

But it is contended that the liability of the Crittenden County Bank & Trust Company, as surety on the bond of Frank B. Huxtable, was a continuing one, and that it continued throughout his term of office, although the Crittenden County Bank & Trust Company became insolvent and its affairs were placed in the hands of the 'State Bank Commissioner, to be wound up by him pursuant to statute. We do not think so. When the affairs of the Crittenden County Bank & Trust Company were wound up and its assets disposed of and distributed pursuant to statute, its existence came to an end, and it could not in any sense be said to continue liable on the bond of the county' treasurer. When its affairs had been wound up and its assets had been distributed among its creditors as provided by statute, it no longer had any powers whatever, and could in no sense be said to continue lialble as one of the sureties on the bond of the county treasurer.

The police power of the State extends to the regulation of banking business, and even to its prohibition, except on such conditions as the 'State may prescribe. Noble State Bank v. Haskell, 219 U. S. 104, 31 S. Ct. 86, 32 L. R. A. (N. S.) 1062, Ann. Cas. 1912A, 487. The business of banking is of a public nature, and therefore is subject to statutory regulation for the protection of the public. The power to regulate the business necessarily carries with it the power to provide adequate machinery for winding up its affairs when insolvent. If it should be said that the liability of a trust company as a surety on the bond of a public officer must necessarily continue during the life of the bond, regardless of the insolvency of the bank and trust company, then a statute providing for the winding up of the affairs of insolvent banks and trust companies by a State Bank Commissioner or other public agency would be seriously impaired, and of but little advantage to the public or to those dealing with such bank or trust company. The power to wind up and settle its affairs must necessarily conclude its future liabilities and have the effect of putting an end to its existence for all purposes except those held open by the regulating statute itself.

We have already seen that, by the terms of the contract, the Crittenden ¡County Bank only assumed the existing liabilities of the Crittenden County Bank & Trust 'Company. When the affairs of the Crittenden County Bank & Trust Company were wound up pursuant to statute, its liability as one of the sureties on the bond of the county treasurer ended. Therefore we are of the opinion that there is no liability on the part of the Crittenden County Bank or on the part of the Bank of Crittenden County, which purchased the assets and assumed the liabilities of the former.

The chancellor held that the individual sureties on the 'bond of the treasurer were not liable because the county court had given the treasurer credit for the amount lost by him on account of the failure of the Bank of Commerce at Earle, in Crittenden County, and no appeal has ¡been taken. It appears from the record that on June 30,1925, a day of the April term, 1925, of the county court of Crittenden County, F. B. Huxtable, as treasurer of Crittenden County, filed his report as such county treasurer for the quarter ending December 31, 1924. Among other items for which he asked credit is the following: “Lost in Bank of Commerce, $5,306.97.” The county court approved and confirmed his settlement, thereby giving him credit for the sum of $5,306.97, belonging- to Crawfordsville Special School District, which had been lost by the failure of the said Bank of Commerce. No appeal was taken from the judgment of the county court in the premises. Hence it is claimed that the matter is res judicata, and that, inasmuch as the county court has never adjudged that any liability existed, the present suit cannot be maintained under the authority of Graham v. State, 100 Ark. 571, 140 S. W. 736. In that case the court held that, before a suit can be brought upon the 'bond of a county treasurer, there must be a settlement made with him by the county court, and the amount due by him determined, and an order made to pay over the amount found to be due. The court said that the judgment fixing the liability and containing an order to pay over was a condition precedent to the bringing of a suit against the treasurer and the sureties on his bond.

Now, under § 10165 of Crawford & Moses’ Digest, the county court was given the power on its own motion to reconsider and adjust the settlement of any county officer at any time within two years from the date of settlement. In Sims v. Craig, 171 Ark. 492, in construing this section of the statute, the co.urt said that unintentional errors and mistakes in accounting, resulting in a loss to the county, would be a legal fraud upon the county, and might be corrected by the county court itself within the two years. ■ The court also held that the chancery court has the power to surcharge and correct such settlement for fraud at any time within five years.

Was the action of the county court allowing the treasurer credit for the $5,306.97 belonging to Crawfordsville Special School District, lost by him on account of the failure of the Bank of Commerce of E'arle in which it was deposited, a fraud? We think so. The general rule with respect to the liability of public officers and their sureties for the loss of public moneys is that, where the statute, in express terms, imposes the duty to pay over public funds received and held as such, and no condition limiting that obligation is in the statute, the obligation thus imposed upon and assumed by the officer is absolute, and the plea that the money has been lost without his fault does not constitute a defense to an action for its recovery. United States v. Prescott, 3 How. (U. S.) 578; Smythe v. United States, 188 U. S. 156, 23 S. W 279; Board of Education v. Jewell, 41 Minn. 427, 46 N. W. 914, 20 A. S. R. 586; and 33 R. C. L., par. 136, p. 468.

In Mecklenburg County v. Beales, 111 Va. 691, 69 S. E. 1032, 36 L. R. A. (N. S.) 285, the Virginia Supreme Court of Appeals held that a county treasurer is liable for public funds lost through bank failure, although he believes the bank to be sound, and it is generally so regarded, and in depositing the funds he merely follows a long-prevailing custom, and acts with knowledge of the supervisors, where the statutes of the State manifest an intention to guard with the utmost care the public funds from loss, and to hold the county treasurer handling them to a very strict accountability for their safekeeping. Many decisions are cited in the opinion in support of the rule, and many more -are -cited in a case-note to 36 L. R. A. (N. S.) 285.

In Cameron v. Hicks, 65 W. Va. 484, 64 S. E. 832, 17 Ann. Cas. 926, the West Virginia Court of Appeals said:

“By the great weight of authority the 'custodian of public money is not a bailee bound only to the exercise of a high degree of -care, prudence and diligence for its safety, and excusable for the loss thereof by fire, robbery, theft or bank failure, when such loss is not in any sense due to negligence or misconduct on his part, but a debtor and insurer to the extent of the amount received, excusable for no losses except those resulting from acts of G-od or the public enemy.”

Numerous decisions from the -Supreme Court of the United States and from the courts of last resort of the various states are icdted in a -case-note to 17 Ann. Cas. at p. 929, to the effect that the reasons on which the proposition rests are to ibe found in the unqualified terms of the bond and in considerations of public policy. Among the oases cited are- the following: State v. Croft, 24 Ark. 550; State v. Newton, 33 Ark. 276; and State v. Wood, 51 Ark. 205, 10 S. W. 624.

In this State the condition of the treasurer ’s bond is that he will faithfully discharge the duties of his office, and under § 2832 of Crawford & Moses Digest he and the sureties on his official bond are liable for all funds deposited by him in a bank when such bank, on demand, shall fail to pay to the person entitled to receive the same. Demand was made for the -funds in the case -at bar, and there was- a failure to pay the same to- the persons entitled to receive the same. Under the authorities above cited, the -county court was wholly without power to allow the county treasurer credit for the- funds in question, and the action -of- the county court in allowing the same constituted a legal fraud which a court of -chancery had the- authority to set aside in the present suit. Fuller v. State, use of Craighead County, 112 Ark. 91, 164 S. W. 770; and Sims v. Craig, supra, and cases cited.

This principle was sustained in State v. Croft, 24 Ark. 550. In that case the court held that the declaration, in a suit upon a county treasurer’s ¡bond, averring that a specified sum, as appeared by the books, remained in the treasurer’s hands; that he had been summoned by the county court to settle his accounts, but had failed to do so; that the court struck the balance due by him, and that he is justly indebted to the county as treasurer in such sum, which he had neglected and refused to pay, were sufficient to charge the sureties in the bond, without the averment of a .formal judgment rendered by the county court.

In the case at bar, the county treasurer admitted that he was indebted to Crawfordsville Special School District in the sum of $5,306.97, which was due, and which he had lost by the failure of a bank in which he had deposited it. This substantially amounts to an averment that the county court had .settled and determined the amount due from the treasurer to said school district as a part of its school fund, and that such adjustment and settlement are shown by the records of that court. In short, the settled rule is that public policy requires that every depository of public money should be held to strict accountability. The Obligation to keep, safely the public money is absolute, without any condition, express or implied. Nothing but the paypient of it, when required, can discharge the bond, unless by statutory authority. Newton County, v. Green, 104 Ark. 270, 1409 S. W. 73, Ann. Cas. 1914C, 491; State v. Davis, ante, p. 153, 10 S. W. (2d) 513; Pearson v. State, 56 Ark. 138, 19 S. W. 499, 35 A. S. R. 91.

Therefore, in view of the situation of the parties as shown by the record, the order of the county court procured by the treasurer giving him credit in his quarterly settlement is a legal fraud against which equity will relieve; and we hold that Crawfordsville Special School District was entitled to recover the sum .sued for from the county treasurer and his individual bondsmen.


author: Smith, J.

text:
    Union Sawmill Company v. Rowland.
    Opinion delivered November 19, 1928.

      Gaughan & Sifford, for appellant.

      Patterson & Rector, for appellee.
   Smith, J.

On September 30,1916, W. G. Grace executed to J. A. Rowland a deed conveying the oil, gas and minerals in and under a certain forty-acre tract of land, together with other lands, in Union County. This conveyance was duly recorded. On June 16, 1919, Grace conveyed this and other land, without reservation or exception, to the Union Sawmill Company, hereinafter referred to as the company, and thereafter all taxes were paid on the land by the company. Rowland did not at any time assess the mineral rights or pay taxes thereon. On March 3,1920, a decree was rendered by the chancery court of Union County confirming the title of the company. This decree deraigns the title of Grace to the land which he conveyed to the company, and professes to- q-uiet and confirm it. Thereafter the company received information that Rowland was claiming title to the oil, gas and minerals in and under the land in question, and this suit was brought by it to quiet its title to the land, including the o'il, gas and minerals, against Rowland.

The complaint praying that relief exhibited the confirmation decree, and alleged that Rowland’s interest in the land was unknown at the time the confirmation decree was rendered.

An answer was filed by Rowland, alleging the prior conveyance to him by Grace of the oil, gas and minerals, by a deed which was duly of record when the deed from Grace to the company was executed. It was alleged that, as the deed to Rowland was in the company’s chain of title, the company was charged with knowledge thereof, yet Rowland, who was a resident of Union County, was not made a party to the proceeding except by the publication of the confirmation notice. The answer alleged therefore that the decree was void as to the defendant Rowland.

A demurrer to this answer was overruled, and, as the plaintiff company refused to plead further, its complaint was dismissed, and this appeal is from that decree.

Section 8363, >C. & M. Digest, provides that the owner praying confirmation of his title shall file in the office of the clerk of the chancery court a. petition, describing the land and stating facts which show a prima facie title in the petitioner, and that, “if the petitioner has knowledge of any other person who has dr claims to have interest in such lands, the petitioner shall so state, and such person or persons shall be summoned as defendants in the case.”

The pleadings in the case do not* allege that the company had any knowledge of Rowland’s title, except the constructive notice arising out of the fact that Rowland’s deed was in its chain of title and was duly recorded. The question presented for decision is therefore whether the plaintiff company had such knowledge of Rowland’s title as required it to make him a party to the proceeding by summoning him as a defendant. The court below held that it had, and we concur in that holding.

It must ¡be remembered that the purpose of the confirmation statute is to quiet titles, and for one to be entitled to invoke the benefit of the statute he must make a showing of a prima fade title in himself, and to do so necessarily involves some investigation of the title of record. It is a well-recognized principle of-the law of conveyancing that one is charged with notice of all conveyances appearing in the line of his title, and the deed to Rowland was from the same grantor who conveyed to the company, and Rowland’s deed was of record when the conveyance to the company was made.

The statute (§ 8363, C. & M. Digest) provides that if the petitioner has knowledge of an adverse claimant he shall cause such person to be summoned as a defendant. We think the word “knowledge,” as here employed, was used in the sense of notice, so that if a petitioner has knowledge, or notice from which knowledge will be imputed, of an adverse claimant, that claimant must be made a party, failing which he is not bound.

The case of Fulcher v. Dierks Lbr. & Coal Co., 164 Ark. 261, 261 S. W. 645, involved the question of constructive notice of an outstanding easement, and it was there said that a purchaser had to take notice of all prior recorded instruments in the line of his purchased title, and that one could not claim to be an innocent purchaser as against a recorded instrument appearing in the chain of his title.

So here the recorded mineral deed to Rowland was in the company’s chain of title, and the company could not therefore claim to be an innocent purchaser as against it, as notice thereof was imputed to it, and it should therefore have made Rowland a defendant, and, as this was not done, it was correctly held by the court below that Rowland was not bound, and that decree is affirmed.


text:
    Holden v. Carmean.
    Opinion delivered November 19, 1928.

      Dillon, & Robinson and S. S. Jefferies, for appellant.

      S. L. White and Snodgress & Snodgress, for appellee.'
   Smith, J.

Appellee Rogoski owns a portion of the lot forming the southeast corner of Markham and Pulaski Streets, in the city of Little Rock, and appellant owns the remainder. Some years ago the city opened up Pulaski Street so that it ran at a right angle into Markham Street, and in so doing it became necessary to excavate Pulaski Street to lower it to the grade of Markham. Little Rock v. Holden, 124 Ark. 599, 186 S. W. 293. The case cited involved the identical property here in litigation.

• The excavation of Pulaski Street left the lot owned by .Rogoski and appellant, about ten feet above the grade line of. Pulaski Street... Rogoski, desiring to improve his. portion of the lot, lowered it to the grade line of Pulaski Street, and in so doing appellant’s part of the lot was left about ten feet higher than that of Rogoski’s part. It is said that this condition itself damaged appellant’s property, and that she should have damages on that account. Damages were also claimed to compensate the injury alleged to have been inflicted upon appellant’s portion of the lot by the manner in which the excavation was done, and suit was brought against both Rogoski and the independent contractor who did the work.

The trial court held that the mere excavation of. the Rogoski part of the lot conferred upon appellant no cause of action, and we concur in that view. Rogoski had the right to excavate his property to the grade line of the streets, and if appellant was injured thereby it was, so far as Rogoski was concerned, damomm absque injuria. Appellant has had her day in court when she sued the city for damages resulting from changing the grade line of Pulaski Street. Little Rock v. Holden, supra.

. It does not follow, however, that, because Rogoski had the right to- excavate his lot to the grade line of the street, he could do this work or have it done in a negligent manner. The lot was composed of rock, which had to 'be broken up before it could be removed, and dynamite was employed for that purpose.

Appellant requested an instruction reading as follows:

“You are instructed that dynamite is a highly dangerous article or instrumentality, and any one using it in a crowded city for blasting is required to use more than ordinary care. The one so using it is required to use the utmost care to prevent injury to property of others. If you find from the evidence that defendant failed to use the utmost care in the use of the dynamite in this case, then you must return a verdict for the plaintiff.”

The court refused this instruction, and gave one which imposed the duty only to exercise ordinary care.

There was a verdict and judgment in favor of Rogo ski and his contractor who did the work, and who were jointly sued, and this appeal is from that judgment.

We think the instruction set out above should have been given. In the case of Rafferty v. Davis, 214 Pa. 244, 103 Atl. Rep. 951, the Supreme Court of Pennsylvania said:

“We have several times said that extreme care must be observed in the use of so dangerous a substance as dynamite’. In Sowers v. McManus, 214 Pa. 244, 245, 63 Atl. 601, the present Chief Justice said that the general rule in cases of the explosion of dynamite, where third parties having no relation to the person having it in possession are injured, is that the highest degree of care must be exercised” (Citing oases).

Cases cited in a note to 11 R. C. L., page 657, chapter “Explosions and Explosives,” and 25 C. J., page 195, chapter ‘ ‘ Explosives, ’ ’ support the statément of the law approved by. the Supreme Court of Pennsylvania and quoted above.

The instructions of the court did not limit plaintiff’s recovery to injury occasioned by substances cast upon the lot by the explosives, but allowed a recovery, if the defendants were liable at all, for the damage caused by the concussion of the air or of the earth, and this was correct. Fitzsimmons & Connell Co. v. Braun & Fitts, 199 Ill. 390, 65 N. E. 249, 59 L. R. A. 421.

The court charged the jury when and under what circumstances Rogoski would be liable for the negligence of the independent contractor employed by him to excavate the lot. The instructions on this subject were not objected to by either side, and appear to conform to the law as declared in the recent case of Stout Lbr. Co. v. Reynolds, 175 Ark. 988, 1 S. W. (2d) 77.

No error appears in the record, except the failure of the court to charge that the highest degree of care should have been employed in the- use of the dynamite, but the judgment must be reversed for this error, and it is so ordered.


text:
    Globe & Rutgers Fire Insurance Company v. Batton.
    Opinion delivered November 19, 1928.

      McMillen & Scott, for appellant.

      Shaver, Shaver & Williams, for appellee.
   Smith, J.

The appellant insurance company, hereinafter referred to as the company, issued a policy of fire insurance to appellee on his residence in the sum of $400, and on October 2-8, 1927, the building was totally destroyed by fire. At the request of the company’s local agent, appellee furnished an estimate of his loss in the sum of $1,363.89, and was then advised by the local agent that no other proof of loss would be required.

A few days after the fire an adjuster came to see appellee about his loss, -but the parties did not meet, and-on November 26, 1927, the adjuster wrote the local agent that, in his opinion, there was no liability on the part of the company, for t'he alleged reason that appellee had made no effort to extinguish the fire, but, as a matter of compromise, $300- was offered. This offer was declined by appellee. The letter containing this offer was sent (by the adjuster to- the company’s local agent, who sent it to appellee, and after receiving this ■letter appellee called on the local agent, who advised him to settle, as otherwise he would have the expense of a lawsuit, with an attorney’s fee, and appellee thereupon offered to take $375 in settlement of his claim, provided same was paid at once. A few hours later appellee consulted an attorney, who informed him that, if a recovery was had against the company for the full amount of the policy, judgment would be rendered in his favor for a penalty of twelve per cent, as well as an attorney’s fee. Appellee went, immediately after receiving this information, to the local agent and withdrew his offer of compromise, and announced that he would demand the full face value of the policy, but he was advised by the agent that he had already written a letter submitting the offer.

Appellee did nothing until December 10,1927, except to call on the local agent several times to ascertain what the company had done or would do about the policy, and .on the date last mentioned appellee was inf ormed by the local agent that the company had done nothing and was not going to pay anything. The testimony of the local agent varied slightly, but he admitted that, after reading to appellee the letter from the adjuster, he stated, “I said it looked like from the report and what the adjuster said that they (the company) would not do anything.”

"We think the court was warranted in finding (the case having been tried before the court without a jury) that the company had denied liability, and, this being true, appellee was not required to wait longer to bring suit on the policy, and he, in fact, brought this suit on the date on which he was advised that the company would not pay him for his loss. Fire Assn. of Philadelphia v. Bonds, 171 Ark. 1066, 287 S. W. 587.

After the suit had been brought, the company requested appellee to furnish additional proof of loss, and this request was complied with on December 24, 1927, which date was still within sixty days of the date of the fire. In this proof of loss appellee recited a denial of liability by the company and the consequent institution of the suit, and demand was there made for a reasonable attorney’s fee to compensate the attorney appellee had been required to employ, and the twelve per cent, penalty.

The company filed an answer December 31, 1927, in which it admitted liability for the full amount of the policy, but denied liability for the attorney’s fee or statutory penalty.

The court rendered .judgment for the face of the policy, with an attorney’s fee of $100 and the statutory penalty, and this appeal is from that judgment.

The policy sued on contained the provision that the loss insured against should be payable sixty days after proof of loss, and it is therefore insisted that, inasmuch as the company answered within sixty days after proof of loss had been furnished, admitting liability for the face of the policy, the attorney’s fee and penalty should not have been allowed. It is also insisted that, by complying with the company’s request for proof of loss after the institution of the suit, appellee waived any right he may have had to claim the penalty and attorney’s fee.

As we have said, the court was warranted in finding that within sixty days of the fire the company denied liability, and, this being true, the insured was not required to wait further before instituting suit, but he had the right to sue at once. Fire Assn. of Philadelphia v. Bonds, supra; Old Am. Ins. Co. v. Wexman, 160 Ark. 571, 255 S. W. 6. In the exercise of this right, appellee employed counsel, who brought this suit, and, as there was a recovery of the sum demanded, the court did not err in allowing an attorney’s fee.

We do not think appellee waived any right which had accrued to him by furnishing proof of loss after the institution of the suit. On the contrary, he expressly reserved this right, and called attention to the fact that, through the company’s denial of liability, he had been compelled to incur the expense of employing an attorney, and a fee would he demanded on that account.

The fee allowed does not appear to he unreasonable, and the penalty is fixed by the statute. The judgment is therefore affirmed.


author: Humphreys, J.

text:
    Thomas v. State.
    Opinion delivered November 19, 1928.

      Cochran & Arnett, for appellant.

      H. W. Applegate, Attorney G-eneral, and John L. Carter, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of Logan County, Northern District, for carnally knowing Lucy Wooten, who was under sixteen years of age at the time of the alleged offense, and was adjudged to serve a term of one year in the State Penitentiary as a punishment therefor, from which is this appeal.

The only error assigned by appellant for a reversal of the judgment was the exclusion by the court of testimony offered by him tending to show that the pregnancy of the prosecuting witness was the result of sexual intercourse with either Ted Kennedy or Everett Miller'. The rule with reference to the admission of this character of evidence was restated in the case of Rowe v. State, 155 Ark. 142, 244 S. W. 463, as follows:

“The chastity of the prosecutrix is not in issue in prosecutions under the carnal abuse statute; and, while the prosecutrix may be asked, on her cross-examination, about other illicit intercourse, this is only for the purpose of impeaching her as a witness — a circumstance to be considered by the jury in passing upon the credibility of the witness. But, as the matter is collateral to the main issue, her answers, whether true or false, conclude the inquiry. So also the defense may not show acts of sexual intercourse between the prosecuting witness and other persons, as the ‘et tu’ defense does not obtain, as was said in the case of Plunkett v. State, 72 Ark. 409, 82 S. W. 845. If, however, the State elects to attempt to corroborate the prosecuting witness by showing that a child was begotten by the illicit intercourse charged in the indictment, then defendant may show acts of sexual intercourse with other persons about the time conception took place for the purpose of rebutting this testimony. The State made that effort here, and the defendant should therefore have been allowed to rebut the testimony by showing that some other person was the father of the child.”

The Attorney General frankly admits that, under the rule quoted, if the State had elicited any testimony whatever from the State witnesses as to the paternity of the unborn child tending to show that appellant was the author of her condition, then the testimony should have been admitted. After the prosecuting witness had denied, on cross-examination, illicit relationships with Ted Kennedy, Everett Miller or any other person at any time or place, the court asked her if she was pregnant, and she said that she was. According to her testimony, she had conceived the child in November or December, and she testified the following- August, so her condition must have been apparent to the .jury. The necessary inference from her testimony and her appearance was that appellant was the father of her unborn child. The production of this testimony by the State brought the case within the rule announced, and the court therefore committed reversible error in excluding the testimony offered, which tended to show illicit relations with other men about the time the conception took place.

On account of the error indicated, the judgment is reversed, and the cause is remanded for a new trial.


text:
    Mercer v. Motor Wheel Corporation.
    Opinion delivered November 19, 1928.

      J. S. McKnight, for appellant.

      E. L. Westbrooke and E. L. Westbrooke, Jr., for appellee.
   Humphreys, J.

This is an appeal from a judgment of the oircuit court of Calhoun County dismissing appellants ’ suit against appellee to recover $87.50 for timber which it was alleged they delivered to it. The suit was commenced before J. B. Brumley, a justice of the peace of Jefferson County, and service was obtained on appellee in the manner provided ¡by ■§§ 1826 and 1829 of Crawford & Moses’ Digest for serving process upon foreign corporations doing business in the State of Arkansas.

In response to the service, appellee appeared by its agent and attorney, on October 2-6, 1926, and announced ready for trial. The cause was submitted by agreement to the .justice of the peace, a jury being waived, which resulted in a judgment against appellee, and an appeal was duly prosecuted to the circuit court. On January 10, 1927, the circuit court continued the case, on motion of appellee, until the July term of said court, at which time a motion was filed by appellee and sustained by the court, to dismiss the suit upon the ground that §'§ 1826 and 1829 of Crawford & Moses’ Digest, upon which service was obtained, were void. The sections of the statute referred to were declared void by the Supreme Court of the United States in the case of Power Manufacturing Co. v. Saunders, 274 U. S. 490, 47 S. Ct 678.

Appellants contend that the trial court erred in dismissing their complaint, notwithstanding the invalidity of the statute, because appellee answered and went to trial in the justice of the peace court without raising any question as to the jurisdiction of its person, in appealing the case to the circuit court, and in obtaining a -continuance of the cause to a subsequent term in said court.

This court is committed to the doctrine, by a long line of decisions, that taking any substantive step- by defendant in an action brought against him in the courts operates as -a general appearance, and waives the manner of process or any defects therein. Hawkins v. Taylor, 56 Ark. 45, 19 S. W. 105, 35 A. S. R. 82; Carden v. Bailey, 87 Ark. 230, 112 S. W. 743; Dodson v. Butler, 95 Ark. 617, 130 S. W. 581; German Investment Co. v. Westbrook, 101 Ark. 124, 141 S. W. 510; Linn-McCabe Co. v. Williams, 116 Ark. 307, 172 S. W. 895; Bixley v. Taylor, 122 Ark. 278, 183 S. W. 200.

Appellee argues that taking substantive steps by a defendant in a suit, or by participation in the trial thereof, only waives irregularities in a process which might be amended, and does not waive defects which vitiate or void the process in toto. Appellee’s argument and the two early cases, one a Georgia and the other a Missouri case, cited in support -of its position, are out of line with the Arkansas cases cited above. According to the Arkansas eases, a defendant against whom a suit has -been filed, whether served at all, enters his appearance generally and for all purposes by taking substantive steps therein, such as answering, obtaining a continuance, or appealing from a judgment against it from a lower to a higher court. Certainly no sound distinction can be drawn between a void process and no process at all. If a defendant may waive service entirely by participating in the trial, it logically follows that void service may be waived in the same manner.

The trial court erred in dismissing appellants’ complaint on account of the void, service, after appellee participated in the trial. The 'judgment is therefore reversed, and the cause is remanded for a new trial.


author: Kirby, J.

text:
    Chicago, Rock Island & Pacific Railway Company v. Jones.
    Opinion delivered November 19, 1928.

      Thos. S. Buzbee, Geo. B. Pugh and H. T. Harrison, for appellant.

      Elmo CarlLee, for appellee.
   Kirby, J.

This appeal is prosecuted from a judgment for damages caused by the alleged negligent killing of appellee’s intestate by .striking her with one of its engines, in the operation of its train.

The complaint alleged that on the 17th day of June, 1924, Benlah 'Campbell was run over and killed by defendant’s passenger train going south, at about 2:45 in the afternoon, while she was walking on the railroad track, at a point about one-eighth of a mile south from Tupelo. Station; that her death was the result of the negligence of the defendant’s servants engaged in the operation of the train, in failing to keep a proper lookout and give warning of the approach of the train, and in failing to stop the train after discovering the presence of plaintiff’s intestate upon the track; that, on account of the defendant’s negligence causing the injury, his intestate suffered great pain of 'body and anguish of mind, for which he was entitled to recover damages for the benefit of her estate.

The answer denied all the material allegations of the complaint as to negligence and damage resulting, and pleaded the contributory negligence of decedent.

The jury returned a verdict in favor of the administrator in the sum of $2,000.

It appears from the testimony that Mrs. Beulah Campbell was 'killed by defendant’s passenger train while she was walking’ north along the railroad track in the direction of Tupelo. .Shortly after the train left the station, the engineer saw her on the track approximately a half mile away, and, as the train proceeded, the whistle was 'blown, and the engineer said she stepped off the track into the clear, and remained standing there until the train reached a point about 90 feet from where she was standing, when she stepped back upon the track. The engineer immediately reversed the engine, applied the brakes, and did everything- possible to stop the train. He said she walked on toward the engine, and, when it was 15 or 20 feet from her, looked up, saw it, and turned and started the other way. The engine ¡struck her; knocked her down, and passed over her nearly one-half its length. The train was stopped about one-half an engine’s length from where she was struck. She was lying under the fire-box of the engine. The fireman jumped off, signaled the engineer, and he backed the train a few feet, got out of the cab, and went to where she was lying on the track, and said she was dead at that time. He stated that she was 'killed instantly.

Two of the four boys riding in an auto along the road, which was parallel to the right-of-way and about 40 to 60 feet from it, and who were going in the same direction as the train, saw the accident. One said the car was opposite the engine, and the other that the engine was about 60 yards ahead of them. They both stated they saw the woman when they reached a point near the Cotton Belt skidway, one of them estimating the distance from her to the engine at about 60 yards and the other at about 200 yards. Both stated that she did not step off the track after they saw her, nor did she turn around and start back the other way before the engine struck her; that it struck her below the knees, pushed her over backwards, and rolled her up under the engine. They'went immediately to the place, and the engine had backed off the body, and she was dead when they arrived. The body had a cut across the front reaching to the cavity, and the engineer said it was burst open. No witness testified .that there was any motion or indication of life when they saw the deceased after she was struck by the engine. ' She was a large woman, about 62 years old, weighed about 200 pounds, and, when she left home, had an old-fashioned sun-bonnet on, with long headpiece and long tails. Her vision was poor, and she was also hard of hearing.

Appellant insists that the court erred in not directing a verdict in its favor, and that the testimony is insufficient to support the judgment for damages. The testimony was conflicting. The engineer saw' the deceased on the track for a half mile after he left the station, and said that she got off the track and in the clear after he blew the whistle, and stood there, giving no indication that she would return to the track; that, upon her unexpectedly doing so when the engine was about 90 feet from her, he immediately reversed the engine, put on the emergency brakes, and did everything possible to stop the train, and he succeeded in stopping it within a few feet after it struck the deceased; 'but the other witnesses saw her approaching, one at 200' yards distance and the other at 60 yards, and said that she did not leave the track afterwards, nor did she turn around and start back down the track immediately before she was struck, contradicting the testimony of the engineer in both these particulars. The jury was warranted in finding that the appellant was negligent either in failing to keep a proper lookout or in the exercise of ordinary care to keep from injuring the deceased after her perilous position was discovered.

The question of the excessiveness of the verdict is a more serious one. No witness testified to any movement of the body or expression from the deceased indicating any conscious physical pain or suffering after she was struck and knocked dovm and the engine backed off her body, and, although the engineer testified she was killed instantly, he also said he did not see the body until after he stopped the engine and had backed it off the body on signal from the fireman." The train was moving’ slowly, however, almost stopped, when the engine struck her and rolled the body up, bursting it, and the .jury might have found that there was conscious pain and suffering resulting from the- injury of more than a short interval, a mere incident to the death. But the time for which she could have endured piain and suffering was very short in any event, not longer than from when she was struck, the very few minutes, until the train stopped and was backed off.

Each case necessarily must be determined to a certain extent upon its own peculiar facts, and we have reached the conclusion that there was no testimony in this ease sufficient to warrant a recovery of more than $250 damages. St. L. I. M. & S. Ry. Co. v. Dawson, 68 Ark. 1, 56 S. W. 46; Hughey v. Lennox, 142 Ark. 593, 219 S. W. 323.

If the appellee will enter a remittitur reducing the judgment to the sum of $250, with interest from the date of its rendition, it will be affirmed; otherwise it will be reversed, and the cause remanded for a new trial. It is so ordered.


text:
    Menzies Hardwood Company, Inc., v. Thompson.
    Opinion delivered November 19, 1928.

      Culbert L. Pearce, for appellant.

      C. E. Yingling, for appellee.
   Kirby, J.

Appellees, J. T. Thompson and M. E. Cbumley, each brought suit in the justice court against defendant, J. T. Miller, to collect certain amounts alleged to be balances due each of them for work and labor performed in the manufacture of lumber, and to enforce a laborer’s lien for the collection thereof. The other appellees intervened in the suit for the collection of amounts alleged to be due each of them for work and labor performed in the manufacture of the lumber. Appellant intervened, alleging that, prior to the time the complaint and interventions were (filed, it had purchased from the defendant 7,000' feet of oak lumber of the value of $322, which was purchased and delivered to it before the suits and interventions were filed. Claimed to be an innocent purchaser for value, without notice of the claims and liens, and further alleged- that no attachments were levied upon the property which was in its possession until alfter judgment was rendered for plaintiffs and the other interveners in the suit, of which it had no notice, either actual or constructive.

H. L. Stemple also filed an intervention, alleging that he had purchased from the defendant Miller, in good faith and for value, 10,000 feet of oak lumber of the value of $449'. In other respects his intervention contained the same allegations as the intervention of the appellant. These two interveners gave a forthcoming bond for $500 jointly.

The plaintiffs and five of the other interveners replied to the intervention of appellant, denying the allegations thereof.

Upon the.trial, judgment was rendered against the defendant Miller, the interventions of appellant company and Stemple were dismissed, ■ and judgment rendered against them and their surety in various amounts, in favor of the plaintiffs and interveners, aggregating $351.02. Appellant company and Stemple appealed to the circuit court, where the cause was heard by the court without a jury, and judgments rendered in favor of the plaintiffs and interveners each against the defendant Miller for certain specified amounts, upon which a credit of $45 was allowed for the sale of materials by the constable, not claimed by interveners, and also against appellant company and Stemple, intervener, and the surety on their forthcoming bond, for the amount of said judgments, less the credit of $45, and this appeal is prosecuted from that judgment.

The testimony shows that defendant Miller operated a small mill at Bald Knob from the latter part of June, 1927, to the middle of September, manufacturing oak, gum and hickory timber into pick, hammer and sledgehammer handles, lumber, cooking and stovewood. Appellant company, by written contract, agreed to and did advance money to him to take care of his payroll, and was to receive the entire output of manufactured oak at prevailing prices, to apply on the account for money advanced, and to pay the balance due thereon in cash. The .gum. and hickory was sold to other parties, and appellant company only advanced $1,100 on the payrolls, and only received, prior to the ■filing" of these suits, two small carloads of oak to apply on its indebtedness. Stemple, who was representing appellant company, had advanced $350 for the purchase of timber which was used in the manufacture of the materials attached. It appeared that some of the interveners and plaintiffs had worked for the defendant Miller from the time he began operations, and had been paid a portion of the amounts due for the labor in the manufacture of the lumber on each payday, there remaining due to each of them the amounts claimed and as found by the court, and for which judgment was rendered, except that J T. Thompson only claimed in his complaint $31.50, for which he alleged he was entitled to a lien. He admitted that he had done some work not on the material attached, but was given a judgment for $46.50 instead of the amount claimed. The claimants each testified that the work and labor done had been performed in the manufacture of the oak lumber attached.

It is insisted that the testimony was insufficient to warrant the judgment fixing the lien against the manufactured lumber for the amounts claimed by each of the laborers and also to identify the materials upon which the labor had been actually performed and for which they had not been paid. It is true the testimony shows that ■ hickory, gum and oak timber was manufactured, and that the laborers were employed in its manufacture, and the amount of hickory and gum manufactured was not definitely shown, appellants insisting that at least one-half of the labor was performed in the manufacture of the gum and hickory timber, but each of the claimants testified that the amount claimed was due for labor performed in the manufacture of the oak lumber attached herein and for which appellants had given the forthcoming bond.

The law gives a lien to the laborers who. perform work under a contract, either written or verbal, on the products of his labor, for the work done, subject to prior liens (■% 6848-64, C. & M. Digest), and the evidence herein tends to establish the liens as claimed. The claimants were entitled to liens upon the production of their labors, the oak lumber and manufactured products. Russell v. Painter, 50 Ark. 244, 7 S. W. 35; Klondike Lumber Co. v. Williams, 71 Ark. 334, 75 S. W. 854; Valley Pine Lumber Co. v. Hodgins, 80 Ark. 516, 97 S. W. 682.

It is insisted, however, that the claimants did not have liens for the full amounts claimed for work done on the oak lumber and manufactured products, since gum and hickory timber had also been manufactured along with the oak. It is true the testimony does not disclose exactly the amount or value of work done in the manufacture of the gum and hickory timber, but, as already said, the claimants, except J. T. Thompson, testified that they had done work to the value of the amounts of their claims in the production of the oak lumber and manufactured products, and this is sufficient to support the judgments. Bennett v. Snyder, 147 Ark. 206, 227 S. W. 402; Thomas v. Thomas, 150 Ark. 43, 233 S. W. 808; International Harvester Co. v. Layton, 148 Ark. 156, 229 S. W. 22.

As to appellee Thompson, such is not the case, since, according- to his own statement, he was not entitled to the amount allowed by the court, but only to a lien for $26.50, $5 less than the amount of his claim, for the two days ’ work which he stated was not done in the manufacture of the lumber attached.

The judgment will be modified accordingly, and, as modified, affirmed. It is so ordered. Costs of the appeal to be taxed against appellants.


author: Kirby, J.,

text:
    Fraternal Aid Union v. Allen.
    Opinion delivered November 19, 1928.

      Calvin T. Cotham, George R. Allen and A. W. Fulton, for appellant.

      Murphy & Wood, for appellee.
   Kirby, J.,

(after stating the facts). It is urged that the court erred in directing a verdict against appellant. The defense was on two grounds, misrepresentation of insured’s physical condition in answer to question 14 of the application in not stating that he had been treated for bronchial pneumonia about a year before his death, and because the insured was not in sound mental and bodily health when the policy was delivered.

Appellee, the mother of the insured and beneficiary in the policy, testified, and her testimony was not contradicted, that Smith, the soliciting agent, who did not testify, came out to her home and asked her consent to her minor son, Luther Homer Allen, becoming a member of the lodge and taking out a benefit certificate, which she agreed he might do if he thought he could pay the dues or premiums, and, the boy thinking he could, the agent filled out a blank application, which he had with him. .She and the boy answered all questions fully and truthfully, telling the soliciting agent that Dr. Hamilton had treated Luther in the summer before for malaria— the doctor said he was treating him for that; that Dr. Sanders had made one visit, and prescribed for Luther, but did not say for what he was treating him; and told the agent that he could telephone to Drs. Hamilton and Sanders and ascertain what his trouble was, but that Smith said that made no difference; that they would have a physician to examine the boy and find out what his present condition was. 'That Luther signed the application as made out by Smith, without reading it, and did not go then to the medical examiner with Smith, because of not having the time. Dr. Freeman was not present when the application was made out, and no claim is made that 'any false statements or answers were made to him.

Both Drs. Hamilton and Sanders, witnesses for appellant, testified that Luther did not have and was not treated for bronchial pneumonia by either of them at any time before his last illness. It did appear in the death certificate, as made out by Dr. Sanders, that, “about a year before his death, the boy had had bronchial pneumonia,” but the doctor stated that this was only an inference on his part, and should not have been put in the death certificate. Dr. Hamilton made only one visit to the boy, and gave him a prescription for malaria, and he was back at work in four or five days; and Dr. Sanders called once only, and thought he gave a prescription, but was not sure, and the boy was up and back at work in three or four days.

It is argued that there was collusion between the insured and the soliciting agent, but the evidence is undisputed that there was none. Neither the insured nor the beneficiary sought the insurance, which would not have been effected had not the soliciting agent come out to the home of appellee and procured the application. According to the undisputed testimony, the soliciting agent was fully and truthfully informed of the diseases that had been suffered by the insured in his answer to question 14 of the application, and the names of the physidans given, as well as the disease for which he had been treated, with the suggestion that he could call up the physicians and ascertain what the trouble was-. This information would have become the knowledge of the company, by which it would have been bound, even in spite of a provision in the policy to the contrary, the agent who solicited the business being charged with the duty of asking the applicant questions concerning his physical condition. So. Ins. Co. v. Floyd, 174 Ark. 373, 295 S. W. 715; Mass. Bonding & Ins. Co. v. Chapman, 176 Ark. 349, 3 S. W. (2d) 18; Springfield Mutual Assn. v. Atnip, 169 Ark. 968, 279 S. W. 15; United Assurance Assn. v. Frederick, 130 Ark. 12, 195 S. W. 691; American National Ins. Co. v. Hale, 172 Ark. 958, 291 S. W. 82; and Old Colony Life Ins. Co. v. Julian, 175 Ark. 359, 299 S. W. 266.

Then, too-, according to the undisputed testimony from witnesses introduced by appellant, the physicians who had treated the insured during the summer before his application for membership in the Union was made, he did not have and was not treated for bronchial pneumonia, and there could have been no falsity of such a warranty, if one had been made. There is no intimation in the whole record that deceased had suffered from bronchial pneumonia before making- his application for membership, except Dr. Sanders' statement in the death certificate, giving bronchial pneumonia, suffered the year before, as a contributing cause. This physician had treated him during the illness, and testified he did not have bronchial pneumonia then, that he only inferred it from the history of the case, in making out the death certificate, and that he should not have put that statement in the certificate.

We find no error in the record, and the judgment is affirmed.


author: Mehaffy, J:

text:
    Fort Smith v. Norris.
    Opinion delivered November 19, 1928.

      Daily & Woods and Pryor, Miles & Pryor, for appellant.

      Webb Covington, for appellee.
   Mehaffy, J:

The appellee, Tom B. Norris, brought suit in the. Sebastian Chancery Court, Fort Smith District, against the city of Fort Smith and its officials, to. enjoin them from interfering with his erecting a filling station on a. triangular tract of ground in the city of Fort Smith.

Appellee, alleged that he had secured a permit from the city to erect a filling station, and that the city had subsequently revoked said permit, without authority, and the city and its officials were trying to carry into effect this illegal cancellation by threats of arrest and interference with the building of said station. The appellee asked that the city and its officials be enjoined from interfering with plaintiff in the erection of said filling station.

Appellee also' alleged that he had leased the land where he was building the filling’ station from the owner, and that he did not agree and did not take the lease until he procured from the city and its officials a permit to construct the filling station. That he complied with the law in applying for the permit, and it was issued to him, and he thereupon entered into a lease contract for a period 'of five years, at a rental value of $50 per month, and bound himself for the payment of the rental of $3,000; that, after he had entered into the lease contract and begun work on the land, the city canceled the permit, without authority.

The city and its officials denied all the material allegations in the complaint, and alleged that Norris had never applied to the city for a permit on the property described, and had never published leg’al notice that he intended to apply for such permit.

On the same day that ‘appellee ‘filed suit, E. F. Creek-more, Sophronia Alexander and others filed suit in the same court against appellee, Tom B. Norris, in which they alleged that he was about to erect a filling station, as described in his complaint, and that the ground where he was about to erect the filling station was a distinctive residential neighborhood, and that the erection of a filling station thereon would constitute a nuisance. They asked that Norris and his associates be enjoined from erecting the station.

Appellee, Norris, filed answer to the complaint of Creekmore and others, denying the allegations in their complaint. The two cases were consolidated and tried together, and the chancellor entered a decree enjoining the city and its officials from interfering with the building of said filling station, and dismissed the complaint of ‘Creekmore and others for want of equity. The city and its officials and the plaintiffs in the other case have appealed to this court.

Norris, the appellee, introduced a lease, dated the 4th day of October, 1927, from A. T. Couch to Tom Norris, describing the property on which it was intended to erect the filling station. It was for a term of five years, beginning October 10, 1927, and having a rental value of $50 per ¡month, payable in advance. Appellee then introduced in evidence the following building permit:

“Fort Smith, Ark., October 5, 1927. Tom B. Norris is hereby granted permission to erect a frame filling station building 16'x9', with a shed 16'x2T, as per code requirements. Part of southeast quarter of southwest quarter, section 15-8-32, on lot.................., block............................ Addition to the city of Fort Smith, to cost about $650, same to be used as a filling station. Said application is in accordance with the requirements of ordinance No. 1338 of the ordinances of Fort Smith, Arkansas.'

“Cost of permit............................................................ ,....$1.00

“Inspection fee .................................................. 1.50

“Total ........................................................................$2.50

“O. A. Williams,

‘ ‘ Building Inspector. ’ ’

Norris conferred with some property owners before he leased the property, and they did not object to the erection and operation of the filling station.

Earl Henderson, city clerk, testified that the record did not show any permit to Norris, but showed the issuing of a permit to Kendall, and the clerk also testified that the publication of notice was by J. C. Kendall, and the notice was introduced in evidence.

Norris was recalled, and testified that he made the application in the name of his partner, Mr. Kendall.

There was proof introduced showing that the value of the property was approximately $3,500, and showing that the permit to Kendall had been canceled.

A number of witnesses testified about the noise and inconvenience of a filling station at the place and as to whether it would or would not decrease the value of the property. The city of Fort ¡Smith has no zoning district, but it has ordinances which require any one that wants to build a filling station to advertise, etc. The first section of the ordinance makes it unlawful to build or maintain a filling station in the city without obtaining permission, and requires an applicant for permission to give ten days’ notice by publication in the daily papers, for three consecutive days, of the intention to apply for such permission. The notice must state the place or location of the proposed filling station and the time when application will be made. If there is any remonstrance, a date _ is fixed for hearing, and a hearing is had upon the application and remonstrance.

The ordinance provides that the term, “filling station,” shall include any place where gasoline or oil is sold for use.in automobiles or trucks, and it provides for punishment for violation of the ordinance. The particular part of the ordinance involved here is that, if the commission shall decide that the erection of such filing station will endanger the public peace or safety of the residents of such community, or constitute a nuisance, or create an additional fire hazard, the comhnission shall take these facts into consideration in passing upon the application. And, if the commission determines that the filling station would not be in the interest of the welfare of the community affected, then said commission shall deny said permission.

In this case it is not contended that the filling station would endanger the public peace or safety of the residents or create additional fire hazard. The appellant contends for a reversal on the ground that the erection and operation of the filling station at the place proposed would interfere with the peace, comfort and repose of the plaintiffs in the suit against Norris. They cite and rely on Huddleston v. Burnett, 172 Ark. 216, 287 S. W. 1013. In that case the court said:

“The testimony introduced was directed to the sole issue presented by the pleadings, of whether the operation of a filling station and garage in that particular locality would constitute a nuisance that would result in irreparable damage to appellee. The trial court found that it would, and permanently enjoined the construction thereof, so the correctness of the finding and decree is before us for trial de novo. Tbe construction and operation of a filling station and public garage is a lawful business, and not a nuisance per se, but one cannot prosecute a lawful business in the neighborhood of a dwelling-house if the noise therefrom would render the enjoyment of it materially uncomfortable. ’ ’

The court also said in that case:

“A decided preponderance of the testimony adduced in the case was to the effect that the operation of a filling station and public garage upon the lot purchased by appellants for that purpose would produce a disturbing noise in the neighborhood, and particularly interrupt the peace and quietude of appellee’s home. The witnesses testified that a great many people on the much-traveled highway would stop and honk their horns for gas, and create much noise in stopping and starting their automobiles, testing their motors, etc. It strikes us that the creation of incessant noises of this character, in a strictly residential section, would constitute an intolerable nuisance in the neighborhood.”

In the case above referred to the filling station wias to be built not only in the residence section of the town of Atkins, but the lot upon which it was to be built adjoined appellee’s home on the east and Mrs. T. J. Robinson’s home on the west. Testimony also showed that thousands of automobiles and trucks passed upon the highway daily, and, in the tourist season of the year, passed both day and night. Appellee’s home was not only in a residence section, but located five or six blocks away from the business district.

Leigh Kelley testified that Mrs. 'Sophronia Alexander was his mother-in-law, and he acted as her agent in purchasing the property where she resides, and which, it is contended, the erection of the filling station would damage. This filling station is to be erected across the lot, not directly, but at a slight angle, about 100 feet from her property. The Hays property is also across the road from where the filling station is to be erected. There are no other business houses in the immediate vicinity.

Kelley testified that around filling stations there is always trouble about traffic, about turning in, or a ear going in and out. There is a certain amount of noise where the ears turn in and blow their horns for gas and oil, and a considerable amount of noise caused by minor adjustments to the motor, or starting a motor. He also testified that at nights automobiles turn into the filling station and throw their lights through the windows.

It will be remembered that the case referred to by appellants was a complaint about the erection of a filling station and a public garage, and a decided preponderance of the testimony showed in that case that the operation of the filling station and garage would produce a disturbing noise in the neighborhood; that a great many people on the much traveled highway would stop, honk their horns, and create much noise in stopping and starting and in testing their motors, etc.

In the instant case the preponderance of the evidence shows the contrary. One of the chief complaints in the instant case is that it would throw the lights of the automobiles in at the windows, but this testimony is conflicting, and the witness Kelley himself says that it is true that the Henderson house and Mrs. Black’s’ house are on a terrace, but cars coming west on Free Ferry Boad are higher up in the air. It might be possible for those cars to turn to the left and sweep those two houses with their lights.

Witness lives about three-eighths mile from this place where the filling station is to be erected. He says he thinks it will affect him, but he does not tell how. He admits that it will not reduce the value of his home at the present time, but may be a serious detriment later on.

Mr. T. J. Hays testified that the building of the station would not decrease the value of the property.

The next case referred to by appellants and relied on as authority for reversal is Chaplain Refining Co. v. Dougan, Okla., 270 Pac. 559. In that case the trial court found that the appellee’s property was in an exclusively residential district, and that the appellant was threatening to erect and had begun the construction of a public drive-in filling station near the residence of the property of the plaintiffs, and within 20 feet of the residence of Dougan; that it was the intention to operate it from 7 a.m. to 9:30 or 10 p.m. each day in the week, including Sundays, and that the automobiles and other motor-driven vehicles using gas and oil, getting water and air, would be continuously going in and out from early morning until late at night, stopping and starting, and that loud and unusual noises made by the cars and motor-driven vehicles and the reflection of lights from cars would constitute and be a continuous physical discomfort and mental and physical annoyance to the plaintiffs. And the Supreme Court of Oklahoma held that, upon examination of the record, it showed that the findings of the trial court were not clearly against the weight of evidence, and therefore, before they would be justified in reversing the judgment, they would have to> say that the proposed filling station within 20 feet of the residence of one plaintiff and 100' feet from the other would not constitute such a nuisance as the court of equity would enjoin. And the court further found in that case that “it clearly appears to us that the installation and operation of a drive-in filling station would interfere with the peace, comfort and quiet of plaintiffs, whose property is located within a strict residential district of Enid,” and that they should be protected against the annoyance and disturbance which would be caused by the said nuisances.

In the instant.case the preponderance of the evidence fails to show that the filing station, where it is proposed to be erected, would constitute a nuisance.

There is no dispute about the law. In the instant ease, however, it is a question of fact, and we cannot say that the findings of the chancellor were against the preponderance of the evidence. In fact, we think that a preponderance of the evidence sustains the chancellor’s findings. Unless the findings of a chancellor are against the preponderance of the evidence, this court -will not reverse. The law as to nuisance and what will constitute a nuisan.ce and justify a court of equity in enjoining it are well settled by the decisions of this court, but we deem it unnecessary to refer to those decisions or comment upon them, because, as we have already said, the decision of this case depends upon the evidence.

If the filling station, because of the manner of its operation, should at any time become a nuisance, it could be abated.

The chancellor’s findings, being sustained by the evidence, must be affirmed.


author: Mehaffy, J.

text:
    Yaffe v. Fort Smith.
    Opinion delivered November 19, 1928.

      Hill, Fitzhugh & Brizzolara, for appellant.

      Roy Gean, for appellee.
   Mehaffy, J.

The appellant, who was defendant below, had been operating a junk yard on the south side of the city of Fort Smith, near the yards of the Fort Smith & Western Railway Company, for a number of years. The scrap iron in which the defendant dealt was stored in three places; that is, three different piles. Appellant says that one pile is ordinary junk, another made up largely of automobile parts, and the third consisting of I-beams and structural iron, which was retailed by him for use in buildings. The three piles are within a block of each other. There are no residences near the junk yard, and the business enterprises near there were put there after the defendant established his junk yard.

The plaintiffs below were the city of Fort Smith, members of the board of health, and C. N. Geren, Allen Henderson, Tom Drake, L. S. O’Neal, Leon Williams and Mechanics ’ Lumber Company. All had business property in the vicinity of the junk yards. They alleged that the junk yards were a public and private nuisance; that appellant unlawfully, knowingly and willfully kept stored on the property used as a junk yard a large pile of old automobiles and parts, irons, steel, castings, rubber, bones of animals, tin cans, buckets, containers, glass jugs and jars, rags, boilers, pipes, sheet iron, and all kinds of old junk of almost every conceivable kind, character and description, all of which is piled in and on the streets and sidewalks, and piled under sheds and on vacant property, several feet high, much of which protrudes out on the sidewalks. That appellant burned rubber, which createcf offensive odors, and that there were many old containers that held water and created breeding places for mosquitoes; that it created an unhealthy, unsightly and dangerous condition, and that the plaintiffs suffered great and irreparable and continuing damage; that appellant had often been requested and demanded to abate the nuisance, but he refused to do so. It .is also alleged that the maintaining of the junk yard in the manner it was maintained impedes and prevents the development of that section of the city.

The plaintiffs below owned valuable property in the vicinity of the junk yard, and they alleged that rats accumulated and inhabitated in said junk yard, and that the accumulation of said junk at the yard constituted a serious menace to the public health, welfare and safety. They also alleged that there were offensive odors and fumes, and asked-that appellant be permanently enjoined and that he be required to abate such public and private nuisance.

The defendant filed a demurrer on the ground that the plaintiff had no legal capacity to sue, and also on the ground that the complaint did not state facts sufficient to constitute a cause of action. The .court overruled the demurrer.

The appellant then filed a motion to strike or dismiss as to the board of health and city of Fort Smith. Both parties agree that this motion was granted by the chancellor orally, but the record does not show this. The parties, however, would have the right to amend the record by agreement.

The answer admitted that appellant was maintaining a junk yard' within two or three blocks of Garrison Avenue, but he denied all the other material allegations in plaintiff’s complaint. He alleged that he was doing a lawful business, and that, under the Constitution of the State of Arkansas and of the United States of America, he is entitled to .conduct said junk yard; that it was not conducted in such way as to constitute a nuisance; that he had conducted a junk yard at that place for a long-period of years and.prior to the time of the erection of buildings by other property owners.

The court, after hearing the testimony, appointed a special .commission, with instructions to go in a body to the junk yard and determine upon the basis of a. decree, and to report whether it could be abated without its bodily removal. This - commission reported, recommending a perpetual injunction. This commission was appointed by the court without the knowledge or consent of either party.

The appellant then filed a motion to strike from the files the report of the special commissioners. This motion was overruled, and appellant excepted.

The-court rendered a decree against appellant, holding that the junk business was a nuisance, and enjoining appellant and his employees, as prayed for in the complaint, requiring appellant, before the first of July, 1928, to erect a-substantial cover over the junk piles, preventing the rain from becoming stagnant so as to prevent the breeding of mosquitoes. The decree also prevented the appellant from placing upon the premises any material except solid iron. This appeal is prosecuted to reverse said decree.

Allen Henderson, one of the plaintiffs, testified, identifying photographs, and stating that he had been in that locality for several years, and at various times had noticed rotten bones. Had also noticed cans that contained water. This-witness also said that the' defendant burned stuff at his junk pile every few days; burns rubber and other things that are offensive; that he had seen rats there, but did not know where they came from. Some of the junk extended out into the street. Old cars were parked around the place, and they were broken up with sledge-hammers. There were quite a lot of old. oil cans with water standing in them.

On cross-examination this witness said that one of the junk piles was back oif the O’Neal and Drake property, and on this property there were kept horses and mules.

Dr. Johnson, health officer of the city, testified that he made an investigation in August, 1927; saw a number of oars being dismantled on the sidewalk, and asked appellant to correct conditions. On a second trip there some of the conditions had been corrected and some had not. Appellant had put oil around in several places. At one place there was a half car-load of automobile tires, and some cans that contained water. Also found some tubs • containing fruit jars and fenders that contained water. Across the street he found probably half a carload of vessels that Mr. Yaffe said he bought at Camp Pike. They were pitchers, pans and like receptacles. Some of them contained water. After witness notified appellant, he removed the bones and the vessels he had bought at Camp Pike.

This witness, on cross-examination, itestified that these vessels had not been there for about five months. Witness testified that the bones were removed as soon as he notified the appellant. On his second visit there the vessels that contained water had been removed. It takes mosquitoes from 9 to 18 days to breed.

. Dr. Charles S. Holt testified that he was president of the board of health. He testified about the junk that was on the yards, and in this respect his testimony was substantially the same as that of Dr. Johnson. He also testified that anything that contains water may affect the health of the people. The junk was piled 15 or 20 feet high. This witness had told appellant that he would have to put a roof over his junk yards. Any place that would catch water would breed mosquitoes.

C. N. Greren, one of the plaintiffs, testified about the junk piles being unsanitary, and the wrecking of automobiles in the street, and that the junk was 15 or 20 feet high, but that he had never made any inspection of the junk piles; simply noticed them. Appellant will buy an old car and dismantle it. That they had the stuff on the streets. This witness owned cows and stock in the barn which was near this place.

L. S. O’Neal testified that the appellant had barrels standing near the building, and that he burns rubber and stuff, and you could smell it at times. That there were a lot of barrels and parts of automobiles about the place, and that it injured his property; that is, he could not rent it successfully. The barrels he saw were upside down, and he did not see any water in them.

Leon Williams, one of the plaintiffs, testified as to the junk and places holding water. That he was in the stock business. His barns are across the street from the junk pile, and he handled horses, cows and mules; kept an average of about 25 head. Also kept goats, chickens and other animals. The junk yard was there before he put his stable there.

M. J. Miller, one of the plaintiffs, testified substantially the same as the other witnesses about the junk pile, but he did not notice any green bones, and saw water only in a few places. Found some containers with water in them.

J. S. Hill, president of the Mechanics’ Lumber Company, testified about the junk pile; about there being metal, wooden barrels, fruit jars and bottles that have water in them at times, and that the mosquitoes are bad at his place at night. Saw some green bones there last summer, and they had a bad odor.

Dr. James A. Foltz, a witness for defendant, testified about examining the junk yard; and that he found nothing unsanitary about it. That it was unsightly, and there were bars or iron pipes and every sort of thing. That he was interested in the water containers open where mosquitoes could breed.

Dr. James A. Foltz, Dr. E. H. Stevenson and Dr. St. Cloud Cooper all testified, in substance, that they found nothing unsanitary about the junk yard.

C. T. O’Neill, general manager of the Fort Smith & Western Railroad Company, said, in substance, that he was familiar with the plane, and had never seen any stagnant water, either upon the ground or in vessels; no disagreeable odor, only the smell of oil. Never saw or smelled any green bones. The railroad company leases this property to appellant. He also said there were no residences in the immediate vicinity.

Louis Barry, superintendent of the Fort Smith & Western Railway Company, testified that he was familiar with the junk yard; saw it frequently; had never seen any mosquitoes about there, and had never detected any disagreeable odor. Sees a fire there frequently, but never noticed any bad odor.

D. M. Boles also testified substantially the same as other witnesses as to the condition of the junk yard.

W. E. Mueller testified that he was around the junk pile frequently, once or twice a week, and had never seen any water there. There is plenty of oil on everything. Sometimes he smells pieces of burning rubber and other articles, but there are other people in the vicinity who also burn trash and rubber — the Morris Elevator Company being one.

W. T. Oglesby, who was in the feed business, testified that he passed the junk yard frequently. Never saw any stagnant water about the place and never detected any disagreeable odors. Never smelled any bones; had seen trash burning, but had never detected any bad odors.

S. B. Bradley, the bookkeeper for the appellant, also testified as to the condition of the junk yard, and that there were no containers that hold water. That the place was saturated with oil. He also testified that automobile fenders are cut in small pieces so that no piece is more than a foot square and there is nothing about it that could hold water; that there had been no bones on the premises for some time. They were told to remove them,.and they shipped them out. They sometimes burn bits of leather and rubber.

H. B. Sanderson testified substantially the same as other witnesses about seeing no water or bones there, and that he had not noticed any disagreeable odor. He also said that he had seen fruit jars in barrels, but not arranged so that they held water.

The appellant himself testified at length about the condition of his junk yard, and that there were no containers that held any water. He said it would cost him $8,000 to move this junk to another place, and if he attempted to sell it at the present low market price he would lose $15,000. He testified that the blocking of the street was caused principally by persons driving automobiles and parking them there. He dismantles automobiles that he buys, and piles up the leather and sells that, and only burns the wooden part of the car. Does not use the sidewalk for his business. His fence did lean out over the sidewalk, but he corrected that. Buys all kinds of scrap iron, and all kinds of old machinery. Cuts them into small pieces, but never leaves any of it so it will hold water. He has never seen any mosquitoes about his junk yard. There are no standing pools of water there. After a rain there may be water in places, and then the oil is put there.

It would serve no useful purpose to set out more of the testimony. We have called attention to the evidence sufficiently to show that it was conflicting, and the chancellor found on conflicting evidence that the junk yard, as maintained and operated, was a nuisance. The general rule is stated as follows:

“But. the unsightly appearance of a vacant lot, caused by its being used as a dumping ground for refuse material, does not of itself constitute it a nuisance to an adjoining owner nor entitle him to damages. Inasmuch as filth, refuse and garbage may constitute a nuisance unless disposed of in a suitable manner, it is generally conceded to be within the power of municipal authorities to enact ordinances providing for the collection and disposal of such matter. Indeed, the courts seem to be agreed that, in the exercise of the police power, the authorities of a municipality may rightfully require the destruction of garbage and refuse, even when they contain some elements of value. The municipal authorities, it is held, may regulate the removal and disposition of such substances, designate the agents who may rightfully remove and dispose of the same, and prohibit all persons except the designated ones from /carrying such substances through the streets of the municipality. ” 20 R. C. L. 424.

It has also been said: “It seems that a municipal corporation has power, without special legislative grant, to prohibit the erection of works and factories and the pursuit of industries within the corporate limits which will be injurious to the public health, and destructive of the comfort of the inhabitants, by subjecting them to offensive odors, fumes, noises, or vibration. * * * Again, neither the Legislature, nor a municipal body to which the Legislature has delegated power to control nuisances, may authorize a business to be conducted in such a manner as to constitute a nuisance. The maintenance of a manufacturing establishment which, though skillfully operated, covers neighboring property with smoke, soot and cinders, and causes the buildings thereon to vibrate, or reduces their rental and market value, has been held actionable in a State in which the constitutional amendment against uncompensated damage has been adopted, although expressly authorized by the Legislature.” 20 E. C. L. 442.

The evidence in this case tends to show that there were containers which hold water among the junk deposited on the lot, and that this will breed mosquitoes, which will affect the health of the persons in that vicinity. In fact, the chancellor found that these facts are established by the evidence.

This court has said: “The maxim, ‘use your own property so as not to injure another,’ is peculiarly applicable in nuisance cases. If one does an act, in itself lawful, which yet, being done in that place, necessarily tends to the damage of another’s property, it is a nuisance; for it is incumbent on him to find some other place to do that act, where it will be less offensive. * * * That is a nuisance which annoys and disturbs one in possession of his property, rendering its ordinary use or occupation physically uncomfortable to him. For such annoyance and discomfort the courts of law will afford redress by giving damages against the wrongdoer, and, when the causes of annoyance and discomfort are continuous, courts of equity will interfere and restrain the nuisance. ’ ’ Bickley v. Morgan Utilities Co., Inc., 173 Ark. 1038, 294 S. W. 38.

This court quoted with approval from the case of Owens v. Phillips, 73 Ind. 293:

“The right of appellants was not merely to have their house protected from wrongful injury, but they had the further right to he protected in its comfortable enjoyment. Noises, odors, smoke and dust may possibly work the house itself no material injury, and yet render it impossible for the owner to live in it with comfort. The appellants were not bound to -prove both an injury to the property itself and an interference with its enjoyment. * * * It is true, as a general rule, that such acts as result in a mere diminution in value of property, which can be fully and readily compensated in damages, will not supply grounds for an injunction, and parties will be left to the redress afforded by an action for damages. But, while this is true, it by no means follows that interference with the enjoyment of the property will not furnish grounds for relief by injunction, although the property itself may sustain no physical injury whatever. The right to enjoy property is as much a matter of legal concern as the property itself. * * * The owner of property is entitled to enjoy the ordinary comforts of life, and that right is not to be measured by the notions of the people of a particular locality. * * * No man has a right to take from another the enjoyment of what are regarded by the community as the reasonable, and essential comforts of life, because the notions of the people of a given locality may not correctly estimate the standard of such comforts. ’ ’ Durfey v. Thalheimer, 85 Ark. 544, 109 S. W. 519.

The evidence in this case, however, indicates that appellant’s junk piles may be so protected that no water can get into the containers and so protected that there may be no danger of breeding mosquitoes. And we think that the junk piles complained of should have a roof over them, and be so protected that there would be no chance for water to accumulate in containers and no chance for the breeding of mosquitoes, and appellant should be required to do this without any unnecessary delay.

Appellant, however, contends that it would cost him $8,000 to move the junk pile to another place. • It is not shown what the cost would be to put a roof over it and protect it so that it would not constitute a nuisance. He also says that if he had to sell it at the low market price lie would lose $15,000. But, whatever the cost may be, either to move it or to protect it by a roof, it is the duty of every one to so use his property as not to injure that of another.

This court has said: “It is conceded that the operation of a hide and fur business is not a nuisance per se, but the contention is that the operation in the manner in which it is carried on in the locality where the place of business is situated [constitutes a nuisance, and we are of the opinion that the preponderance of the evidence sustains this contention. The case affords, perhaps, an example where a business established at a place remote from population is gradually surrounded and becomes a part of a populous center, so that a business which formerly was not an interference with the rights of others has become so by the encroachment of the population. Under these circumstances, private rights must yield to the public good, and a court of equity will afford relief, even where a thing, originally harmless, under certain circumstances has become a nuisance under changed condition.” Ft. Smith v. Western Hide & Fur Co., 153 Ark. 99, 239 S. W. 724.

Appellant’s business has been established for a number of years, and at the time it was established it was probably not an interference with the rights of any one. But it has become so because of the growth of the city, and, having become so, the private rights of appellant must yield to the public good.

We have therefore reached the conclusion that the appellant should be required to protect the property, as above indicated, without unnecessary delay, and that, if he does not do so, he should Ibe required to remove it. The appellant should be permitted to put a roof over his property and protect it in the manner herein indicated within a, reasonable time. And, unless it is so protected that it will not be a nuisance, he should be required to remove it. He may be required to remove it at any time if it becomes a nuisance. The junk pile, of course, can be abated by proper proceedings if at any time hereafter it shall become a nuisance.

The decree of the chancery court is. reversed, and the cause is remanded with directions to the court to render a decree in accordance with this opinion.