text:
    Arkansas State Highway Commission v. Dodge.
    4-2888
    Opinion delivered November 28, 1932.

      Hal L. Norwood, Attorney General and Walter L. Pope, Assistant, for petitioner.

      Coleman é Riddick, for respondent.
   Butler, J.

The respondent has made a concise statement of the case, which we adopt and set out as follows:

“E. J. Lynch and H. Levinson, doing business as E. J. Lynch & Company, brought a suit in the Pulaski Chancery Court against the chairman and members of the Arkansas State Highway Commission seeking to recover, as upon a quantum meruit,-the value of labor and materials furnished the commission in the construction of certain roads and bridges in the State highway system. The highway commission filed a demurrer to the complaint upon the ground that the Pulaski Chancery Court was without jurisdiction of the case because it is one against the State of Arkansas. The demurrer was overruled. The Commission thereupon filed in this court a petition for a writ of prohibition to prevent the chancery court from proceeding with the case.

“In the case in the Pulaski Chancery Court it is alleged and admitted by the demurrer that the plaintiffs performed the work for the highway commission under certain written contracts requiring the construction of roads and bridges in the State highway system, and, further, that the work performed, labor done and materials furnished were in every respect in accordance with the plans and specifications of the State Highway Commission applicable to such construction work; that, after performance, the Highway Commission accepted the work, labor and materials furnished by plaintiffs; and that the roads and bridges built are now in use by the public as a part of the State highway system.

‘ ‘ The suit in the chancery court is brought to recover upon a quantum meruit for the reasonable and fair value of materials and labor furnished, because, though the work was done under written contracts, let after competitive bidding, there was no previous advertisement of the work as required by the statutes of this State.”

It is conceded that, if the petitioners are correct in the position taken, and that the court improperly overruled the demurrer, prohibition is the proper remedy. Section 4, art. 7, of the Constitution; Monette Road Imp. Dist. v. Dudley, 144 Ark. 169, 222 S. W. 59; Roberts v. Tatum, 171 Ark. 148, 283 S. W. 45; Ark. State Highway Commission v. Dodge, 181 Ark. 589, 26 S. W. (2d) 879. It is insisted by the petitioner that tbis is a suit against the State, differing' in essential particulars from Ark. State Highway Commission v. Dodge, supra, and that this snit cannot be maintained because of § 20, art. 5, of the Constitution, which provides: “The State of Arkansas shall never be made a defendant in any of her courts. ’ ’

It is secondly insisted that, even though the suit might be maintained, the State is under no liability to Lynch & Company, and that, if there is a moral obligation, the G-eneral Assembly is the only source of relief. It seems to us that a consideration and discussion of the second point raised would at this time be premature and improper. The question we should now determine is, has the court below jurisdiction to hear and determine the case? and, if so, the question of liability would be first for its decision. Therefore, we proceed to a consideration of the question whether the suit can be maintained against the petitioner.

In Ark. State Highway Comm. v. Dodge, supra, where the right to maintain a suit against the Highway Commission was upheld, the case of Grable v. Blackwood, 180 Ark. 311, 26 S. W. (2d) 41, was cited in support of that holding. That was a suit brought against the State Highway Commission to enforce the payment of outstanding indebtedness incurred prior to January 1, 1927, against a road improvement district under act No. 153 of the Acts of 1929, which provided for the ascertainment of valid outstanding indebtedness incurred prior to the date mentioned against any road district, and for the payment thereof by the Highway Commission out of appropriations provided for the payment of road district bonds and interest obligations. Act No. 153 and the right of the plaintiffs to maintain the action was attacked on various constitutional grounds, but § 20, art. 5, was not invoked. It was held that the act did not violate the Constitution, and that the suit might be maintained against the Highway Commission. The case of Urquhart v. State, 180 Ark. 937, 23 S. W. (2d) 963, was also cited in the majority opinion in support of the conclusion reached by the writer. That case was really an issue as to the extent of the liability of the State for interest upon a contract to purchase a State convict farm and the suf.-fieiency of the appropriation to discharge the obligation, when its extent was adjudged by the courts of Pulaski County, the agencies created for that purpose. The following quotation was made from Urquhart v. State, supra: “The Legislature itself might have ascertained the amount, both of principal and interest, and have made an appropriation accordingly, but it elected to constitute another agency to make this finding of fact, and made an appropriation in what was assumed to be a sufficient amount to pay both the principal and interest, and, under the remittitur which has been entered, the appropriation is sufficient,” and the court said: “It is true that suit was brought by the State, as the act provided it should be, but the act also provided that the State’s vendor might litigate his claim for interest, and that either party should have the right to appeal from an unfavorable decision. ’ ’

Mr. Justice Smith and Mr. Justice Mehaffy adopted the reasoning of Mr. Justice Graves in the case of State, etc., v. Bates, 317 Mo. 696, 296 S. W. 419, and quoted with approval from that opinion as follows: “It (State Highway Commission) is an entity, with powers of a corporation, established and controlled by the State for a specific public purpose, but that does not make this legal entity the sovereign State. No contract it is authorized to make is made in the name of the State, but in the name of the Commission. The sovereign State could have contracted for the building of its public highways in its own name, but it chose to create a legal entity for this work. This act gave to this legal entity no part of the State’s sovereignty, but authorized it to proceed to do certain work which the State could have done by private contract made direct with the State. Thus it has been well said in 14 C. J., at page. 75: ‘Although a corporation may be public, and not private, because established and controlled by the State for public purposes, it does not necessarily follow that such a corporation is in effect the State, and so not subject to the rules of law governing other corporations, for the State may, by engaging in a particular business through the instrumentality of a corporation, divest itself pro hac vice of its sovereign character, so as to render the corporation subject to the rules of law governing private corporations. Thus, although incorporated banks, established by the State for its own public purposes and owned and controlled entirely by the State, are undoubtedly public corporations, it has been held that they are not for that reason invested with the attributes of sovereignty, but are mere corporations, and subject generally to the rules of law governing other corporations.’ ”

The conclusion was that the Highway Commission, as created and functioning, was in effect a quasi corporation clothed with the power to make contracts in its own name, and to discharge obligations out of moneys appropriated for the purpose of enabling it to carry out the duties prescribed by law, and that it was therefore an entity or juristic person, and suits against it arising out of an alleged default in its obligations in the conduct of the business intrusted to it would not be suits against the State, and that the action was authorized. Chief Justice Hart and Mr. Justice Humphreys, concurring, were of the opinion that the Highway Commission was but an agency of the State. They held, however, that § 20, art. 5, of the Constitution, properly interpreted, was merely a declaration of the general rule that a State may not be sued without its consent, but that the State had consented that suit be maintained against this agency, and said: “We can perceive no good reason why a State should not consent to being sued in her own courts upon such terms and conditions as her Legislature might prescribe. We do not think that the consent can be given except by the Legislature, which alone can declare the public policy of the State. If the State is to exercise its sovereign power in building roads, and in constructing bridges across navigable streams, it would seem that there should be a tribunal somewhere which might pass upon the claims of those with whom the agency of the State had contracted with reference to the matter, and what tribunal could be a more appropriate and safe guaranty of the equal protection of the laws than the courts established by the State for the protection of its citizens, and for such citizens who might come within its borders for pleasure or gain. * * * It seems to us that the State’s sovereignty will be better preserved and protected by holding that a State may through its Legislature waive its immunity from suit and select the forum and prescribe the terms and conditions upon which it may be sued than to allow the Legislature to parcel out the State’s sovereign functions to various bodies, by whatever name called, and allow them to be sued, thereby accomplishing by indirection what they say the State may not do directly.”

The writer, Mr. Justice Kirby, and Mr. Justice Mo-Haney, dissented from the reasoning and conclusions reached by the other members of the court for the reason, as stated in our concurring opinion, in the case of Baer v. Ark. State Highway Commission, 185 Ark. 590, 48 S. W. (2d) 842, that, in our opinion, the Highway Commission was merely the agent through which the State acted, and, construing art. 5, § 20, as mandatory, we thought that under no circumstances could suits against the State Highway Commission be maintained. That case was decided also by a divided court, one view being that the suit which sounded in tort might be maintained under the authority of the Dodge case, supra, but that there was no legislation authorizing such character of suit. The Chief Justice, dissenting, insisted, as in the Dodge case, that there was no constitutional inhibition against the power of the State to consent to being sued in its courts, and very justly argued that, since it is recognized that the Legislature might establish commissions to pass upon the validity of claims and for their establishment, it would be unreasonable to deny it the right to designate the courts as. forums for such investigation, and said: “It seems anomalous to us to say that the framers of the Constitution meant to say that the State, through its Legislature, could not provide the particular court or courts in which claims might he established, but could provide for their establishment before the Highway Commission or other board or court of claims. Such counee would be unnecessarily cumbersome and expensive, and less in keeping with the dignity of the State than to allow itself to be sued in its own constitutional courts upon such terms and conditions as its legislative body may prescribe. * * * We do not think that the act limits claims to those founded on contract. If the Hig’hway Commission negligently injures a person in the construction of the State highways, there would be the same liability under the act as where it took or injured property, or committed a breach of contract relating to road construction.” To this construction of the statute, Mr. Justice Mehaeey agreed.

It will be seen that, out of the conflicting views of a majority of the several members of the court, a very definite result has been reached, i. e., that in a proper case the Highway Commission may be sued when authority for the bringing of the suit may be found in the statute. Since this is the effect of the holding in both the Dodge and Baer cases, supra, we think it more important that this question be definitely settled than a too firm insistence be held to our individual views, and we now hold that, in all cases where the statute authorizes a suit, it may be maintained against the Highway Commission, whether it be thought to be a juristic person or whether § 20, art. 5, be merely declaratory of the general doctrine that the State may not be sued in her courts unless she has consented thereto.

The question remains, is this suit authorized by the statute? There are a number of statutes which authorize suits against the Highway Commission and which were considered by the court in previous cases, including the Grable, Dodge and Baer cases, supra. We have held that suits ex contractu and for damages to property taken or injured in its exercise of the right of eminent domain are authorized by statute, and three óf the justices have thought the statutes broad enough to include actions for recovery of damages for personal injuries. In that view, certainly, a suit upon quantum meruit, which is a contract the law implies, would come within the purview of the statute. One of the acts authorizing the bringing of suits against the Highway Commission is act No. 2 of the special session of 1928, but which the office of the Attorney General, in its able brief, contends was not within the purview of the Governor’s call, and, because of that, invalid. It is argued that, since the call was “to enact a statute to require bonds in certain suits against the Highway Commission,” this related only to suits of such a character as were then pending or threatened in the courts, and the authority to sue given by the act must be limited to suits of that nature. We do not think the language used justifies that narrow construction. It did not say in so many words that it related only to suits then pending, and this was not the way in which the Legislature construed the call. We must therefore, under well-settled rules, where the question is doubtful, place the same interpretation on the call as the Legislature. As we have seen, the Legislature in a number of acts has signified the State’s assent to suits against the Highway Commission, and again registered that assent by § 17 of act 15 of the special session of 1932. The question of the validity of this act is now pending, but, whether valid or not, it is an indication of the Legislative will, but without it the authority sufficiently appears, and; if the act be upheld, it of itself makes absolute that intention.

In Leonard v. State, 185 Ark. 998, 50 S. W. (2d) 598, in holding that the Commission was required to let contracts for the construction and maintenance of highways in conformity with the requirements of the statutes, and that its neglect to do so rendered such contracts void, where it was argued that, although the contracts be held void, the contractors should not be precluded from setting up whatever rights they might have, based upon quantum meruit, we said: ‘ The only question presented by this appeal, the only one urged by appellants, and the only one we do decide, is the validity of the contracts mentioned in the bill of complaint”; and, in response to the argument that there might be contractors who, by reason of having furnished labor and materials to the Commission in the construction and repair of roads, and who had certain personal defenses or rights, ought to recover, even though the contracts might be void, we further said: “We are not undertaking to adjudicate any such rights in this opinion. ’ ’

The result of our views is that the court below has jurisdiction to hear and determine the question of liability of the Commission, and its extent, for the work and material of which it has received the benefit. It follows therefore that the writ is denied.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Taylor v. State use Sevier County.
    4-2784
    Opinion delivered December 5, 1932.

      Sam Forex and Nat R. Hughes, for appellant.

      J. M. Jackson, E. K. Edwards, Abe Collins, Lake, Lake ■& Carlton and B. E. Isbell, for appellee.
   Humphreys, J.

Appellee intervened in the proceeding to liquidate the assets of the American Exchange Trust Company of Little Rock pending in the chancery court of Pulaski County to obtain judgment for $34,506.40 against the Bank Commissioner and liquidating agent, in their official capacities, for an alleged trust fund derived from the sale of bonds of Sevier County issued for the' purpose of building a courthouse, and to have the amount allowed as a preferred claim.

Appellant filed a response, denying the alleged indebtedness and the right of appellee to have any amount allowed as a general or preferred claim.

The cause was submitted upon the pleadings and testimony, which resulted in a finding and decree against appellants in their respective capacities as State Bank Commissioner and liquidating agent of the American Exchange Trust Company for the total sum of $33,649.67 as a preferred claim to he paid out of any funds in their hands for the payment of preferred claims, and that bonds substituted for Sevier County bonds and delivered to appellees should be returned to appellants, from which findings and decree, adverse to the respective parties, each appealed.

The following facts are reflected by the record:

Bonds legally voted and issued in the sum of $110,-000, to obtain money with which to build a new courthouse in Sevier County, were sold on June 2, 1930, to M. W. Elkins & Company, of Little Rock, Arkansas, which sale was confirmed and approved by the county court of Sevier County. The county judge addressed a-letter to the American Exchange Trust Company in the following words and figures:

“De Queen, Arkansas.

“June 14, 1930.

“Mr. J. B. Webster, Trust Officer, American Exchange Trust Company, Little Rock, Arkansas.

“Dear Sir:

“We are shipping to you $110,000 Sevier County, Arkansas, 5 per cent, courthouse and .jail bonds to be delivered to M. W. Elkins & Company at par flat, as the full purchase price of the issue is $110,000 flat. The bonds are to be delivered to M. W. Elkins & Company as follows:

“When they receive the approving opinion of B. H. Charles, St. Louis, they agree to take up $3,000 of the bonds and balance on architect’s monthly estimates for work done. You are further authorized and instructed to deliver, all or any part, any maturities, of the bonds to M. W. Elkins & Company at the above price from time to time, as they may request. You are to allow M. W. Elkins & Company to substitute this account with bonds of the county or other municipal bonds of equal par value.

“When you have received the first cash payment, please deposit same in your bank. The balance of -the funds are to be drawn out on architect’s estimates for work done by drafts on M-. W. Elkins & Company, care of your bank, signed by the county judge, with a copy of the architect’s estimate attached, once each month, beginning thirty days from the date the work starts.

“Yours very truly,

“J. C. Arnold,

“County Judge of Sevier County, Arkansas.”

This letter of instructions was enclosed in a letter from the attorney employed by Sevier County to the American Exchange Trust Company and mailed to it on June 16,1930. The letter of the attorney is as follows';

“American Exchange Trust Company,

“Little Rock, Arkansas.

“Dear Sir:

“Attention, Mr. J. B. Webster, Trust Officer.

“I am shipping you under separate coyer, by prepaid express, $110,000 of Sevier County, Arkansas, 5 per cent, courthouse and jail bonds, and I am handing you herewith a letter of instructions, signed by the county judge, a nonlitigation certificate and a treasurer’s receipt. You will note in the letter of instructions that you are requested to deposit the cash payment of $3,000 in your bank. Please advise me promptly as soon as this money is deposited.

“Very truly yours,

“Abe Collins.”

Elkins & Company sold the Sevier County bonds from time to time and deposited the cash received from them in the trust department of the American Exchange Trust Company, under an agreement with it that the money might he withdrawn by substituting other bonds for the amounts drawn out. Some of the money was paid out on the county judge’s drafts drawn on Elkins & Company with architect’s estimates attached. The result was that, when the American Exchange Trust Company closed its doors, practically all the money derived from the sale of the Sevier County bonds which had not been expended for the construction of the courthouse and to pay the fiscal agent’s fee to Elkins & Company had been converted by Elkins & Company into bonds of little value, some of which were entirely worthless. Later, the Bank Commissioner and liquidating agent of the American Exchange Trust Company refused to act further in collecting the bonds which had been substituted for the money derived from the sale of the Sevier County bonds, and, by agreement, said substituted bonds were transferred to a depository bank in Sevier County, where a portion of them were sold. The original Sevier County bonds were sold to Elkins & Company, supposedly at par, but a fiscal agent’s fee was allowed to a man by the name of Toland, and was paid to Elkins & Company ont of tlie funds derived from the sale of the bonds, so that in fact they were sold to and purchased by Elkins & Company below-par. On the day the defunct bank closed its doors, there was enough cash on hand to pay all preferred claims, and also to pay the balance due Sevier County, if classed as a preferred claim.

The trial court found that the letter of instructions only authorized the substitution of other bonds for Sevier County bonds by Elkins & Company, and did not authorize Elkins & Company to substitute other bonds for money derived from the sale of the Sevier County bonds, and we agree with the court’s interpretation of the letter of instructions. The only object in selling the Sevier County bonds was to obtain money with which to build a courthouse. Such purpose was accomplished when the Sevier County bonds were converted into money. It would have been beside and beyond the object .and purpose to be attained if the letter of instructions meant that Elkins & Company might purchase other bonds with the money derived from the sale of the 'Sevier County bonds. Such interpretation would have permitted Elkins & Company to use Sevier County money derived from the sale of its bonds to speculate in the bond market. The only authority in the law for handling the proceeds from the sale of the Sevier County bonds was to pay the public fund thus derived to the treasurer of Sevier County for the purpose of placing it in the county depository, all in accordance with the provisions of act 163 of the Acts of 1927 and act 139 of the Acts of 1931.

We also agree with the chancellor that appellants were entitled to an accounting for the amount of the fiscal agent’s fee paid, indirectly to Elkins & Company out of the funds derived from the sale of the bonds of Sevier County. The constitutional amendment under which the bonds were issued and sold inhibited a sale of them below par, and to deduct and pay a fiscal agent’s fee indirectly would permit a sale of them below par.

"We also agree with the chancellor that the amount of the public fund derived from the sale of the Sevier County bonds was and is a trust fund. The trust department of the American Exchange Trust Company accepted the bonds for collection and thereby agreed in writing to pay over the fund collected to the county judge of Sevier ■County on his drafts, in such amounts as- were needed, monthly, to pay for the construction work on the courthouse as it progressed, according to architect’s estimates attached to drafts. No authority was given in the letter of instructions to deposit more than the $3,000 first collected to the credit of Sevier County, which amount was drawn out long before the doors of the American Exchange Trust Company were closed. According to the authority in the letter of instructions, the balance of the fund was to be held to pay drafts drawn on Elkins & Company with architect’s estimates attached. This fund therefore was necessarily a trust fund in the hands of a trustee for a particular purpose, evidenced by writing, and was not to be mingled with the general funds of the American Exchange Trust Company. Under subdivision 5 of § 1, act 107 of the Acts of 1927, the fund became an express trust to which appellees were entitled to the exclusion of general creditors.

We also agree with the chancellor that the transfer of the substituted bonds by agreement to the depository in Sevier County and a sale of a part of them did not estop the county from claiming the balance of the trust fund rightly belonging to it. The fund was a public trust fund, and there was no authority in the law for the county judge or any other public official to waive the county’s right to it.

It follows, as a matter of course, that the county has no rig’ht or title to the substituted bonds. The chancellor correctly ordered that they be returned to appellants.

The decree is affirmed on both the appeal and cross-appeal.

Smith and McIíaNey, J J., dissent.


author: Mehaeey, J.

text:
    Dozier v. Ragsdale.
    4-2881
    Opinion delivered December 5, 1932.

      J. V. Spencer and Marsh, MeKay & Marlin, for appellant.

      Coulter i& Coulter, for appellee.
   Mehaeey, J.

A number of citizens of Union County, Arkansas, filed their petition to initiate a local or special statute for the purpose of fixing the compensations and expenses of certain officials of Union County, Arkansas, and fixing’ the number of their deputies, assistants and clerks, and their salaries, and of fixing the manner in which, such compensations and salaries shall he paid, and for the purpose of effecting economies in the expense of government in said county.

The Initiative and Referendum Amendment to the Constitution provides: “The initiative and referendum powers of the people are hereby further reserved to the legal voters of each municipality and county as to all local, special and municipal legislation of every character in and for their respective municipalities and counties, hut no local legislation shall be enacted contrary to the Constitution or any general law of the State, and any general law shall have the effect of repealing any local legislation which is in conflict therewith.

The amendment further provides that in counties the number of signatures required upon any petition shall be computed upon the total vote cast for the circuit clerk. The time for filing the petition is then fixed by the Amendment.

Act 356 of the Acts of 1927 provides that the petition shall be filed with the county judge at least 60 days before the election, and that the county judge shall submit all such petitions to the county election commissioners, who shall place the matters petitioned for in the proper form on the tickets provided for the next general election of county officers, stating plainly and separately the matters initiated or referred, with the words “for” and “against” each measure.

The act further provides that, when any measure initiated or referred shall receive a majority of the votes in the county cast upon the subject, it shall immediately become a law.

In 1910 the people of Arkansas adopted a constitutional amendment reserving the right and power to themselves to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly. That amendment undertook to provide for local legislation, but it read: “The people of each municipality, each county and of the State reserve to themselves power to propose laws and amendments to the Constitution, and to enact.or reject the same at the polls, independent of the legislative assembly,” etc.

No one doubted at the time, and no one doubts now, that the people, in adopting this amendment, thought they were providing for local legislation in counties by initiating acts. But it will be observed that the reservation of power and authority to initiate and enact laws was in the same paragraph that the power was reserved to enact constitutional amendments, and this court held that that part of the amendment adopted in 1910 was meaningless.

The court said that the people of municipalities and counties, never having possessed the sovereign legislative power apart from the other people of the State, could not reserve the power to counties and municipalities to adopt constitutional amendments. The court further said that courts cannot supply legislative defects and omissions ; that, whenever a provision is left out of a statute, either by design or mistake of the Legislature, the courts have no power to supply it.

It was held by this court that the question for the interpreter is not what the Legislature meant, but what its language means. Hodges v. Dawdy, 104 Ark. 583, 149 S. W. 656.

It will be remembered that the amendment construed by this court in the case of Hodges v. Dawdy, supra, was adopted in 1910. Thereafter the present amendment was adopted, and, in submitting the present amendment to be voted upon, the provision for the Initiative and Bef eren-dum Amendment as to counties was in a separate paragraph, in which the amendment was not mentioned. It simply provided for local, special and municipal legislation of every character in and for their respective municipalities and counties. The fact that the people adopted this provision a second time, and having written it in such plain language that it cannot be misunderstood by any one, shows clearly that they intended to reserve to themselves the right to pass all local laws affecting the counties. In addition to this, in 1926 the people initiated and adopted an amendment to the Constitution which reads as follows:

“The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.”

It is therefore seen, not only that the people reserve to themselves the power to legislate as to the local affairs of the county, hut they adopted an amendment expressly prohibiting the Legislature from passing any local or special law.

The appellant, however, contends that the measure adopted by the people of Union County is contrary to the general law of the State, and therefore violative of the constitutional amendment which prohibits counties from enacting local legislation contrary to any general law of the State.

Appellant cites and relies on act 216 of the Acts of 1931. That, however, is not a general law fixing the fees of the county officers of the State, but that law provides that the Legislature has determined and declared that the fees now being drawn by the different county officers, according to the provisions of general statutes of the State, and special and local acts, are based on proper classification, and that they shall continue to receive the salaries and fees under said local and special acts. Therefore the act itself provides that they are still receiving the fees and salaries under special acts, and not under general acts. We do not think the people had in mind legislation of this character in adopting the amendment which provided that no local law shall be enacted contrary to a general law.

Under this amendment the people of the county could not enact a law contrary to a general law which operated uniformly throughout the State, like the criminal laws of the State, but the fixing of fees and salaries of the county officers is purely a local matter, and is not of interest to persons except the taxpayers in the particular county where the law is enacted. The fixing of salaries and compensations to be paid county officers is of peculiar interest to the taxpayers of the county, and it was legislation of this kind that the people intended to provide for. No local matter could he more important to them.

The Legislature passed a law fixing the fees to be collected by the sheriff of Crawford County, and we said: “The trial court ruled that the act was void because the enactment thereof was prohibited by Amendment No. 14 to the Constitution of the State of Arkansas, which is as fallows: £ The G-eneral Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of any local or special act.’ ” Smalley v. Bushmiaer, 181 Ark. 874, 31 S. W. (2d) 292. The court cites a number of cases, among others, Webb v. Adams, 180 Ark. 713, 23 S. W. (2d) 617. In that case the court held that the exclusion of a single county from the operation of the law malíes it local, and the court said: “It cannot be both a general and a local statute.” See also Simpson v. Matthews, 184 Ark. 213, 40 S. W. (2d) 991; Street Imp. Dists. Nos. 481 and 485 v. Hadfield, 184 Ark. 598, 43 S. W. (2d) 62; Smith v. Plant, 179 Ark. 1024, 19 S. W. (2d) 1022.

It is a well-settled principle of statutory construction that statutes should receive a common-sense construction, and, when this whole amendment is construed together as it should be, and a common-sense construction placed upon it, the conclusion that fixing compensation for county officers is a local act cannot be escaped. We have also held that an act which provided for open and closed seasons for killing squirrels, Avhich exempted certain counties from its operation, was a local act. Dupree v. State, 184 Ark. 1120, 44 S. W. (2d) 1097.

We have also held, under these amendments, that an act placing the treasurer and clerk of the county and probate courts on a salary is a local act, and not within the power of the Legislature. Cannon v. May, 183 Ark. 107, 35 S. W. (2d) 70; Board Com’rs of Red River Bridge Dist. v. Wood, 183 Ark. 1082, 40 S. W. (2d) 435.

That this act is local is beyond question. Moreover, we think it the very kind of local legislation that the people intended to provide for.

It is next contended that-the Initiative and Referendum. Amendment to the Constitution is not self-executing. However, this court said in the case of Hodges v. Dawdy, supra: “We have already held that the amendment is in force, and is self-executing as to general laws initiated by or referred to the people of the whole State. Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S. W. 199.”

There is no difference, as to the amendment being self-executing, between that part of it providing for general laws and that part providing for local laws. After the provision for municipalities and counties and in the same section, the amendment provides that it shall be self-executing, but that laws may be enacted to facilitate its operation. We have also held that the amendment is self-executing with reference to municipal ordinances. Wright v. Ward, 170 Ark. 464, 280 S. W. 369.

However, the Legislature, in 1927, passed a law to carry out the initiative and referendum in the counties. It provides that the petition shall be filed with the county .judge at least 60 days before the election in which they are to be voted. It provides that the county judge shall submit the petition to the county election commissioners, who shall place the matters petitioned for in proper form on the tickets provided for the next general election of county officers. It is also provided in said act that, when any measure initiated shall receive a majority of the votes cast in that county upon that subject, it shall immediately become a law.

Therefore, if a majority of the votes were cast in favor of the act, it immediately became a law. It might be well to have somebody to certify the matter, but the fact that there is no provision for that does not prevent it from becoming a law. It may be certified as other questions are under the general election law.

The result of the election on candidates and all questions submitted is announced by the proper officers in each county, and everybody may know from that whether an act has been adopted. But, whether they know or, not, the law provides that, if it receives a.majority of the votes, it immediately becomes law.

It is next contended by the appellant that the constitutional amendment requires publication, and .that there was no publication as required by law. It is not contended that the act was not published. In fact, it is conceded that it was published, but the manner of its publication is not shown by the record.

When any duty is required of a public officer, unless there is something to indicate the contrary, it will be presumed that he performed the duty according to law. The law does not require that a person must, at his peril, find out whether an officer has honestly and in good faith performed the duties of his office. He is not required to inquire into the honesty and good faith of the officer, the presumption being that the officer has performed his duty according to law. Waters-Pierce Oil Co. v. Bridwell, 103 Ark. 345, 147 S. W. 64.

The decree of the chancery court is affirmed.


author: Butler, J.

text:
    Ferguson v. Lesser Cotton Company.
    4-2760
    Opinion delivered December 5, 1932.

      Rowell & Rowell, for appellant.

      Reinberger ■& Reinberger and Hooker S Hooker, for appellee.
   Butler, J.

The question in dispute in this ease is the ownership of nine bales of cotton which the appellees had purchased in open market and which they claim by reason of that purchase. The claim of the appellants was based on a mortgage given by Case, appellees’ vendor, which included “all crops of cotton, corn, cotton seed, hay, and all other crops grown by the party of the first part (J. H. Case), or grown by his tenants and share-croppers for him; or caused to be grown by the party of the first part on any of the above places owned or rented by him in Cleveland and Lincoln counties, or other places during the year 1928. Also, all amounts due to the parties of the first part on account of rents and accounts for supplies furnished to tenants and share-croppers during the year 1928 or theretofore. ’ ’

Case, the mortgagor, at or about the close of the cotton season 1928-1929, being heavily involved, left the country, and, on the application of the mortgagees (appellants), a receiver was appointed to take charge of the crops of Case included in the mortgage. The receiver, in the discharge of his duties, took charge of the nine bales of cotton then in the custody of the compress in Pine Bluff which he claimed was cotton upon which the appellants had a mortgage. The appellees intervened, and it was, and is, the contention of the appellants that the burden was upon the appellees to establish their claim to the cotton. In this they are doubtless correct, but the burden was discharged by the undisputed testimony which established the fact that the appellees had bought the cotton in open market from Case and paid full value for it. The burden then shifted to the appellants to show that the cotton was included in the mortgage given by Case to them.' It is also true that the sale of property mortgaged will not divest the mortgagee of its title, although the property is sold in another county than the county in which the mortgage is executed and recorded and to a purchaser who had no knowledge of such mortgage.

These principles of law seem to have been applied by the court, and the question before it for determination was whether or not the mortgage covered this particular cotton. There was little conflict in the testimony, all of which was more or less vague as to how Case came into possession of the cotton that was sold by him to the appellees. Case was a public ginner and had a small store. He would sometimes buy cotton for resale and also had tenants on his farm who grew cotton and some customers whom he furnished, but it is uncertain who grew the cotton in question or from whom it was procured. We are inclined to the opinion that the preponderance of the evidence justified the conclusion reached by the chancellor that the cotton was not included in the mortgage. This being our view, we deem it unnecessary to review the testimony in detail.

Decree affirmed.


text:
    Knight v. Wilson.
    4-2772
    Opinion delivered December 12, 1932.

      H. B. Means and D. M. Halbert, for appellant.

      John L. McClellan, for appellee.
   Humphreys, J.

Appellee instituted action in re-plevin against appellant, W. L. Knight, in the circuit court of Hot Spring County to recover possession of a brown Jersey heifer, alleging that he was the rightful owner of the heifer and that appellant was wrongfully detaining her under a false claim of ownership.

Appellant filed an answer denying the material allegations of the complaint.

The 'cause was submitted upon the pleadings and testimony adduced by the respective parties and instructions of the court, which resulted in a verdict and judgment in favor of appellee, from which is this appeal.

During the progress of the trial, the court made T. C. White a party defendant after he appeared voluntarily and testified that he and his wife owned an undivided interest with W. L. Knight in the heifer, to which action neither appellant objected and excepted at the time.

The action of the court in making T. C. White a party is urged here as a ground for the reversal of the verdict and judgment. No proper exception having been saved to the action of the court at the time in making him a party, that question cannot be raised on appeal. It was too late to raise the question the first time in appellant’s motion for a new trial.

The only other question raised for a reversal of the verdict and judgment is that the court erred in admitting the testimony of witnesses, Benson Wheat and Porter Harper, relative to what was said and done in the presence of W. L. Knight and appellee in an effort to show which of the two owned the heifer in question. At the time appellee found and claimed the heifer, he was informed by W. L. Knight that he had purchased her from J. M. Greer and Mr.Mays over at Okolona. Appellee then went after Greer and Mays, who came .back with him for the purpose of identifying the yearling they let Knight have. Knight was present, and they identified a red yearling with white spots on its flanks and not the yearling in question as the one Knight got from them. The objection made to the introduction of the testimony was that it was hearsay. We do not think so. The parties had agreed, without assistance from either, for G-reer and Mays to select from the yearling’s in the pasture the one they had let Knight have. They selected a different yearling from the one in controversy as the one they had let Knight have, and this circumstance tended to throw light on the issue being-litigated as to the ownership of the heifer. The testimony was properly admitted.

No error appearing, the judgment is affirmed.


text:
    National Surety Company v. Standard Lumber Company.
    4-2780
    Opinion delivered December 12, 1932.

      Barber & Henry and Troy W. Lewis, for appellant.

      Rowell ■& Rowell and W. B. Alexander, for appellee.
   Humphreys, J.

This is an appeal from a .judgment rendered in the circuit court of Jefferson County against appellant for $454.60' and interest on its surety bond conditioned for the payment of all labor materials to whomsoever due used in the construction of a school building in Fordyce Special School District No. 39 of Fordyce, Arkansas, provided suit be brought thereon within twelve months from the day on which the final payment under the contract falls due. The bond made the basis of the action is as follows:

“KNOW ALL MEN; that we, Tom Wilmoth, of Camden, Ark., hereinafter called the principal, and the National Surety Company, a New York corporation with its principal office located at No. 115 Broadway, in the city and State of New York, hereinafter called the surety or sureties, are held and firmly hound unto Fordyce Special School District No. 39 of Fordyce, Ark., hereinafter called the owner, in the sum of seven thousand eight hundred sixty-four dollars ($7,864) for the payment whereof the principal- and the surety or sureties bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

“Whereas, the principal has, by means of a written agreement, dated September 25,1930, entered into a contract with the owner for erection of a one-story brick -veneer school building at Fordyce, Arkansas, a copy of which agreement is by reference made a part hereof;

“Now therefore, the condition of this obligation is such that if the principal shall faithfully perform the contract on his part, and satisfy all claims and demands, incurred for the same, and shall fully indemnify and save harmless the owner from all cost and damage which he may suffer by reason of failure so to do, and shall fully reimburse and repay the owner all outlay and expense which the owner may incur in making good any such default, and shall pay all persons who have contracts directly with the principal for labor or materials, then this obligation shall be null and void; otherwise it shall remain in full force and effect.

“Provided, however, that no suit, action or proceeding by reason of any default whatever shall be brought on this bond after twelve months from the day on which the final payment under the contract falls due.

“And provided, that any alterations which may be made in the terms of the contract, or in the work to be done under it, or the giving by the owner of any extension of time for the performance of the contract, or any other forbearance on the part of either the owner or the principal to the other shall not in any way release the principal and tbe surety or sureties, or either or any of them, their heirs, executors, administrators, successors, or assigns, from their liability hereunder, notice to the surety or sureties of any such alteration, extension, or forbearance being hereby waived.

“Signed and sealed this 1st day of October, 1930.

“In presence of “as to Tom Wilmoth

B. E. Wait, Jr. “as to National Surety Company

“Attest Artie Lee. “By Wm. E. 'Silliman,

“Agent & Atty. in fact.”

The cause was submitted to the court, sitting as a jury, on the bond and under the following agreed statement of facts:

“That the amount of the account alleged to be due by Tom Wilmoth to the Standard Lumber Company is correct;

“That it is a balance due upon an account for material furnished and actually used in the school building in the town of Fordyce, Arkansas, under a contract entered into by the Fordyce Special School District No. 39, and Tom Wilmoth

“That the bond was executed for the purpose of securing the faithful performance of said contract as set out in the bond;

“That said bond was not filed in the office of the circuit clerk of Dallas County, Arkansas, where said school building was located, until the 17th day of July, 1931, but that it was so filed on said date;

‘ ‘ That the complaint filed herein was not filed within the period of six months from the date of the completion of said job, but was filed within one year from the date of the execution of said bond, and within one year from the date of the completion of the job.”

The only question presented by the appeal is whether the bond sued on was executed pursuant to and in accordance with §§ 1913 and 1914 of Crawford & Moses’ Digest, which provides, among other things, that laborers and materialmen shall bring their suits within six months from the completion of the public improvement or buildings; or whether executed independent of and without reference thereto. If a statutory bond, then ap-pellee’s suit was barred when instituted. If not a statutory bond, then the suit was broug’ht within the time specified in the bond and was not barred.

There is nothing’ in the language of the bond indicating that it was intended to be a statutory bond, and nothing in the stipulation of facts so indicated. The requirements of the statute were not incorporated in the bond. It was ruled in the case of Ætna Casualty & Surety Company v. Big Rock Stone & Material Company, 180 Ark. 1, 20 S. W. (2d) 180, that a bond which did not indicate by its terms that it was intended to be in compliance with the statute could not be treated as a statutory bond.

This court also ruled in the case of Mansfield Lumber Company v. National Surety Company, 176 Ark. 1035, 5 S. W. (2d) 294, that a bond identical in form with the bond involved in the instant case, except as to names, dates, and amounts, was not a statutory bond.

This suit was brought within twelve months after the completion of the building and was not barred under the terms of the bond when brought.

The judgment therefore is affirmed.


text:
    Dean v. Black & White Stores, Inc.
    4-2774
    Opinion delivered December 12, 1932.

      Alonzo D. Gamp, for appellant.

      Owens & Ehrman, for appellee.
   Mehaeey, J.

The appellant brought suit against the appellee in the Pulaski 'Circuit Court alleging that appellant was a corporation operating under the laws of the State of Arkansas, and that on May 2, 1931, said defendant, through its agents, servants and employees, unlawfully, forcibly, and falsely restrained the plaintiff of her liberty, and imprisoned her against her will at 308 West 5th Street, Little Rock, Pulaski County, Arkansas. She alleged that she was greatly injured, and prayed for damages in the sum of $1,000.

The second count of her complaint alleged that on May 2, 1931, in the city of Little Rock, Pulaski County, Arkansas, and in the presence of divers persons, the defendant, through its agents, servants and employees, falsely and maliciously spoke of and concerning the plaintiff the following false, malicious, and defamatory words: “Hey, you,” addressing Mrs. Leonard Dean, “you took a pound of butter from us which you did not pay for,” charging plaintiff with the crime of stealing a pound of butter from the Black & White Stores, Inc., the defendant; that said words were spoken and published with the malicious intent of impeaching plaintiff’s honesty, integrity, veracity and reputation, and to expose her to public hate, contempt, and ridicule; damaged plaintiff in her reputation and caused and occasioned her personal injuries and injury to her feelings; that, by reason of said false arrest, imprisonment, slanderous and false accusation, __ and by reason of the shock and fright caused thereby, plaintiff suffered a severe heart attack, and was confined to her bed under the care of doctors for several days.

She alleged that she had suffered actual damages in the sum; of $5,000; that she should recover compensatory-damages in the sum of $3,000, and punitive damages in the sum of $1,000.

Defendant filed answer denying that its agents, servants and employees, unlawfully, forcibly and falsely restrained the plaintiff of her liberty, and defendant denied that, through its agents, servants and employees, it falsely and maliciously spoke and published of and concerning the plaintiff the words complained of, or any other words, or imputed to her the stealing of a pound of butter or the crime of petit larceny, or said or did anything with the intent of impeaching the honesty of the plaintiff; denied that plaintiff was caused to be confined to her bed, or that she suffered a nervous shock or fright, or any other damages.

A jury was impaneled to try the case, and the appellant testified substantially that she was married, living with her husband, and had two children; that she did all the house work and the shopping; that on May 2, 1931, in the afternoon, she and her two children went into Woolworth’s Store and purchased some small articles and placed them in her personal shopping bag; that they then went down the street to the Black & White Store where she had traded many different times.

When she went in, she picked up a basket that they use in there, and had her shopping bag and purse and the basket in one hand. She spoke to Mr. Ford about the kind of butter, and he told her which was the best seller, and she put the bos of butter in the basket, not her shopping bag, and walked right out by Mr. Ford where the eggs were, put two dozen of them in her basket, and went to the meat counter, where she purchased some meat, and put this in the basket, not in her bag. She then went to the cashier’s desk where the things she purchased were checked, paid for the articles purchased, and received the change to which she was entitled.

After she had checked the groceries, the sack boy put everything that she bought there in a brown paper sack. She did not pnt any of the groceries in her shopping hag.

After she had walked ont of the store and was almost to the Spot Cash Store, suddenly some one came up behind her and grabbed her shopping bag, and said: “Hey, you took a pound of butter you did not pay for,” and jerked the bag completely out of her hand, and she told him he was mistaken. The man that ran up behind her was Mr. Ford, out of the Black & White Store.

When he made the statement above quoted, she was with her two little children. She stated to Mr. Ford: “Here are the groceries. What was in my shopping bag when I went into the store came from Woolworth’s store.” Ford said he did not want her groceries; that he meant her personal shopping bag, and when he saw there was nothing in that, he said she could go.

There is considerably more testimony, but it is unnecessary to set it out here. • Some other witnesses testified corroborating appellant, and at the close of appellant’s testimony the court directed the jury to return a verdict in favor of the defendant, which was done, and judgment was entered accordingly. The case is here on appeal.

The court, in directing a verdict for defendant, stated: “The proof shows that a representative of the Black & White Stores, Inc., told Mrs. Dean that she had butter, or had taken butter for which she had not paid. Now, before a recovery can be had for slander, the words spoken must of themselves charge a crime; and, as the court sees, the words: ‘You have butter for which you have not paid,’ does not charge a crime of stealing.”

The court then states that, before recovery Gan be had, the person charged must be charged with the crime of stealing or of some other crime.

We think the trial court was in error. Under our statute it is slander to charge one with a crime, but in addition to that the statute provides: “ Or to charge any person with having been guilty of any dishonest business", * * * the effect of which charge would be to injure the credit or business standing, or the good name or character of such person so slandered. Crawford & Moses’ Digest, § 2396.

But where the charge is a crime, the words themselves do not necessarily have to show that a crime is charged. “But if it appears from the connection in which the charge was made, or the circumstances attending its utterance, that it was intended or understood to impute the crime of larceny, it will be regarded as actionable per se.” 36 C. J. 1208.

The allegation in the complaint is that the employee of appellant overtook appellee on the street after she had left the store, and stated that she had taken a pound of butter that she had not paid for.

Appellee testified that she had purchased the articles, went right :by Mr. Ford, the employee who made the charge, and that the purchases at the Black & White Store were, by another employee, placed in a paper bag. Ford must have known this, because, when he overtook appellee, he told her that it was not the paper bag which he wanted to see, but her personal shopping bag, and that he jerked this personal bag from her hand.

Whether the charge he made, together with the attending circumstances, amounted to charging the crime of larceny, was a question of fact for the jury, and not the court.

In this case the allegation was made that appellee was charged with a crime, and the facts proved tended to show that appellee was charged with the crime of stealing a pound of bntter, because the charge was that she had taken a pound of butter that she had not paid for, and the employee stated he did not want her paper bag, but her personal shopping bag, which would indicate that she had purposely taken a pound of butter and put it in her personal bag, and, of course, if she did this, she was intending to steal it.

The words do not have to be actionable in themselves, but, if the words, together with the attendant circumstances, amount to a charge of larceny, this is sufficient. Hays v. Mitchell, 7 Ind. 117; Morgan v. Livingston, 2 Richardson's Reports, 573.

This court has held that, under our statute, charging a white man with being a negro is actionable, although, of course, it does not charge a crime. Morris v. State, 109 Ark. 530, 160 S. W. 387; Flood v. News & Courier Co., 4 A. & E. Ann. Cases 685; Spotorno v. Fourichon, 40 La. 423.

Where the words, together with the attendant circumstances, are alleged to charge a crime, they are actionable, and whether the words charged, together with the attendant circumstances in this case, amounted to the charge of crime was a question of fact for the jury.

We said in'a recent case: “That a grandfather was educating a grandson is a thing so common that such a statement considered by itself is apparently innocuous. But the testimony in Thompson’s behalf is to the effect that this is not the meaning appellant meant to convey, and did convey. The innuendo was that the young man was being educated with money stolen by Thompson from the young man’s grandfather, and this charge was actionable.” Collier v. Thompson, 180 Ark. 695, 22 S. W. (2d) 562.

So in-this case the testimony in behalf of appellee is to the effect that the words spoken by the employee of the appellee meant to convey, and did convey, that appellant was guilty of larceny.

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


author: Mehaffy, J.

text:
    Missouri State Life Insurance Company v. Holt.
    4-2782
    Opinion delivered December 12, 1932.

      Carmichael i& Hendricks, Ingram i& Moher, Joseph Morrison and Bose, Hemingway, Cantrell & Lough-borough and Allen May, for appellants.

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

Mrs. Edith Sutton Holt, guardian, ■brought suit in the Arkansas Circuit Court against the Security Life Insurance Company of America, and also brought suit against the Missouri State Life Insurance Company. The cases were consolidated by agreement, tried together, and there was a verdict and judgment against each of the appellants for the sum of $3,000, and, to reverse said judgment, the appellants prosecute this appeal.

The complaint alleged that Robert Earl Holt had been duly adjudged incompetent, of unsound mind, and mentally incapable of managing his affairs; that Edith S. Holt had been duly appointed as guardian for R. E. Holt by order of the probate court of Arkansas County. The complaint alleged that the defendant, Security Life Insurance Company of America, issued to E. E. Holt its policy of life and disability insurance, and that premiums thereon were paid to the sixth day of October, 1926.

While said policy was in force, the insured suffered a bodily injury, and, while the premiums were being paid, and while the policy was in force, the said E. E. Holt became permanently and totally disabled. His permanent and total disability was both mental and physical. The policy provided that, after receipt and approval and due proof that, by reason of bodily injury or disease occurring while the policy was in full force, and showing that the insured has been for one year, and will be thereafter permanently and continuously, prevented from engaging in any occupation whatever for remuneration and profit, the provision requiring the payment of premiums will be waived.

The policy also provided that the company would pay to the insured the amount of $100 upon the date of the approval of the proofs, and upon the same date of each month thereafter during the remainder of the endowment period, while the insured is disabled.

It was alleged that notice had been given to, and demand made of, the defendant, Security Life Insurance Company of America, pursuant to the provisions of the contract, and that defendant had denied liability on the alleged ground that the insured failed to notify it of his total and permanent disability.

It was further alleged that, at the time the insured became totally and permanently disabled, he was mentally incompetent, and incapable of managing his own affairs; that there was now due and matured upon the policy an unpaid balance of $3,000.

An amendment was filed to the complaint, alleging that E. E: Holt suffered a bodily and physical injury in 1922; that he was mentally incompetent and incapacitated in the year 1925, and said mental incompetence was total and permanent. Said disability resulted from a mental disease, and was such as to prevent him from engaging in any occupation whatever for remuneration or profit; that the defendant, during the year 1925, was advised both in writing and orally of the existence of the total, permanent disability; that, because the disability complained of was mental incompetency and incapacity, Holt was excused from giving notice.

The complaint against the Missouri State Life Insurance Company contained the same allegations as the complaint against the Security Life Insurance Company of America, and alleged that the Missouri State Life Insurance Company had taken over all the policies and assumed all the liabilities of the other defendant.

Each defendant filed answer denying all the material allegations in the complaint.

The undisputed evidence shows that E. E. Holt was injured in an automobile accident in 1922, and it also shows that he had Huntington’s chorea.

Many witnesses testified that prior to Holt’s injury in 1922 he had a brilliant mind, and had a very high sense of honor. The evidence shows that he was a graduate of two universities; that he was practicing law in Stuttgart and had a good practice, and about these facts there is no dispute. Numbers of these witnesses testified that after the automobile accident his condition grew steadily worse, and some of these witnesses testified that after the accident, and in 1925, he was wholly incompetent to attend to business, and was, in fact, insane.

Competent physicians testified that the disease from which Holt was suffering manifested itself by jerky movements, and that it has a tendency to cause complete loss of reasoning power; that it is incurable; that he was incompetent in February, 1925.

Dr. Ponder testified that he based his answers on both the personal examination that he made of Holt and the hypothetical question. He said that to have reached the point that the disease has now reached indicated that it had been going on for a long time; that the physical and mental conditions go hand in hand. The doctors testifying for the appellee testified at length, giving their reasons for their conclusions, and testified that in their opinion he was insane early in 1925.

Competent doctors also testified for the appellants, and testified that in their opinion Holt was not insane. Dr. Pat Murphy testified that a man could conduct his business and,carry on his business affairs for a long number of years after he develops chorea; that the mental deterioration comes by slow process; that he did not think an incompetent man could do the things that Holt had done. Doctor Murphy was corroborated by other expert witnesses.

There was also introduced in evidence numerous complaints which had been filed in the courts signed by Holt, and correspondence between Holt and his clients, which tended to show that he was not insane. However, the evidence shows that some of the complaints introduced were written by other parties, and that Holt simply signed his name. Whether the other complaints introduced in evidence were written by Holt, the evidence does not show.

Judge Harvey R. Lucas, chancellor of the district, testified that he met Holt, and that Holt was in his court in 1925 and 1926; that he considered Holt peculiar, but did not think about the question of sanity or insanity, but that he was different from an ordinary man. He did not try any cases in Judge Lucas’ court, but called attention to certain cases and asked for decrees.

Numbers of witnesses were introduced by appellant showing correspondence with Holt, and that Holt attended to business in the ordinary way after 1925, and as late as 1929. It will therefore be seen that the evidence as to Holt’s incapacity and incompetency after his automobile accident in 1922 is in conflict. Arguments have been made for both appellants.

There was substantial evidence to the effect that Holt was incompetent after the automobile accident, and that his condition grew worse from that time on.

It is earnestly insisted by appellants that the court should have directed a verdict in their favor. As we have many times held in determining this question, we must view the evidence- in tlie light most favorable to appellee, and if there is any substantial evidence to support the verdict, it must be sustained. Mo. Pac. Rd. Co. v. Harville, 185 Ark. 47, 46 S. W. (2d) 17; B. & O. Rd. Co. v. McGill Bros. Rice Mill, 185 Ark. 108, 46 S. W. (2d) 651; Altman-Rodgers Co. v. Rogers, 185 Ark. 561, 48 S. W. (2d) 239; Halbrook v. Williams, 185 Ark. 885, 50 S. W. (2d) 243; Ark. P. & L. Co. v. Connely, 185 Ark. 693, 49 S. W. (2d) 387; C. R. I. & P. Ry. Co. v. Matthews, 185 Ark. 724, 49 S. W. (2d) 392.

There are many decisions of this court holding that, if there is any substantial evidence to support the verdict of the jury, it will not be disturbed. There are also numerous decisions' to the effect that we do not pass upon the credibility of the witnesses nor the weight to be given to their testimony. If there is substantial evidence to support the verdict, this court cannot set it aside, even though we believe the verdict is contrary to the preponderance of the evidence. We cannot do it for the reason that it is the province of the jury to determine the credibility of the witnesses and the weight to be given to their testimony.

The appellants, however, contend that the evidence does not show total disability. They cite and discuss many authorities to support their contention, and they also rely on the evidence tending to show that Holt was practicing law and dealing and corresponding with clients, and apparently capable of attending to business. This evidence, however, is contradicted by numerous witnesses who testify that Holt was wholly incompetent in 1925.

If the appellants’ evidence was without contradiction, the appellee, of course, could not recover, because no notice was given, and the premium after February 6, 1926, was not paid, but, if he was insane, no notice was necessary, and it was not necessary to pay the premium.

Several cases decided by this court have discussed these questions and reviewed the authorities, and we do not deem it necessary to review them here. We call attention to Pfeifer v. Mo. State Life Ins. Co., 174 Ark. 783, 297 S. W. 847; Old Colony Life Ins. Co. v. Julian, 175 Ark. 359, 299 S. W. 366; Mo. State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 600; Mutual Benefit Health & Accident Ass’n v. Bird, 185 Ark. 445, 47 S. W. (2d) 812; Travelers’ Pro. Ass’n of America v. Stephens, 185 Ark. 660, 49 S. W. (2d) 364; Ætna Life Ins. Co. v. Phifer, 160 Ark. 99, 254 S. W. 335; Ætna Life Ins. Co. v. Spencer, 182 Ark. 497, 32 S. W. (2d) 310; Missouri State Life Ins. Co. v. Johnson, ms. op. November 14, 1932.

Questions of notice and total disability are reviewed in the authorities on these subjects above quoted, and it would be useless to review them here. We are of the opinion that, under the evidence in this case, the jury could find that Holt was totally disabled as defined by the decisions above referred to.

It is next contended that appellee was not the legally appointed guardian of it. E. Holt. Whether Holt was present at the time of the appointment as required by statute, we think, is now immaterial. In the case of Scott v. Stephenson, 168 Ark. 763, 271 S. W. 714, this court said: “We deem it unnecessary, however, to enter upon a discussion of the question of the validity or invalidity of the original order of the probate court, for the validity of the decree of the chancery court could not be assailed on the ground that the order appointing the guardian was void. The invalidity of the order did not affect the jurisdiction of the chancery court. An action brought by a guardian or a next friend of a person under disability is in effect a suit by such person under disability, and a change in the character of the representative does not operate as a change of parties, for, as above stated, the person under disability is the real party, and not the representative. ’ ’

Our statute provides: “The action of a person judicially found to be of unsound mind must be brought by his guardian, or, if he has none, by his next friend. When brought by his next friend, the action is subject to the power of the court in the same manner as the action of an infant so brought. ’ ’ Crawford & Moses ’ Digest, § 1116.

This court has said: “An insane person not under guardianship can sue and be sued the same as a sane person, and the foregoing’ provision of the Constitution [art. 7, § 34] does not exclude the jurisdiction of other courts to hear and determine suits by or against insane persons whether under guardianship or not. * * * The statutes of this State confer ample protection to the rights of insane litigants, either plaintiff or defendant, by requiring the court in which the action by or against such person is pending to see that he is represented by a next friend or guardian. An action by such person must be brought by guardian or next friend, and the defense of such person must be by his regular guardian or guardian appointed by the court.” Peters v. Townsend, 93 Ark. 103, 124 S. W. 255.

The court also said in the last case: “The statute refers in express words only to persons judicially found to be of unsound mind; but it is not doubted that the Legislature intended to give equal protection to persons of unsound mind in actions by or against them, though not judicially declared to be such.”

Section 1116 of Crawford & Moses ’ Digest above referred to states that, when an action is brought by next friend, the action is subject to the power of the court in the same manner as the action of an infant so brought.

“It is the infant, and not the next friend, who is the real and proper party. The next friend by whom the suit is brought on behalf of the infant is neither technically nor substantially the party, but resembles an attorney or a guardian ad litem by whom a suit is brought or defended in behalf of another.” St. L. I. M. & S. R. Co. v. Haist, 71 Ark. 258, 72 S. W. 893; Morgan v. Patter, 157 U. S. 195, S. Ct.

Appellants objected to the introduction of the petition and order of the probate court, and they contend that the order was void, and that the court could not properly proceed with the case; that there was no proper party plaintiff. We have already shown that the guardian is not the party, but that the insane person is the real party.

In the case of Peters v. Townsend, supra, we said: “If the insanity of a defendant in a pending suit was .suggested, but had not been judicially ascertained, the court gave opportunity for an inquisition to be held, or took the necessary steps to determine the question for itself; and, having ascertained that the defendant was mentally incapable of making his defense, appointed a guardian ad litem for him, and thereafter imposed upon him the restraints of infancy.”

In this case, even if the appointment of a guardian had been void, the proper party was the insane person, and it was the duty of the court to proceed with the case permitting the appellee to continue as next friend, or it could have appointed her guardian ad litem.

The court heard the evidence as to insanity, and knew the condition of Holt’s mind at the time of the-trial; knew he was insane, and it was the court’s duty to proceed with the trial of the case, and not turn the insane person out of court. There was no error therefore in proceeding with the trial as the circuit court did.

The appellant argues that two instructions given by the court at the request of the appellee were erroneous, and that the judgment should be reversed for that reason.

The first instruction objected to reads as follows: “Total disability as used in the policy does not necessarily require or mean that the assured must be absolutely disabled from transacting any kind of work or business, but such a disability is meant which renders him wholly unable to perform or execute the necessary substantial and material things and acts in usual or customary way of any business employment or occupation. But, if the assured was able to perform or execute in the usual or customary way any of the substantial or material things necessary to be done in the prosecution of any business, employment, or occupation whatever, he was then not totally disabled under the law.”

Appellant’s specific objection to this instruction was to tbe first paragraph of it, ending with ‘ ‘ occupation, ’ ’ but when tbe entire instruction is read, it is certainly as favorable to tbe appellant as it was entitled to. Moreover, tbe appellant requested, and tbe court gave, tbe following instruction:

“Tbe plaintiff is not entitled to recover merely by showing that there was an impairment in tbe ability of R. E. Holt on August 8, 1925, but it is necessary that tbe plaintiff show by a preponderance of tbe evidence that be was disabled to tbe point where be could not perform any of tbe material and substantial duties of a gainful occupation.”

Tbe court also, at tbe request of tbe appellant, gave tbe following instruction: “You are instructed that the fact that R. E. Holt is now totally and permanently disabled does not entitle him to tbe benefits of tbe policy, but tbe burden is upon tbe plaintiff to show by a preponderance of tbe evidence that he was wholly and permanently disabled prior to August 8, 1925.”

Other instructions were given at tbe request of tbe appellee, and also others at tbe request of tbe appellants, but no objections are urged to them. "We think, when tbe instructions on tbe question of permanent and total disability are read together, they correctly state tbe law.

It is also contended that tbe court erred in not sustaining appellant’s objection to the hypothetical question propounded to mental experts. However, we do not find that this question is mentioned in appellant’s motion for a new trial.

We are unable to say whether tbe appellee was legally appointed guardian.

“Under this statute any person may bring suit as tbe next friend of an infant without giving bond, and to allow tbe next friend to receive tbe money of tbe infant collected upon the judgment recovered in such actions would subject tbe estates of tbe infants to spoliation by irresponsible parties appearing as tbe next friend. We have seen that tbe statute does not permit even tbe father or mother of an infant to take charge of his estate without first giving bond as guardian of the infant. There is nothing in the statute that confers such authority upon the next friend of an infant, and we are of opinion that he has no such authority.” Wood v. Claiborne, 82 Ark. 514, 102 S. W. 219. Therefore the appellee, if she has not already been appointed legal guardian, must be legally appointed and give bond before she can receive the money.

It is contended by appellants that the verdict is excessive. It is undisputed that on November 10, 1924, R. E. Holt- borrowed the sum of $160 on the policy as security, and that this loan has never been repaid. This indebtedness of $160 should be deducted from the judgment for $3,000. The judgment will be modified by deducting $160 and, as modified, affirmed.


author: McHaNey, J.

text:
    Chicago, Rock Island & Pacific Railway Company v. Fowler.
    4-2776
    Opinion delivered December 12, 1932.

      Thos. S. Busbee, H. T. Harrison and Edward L. Wright, for appellant.

      D. M. Halbert, for appellee.
   McHaNey, J.

Appellees sued, and recovered judgment against appellant in the sum of $210 damages, $210 penalty and $50 attorney’s fee on account of the killing of a mule owned by them by the operation of a passenger motor car by appellant. At the conclusion of the testimony,-appellant requested the court to direct a verdict in its favor, which was refused, and this is the only assignment of error we find it necessary to consider, as we are of the opinion the request should have been granted.

Only two witnesses testified to the circumstances and conditions attending the killing of the mule, Tom Harris, for appellees, and C. L. McDonald, appellant’s engineer on the electric motor car, for appellant. Harris testified on cross-examination that he saw the mule killed while sitting on his front porch, about five or six hundred feet from the point of the accident; that the ringing of the bell and blowing of the whistle attracted his attention; that his house is on the west side of the track, and the motor car was going south; that he heard the bell and whistle, looked up and saw the mule struck, but did not see where it came from; could have seen it had it been on the track; that the motor car was running fifteen or twenty miles per hour when it struck the mule; and that there was a pile of stacking strips alongside of the loading track, parallel to the passenger track, about as high as his head. McDonald, the engineer, testified that, as he was coming into the village of Link, running at about 50 miles per hour, and keeping a constant lookout, he saw the mule come running out from behind a pile of strips in an old lumber yard toward the track; that he immediately started the automatic bell ringing and the whistle working; that the mule was thirty or forty feet from the track when he saw him at a distance of about 300 feet; that he shut off the power, applied the brakes and had slowed down to about 15 miles per hour when the corner of the motor struck the mule on the rump; that the mule never did g-et on the track, but ran up to it and turned back just as the car struck it; that it was a clear day, and the track was straight; and that he did everything possible to avoid the collision.

This testimony stands undisputed. There is no conflicting evidence, and there is no internal conflict, contradiction or controversy therein. Of course, the mule being killed by the operation of a train, the statute makes appellant prima facie negligent, but this presumption is overcome when evidence contradicting such inference is offered by the railroad company, and the presumption thereafter cannot be considered as evidence by the .jury. St. L. S. F. Ry. Co. v. Cole, 181 Ark. 780, 27 S. W. (2d) 992.

We think the undisputed testimony of McDonald, which was corroborated by Harris, shows that everything was done that was reasonably possible to avoid the accident, and that appellant was not negligent in any respect. The case is therefore ruled by the recent case of St. L. S. F. Ry. Co. v. Harmon, 179 Ark. 248, 15 S. W. (2d) 310, where a great many of the former cases are collected and cited, and by the Cole case, supra.

The learned trial court should have directed a verdict for appellant. The case will therefore be reversed, and, as it appears to have been fully developed, the cause will be dismissed. It is so ordered.


author: McHaney, J.

text:
    National Life & Accident Insurance Company v. Brim.
    4-2783
    Opinion delivered December 12, 1932.

      Bevens & Mundt, for appellant.

      A. M. Coates, for appellee.
   McHaney, J.

November 16,1931, appellant issued to Turner Madden, colored, a policy of life insurance in tbe sum of $375, in which appellee, cousin of the insured, was named beneficiary. Madden died January 30, 1932, with all premiums paid. Thereafter, in apt time, proof of death was made and payment demanded, which was refused, and this suit followed. Appellant defended on two grounds, first, that the deceased was not the insured; and, second, that, if he were, he was afflicted with tuberculosis, and was not in sound health at the date of the policy, in violation of one of its express provisions. A trial resulted in a verdict and judgment against appellant in the sum sued for, and the court allowed an attorney’s fee of $100 for appellee’s attorney, without hearing testimony, and in the absence of attorneys for appellant.

Only a question of fact is presented by this appeal as to appellant’s liability, the question of the identity of the insured being waived or abandoned. Did the insured have tuberculosis, or was he. otherwise not in sound health at the date of the policy, no medical examination being required? The court submitted these questions to the jury at appellant’s request in instruction No. 2, and also the identity of the insured in instruction No. 4. The jury has decided by its verdict all questions of fact against appellant. On appeal this court will not reverse on the insufficiency of the evidence if there is any substantial evidence to support the verdict, and, in determining this question, we must view the evidence in the light most favorable to the appellee, giving it its strongest probative value. When so considered, we find the evidence amply sufficient and of a very substantial nature to show that at the date of the policy the insured was in sound health. In addition to the testimony of the widow, a number of friends and acquaintances, and the appellee, the agent who took the application of the insured, recommended the applicant for insurance, and in Ms testimony at the trial stated: “He was as fine a looking specimen as I ever saw, he was a man about 25 or 26 years old and would weigh about.140 or 150 pounds and about 5 feet 6 or 7 inches.” In addition he testified: “Q. Tell the jury whether or not he was in good sound health when he got this policy? A. Yes, sir, he was in good health. ’ ’ In addition to all this, Dr. Rogers, who attended him in his last illness, testified that he found no symptoms of tuberculosis, but that he died of pneumonia. Contradictory of all this is the testimony of Dr. Butts, that the insured was brought to his office by Mr. Tappan in September, 1931, and that he found him suffering with tuberculosis in the advanced stage. Appellant insists that Dr. Butt’s testimony is undisputed that the insured had tuberculosis at the date of the policy, in violation of its provisions, and that therefore the court should have directed a verdict for it. While Dr. Rogers’ testimony was of a negative character as to whether Madden had tuberculosis, he testified positively that he died of pneumonia. This evidence alone was sufficient to make a question of fact for the jury, and, while the lay-witnesses were not asked as to whether he was so afflicted, a number of them testified to his good health, and, of course, if he were in good health at the date of the policy, he was not in the advanced stage of tuberculosis. The court did not err therefore in refusing to direct a verdict for appellant at its request.

As to the allowance of $100 attorney’s fee, we cannot agree with appellant that it is excessive, or that the court erred in so doing without hearing' evidence in the absence of counsel for appellant, as the only matter raised in. the motion for a new trial was that the allowance was excessive, and its alleged excessiveness is the only question we can consider. While the amount involved is small, only $375, yet the work involved and skill required were the same as if the amount had been much larger. In effect, it amounts to $50 in each court, there and here. We cannot say that the allowance is excessive or arbitrary.

Affirmed.


author: Smith, J.

text:
    Blair v. Askew-Jones Lumber Company.
    4-2787
    Opinion delivered December 19, 1932.

      A. M. Coates, for appellant.

      W. 0. Dinning, for appellee.
   Smith, J.

Appellees, under the firm name of Askew-Jones Lumber Company, filed suit on September 9, 1931, against appellant, Harrison Blair, in which they alleged that, during the period of time from March 29, 1930, to May 5,1930, they had sold and delivered to Blair certain lumber and building material, of the value of $833.81, which were used by him in the erection of a combination store and residence in the city of West Helena.

The complaint alleged that, the bill not having been paid, plaintiffs, “within the time prescribed by law, filed a duly verified itemized statement of said account, together with a description of the property upon which the said building was erected, with the clerk of the circuit court of Phillips County, Arkansas, and has continued to be on file with said clerk until the date of the filing of this suit.”

The defendant, Blair, employed counsel, who, after investigation of the facts, concluded that there was no defense to the suit, and consented that a decree might be entered for the debt, and that a lien be declared upon the land to secure it. After the expiration of the term at which the decree was rendered, a motion was filed to vacate the decree, upon the ground that its rendition had been procured through fraud practiced upon the court, in that more than fifteen months had expired after filing the lien claimed with the circuit clerk before instituting suit to enforce it, and this fact had not been disclosed to the court.

There is no intimation of collusion between the attorneys for the respective parties. The attorney employed to represent appellant in the original suit candidly stated that he was under a misapprehension as to the time within which suit could be brought after filing a lien claim with the circuit court clerk. But counsel for plaintiffs was not responsible for this misapprehension.

Testimony was heard upon the motion to vacate the decree, and it was conflicting as to the date of the last item for building material, although it appears that the date of filing the account with the circuit clerk was more than fifteen months prior to the date on which the complaint in this suit was filed.

In denying the motion to vacate the decree, the court made the finding that there was no collusion or wrongful act on the part of the attorney for the defendant in consenting to the rendition of the decree; indeed, no such charge was made. The court also found “* * * that no fraud, deceit or collusion was practiced upon the court for the purpose of procuring the original decree fixing a lien upon the land described therein to secure the payment of the indebtedness due the plaintiff, and the court doth further find that the amount of the indebtedness therein found to be due is correct and should be adjudged a lien upon the land there described in accordance with the provisións of said decree * *

The instant case, like that of Parker v. Sims, 185 Ark. 1111, 51 S. W. (2d) 517, was brought under § 6290, Crawford & Moses’ Digest, to vacate a decree after the expiration of the term at which it had been rendered. It war there said: “The law is settled that the fraud which entitles a party to impeach a judgment must he fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed. It must be a fraud practiced upon the court in the procurement of the judgment itself. (Citing numerous cases.)”

As much as can be said of the testimony offered in support of the motion to vacate the decree is that it was to the effect that more than fifteen months had expired after the claim for lien had been filed before the suit thereon was filed, whereas the statute provides that such suit must be brought within fifteen months of the date on which the claim for lien is filed, and not thereafter. Section 6926, Crawford & Moses ’ Digest. In other words, it would have been a complete defense to the original suit to show that the suit had not been commenced within the time limited by § 69'26, Crawford & Moses’ Digest. But, as was said in the case of Gosnell Special School District No. 6 v. Daggett, 172 Ark. 684, 290 S. W. 577: “ ‘The rule has been often announced in this court that the judgment or decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the former suit’.”

We think the decree of the court here appealed from, refusing to vacate the original decree is correct, and it is therefore affirmed.


text:
    Missouri Pacific Railroad Company v. Morrison.
    4-2752
    Opinion delivered December 19, 1932.

      Edward J. White, R. E. Wiley and Richard M. Ryan, for appellant.

      John L. McClellan and Tom J. Terral, for appellee.
   Smith, J.

Appellee recovered judgment in the sum of $30,000, to compensate an injury sustained by him while riding as a passenger on one of appellant’s passenger trains. It was alleged that the train made a sudden stop, which threw appellee off his feet as he was returning to his seat from the toilet, throwing him across the arm of a seat and severely injuring him. The railroad company defended upon the ground that the train did not make any violent or unusual or negligent stop, and denied that appellee had sustained any serious injury.

These questions of fact were submitted to the jury under instructions correctly declaring the law, and are concluded by the verdict of the jury in appellee’s favor.

There was a motion for a new trial upon the ground of newly discovered evidence. But, without reviewing this testimony and the circumstances of its production, we announce our conclusion to be that this testimony appears to be cumulative of other testimony offered at tbe trial which tended to corroborate certain testimony offered by appellant or to contradict other testimony offered by appellee, and the rule is well settled that new trials are not granted for newly discovered evidence that is merely cumulative. Forsgren v. Massey, 185 Ark. 90, 46 S. W. (2d) 20.

It is essential also that due diligence be shown in discovering the new testimony, and the circumstances of this case are such that we would not hold that the trial court had abused its discretion in refusing a new trial for the newly discovered evidence, on account of the lack of proper diligence in the discovery and production of this testimony. Forsgren v. Massey, supra.

The engineer in charge of the locomotive pulling the train on which appellee was injured was made a party defendant, but the jury returned a verdict in his favor. It is very earnestly insisted, for the reversal of the judgment against the railroad company that, inasmuch as a verdict was returned in favor of its employee whose negligence is said to have occasioned the injury, a verdict should have been directed in its favor after the jury had found in favor of the employee.

This question was considered by the court in the cases of Patterson v. Risher, 143 Ark. 376, 221 S. W. 468; Davis v. Hareford, 156 Ark. 67, 245 S. W. 833; and Mississippi River Fuel Corp. v. Senn, 184 Ark. 554, 43 S. W. (2d) 255.

The effect of those decisions is that it does not necessarily follow that a corporation is discharged from liability for an injury occasioned by the negligence of its employee because a jury refused to assess damages against that employee when sued in conjunction with the employer. The theory is that the doctrine of comparative negligence obtains in the suit against a railroad company or other corporation, whereas contributory negligence is an absolute defense to the suit against the servant or employee himself.

It is true also, as is pointed out in the cases above cited, that, in suits against railroad companies for damages arising out of the operation of trains, the injured party has the benefit of the statutory presumption of negligence -which arises upon proof being made that one was injured by the operation of a train, whereas there is no such presumption against the servant or employee himself.

These distinctions are fully discussed in the opinions cited and need not be further reviewed. It will suffice to say that the instructions given in the trial of the cause in the court below were correct declarations of the law.

We find no error in the record except that, in our opinion, the judgment was for an excessive amount, and this error may be cured by a remittitur, unless appellee shall elect to have the cause remanded for a new trial.

The testimony on the part of the railroad company was to the effect that appellee could not have sustained any serious injury on the train, as there was no such sudden stopping of the train as to have thrown him down violently, and that the present physical condition of ap-pellee is due to injuries received both before and subsequent to the injury for the compensation of which he here sues. But we must view the testimony on this branch of the case, as well as upon the question of negligence itself, in the light most favorable to appellee, and, when so viewed, the facts may be summarized as follows: Ap-pellee was'thrown very violently across a seat. He thought at the time that his back was broken and so stated to the porter upon leaving the train. He was able to get home unaccompanied after reaching Little Rock, his destination, about 11 p. m. He stopped on his way home for a cup of coffee and a sandwich, although he was suffering greatly. After reaching home he was confined to his bed for twenty-seven days. He requested the railroad company to send its claim agent and a physician to see him. X-ray pictures were later made at the hospital of the railroad company in Little Rock, which were offered in evidence. Appellee went to Hot Springs after bis injury and made that place bis headquarters for some months. He was not examined for purposes of treatment by any physician in that city. He was examined by Doctors H. E. Ruff and A. G. McGill, both of Little Rock. These doctors expressed the opinion that appellee had been severely injured. Dr. McGill was the principal witness for appel-lee on the questions of the extent and character of the injury. He testified that he made X-ray pictures of ap-pellee, but he had made them upon the order of the Brotherhood of Railway Trainmen, and, for that reason, had not brought them to the trial, which did not occur in Little Rock the place where witness maintained his office. Dr. McGill testified as follows: “Q. Aside from whatever the X-ray may have shown, tell the jury what was the result of your physical examination you made, what you learned from that. A. Well, he was swollen over the spine, and there was some swelling over his twelfth rib on the left side, and there was a tender spot on his spine in the upper lumbar region on the other side, on the right side. Q. Tell the jury whether or not from the physical examination, aside from the X-ray, if you could see he was permanently injured. A. I thought he was. Q. How long and in what way will he be affected by this condition? A. Well, he will suffer from pain, and he will have a weak back and stiff back and always be nervous. Q. In what way are the nerves affected? A. From the shock of the injury and possibly from the inflammatory products that were thrown out at the seat of his injuries.”

Appellee testified that his pain was so constant and severe, that he had difficulty sleeping, and that he was compelled to leave his bed at all hours of the night in order to obtain relief. When asked how he suffered, he answered: “Well, with pain and my nerves, and when I walk a little I will get light headed, and if I get in an argument my nerves are completely gone.”

The clerk of the hotel where appellee resided in Hot Springs testified that he had frequently seen appellee at various hours of the night walking around the hotel lobby.

Appellee testified that he could not walk except with the aid of a cane or a crutch, hut he did walk with their aid.

Appellee was 47 years old at the time of his injury. He had been a railroad switchman for twenty-four years, from which employment he earned from one hundred to two hundred dollars per month, but he was not thus employed at the time of his injury. After leaving the railroad service, he wrote insurance, and in one month earned over $500. His earnings did not average this amount. Upon this question he testified as follows: “Q. How much did it amount to when you were selling insurance? A. One month I made $560. I was the third out of 560 agents of the United States; they put on a contest for cash premiums of $100 for the man that sells the most stuff, and I sold $5,510 of the premium business in 1924.” It was not explained what portion of the $5,510 premiums were paid appellee as his compensation. He testified that since his injury he had been unable to obtain employment or to render any service by which he could earn money.

Certain X-ray pictures were offered in evidence by the railroad company, which, it is said, show no injury to appellee’s spine or vertebrae, these being the pictures taken at the railroad company’s hospital. But it is answered that these pictures do not show the vertebrae which were injured according to the testimony of appellee.

We must assume, in view of the testimony on appel-lee’s behalf and the verdict of the jury, that appellee has sustained a serious and a permanent injury, and thát the fall sustained on the train is the cause thereof. But, even so, appellee is not a paralyzed helpless man. Dr. McGill stated: “A. Well, he will suffer from pain, and he will have a weak back and a stiff back, and always be nervous.” In answer to the question, “When, in your opinion, doctor, will he ever recover?” Dr. Buff said: “It is my opinion that he will never be entirely well.”

Viewing the testimony in the light most favorable to appellee, we have concluded that a judgment for any sum above $15,000 will be excessive, and that it was prejudicial error to render judgment for a larg-er sum, but the error may be cured by reducing tbe judgment to tbat amount, and it is so ordered unless appellee shall elect, within fifteen days, to have the cause remanded for a new trial.