author: Hart, J.,

text:
    American Insurance Company v. Mordic.
    Opinion delivered May 4, 1925.
    1. Insurance — forfeiture—waiver.—Where an insurance agent knew of a mortgage on the insured property at the time he issued a policy thereon, a provision of the policy avoiding it if the insured property was incumbered was waived.
    2. Appeal and error — conclusiveness of verdict. — A finding of the jury upon conflicting evidence is conclusive on appeal.
    3. Trial — argument of counsel. — While an argument of plaintiff’s counsel, in an action on a fire policy, that defendant’s agent who testified by deposition was in another State trying to defeat some other insurance policy was improper, the prejudice was removed where the court told the jury that it was improper.
    Appeal from Monroe Circuit Court; George W. Clark, Judge;
    affirmed.
    STATEMENT of facts.
    J. A. Mordic sued the American Insurance Co. to recover the sum of $1,000 alleged to he due him upon a fire insurance policy.

      J. A. Mordic was a witness for himself. According to his testimony, he made a written application for a policy of fire insurance with the defendant. The application shows that he applied for a fire insurance policy on his dwelling-house situated on his farm about eight miles from Brinkley, in Monroe County, Arkansas. One of the questions propounded to him was whether or not there was any incumbrance on'the real estate, and the application shows his answer to' be ,£‘No. ” Mordic told the agent that there was a mortgage on the farm for $7,250 in favor of Bondi Bros. The insurance agent filled in the answers to the questions in the application, and Mordic supposed that he had written the answers as he had given (them. The application was turned over to the insurance agent after it was signed by Mordic, and he did not know the falsity of the answer as written down by the agent. The policy was duly issued on the property on the 23rd day of July, 1922, in the sum of $1,000. Subsequently, while the policy was in force, his house was destroyed by fire, and Mordic made proper proof of loss to the company as provided in the policy.
    J. Y. McDonald, the agent of the American Insurance Company, who took the application for the policy sued on, gave his deposition for the defendant. According to his testimony, the application was read over to J. A. Mordic carefully, and was signed by . him. Every question was read to him, and his answer was made and written on the application in his presence after he fully understood the question. The witness stated further that, if he had known that there was a mortgage on the house, he would not have written the policy without making provision for the payment of the face of the policy to the holder of the mortgage in the event of fire.
    The jury returned a verdict in favor of the plaintiff for the face of the policy,-and from the judgment rendered in his favor the defendant has duly prosecuted an appeal to this court.

      J. A. Waihins, for 'appellant.

      Bogle & Sharp, for appellee.
   Hart, J.,

(after stating tlie facts): It is'sough! to> reverse the judgment on tlie ground that J. A. Mordic made a false answer to the question as to whether or not there was a mortgage on the property which was insured. The application shows and the agent of the company testified that Mordic answered this question “No.” On the other hand, Mordic testified that he told the agent that there was a mortgage on the property for $7,250,- and that-he did not know that the agent had written down a false answer to the question.

In the case of Fidelity Phenix Fire Ins. Co. v. Roth, 164 Ark. 608, it was held that, where an insurance company’s agent knew of mortgages on rice at the time of the issuance of a fire insurance policy thereon, a provision in the policy avoiding it if tlie insured property was incumbered was waived.

The issue as to the truth or falsity of the answer of the insured to the- question as to whether or not there was a mortgage on the property at the time he made the application for insurance was submitted to the jury under the principles of law announced in the case cited above. The jury Laving found this issue in favor of the plaintiff, its finding is conclusive on appeal.

The next assignment of error is that the court erred in allowing one of the attorneys for the plaintiff, in the course of his argument, to use the following language: “This man McDonald, they say he isn’t here and couldn’t get here. I expect he is down in Alabama trying to defeat some othet insurance policy.” The deposition of J. Y. McDonald had been read to the jury. Objection was made to the argument of the attorney for the plaintiff, and the court stated to the jury that the argument was not competent. The statement of .the attorney for the plaintiff was of a matter of fact which was not in the record,' and, as the'court told the jury, was an improper argument. "We think, however,. that any prejudice that might have resulted to the defendant was cured by the admonition of the conrt. The jnry mnst be credited with common-sense, and it cannot be thought, when the attending circumstances and the nature and amount involved in the'case are considered, that any prejudice resulted from the statement of the attorney which was not cured by the court telling the jury that it was incompetent. Central Coal & Coke Co. v. Orwig, 150 Ark. 635, and Arkansas Short Leaf Lbr. Co. v. Wilkerson, 154 Ark. 455.

No other assignment of error is argued for a reversal of the judgment, and it will therefore be affirmed.


source: Caselaw Access Project

author: Haet, J.,

license: Public Domain

text:
    Ft. Smith Rim & Bow Company v. Baker.
    Opinion delivered May 4, 1925.
    1. Master and servant — negligence—Where the testimony of an employee, suing1 for personal injuries received while operating a ripsaw, showed that he had been properly instructed how to run a ripsaw, and according to his own testimony was not injured by reason of his inexperience, it was error to submit the question of the employer’s negligence in permitting an inexperienced employee to operate the ripsaw.
    2. Master and servant — proximate cause op injury. — Where an employee, working at a ripsaw, had stopped the feed chain preparatory to fixing it, and, in going back to shut off the ripsaw, slipped on a piece of tailing and in falling cut his hand on the saw, the employer’s alleged negligence in allowing the feed chain to become worn was too remote to be proximate cause of the employee’s injury, and submission of such was error.
    3. Master and servant — personal injury op servant — improper issue. — In an action for injuries to a ripsaw operator, where the only negligence the evidence tended to prove was that of the offbearer in leaving tailings where plaintiff slipped, causing his hand to come in contact with the saw as he fell, it was error to submit the employer’s negligence in furnishing an inexperienced assistant.
    4. Master and servant — contributory negligence — submission of issue. — In an action for injuries to a- ripsaw operator, alleged to have ¡been caused by slipping on tailing which caused his hand to come in contact with a saw, evidence held to require submission of the question whether he was injured while voluntarily placing his hand near the saw to adjust the machinery.
    Appeal from Sebastain Circuit Court, Ft. Smith District; John E. Tatum, Judge;
    reversed.
    STATEMENT OE EACTS.
    John Baker, for himself and as next friend of his son, Ed Baker, a minor, instituted this action against the Fort Smith Rim & Bow Co., a corporation, to recover damages for personal injuries sustained by Ed Baker while running a ripsaw for the defendant.
    Ed Baker was a witness for himself, and became nineteen years of age in February prior to his injury on the 11th day of September, 1922. Ed Baker had been operating the ripsaw about an hour and a half at the time he was injured.' He noticed that the feed-chain needed some adjustment, and he shut it off. The saw was still running, and he started to go back tó a lever about six or eight feet away for the purpose of stopping the saw from running. As he started to walk around to the lever to shut down the saw, he stumbled on some tailings lying on the floor, and this caused him to fall over backwards. In falling one of his hands came in contact with the revolving saw, and cut off two of his fingers and injured two others.
    It was the duty of the off-bearer to carry away the swingletree material that Baker was sawing, and also to pile the tailings at a certain place, so that they would not interfere with the person operating the saw. When the tailings would accumulate to a certain amount, the person running the saw would stop it and assist the off-bearer in loading the tailings on a truck so that they could be carried away. The feed-chain attached to the saw was ivorn, and would hang once in a while. This made it necessary for the plaintiff to stop the machinery and fix the feed-chain. The feed-chain could be stopped without interfering with the running of the saw. It was then necessary to go back six or eight feet to a lever so that he could stop the saw. He did not notice that some of the tailings had been negligently thrown aside so that they were in the path leading to the lever. The plaintiff, while walking hack to the lever to stop the saw, accidentally tripped or stumbled on a pieee of the tailings negligently left in his path, and this caused him to fall backwards, and, in trying to catch, his hand came in contact with the' running saw. The plaintiff had worked at the saw in question as off-hearer for two months prior to the time he sustained his injury, and h^id been instructed about running the ripsaw.
    The defendant introduced evidence tending to show that the plaintiff was injured by putting his hand in the machinery for some purpose, and, by .his own negligence, allowed it to come in contact with the running saw. Other evidence will be stated or referred-to in the opinion.
    The jury returned a verdict in favor of the plaintiff, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      T. D. Wynne and Pryor é Miles, for appellant.

      Roy Gean and J. A. Gallaher, for appellee.
   Haet, J.,

(after stating the facts). It is first insisted that the court erred in submitting to the jury the question of the negligence of the defendant in permitting Ed Baker, a youth without experience, to operate the ripsaw. In this contention we think counsel are correct. According to the testimony of Ed Baker himself, he was about nineteen and a half years of ag*e at the time he was injured. His own testimony shows him to he a young man of average intelligence, and physically fit to operate a ripsaw. He had been working as off-bearer for the person operating, the ripsaw in question for about two months 'before he was injured- He asked the operator to teach him how to run the saw. The operator reported that the “boss” had consented for him to teach Baker how to run the saw. The sawyer then showed Baker how to operate tfte saw, and had allowed him to operate it a few minutes each day. for about ten days prior to the time he was hurt.' The plaintiff was injured by stepping on the tailings, which had been cut off from the material which he was sawing and negligently left in a place where he wonld walk in the performance of his duties. We therefore reach the conclusion that there was no evidence to support the allegation that the plaintiff was injured by reason of his inexperience, and that this question should not have been submitted to the jury.

Baker denied that his hand was injured because he thrust it into a place on the table near the revolving ripsaw and thereby injured himself. His testimony shows that he knew and appreciated fully the danger from allowing his finger to come in contact with the revolving saw. He worked as off-bearer at the saw in question for about two months before he was injured, and, during the last ten days of his service, he was instructed about how to operate the ripsaw. With Baker’s knowledge and experience in the use of machinery and the instruction given him, he must be regarded as having acquired a knowledge of the ordinary dangers accompanying its use, and, as we have already seen, his youth and inexperience had nothing -whatever to do with causing the injury.

The next assignment of error is that the court erred in submitting to the jury the negligence of the defendant in permitting the chain attached to the saw to become, old, loose, and worn. It is well settled that the negligence complained of in cases of this sort must be the proximate cause of the injury. It is true that Baker testified that the feed-chain or belt had become loose and worn and the chain would stick once in a while, and that he would have to stop the machine and fix it. On the occasion in question he had already stopped the feed-chain, preparing to fix it, and this left the saw only running. He slipped on a piece of the tailings as he went back to shut off the saw. The alleged negligence in allowing the feed-chain or belt to become worn and defective was too remote to be treated as the proximate cause of Baker’s injury. Therefore the court erred in submitting that question to the jury.

. It is next insisted that the court erred in submitting to the jury the negligence of the; defendant in furnishing to Baker an inexperienced employee to assist him in the operation of the saw.. This contention is well taken. There is no evidence in the record to show that the off-bearer was inexperienced or that the defendant was negligent in employing him. The only cause of1 action against the defendant was the alleged negligence of the off-bearer in leaving the tailings at a place where Baker would have to walk in shutting off the saw and where he would not anticipate that any of the tailings or a piece of plank would be thrown. According to Baker’s own testimony, he was injured by stepping on a piece of the tailings and slipping backwards so that his hand came in contact with the saw as he fell. Therefore the court should not have submitted any question of negligence to the jury except the negligence of the off-bearer in allowing the tailings to fall at a place where Baker would walk in shutting off the saw and where he would not anticipate that they would be placed.

Counsel for the defendant also insists that the court erred in not submitting to the jury the question of whether or not Baker was injured while voluntarily, placing his hand near the saw for the purpose of adjusting some part of the machinery.

It seems that this instruction was refused on the ground that there was no evidence upon which to base it. Wé think the court erred in not submitting this question to the jury. J. R. Boydstbn, another employee of the defendant, was about three steps from where Bakér was when he got injured. We quote from the testimony of this witness the following:

"A. He never shut it doivn as I noticed. The first I noticed he cáme around the side and stepped up, ánd there was a few pieces that come off the machine, the best I remember, and was fixing something like he was going to put his hand in this feed belt on top, and I looked down, and when I looked back I saw him sling his hand like that. Q. Do yoix know how they throw these offals or calls off ? A. Yes sir. Q. Yoa saw him go aroand the end. of his table? A. Come aroand from the front here of his machine aroand to the side. Q. When yoa saw him sling* his hand, what did he do next? A. There was another party just a little ways off from him, and he started towards him, and then tarned aroand, and I don’t know what he said, and he come hack, and this other hoy that was feeding* the machine I-was at ran to him and caaght hold of him and took him to the office; ”

Another witness for the defendant testified that'he was ranning a planer five or six feet from the ripsaw at the time Baker was injured. According to his testimony, Baker was standing where they ordinarily threw the scraps or tailings down on the floor. He was standing* apon the scraps or tailings that came from the saw. The witness looked over and saw Baker sling his hand. Baker was standing by the side of the table, and tarned and .slang his hand.

Another witness, who was abont ten feet away, testified that he heard the whanging of the saw, and looked aroand, and Baker was ap at the machine with a cat hand. Baker was right opposite the machine on the side of the saw; that tailings or scraps were at the side of the saw-table, and Baker was standing* on them at the time he saw him.

From this evidence the jury might have inferred that Baker had thrast his hand in a place near the revolving saw for the parpóse of adjusting some part of the machinery, and allowed it to come in contact with the revolving saw. Therefore the court erred in not submitting this question to the jury.

Other assignments of error are urged for a reversal of the judgment, bat they will not likely occur apon a retrial of the case.

For the errors in instructing the jury as indicated in the opinion the judgment will be reversed, and the cause remanded for a new trial.


text:
    St. Louis-San Francisco Railway Company v. Watts.
    Opinion delivered May 4, 1925.
    1. Carriers — failure to furnish oar — strike.—-Where plaintiff made a requisition for a cia-r on September 30 to (be furnished October 6, for the shipment of hogs, -which was not furnished until November 11, due to a -shortage of cars caused by a strike which lasted from July 1 to November 15, an instruction that the carrier would not be relieved of liability for failure to furnish the car on account of the strike, unless it notified plaintiff of its inability to- furnish the car at the time he made requisition, was erroneous.
    2. ' CARRIERS — limitation of liability. — A carrier may by express contract relieve itself from its common-law liability, except as to the consequences of its own negligence.
    3. Carriers — duty to shippers. — It is the duty -of a carrier to treat all -shippers alike, and the fact that a conductor, after being paid therefor, procured a car for another shipper without the carrier’s - knowledge or approval is not proof that the carrier was able tq furnish a car to the plaintiff on the date requested by him.
    4. Carriers — limitation of liability — construction of clause.— A clause in a shipping contract exempting a carrier from liability on account of strikes refers to existing as well as future strikes.
    5. Carriers — limitation o-f liability. — While a carrier may contract against liability for loss or -damage to live stock on account of strikes, it cannot contract against its own negligence, and, though a strike may be in progress, it is not relieved of liability by merely showing a strike and the consequent delay due in part to it, if by the exercise -of ordinary care it might have moved the car under schedule in force during the strike.
    Appeal from Washington Circuit Court; W. A. Dickson, Judge;
    reversed.
    STATEMENT OE EAOTS.
    Manuel Watts sued the St. Louis-San Francisco Bailway Company to recover damages for the neg’ligent delay in failing to furnish him a ear in which to ship 106 head of hogs from Durham, Arkansas, to the National Stock Yards at St. Louis, Missouri, and -also for the negligent delay in transporting said hogs.
    Manuel Watts was a witness for himself. According to his testimony, he lives at Durham, Washington County, Arkansas, on a branch line of the St. Lonis-San Francisco Railway Company. On September 30, 1922, he filed a written application with the station agent at Durham for a car to be furnished him on October 6, 1922, in which to ship 106 head of hogs to the National Stock Yards at St. Louis, Missouri. The car was not furnished until the 11th day of November, 1922. The hogs were loaded in the ear at about three o’clock p. m., and the car was moved out of the station some time during the same afternoon. Watts went on the train with the car, and it arrived at the National Stock Yards at St. Louis at four o’clock p. m., on November 14, 1922. The market was closed on that day, and the hogs were held over until the next morning to be sold. The train was delayed at Springfield, Missouri, about twenty-six hours, and the hogs were unloaded in a pen. Seven of the hogs were dead at the time the car of hogs was unloaded at Springfield. Evidence was also introduced by Watts tending to show the loss sustained by him on account of the fall in the market price and the shrinkage in the weight of the hogs during the delay in transit.
    According to the evidence for the defendant, in July, 1922, the Railroad Labor Board issued an order for the purpose of settling a dispute between the railroad and the employees’ shop crafts. This caused a strike on all the railroads of the United States, and 480,000 men left the service of the railroad companies. Sixty or seventy per cent, of the strikers were skilled mechanics. They had had long years of training in' rebuilding and overhauling locomotives and passenger and freight cars. The Interstate Commerce Commission had promulgated certain rules and regulations with regard to the condition of freight cars, passenger coaches and engines before they could be placed in service. These rules and regulations were not suspended during the strike. The strike continued in force until a period of time much later than that involved in this lawsuit. On account of the strike the defendant was not able to furnish cars to shippers as it had done before the strike commenced. On account of the strike it was not able to get its cars repaired, and, on this account, was not- able to furnish the plaintiff a car when first demanded of it; but did furnish it'as soon as it could, which was on the 11th day of November, 1922.
    The defendant also introduced evidence tending to show that the delay in transit after it received the hogs for shipment was due to the strike. On account of the strike the defendant inserted a clause in all its shipping-contracts as follows: - ;
    “Section 1. Except in the case of its negligence proximately contributing thereto, no carrier or party in possession of any or all of the live stock herein described shall be liable for' any loss thereto or delay caused' by the act of Grod, the public enemy, quarantine, the authority of law, the inherent vice, weakness or natural propensity of the animal, or the' act or default, of the shipper or owner or the agent of either, or by riots, strikes, stoppage of labor, or threatened violence.’-’
    The jury returned a verdict for the plaintiff, arid from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      W. F. Evans and Warner, Hardin £ Warner, for appellant..

      Walker & Walker and H. L. Pearson, for appellee.
   Hart, J.,

(after stating the facts). The court in effect instructed the jury that the defendant would not be relieved of liability for failing to furnish the plaintiff a car for the shipment of his hogs on account of the strike, unless it notified the plaintiff of its inability to fuimish the car on this account at the time he made the requisition for the car. ' '

The undisputed evidence shows- that the strike commenced on July 1, 1922, and continued in force on all the railroads of the United ’States until after the 15th day of November, 1922, which was the day the car of hogs in question was delivered to the consignee. The plaintiff made a requisition for the car on September 30, 1922, to be furnished on October 6, 1922. The car was not furnished until November 11,1922. The failure was due to the shortage of oars caused by the strike. Under these facts the instruction of the court was erroneous.

This court has held that, in an action against an initial carrier for a loss to an interstate shipment of hogs, it was error to limit the defendant’s contract right to exemption from liability hv reason of strikes to a finding that the delay was occasioned solely by a strike of the employees of a terminal carrier, as a strike on any of the connecting carriers would, under the contract, release the initial carrier from liability, except in cases of negligence with regard to averting the loss on its part or on the part of any of its connecting carriers. Jonesboro, L. S. & E. R. Co. v. Maddy, 157 Ark. 484.

In a later case it was held that, where a carrier is prevented from handling freight in a prompt and expeditious manner by unforeseen conditions, such as a strike, over which it has no control and over which, in the nature of things, it could have no control, it will be excused' from receiving freight for shipment until such freight can, in the regular and usual course of business, be moved. Gage v. Arkansas Central Rd. Co., 160 Ark. 402.

It results from the principles of law decided in these two cases that the carrier may, by express contract, relieve itself from its common-law liability except as to the consequences of its own negligence. In other words, the plaintiff shipped his hogs under an express contract which relieved the defendant from liability in consequence of delays in transportation caused by strikes, and, under the undisputed facts in this case, the delay in furnishing the car was due to the strike and was occasioned without any fault or negligence on the part of the defendant. But it is insisted that the undisputed evidence does not show that the failure to furnish the car at the time requested was not the result of the defendant’s fault or want of care. In this respect counsel for the plaintiff rely upon the testimony of a witness to the effect that he had paid a conductor $5 to get him a car for the shipment of live stock, and that the conductor had done so. It was the duty of the railroad company to treat all shippers alike, and the fact that one of its employees, without its knowledge or approval, had violated this duty, would not he proof that the Carrier was able to furnish a car to the plaintiff on the date requested by him.

In this connection it may be stated that the clause in the contract of shipment exempting the carrier from liability on account of strikes, stoppage of labor, or threatened violence carries on its face notice to the shipper that it would not be liable for delays in furnishing-cars caused by the strike. It will be remembered that the requisition for the car was made on the 30th day of September, 1922, and that a general strike had been in progress since the first day of the previous July. Under these circumstances it cannot be said, as suggested by counsel for the plaintiff, that the carrier was contracting against loss on account of delays in furnishing cars which might be suffered on account of strikes which should occur in the future. It is manifest that the exemption clause was inserted in the contract of shipment on account of the general strike which was then in force and which had been in effect for the previous three months. Hence, for the error in instructing the jury as indicated above, the judgment must be reversed.

It is also insisted by counsel for the defendant that the undisputed evidence shows that the delay in the transportation of the hogs after they have been received by the defendant and loaded in the ear was occasioned by the strike without any fault or negligence on its part.

While the railroad company may contract against liability for loss or damage to live stock while in transit on account of strikes, it cannot contract against its own negligence, and, although a strike may be in progress, the railroad company is not relieved of liability by merely showing a strike and the consequent delay due, in part, to it, if the facts are sufficient to show that the railroad company, by the exercise of ordinary care, might have moved the car of hogs from the place of shipment to the place of destination under the schedule which it had in force during the period of the strike.

For the error in instructing the jury as indicated the judgment will be reversed, and the cause will be remanded for a new trial.


author: Smith, J.

text:
    Biggs v. Stout.
    Opinion delivered May 4, 1925.
    1. Levees — mode op selecting directors. — The office of levee district directors is within the control of the Legislature, which may appoint the directors, as was done by Acts 1898, p. 24, or prescribe any other method for their selection.
    2. Levees — election of directors. — By the express terms of. Sp. Acts 1919 p. 200, §2, an election of a director of the St. Francis Levee District is null and void where notice of the election was not published by the election commissioners.
    Appeal from St. Francis Circuit Court; E, D. Robertson, Judge;
    affirmed.

      Norfleet é Norfleet, for appellant.

      G. W. Norton and Mann é MoCulloch, for appellee.
   Smith, J.

Appellant filed a petition in the circuit court of St. Francis County against appellees, who are the election commissioners for that county, praying that a writ .of mandamus be awarded directing appellees to certify appellant’s election as a member of the board of directors of the St. Francis Levee District.

Appellant alleged the following facts: That he is a citizen of St. Francis County, and possesses the qualifications required by law to be a director of the St. Francis Levee District. That in that part of said county, lying wihin St. Francis Levee District, hereinafter referred to as the district, there are as many as a hundred persons who possess the qualifications required by law to vote at an election for levee director, and within that part of St. Francis County lying within said district there are seven polling places, which were named, where it ■■ is.customary to hold elections for State and county .officers, but ■ it had been the custom, in electing levee directors, to hold an election at not more than two of such places, and frequently in only one. That only a small part of the qualified electors have ever voted at the '.election of a levee director, and Joseph Mewbern, whose term of office had expired and to whose place the petitioner was elected, was elected at an election held at only one of such usual voting places, and at such election received only eleven votes, which were all the votes' cast at the election at which the said Mewbern was elected.

It was further alleged that November 13, 1923, was the day fixed by law for electing a levee director for St. Francis County, but the election commissioners failed to issue and publish the notice of such election required by law, and did not appoint judges and clerks to hold such election, but wholly ignored and disregarded their duty to call such election and to fix the pláces for holding same. That, notwithstanding this failure, certain citizens of St. Francis County, who were qualified as electors to vote for a levee director for that county, assembled at Heth, one of the usual voting places in said district, and elected three of tlieir number as .judges and two as clerks, and said judges held an election, at which eleven qualified votes were polled, all of which were cast for appellant', and no votes were cast for any other person, and no election was held at any other voting- place in said district in St. Francis County. The votes cast for appellant at such election were duly certified by the election officers as required by the statute authorizing such election, but appellees, constituting the board of election commissioners, have refused to certify the result thereof or to issue to appellant a certificate showing his election.

There was a prayer that appellees be required to certify the returns of the election and to issue to1 appellant a proper certificate showing his election as a director of the said district. ■ '

A demurrer to this petition ivas filed and sustained and the cause dismissed, and this appeal questions the sufficiency of the complaint to state a cause of action entitling appellant to the relief prayed.

The St. Francis Levee District was created by a special act passed at the 1893 session of the General Assembly. Act 19, Acts 1893, p. 24. The act creating the district named three directors for each county lying wholly or in part in said district, whose terms of office were fixed at one, two and three years, respectively, and it was provided that, upon the expiration of these respective terms of office, successors to the directors whose terms had expired should he appointed by the Governor, and such director thereafter served for three years, so that the terms of office of one-third of the directors expired each year, and vacancies were filled on the expiration of the terms of office by the Governor’s appointment.

The directors of the district were thus appointed from the time of the creation of the district in. 1893 until provision was made by act 117 of the Acts of 1917 for the election of the directors. Acts 1917, vol. 1, p. 623.

This act of 1917 prescribed the qualifications of directors and of electors to vote for directors, and the time for holding the election, and imposed on the board of election commissioners for each of the counties lying wholly or in part in said district the duty of appointing judges to hold the election and that of canvassing and certifying the returns. The various provisions of the act need not be set out, and it will suffice to say that the act provided a method whereby the directors should thereafter be elected.

This act was construed in the case of McDaniel v. Ashworth, 137 Ark. 280, where it was held that the act had deprived the Governor of the power to make appointments, and that the existing directors held office until their successors should be elected and qualified, and that, by the terms of the act, three directors were to be elected in eacli county in 1918 who should hold office, for one, two and three years, respectively, and that the next election should be held in 1920, when two directors were to be elected, one to fill out the unexpired term beginning in 1919 and the other for a full term of three years, and that thereafter one director should be elected each year for a full term of three years.

The act of 1917, supra, was amended by act 116 of the Acts of 1919. Special Acts 1919, page 200'. By this amendatory act the time for holding the election of directors was fixed on the second Tuesday of November of each year. By § 2 of the amendatory act of 1919 it was made the duty of the election commissioners to publish notice of the election in some newspaper in each of the counties for not more than twenty nor less than ten days before the date of the election, but, after so providing, it was further provided: “That should any board of election commissioners of any county within said levee district fail, refuse or neglect to give notice of said election as herein provided for, each member of said board of election commissioners for said county shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined in any sum not less than twenty-five dollars nor more than two hundred and fifty dollars. Provided, that any election held or' attempted to be held in any county within said district for the purpose of electing said directors shall be null and void unless the notice of said election has been given as provided for in this act.”

It will be observed, that the petition alleges that the election commissioners of St. Francis County failed to give the notice required by this amendatory statute. But appellant insists that this failure could not, and did not, operate to deprive the electors of the right to elect a director at the time appointed by law for holding the election.

In support of this contention counsel for appellant cite cases holding that, where the Constitution or a valid statute prescribes the time, place and manner for the election of a particular officer, or for the determination of a specific question by the qualified voters, and a statute requires certain officers to give notice of the election, such statutory requirement is merely directory, and neither irregularity in the notice nor an absolute failure to give the notice will invalidate the election. This rule has been given recognition and has been approved and adopted by this court; but it has no application here. Wheat v. Smith, 50 Ark. 266; Hildreth v. Taylor, 117 Ark. 465, 470; Hogins v. Bullock, 92 Ark. 67, 70.

The office in question is that of director of the St. Francis Levee District — an office completely within legislative control. It was within the power of the Legislature to appoint the directors itself, as was' done when the district was created, or to prescribe any method it saw fit for their selection.

It was the duty of the election commissioners to call and to arrange for the holding of the election, and they might, by mandamus or other appropriate remedy, have been required to perform this duty, and their failure to perform this duty was a misdemeanor. But, unless this duty is performed, there is no authority for holding the election, and the director in office would continue in office until an authorized election was held. The statute so expressly provides, and therefore the rule stated, which applies to the election of ordinary public officers, has no application to the election of levee directors. This is true because the matter of selecting directors for the levee district is entirely within the control of the Legislature, and it is expressly provided that any election held without prescribed notice having been given is “null and void.” There was therefore no authority for holding the election at which appellant claims to have been elected. That election was “null and void,” according to the statute quoted from, and the demurrer to the complaint was therefore properly sustained.


text:
    St. Louis-San Francisco Railway Company v. Bley.
    Opinion delivered May 4, 1925.
    1. CARRIERS — 'PERSONS RIDING WITHOUT paying. — One boarding a train with the'conductor’s permission, to ride to' the nearest station where he intended to buy a ticket, without paying for such ride, is not a’ passenger but a licensee.
    2. Carriers1 — right of licensee. — A .licensee cannot recover for injuries caused by mere acts of negligence, but must show wilfulness or wantonness in the operation of the' train.
    Appeal from. Mississippi Circuit Court, Chickasawba District; W. W. Bamdy, Judge;
    reversed.

      W. F. Evcms and W. J. Orr, for appellant.

      G. W. Barham, Harrison & Smith, and Sam Gosten, for appellee.
   Smith, J.

The appellant railroad company operates a local passenger train, consisting of three cars, from Kennett, Missouri, to Leachville, Arkansas, at which last-named place the train turns around to make the return trip, so that the 'engine may remain in front of the train. There is no turntable at Leachville, so that the train turns around by means of a wye, the two sides of which are connected by the main-line track of the J., L. C.; & E. Railroad Company, and this track, with the two sides of the wye, form practically a equilateral triangle, the sides of which are about 400 yards long. When the train arrives from Kennett it runs into the east leg of the wye, after which it runs beyond a switch which admits the train to the main line of the J.,'L. C. E. R. R., over which it runs until it passes another switch, which admits it to the west leg of the wye, and it then runs over the west leg of the wye to ' a switch which admits it to the main line of appellant’s railroad, and as it runs upon the main line the train would be headed north, thus having been turned completely around. It then backs into the station at Leachville over the main line, where the passengers are discharged and' passengers for the return trip received.

On the 8th day of February, 1922, one of appellant’s trains arrived at Leachville from Kennett and, in the manner indicated, turned around to return to Kennett.-Appellee, who is engaged in the tie and timber business, was standing at the south end of the west leg of the wye as the train ran over the west leg and came to a stop, as it was required to do before entering upon the tracks of the J., L. Cb & E. Bailroad. Appellee saw the conductor of the train standing on the platform of one of the cars, and inquired how much time he would have in Senath, Missouri, a station on appellant’s railroad intermediate between Leachville and Kennett,. between the time of the arrival of that train in Senath and the departure of the next train from Senath to Leachville, and, this question being answered by the conductor, he stated to the conductor that he would go to Senath, and, with the conductor’s permission, he boarded the train for the purpose of riding around the wye to the station, where he intended to purchase a ticket and become a passenger to Senath. He rode over the tracks of the J., L. C. & E. Bailroad, and ivas riding up the west leg of the wye, when his foot caught between two of the cars and was severely injured.

Appellee entered one of the coaches, but returned to the platform, where he ivas standing at the time of his injury. In making this trip around, and in backing into the station at Leachville after doing so, the train was required to stop and start four times, and it was alleged that the negligence causing appellee’s injury was that of the starting the train with undue violence and without warning.

It is insisted by appellant that appellee is not entitled, under the undisputed evidence, to recover oh either of these grounds, and it is also insisted that appellee was not a passenger, and that therefore the railroad company owed him no duty as such.

The cause was submitted to the jury upon the theory that appellee was a passenger and that the railroad company owed Mm the duty to exercise the highest degree of care, and it is conceded that the right to recover is dependent upon the existence of the relation of carrier and passenger.

As has been said, appellee was alone at the time of his injury, and no member of the train crew knew where he was at that time, so that there can be no contention— and there is none — that appellee was injured through any wanton or wilful act on the part of any member of the train crew.

In our opinion appellee was not a passenger at the time of the injury. He was not a trespasser, but, at most he was a mere licensee,and the duty of the railroad company to him is to be measured accordingly.

In the case of Cruse v. St. L. I. M. & S. R. Co., 97 Ark. 137, it was said: “We deem it to be equally sound in justice to say that, when a person enters a train without any intention to pay fare, but under a collusive agreement with the conductor to ride free in violation of the rules of the company, and does not pay any fare, he does not legally become a passenger, and the railway company is not responsible for his safety as a passenger. Quoting from the language of Judge Biddick in the Seed case, supra, if, under those circumstances, he ‘is carried safely to his destination, he gains that much at the expense of the company. On the other hand, if an accident happens, and he is injured, there is no reason or justice in requiring the company to pay for his injuries, unless they have been wantonly or wilfully inflicted.’ The authorities which sustain the proposition are numerous, and among them are found the following, which include cases where persons ride under collusive agreements with the conductor not to pay fare, or to pay less than full fare, and also where persons ride on a pass or ticket procured from the company by fraud.” (Citing numerous cases and texts).

The act of appellee in boarding the train at the time and place he did was not an act of bad faith, and there was no intention on his part to defrand the .company by not paying fare. Bnt he entered the train for his own convenience and with the permission of the conductor, and his own testimony shows that he was thoroughly familiar with the surroundings and the customary movements of the train. The train had not discharged the passengers whose destination was Leachville. This was not done until the circuit of the wye had been completed and the train had backed down appellant’s main line to the station. Appellee knew this fact, and he knew the location of the station and its purpose, and that passengers were received and discharged at the station, and at no other place. This station was south of the J., L. C. & E. Railroad tracks. The main line track of appellant bisected the wye, and the station was, of course, on this track. Appellee could easily have walked from the place where he boarded the train to the station, but it was to save this walk that he boarded the train. He knew that no fare would be exacted for this ride to the station, and that the train would stop at the station, and he testified that it was his intention, after the train had arrived and had stopped at the station, to debark from the train and buy a ticket to Senath. The journey upon which he proposed to embark and for which he intended to pay fare would not have begun until after he had reached the station and had purchased a ticket.

Appellee intended to become a passenger, but had not done so. The railroad company had provided a station for passengers to embark and debark, yet appellee entered the train at a point where it was not contemplated that passengers would be received, and for his own convenience, and to save himself a walk to the station, he rode the train around the wye without expectation of being charged or of paying fare. It was on this trip, and before he had reached the station, that he received his injury.

There was some testimony that, in starting and in stopping the train as the various switches were passed, the stops were made suddenly and the starts were made violently, and this testimony may have been sufficient to support a finding of negligence in the operation of the train. But there was no testimony whatever that there was any element of wilfulness or wantonness in the operation of the train, and, if appellee was a mere licensee and not a passenger, he is in no position to complain of the mere acts of negligence — -if such there were — in switching the train around the wye.

The judgment of the court below must therefore he reversed, and, as the case appears to have been fully developed, it will he dismissed.


text:
    Clark v. Pickler.
    Opinion delivered May 4, 1925.
    1. Appeal and error — conflicting instructions. — Where appellant requested an instruction which was too favorable to himself, he cannot comp lain that correct instructions given at appellee’s instance were in conflict therewith.
    2. Sales — loss op weight of cotton after delivery — The seller of cotton which was marked “weight guaranteed” was not liable for loss of weight accruing after delivery and acceptance due to exposure to the weather.
    3. Sales — jury question. — In an action to recover for deficiency in weights of cotton at compress under guaranty of the weights in a contract sale, whether the loss in weight accrued before or after the sale was properly submitted to the jury.
    ,4. Appeal and error — conclusiveness op verdict. — A verdict of the jury is conclusive on a question of fact as to which the evidence is conflicting.
    Appeal from Columbia Circuit Court; L. 8. Britt, Judge;
    affirmed.

      T. J.- Gaughan, J. E. Gaughan, J. T. Sifford and E. E. Godwin, for. appellant.

      McKay & Smith, for appellee.
   Smith, J.

Appellant purchased from appellee 213 hales of cotton at 361,4 cents per pound, f. o. h. cars at Taylor, Arkansas, on October 9, 1919. The cotton, at the, time of the sale, was located in the gin yard where it had been ginned, 200 yards from the railroad station platform, from which most of the cotton was loaded in the cars. The cotton had been weighed at the gin or in the. gin yard prior to the sale, and the invoice executed by appellee to appellant at the time of the sale showed the weight of the cotton to be 108,335 pounds.' The cotton had been purchased by appellee on September 20 and dates subsequent thereto.

As soon as the sale was made appellee employed J. W. Blackman to deliver the cotton at the railroad cotton platform at Taylor, Arkansas. Blackman begun hauling the cotton on the day of its purchase and finished hauling it on the 11th of October. Four of the bills of lading for 113 bales of cotton were issued by the railroad company on October 14, and four other bills of lading for the remaining 110 bales of cotton were issued October 17, which was eight days after the sale of the cotton. .

The invoice of the cotton, showing the number of bales and the weights thereof, was executed by appellee and delivered by him to L. A. King, the agent of appellant, who purchased the cotton for appellant, and at the same time King gave his personal check to appellee in-payment of the cotton at the price which had been agreed upon. King then drew a draft upon appellant for the same amount. There was stamped on the invoice the words “Weights guaranteed,” and the invoice was signed by appellee-.

The record is silent- as to the date the cotton was transported by the railroad company from Taylor, Arkansas, to the compress at Hope, Arkansas. However, before the cotton was shipped from Taylor two bales were stolen, and only 211 bales were delivered. at the Hope compress.

This is a suit for loss in weight in the cotton, but appellant gave appellee credit for the two bales stolen, and accepts the gin weights thereof as being-correct.

When the cotton reached the Hope compress it was muddy and very wet. The cotton was weighed at the compress at the time of its arrival, and weig’hed 111,723 pounds. Later the cotton was “reconditioned,” that' is, the damaged cotton was removed from' the hales and it was again weig’hed, and its weight then was 106,962 pounds. Appellant, by this action, seeks to recover from appellee the difference in the amount of cotton as weighed at Taylor and its weight after it was reconditioned, at the price paid.

■ Appellant offered testimony to the effect that the meaning of the words “weights guaranteed” meant that the weight of the cotton at the compress should govern, and that any shortage which might then exist would be refunded. ;

' Appellee does not .question the meaning of the words “weights guaranteed,”- and concedes that.the compress weights govern, but he contends that he is not responsible for the loss of weights -sustained, for the reason that the cotton was damaged by being exposed to the weather, and that it was this exposure which made it necessary to recondition the cotton with the resulting loss in weight.

At the’ request of appellant the court ' gave ' an instruction numbered 1, reading as follows : ’ “The jury are instructed that if you believe'from the evidence that plaintiff, Charles Clark, -bought from the defendant, Geo. T. Pickier, 211 bales of cotton under a contract between said Clark and Pickier that Pickier would guarantee the weights, and that the words, ‘weights guaranteed’ meant the weights according to the ‘turnout’ of the compress to which said cotton should be shipped, and that such cotton was shipped to the compress at Hope, Arkansas, and that the ‘turnout’ of'said compress of such cotton was less than the weights of the cotton on which Clark had made payment,then your verdict will be for the' plaintiff for-the amount of such difference at 3614c per pound, with six per cent, interest per annum from the date of payment for the cotton.”

It is insisted that the instructions given on behalf of appellee are in conflict with this instruction, and that the .judgment in appellee’s favor should therefore be reversed.

The instructions are in conflict, and this was, of course, error, but it is an error of which appellant cannot complain, for the reason that instruction numbered 1 is more favorable to appellant than it should have been, and those given on behalf of appellee correctly declare the law.

It will be observed that, under the testimony set out above, the instruction in effect directed the jury to return a verdict for appellant for the amount of the loss in weight of the cotton, as this loss of weight is undisputed, and the meaning of the words “weights guaranteed ’ ’ is unquestioned. But the instruction leaves out of account the question of the cause of this loss in weight, and this was the question submitted to the jury in the instructions given at the request of appellee.

These instructions were to the effect that, if the cotton was paid for and delivered at the railroad platform and bills of lading therefor obtained by appellee from the railroad company, there was a delivery and acceptance of the cotton, and on the question of the subsequent damage thereto the court charged the jury as follows:

“You are instructed that if you find from the evidence that the cotton was delivered to the plaintiff at Taylor, Arkansas, in good condition, and that after-wards it was damaged and by reason thereof it lost in weight, as shown by the outturn of the Hope compress, you should find for the defendant.
“You are instructed that the defendant is not liable to the plaintiff for loss in weight which resulted from damages sustained by the cotton after it was delivered to and accepted by the plaintiff. And if you find from the evidence that, after such delivery and acceptance, the cotton was. damaged by reason of exposure to tbe weather,- and for that reason tbe damaged cotton was removed by tbe Hope compress, thereby resulting in a loss of weight, then it will be your duty to find for the defendant. ” .

We think these instructions correctly declare the law, and that there was no error in giving them, even though they conflict with instruction numbered 1 given at the request of appellant, because appellee was not responsible for the damage to the cotton after the delivery thereof at the railroad platform, there being nothing in the contract of sale making him liable for such damage.

The instructions submitted the. question of fact when the damage to the cotton accrued, and this was a proper question to submit to the jury.

The testimony on this issue of fact was conflicting. On this question the testimony on behalf of appellant was to the effect that, in. the fall of 1919, the rainfall was very heavy, and ihe cotton had been damaged before it was sold. The testimony on. behalf of appellee was to the effect that, while the fall of 1919 was unusually wet, the heavy rains which fell during that season did not begin until after the sale of the cotton, and that prior thereto there had been only showers, and that no rain of any consequence flad fallen.prior, to October 9, tfle day of the sale.

The jury’s verdict is conclusive on the question of fact involved, and, as no prejudicial error was committed in the instructions, the judgment of the court below is affirmed.


author: Humphreys. J.

text:
    Missouri Pacific Railroad Company v. Alma Cash Store.
    Opinion delivered May 4, 1925.
    1. CARRIERS — MEASURES OF VALUE OF PROPERTY DAMAGED. — A. provision in a bill of lading limiting the carrier’s liability to the value of the property at the time and place of shipment is in conflict with the Cummins Amendment to the Interstate Commerce Act (U. S. Comp. St. § § 8582, 8604a).
    2. Carriers — measure of damages to perishable freight. — The ■measure of. damages to interstate shipments of perishable commodities is the difference between their market value ‘at the point to which they were shipped -at the time -and in the condition in which they should have arrived, and their market value at the time and 'in the condition in which they actually arrived, whether the damage resulted from delay in furnishing or transporting the car or from failure to refrigerate it.
    Appeal from Crawford Circuit Court; James Cochran,■ Judge;
    reversed.

      Thomas B. Pryor and Vincent M. Miles, for appellant.

      'Starbircl & Starbircl, for appellee.
   Humphreys. J.

TMs is an appeal from a judgment for $723.70 rendered in favor of appellees against appellant on three separate' verdict's in three separate suits 'which were consolidated and tried together in the circuit court of Crawford County. The suits were for damages to peaches on three interstate shipments' from Alma, Arkansas, to different points in Iowa. '

A reversal of the judgment is sought upon the sole ground that the trial court instructed the jury that appel-lee ’s damage, if any, should he based upon the value of the fruit at the point of origin. The alleged erroneous instruction given by the court on the measure of damages is as follows :

“The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at the place and time of shipment ■under the bill of lading, includingfhe freight charges, if paid.” ' ■

The instruction requested by appellant and refused by the court relating to the amount of damages, applicable to the facts in the case, is as follows:

“You are instructed that the measure of damages on this shipment is the difference in the market value of the car of peaches at the point to which it was shipped at the time and in the condition it should have arrived there and at the time and in the condition it actually arrived at the point of destination. ’ ’

As we understand the evidence in the case,, the first car of peaches was sold on the track at Alma to W. M. Hansen & Son, of Dubuque, Iowa, for $1.85 per bushel, and were shipped to that concern by appellee at appel-lee’s risk, but were damaged so badly in transit, because appellant failed to refrigerate and transport the car, that iW. M.. Hansen & Son refused to account to appellee on the basis of the contract price, but accounted therefor on the basis of the amount realized for the peaches, less freight and other charges. The second car of peaches was sold on the track at Alma to Hubbard-Lanning Company of Ames, Iowa, for $1.25 per bushel, which was also damaged so badly in transit, because appellant failed to properly refrigerate and transport the car, that Hubbard-Lanning Company refused to account to appellee on the basis of the contract price, but accounted therefor on the basis of the amount realized from the sale of the peaches, less the freight and other charges. The third car was sold on order for $1.25 per bushel on the track at Alma, and. shipped in the same way to the purchaser in Cedar Rapids, Iowa, but were so badly damaged, on account of appellant’s delay in furnishing a car at Alma in which to ship them, that said purchaser refused to account to appellee on the basis of the contract price, but accounted therefor on the basis of the amount' realized from the sale of the peaches, less the freight and other charges.

The bills of lading under which the several cars were shipped contained the following condition:

“The amount of any loss or damage for which any carrier is liable shall he computed on the basis of the value of the property at the place and time of shipment under this bill of lading, including the freight charges, if paid.”

The court based its instruction as to the measure of damages applicable to the facts in the case upon the condition aforesaid contained in the several bills of lading. This provision in the bills of lading is an attempted limitation upon the liability of common carriers, and is contrary to the Cummins Amendment to the Interstate Commerce Act of March 4. 1915, 4 Fed. Stat. Ann., 2nd ed. 506. Chicago, Milwaukee & St. Paul Ry. Co. v. McCaull-Dinsmore Co., 253 U. S. 97.

The correct rule as to the measure of damages in interstate shipments of perishable commodities caused through the negligence of the common carrier is the difference in the market value of the commodity at the point to which it was shipped at the time and in the condition it should arrive there and at the time and in the condition it actually arrived at the point of destination. This rule was announced in the recent case of C. R. I. & Pac. R. Co. v. Walker, 147 Ark. 109. Any other rule wouid enable common carriers to maké more favorable shipment contracts with some shippers than others, and thereby establish a system of rebates, and would enable vendors and vendees to secretly contract for a higher price than the market value of their commodities at points of designation, for- the purpose of establishing the amount of damages to be recovered from the carrier in case of loss or injury caused through its negligence. It does not fpllow, however, that testimony as to the contract price at the place of origin would not be admissible as evidence tending to show the market value of the commodity at the point of destination, for perishable commodities, when sold at the point from which they are shipped, are usually contracted on the basis of the market value of such'commodities where they are to be consumed. The evidence of the contract price, however, would-not necessarily be conclusive of the market value of such commodities at the point of destination.

We think the rule thus: announced is applicable to the facts in the instant cases, whether the damage resulted from a delay in furnishing cars or in transit or whether it was due to the failure to properly refrigerate the .cars.

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


author: Htjmpheeys, J. McCulloch, C. J.,

text:
    McFaddin v. Bell.
    Opinion delivered May 4, 1925.
    1. Mortgages — recital of prior incumbrance. — A general recital in a mortgage or conveyance that it is made subject to incum-brances against the .property does not estop the mortgagee or grantee from attacking the validity of the incumbrances.
    2. Mortgages — recital of incumbrances. — Before a mortgagee or grantee will be estopped to deny the validity of a prior, -incum-brance by recitals in his conveyance, they must amount to- a recognition on his part that the outstanding incumbrances are valid, and nothing short of a certain and definite reference to -the particular incumbrance will evidence an intention to recognize it.
    3.. Mortgages — recital of incumbrances. — Recitals in a mortgage that it is taken subject to all mortgages against it on record ' amount to a recognition by the mortgagee that such mortgages as were on record where .prior valid liens on the land, and preclude the mortgagee from pleading the statute of limitation.
    Appeal from Sevier 'Chancery Court; G.. E. Johnson, Chancellor;
    affirmed.

      E. F. McFaddin, for appellant.

      W. G. Rodgers, for appellee.
   Htjmpheeys, J.

This suit was brought in the chancery court of Sevier County by appellee against C. W. Wright to foreclose a mortgage upon a certain 160-acre tract of land in said county, executed by Wright and his wife to her oil January 12, 1916, to 'Secure a note for $1;200, payable January 12, 1917. The mortgage was recorded in April, 1916.

Appellant, who was made a party defendant in the suit because he claimed the land free of the mortgage under purchase from M. E. Sanderson, trustee in bankruptcy of the estate of C. W. Wright, filed an answer denying the material allegations in the hill, and a cross-bill alleging that appellee was barred from foreclosing the lien under §§ 7382 and 7408 of Crawford & Moses’ Digest.

The cause was submitted to the court upon the pleadings and an agreed statement of facts, which resulted in á finding that appellee’s mortgage constituted a valid and subsisting lien paramount to the claim of appellant, and a decree foreclosing same, from which is this appeal.

The facts necessary to a determination of the only question raised on the appeal are as follows: On January 12, 1916, C. W. Wright and his wife executed á mortgage on said tract of land to secure a note in the sum of $1,200, due one year after date. Thereafter he made two $45 payments upon the note, one on July 1, 1918, and the other on March 4,1920, but these payments were not indorsed on the margin of the record where the mortgage was recorded. C. W. Wright was adjudged a bankrupt, and, under the order of the court, he executed a quitclaim deed conveying this and all other lands owned by him to M. E. Sanderson, who had been appointed trustee in bankruptcy for his estate. The lands, including the 160-acre tract, were sold, and appellant became the purchaser of them at the sale. The deed was executed to him on August 18,1922, by the trustee in bankruptcy, which contained two recitals that are determinative of the issue involved on this appeal.

The first recital appears in the preamble of the deed, and is as follows: “Said E. F. McFaddin, trustee, buying the réal estate subject to all mortgages against it, on record.”

The second recital appears in the habendum clause of the deed, and is as follows: ‘ ‘ The said E. F. McFaddin, trustee, taking the property subject to the mortgages against it, but not personally assuming any of such indebtedness.”

Appellant contends for a reversal of the decree upon the ground that the deed secured by the mortgage was barred as to third parties, because the payments made by the mortgagor were not indorsed on the margin of the record as required by §§ 7382 and 7408 of Crawford & Moses’ Digest.

Appellee, admits that appellant is a third party to the mortgage, and that, prior to the institution of the suit, sufficient time had elapséd under the statute of limitations to prevent the foreclosure of the mortgage against a purchaser of the land, who had not estopped himself by the assumption or recognition of the mortgage. Appellee insists, however, that appellant recognized this mortgage by the recitals in the deed which he accepted, and that, by such, recognition, he estopped himself from pleading the statute of limitation^.

, The rule of law is that a general recital in a mortgage or conveyance to the effect that the instrument is made subject to the incumbrances against the property does not estop a mortgagee or grantee from attacking the validity of such incumbrances. The doctrine is that, before the mortgagee or grantee will be estopped to deny the validity of prior incumbrances upon land by recitals in the conveyance, they must amount to a recognition on his. part that the. outstanding incumbrances are valid, and that nothing short of a certain and definite reference in some way to particular incumbrances thereon will evidence an intention on his part to recognize such incumbrances. Clapp Brothers v. Halliday Brothers, 48 Ark. 258; Arkansas National Bank v. Boles, 97 Ark. 43; Kay v. Castleberry, 99 Ark. 118; Reidmiller v. Comes, 158 Ark. 21. The recitals in the deed to appellant, from the trustee in bankruptcy should be read together so that both may stand, if possible. The first clause specifically referred to mortgages on record, meaning mortgages on record which were valid, subsisting obligations between the original parties to the mortgage. The second clause, standing alone, made no reference to any particular mortgage so as to identify it, but, when read in connection with the first clause, meant mortgages of record good between the original parties. There is no conflict between the two clauses, the latter relates to the first and was intended as a mere repetition of the first. When the two clauses are read, together and given their proper meaning, they amount to a recognition on the part of appellant of the mortgage in question as a valid lien upon the land,

No error appearing, the decree is affirmed.

McCulloch, C. J.,

(dissenting). My conclusion is that the recital in the deed under which appellant holds, with respect to prior mortgages, was general, not specific, and did not constitute a recognition of the continued existence and efficacy of the mortgage to appellee. The acceptance of the deed by appellant with that recital in it did not therefore remove the statute bar nor constitute a new point from which the statute began to run.

Wood, J., joins in this dissent.


author: 1 McCulloch, C. J.

text:
    Mays v. Phillips County.
    Opinion delivered May 11, 1925.
    1. ' Statutes — repeal.—When there are two acts on the same subject, the rule ds to give effect to both if possible; but if the two are repugnant in any of their provisions,, the later act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first, and, even where two acts are not in express terms repugnant, yet if the later act covers the whole subject of the first and embraces .new provision®, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act.

      2. . Statutes — implied repeal. — The special act of February 17,1919, fixing the fee of the sheriff of Phillips County for feeding county prisoners at 50 cents per day was impliedly repealed by the act of February 27, 1919, fixing the fees of sheriffs for feeding and keeping county prisoners at one dollar per day, and exempting certain counties not including Phillips County. . :
    Appeal from: Phillips Circuit Court; E. D. Robertson, Judge,;
    affirmed.

      P. R. Andrews and W. G. Dinning, for appellant.

      Brewer $ Cracraft and Mann & Mann, for appellee.
   1 McCulloch, C. J.

Appellant was ' the sheriff of Phillips County, and this appeal involves the question as to the amount of compensation to which he is entitled for feeding prisoners confined in jail.

The General Assembly of 1919 enacted a special statute fixing the fees and emoluments of all the county officers in Phillips County. This act contained an emergency clause, and was approved by the Governor on February 17,1919. Special Acts 1919, p. 132. The provision of that statute with reference to the sheriff’s office fixed the salary of the sheriff and ex-officio collector at the sum of $5,000 per annum and allowing him a certain additional amount for expenses of deputies and clerical assistance, and also contained a provision with reference to feeding prisoners, which reads as follows: “The county court shall provide and pay out of the county treasury the expenses of lighting and heating the county jail, and for bedding of tlie prisoners, and shall allow* the sheriff the actual cost of feeding the prisoners confined in the jail, not to exceed, however, the sum of fifty cents per day for each prisoner; provided, the salary of the jailer, shall be included in, the cost of feeding the prisoners in this section provided. ’ ’ At the same session a statute was enacted, approved February 27, 1919, fixing the fees of sheriff for feeding and keeping prisoners at the sum of one dollar per day. Acts 1919, p. 127. That statute, omitting the caption, and the second section declaring an emergency and putting the statute into effect, reads as follows: “Section 1. ■ Hereafter sheriff shall be allowed as fees for feeding and keeping a prisoner confined in the county jail, per day, the sum of one ($1) dollar; provided, the provisions of this act shall not apply to Crawford, Madison, Sebastian, Newton, Greene, Lafayette and St. Francis.”

The point of this case is whether or not the last statute repealed the first one. Appellant claims that there was a repeal by implication of the first statute, and that he is entitled to the amount of fees prescribed in the last one. Appellee contends to the contrary. Counsel on both sides present with much care all of the authorities bearing on the subject, and particularly the decisions of this court, which are so numerous and harmonious that it is scarcely worth while to cite them. The principles of law with respect to the interpretation of statutes in determining whether or not there is an implied repeal are elemental. Reference may only be made to a comparatively recent case where the rules of law on this subject are aptly stated. Sanderson v. Williams, 142 Ark. 91. In that case it was stated that “where there is a plain repugnancy between two acts upon the same subject, the later act repeals the former, or, if the two acts are not in express terms repugnant and the later act covers the whole subject of the first and embraces new provisions, showing that it was intended as a substitute for the first, the last act will stand as the law upon the subject, and the first will be set aside.” It has often been announced that repeals by implication are not to be favored, and, in another recent case on this subject, we said: “Repeals by implication are not favored, and, when two statutes covering the whole or any part of the same subject-matter are not absolutely irreconcilable, effect should be given, if possible, to both. It is only where two statutes relating to the same subject aré so repugnant to each other that both cannot be enforcéd that the last one enacted will supersede the former and repeal it by implication.” Martels v. Wyss, 123 Ark. 184.

Now, applying these principles, we do not find that these two statutes cover the same identical subject nor that they are in irreconcilable conflict with each other. Nor can it be said that the last statute takes up the whole subject and covers the subject-matter of the first one. The first statute relates to salaries of all of the county officers of a particular county, and it covers all of the details with reference to the, salaries, emoluments and expenses of the office of sheriff. The last statute does not take up the whole subject anew, but it relates to the single subject of compensation for -feeding prisoners. The first statute not only fixes the compensation in money of the sheriff for feeding prisoners, but it also requires the county to pay the expense of lighting and heating the jail and for the bedding of .the prisoners. If the latter statute can be given any effect at all in its application to the emoluments of the sheriff of Phillips County, it is only to the extent of raising the compensation to one dollar per day instead of the maximum of fifty cents' per day, and still leaves the provision requii*' ing the county to furnish the light, heat and bedding. All the fees seem to have been adjusted with care by the first statute, and there is no reason to presume that the Legislature intended to raise the compensation for feeding prisoners above that enjoyed by the same officers in other counties. On the other hand, if we place them on an equality, we would have to indulge the presumption that the. Legislature intended to take away by repeal the other requirements placed upon the county with respect to furnishing beat, light and bedding. In this state of the matter we must presume that-the Legislature, having taken up the whole subject of salaries in Phillips County, did not. intend to impliedly repéal those, provisions merely by fixing generally the fees for feeding prisoners. We attach no importance .to the fact that the last statute expressly exempts certain other counties.. This affords no grounds for. interpreting the statute ,as an express inclusion of all counties not thus exempted in express terms. If we are indulging in theories and presumptions, it is fair to assume that the Legislature, in passing this statute without expressly repealing the Phillips County special statute, assumed that it was unnecessary to exempt Phillips County, which was within the operation of the special statute and would not he controlled by the last one. The case is, we think, governed by the principles announced in Bank of Blytheville v. State, 148 Ark. 504. The relation of the two statutes involved in the present case removes the case from control of the recent case of Massey v. State use Prairie County, ante, p. 174, where the later statute was held to have covered the whole subject embraced in the older statute.

Upon the whole, we are convinced that, under settled principles of interpretation, the last statute should not be held to have repealed the first one, and that the circuit court was correct in its judgment limiting the amount of the sheriff’s compensation to the specifications of the special act governing that county.

Affirmed.

Wood and Hart, JJ., dissent on the ground that Massey v. State use Prairie County governs.

Hart, J.,

(on rehearing). After considering the briefs of counsel on the motion for a rehearing, a majority of the court is of the opinion that a. rehearing should be granted. We recognize the general rule that appeals by implication are mot favored, but think the case falls •within the principles of law decided in Massey v. State, ante p. 174.

The familiar general rule with regard to implied appeals is clearly stated by Mr. Justice Field in United States v. Tynen, 11 Wall. (U. S.) p. 88, as follows: “When there are two acts on the same subject, the rule is to give effect to both if possible. But if the two are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first; and, even where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing* that it was intended as a substitute for the first act, it will operate as a repeal of that act.”

The effect of this rule is that the prior statute is impliedly repealed so far as the provisions of the subsequent statute are repugnant to it, or so far as the latter statute is plainly intended as a substitute for it. Now,'in the light of these principles, it may be well to set out the object and purposes of the two statutes and their provisions so far as they bear on the case before us.

The Legislature of 1919 passed a special act for the purpose of fixing’ the fees and salaries of the officers of Phillips County, Ark. The act was approved February 17, 1919. Special Acts of 1919, p. 132.

Section one, which fixes the salary of the various county officers of Phillips County also contains the following: “The county court shall provide and pay-out of the county treasury the expenses of lighting- and heating the county jail, and for bedding of the prisoners, and shall allow the sheriff the actual cost of feeding the prisoners confined in the jail, not to exceed however, the sum of fifty cents (50 cents) per day for each prisoner; provided, the salary of the jailer shall be included in the cost of feeding the prisoners in this section provided.”

At the same session, the Legislature passed an act to better regulate the fees allowed sheriffs for furnishing prisoners, and it was approved February 27, 1919/ Gen. Acts of 3 919, p. 127. Section one of the act reads as follows: “Hereafter sheriffs shall be allowed as fees for feeding and keeping a prisoner confined in the county jail, per -day, the sum of one ($1.00) dollar; provided, the provisions of this act -shall not apply to -Crawf-ord, Madison, Sebastian, Newton, Greene, Lafayette and St. Francis. “Sec. 2, provides that all laws and parts of laws in conflict with the act are repealed and contains the emergency clause.” It will be observed that this act was passed only ten clays later than the first act. The presumption, is that the Legislature had in mind the first act, and its provisions -with regard to the fees to he allowed the sheriff for feeding and.keeping- prisoners confined in the county jail.

Under the first act the county court must provide the expense of lighting and heating the county jail and for bedding of the prisoners. It also provides that the sheriff shall he allowed the actual cost of feeding the prisoners not to exceed the sum of fifty cents per day for each prisoner. The second act allows the sheriff for feeding and keeping the prisoners the sum of one dollar per day. It also contains a proviso that the act shall not apply to certain counties which are named. Thus it will he seen that it was the intention of the Legislature that the act should apply to all counties which were not excepted bv the proviso. Phillips County was not one of the counties mentioned in the proviso, and we think this indicates an: intention on the part of the Legislature that it should come within the provisions of the act. On the subject of keeping* the prisoners the acts are repugnant, and in application of the general rule anounced above we think the first act is to this extent repealed by the latter act.

The result of our views is that the circuit court erred in not allowing the sheriff fees under the provisions of the latter act, which is now incorporated in Crawford & Moses ’ Digest as § 61211.

The judgment will therefore he reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion.

McCulloch, C. J., and Smlth, J , dissent.


author: McCulloch, C. J.

text:
    Johnson v. Newman.
    Opinion delivered May 11, 1925.
    1. Highways — husband’s liability fob wife’s negligence in driving car. — Evidence held to make it a question ior the jury whether a defendant was negligent in failing to exercise control over his wife wlho, in driving hi-s automobile, attempted to pass another car at high speed, as the latter was moving toward the center of the road to pass a bus in front of it.
    2. Master and servant — husband’s responsibility for wife’s negligence. — Evidence held 'sufficient to go to the jury on the issue of the husband’s responsibility for his wife’s negligence in attempting to drive an automobile occupied by him past a car in front on the theory that she was acting as Ms agent.
    3. Master and servant — respondeat superior doctrine. — While the “family purpose” and imputed negligence doctrines and the husband’s common-law liability for his wife’s torts are not recognized in Arkansas, the doctrine of respondeat superior still obtains, so that one permitting his wife or another to drive his oar while occupied 'by him is responsible for negligence of such driver as his agent.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mami, Judge;
    reversed.

      Gray, Burrow & McDonnell, for appellants.

      A. J. Newman and W. R. DonJiam, for appellee.
   McCulloch, C. J.

The three appellants instituted, separate actions ag’ainst appellee to recover damages on account of a collision of automobiles, alleged to have been caused by negligence on the part of appellee. Appellee denied the charge of negligence, and the three cases were consolidated by consent and tried before a jury, but the court directed a verdict in favor of appel-lee. The question presented on this appeal is whether or not the evidence was legally sufficient to call for a submission of the issues to the jury.

The collision occurred during the afternoon of a certain Sunday in the month of July, 1923. It occurred a few mües east of the city of Little Bock, on an asphaltum road, eighteen feet wide, with dirt shoulders on each side about three feet in width. Both automobiles were going in the same direction — 'towards the east. The car in which appellants were riding was in front, and, at the time of the collision, appellee’s car was attempting to pass the other one.

The three appellants, Mrs. J. C. Johnson and her daughter, Mrs. Holton, and 0. Anderson, a friend or acquaintance, were riding in the same car, a Ford coupe, owned by Anderson. Mrs. Holton was on the left side of the car, driving, and Anderson was sitting next to her, in the center, and Mrs. Johnson was sitting on .the right-hand side, holding in her lap the three-year-old child of Mrs. Holton. The car was constructed to seat two passengers, hut there is a conflict in the testimony as to whether or not three persons could ride without crowding the driver and interfering with the operation of the brakes and gear-shift.

Appellee Newman and his wife were riding in a Ford coupe, owned by appellee, and Mrs. Newman was doing the driving. The testimony of each of the appellants is to the effect that they were going along at a speed of about twelve to fifteen miles an hour, and, as they approached a motor bus standing on the right-hand side of the road, they turned the car to the left and into the center of the road in order to pass the bus, and that, as they did so, appellee’s car dashed by at a high rate of speed and struck the front hub-cap and the fender of the car of appellants with the rear wheel of appellee’s car with such violence that the driver of the car of appellants lost control of the steering-wheel, and the car turned to the right at an angle and ran into a ditch, without fault on the part of the driver. The car turned over in the ditch, and each of the appellants received, in consequence, very serious personal injuries. Mrs. Johnson and Anderson both sustained bone fractures, and there was evidence to show that their injuries were not only very severe and painful, but permanent. Mrs. Holton’s injuries, according to the testimony, were not permanent, but were substantial and painful.

The lms was, according to the undisputed evidence, stopped on the side of the road for tire repairs, and each of the appellants testified that, when their car got within about twenty feet of the rear of the bus, the driver, Mrs. Holton, turned out to the left, and got about the center of the road, perhaps the left wheel being slightly over the center, and that the front end of the oar was within five or ten feet of the rear end of the bus when the collision occurred. They testified that they heard no signal from appellee’s car as it approached from the rear, and that they did not see the car until it came alongside of their ear and struck the front wheel. They stated that the car struck with a terrific impact and made a great noise, and that the force was sufficient to break open the right-hand door of the car in which they were riding. The evidence of another witness tends to show that the impact was very severe, from the fact that the hub-cap on the car was mashed in against the end of the axle. The narratives of appellee and his wife coincide with each other, but they are in direct conflict with tíie testimony given! by appellants. They testified that they were in a line of cars, going at a very moderate rate of speed, and that many of the cars were passing each other, and that, as they approached the motor bus standing on the side of the road, which they observed ahead of them, they speeded up slightly for the purpose of passing the car in which appellants were riding and two others, and that, just as they went to pass appellants’ car, the driver thereof suddenly veered the car to the left and ran into appellee’s car-, striking the rear wheel with the front wheel of appellants’ car. They testified that the collision occurred forty to fifty feet behind the motor bus, and that the impact was so slight that it was hardly noticeable, and that they did not discover that any injury had resulted until they had traveled a distance of about half a block in front of the bus. They testified that, when they started to pass the cars in front, appel-lee began sounding the horn, and continued to do so until after they had passed. Appellee stated in a very emphatic way that he was “playing- a tune” on the horn, meaning that he was honking- it constantly. He testified that, when he noticed appellant’s car turning out into the road,.lie cried out to his wife, “Look out for this car,” and that she cut her car around to the left, which was 'on the extreme left-hand side of the road; that, when the two cars struck, Mrs. Newman asked, “Did I do any harm?” and that he (appellee) replied, “No, everything is all right.” He testified that no signals were given from appellants’ car, and appellants themselves admitted that they gave no signal. Appellee testified that, after the collision, he looked back and saw that apparently there was nothing wrong with the car with which they had collided, but that, when they got about half a block in front of the bus, he looked back again and saw the car of appellants turning around the bus and saw it run into the ditch.

Now7, it is apparent from this recital of the testimony in the case that there was a sharp conflict on material points, and that it showed negligence on the part of one side or the other of this controversy. The jury might have found in favor of either party on this issue, but it -was a question for the .jury, as the evidence was legally sufficient to support a verdict either way. The issue should not have been taken away from the jury by a peremptory instruction.

In the first place, the evidence was sufficient to show that appellee was guilty of negligence himself in failing to exercise control over the driver in order to prevent the collision. Minor v. Mapes, 102 Ark. 351; Carter v. Brown, 136 Ark. 23; Pine Bluff Co. v. Whitlaw, 147 Ark. 152; Wisconsin & Arkansas Lbr. Co. v. Brady, 157 Ark. 449. Appellant was not only sitting in the car beside the driver, where he could observe everything* that occurred, but, according to his own statement, he was actually participating in the operation of the car by giving directions to his wife and by giving signals. He appears to have been, for all practical purposes, as much in control of the car as was his wife, who was doing the driving. He admits that he saw the bus standing on the side of the road, and if, as testified by appellants, they were moving out into the center of the road for the purpose of passing the bus, the jury would have been justified in finding that appellee and his wife were negligent in attempting to pass at that moment. The evidence adduced by appellants, if accepted. by the jury, was sufficient to show that they were out in the middle of the road, perhaps a little to the left of the middle of the road, in the very act of passing the bus, when appellee undertook to pass at a rapid rate of speed.

Appellants were entitled to a submission of the issues as to liability on the theory that appellee himself participated in the act of negligence which caused the collision.

In the nest place, we are of the opinion that there was sufficient evidence to justify a submission of the issue of appellee’s responsibility on the theory that his wife, while driving the car, was acting as his agent. This court has refused to accept the so-called “family purpose” doctrine as a basis of liability on account of automobile collisions. Norton v. Hall, 149 Ark. 428; Volentine v. Wyatt, 164 Ark. 172. We have also discarded the doctrine of imputed negligence (Carter v. Brown, supra; Miller v. Fort Smith Light & Traction Co., 136 Ark. 272; Pine Bluff Co. v. Whitlaw, supra; Itzkowitz v. P. H. Ruebel & Co., 158 Ark. 454), and the common-law liability of the husband for torts of the wife has been eliminated by statute (Bourland v. Baker, 141 Ark. 280), but we have not departed from the elemental principles of the law of agency in determining the question of liability for automobile accidents. The doctrine of respondeat superior still obtains. In Norton v. Hall, supra, we said: “In other words, we reject the so-called ‘family purpose’ doctrine as stated by some of the courts in its broadest sense, though we do not mean to hold that there may not be circumstances under which it would be a question of fact for the jury to determine whether the person so operating the car was the agent of the head of the family or was agent of the particular member or members of the family for whose pleasure and benefit the car was then used.” In Wisconsin & Arkansas Lumber Co. v. Brady, supra, we held that the husband, who was riding in his own car which his wife was driving, was responsible for the negligence of his wife on the theory that she was, under those circumstances, acting as his agent in the operation of the car. Why shouldn’t the doctrine of respondeat superior apply under such circumstances? If the owner of a car in which he is riding permits some other person. to operate it — no matter whether it is his wife or child or friend — there is no reason why the relation of principal and agent should not be held to be subsisting between them so as to make the owner, as the principal, responsible for the negligent act of the driver as his agent. The question merely involves the application of elemental principles of law on this subject, and we are of the opinion that the testimony in the case is sufficient to call for a submission of the issue as to liability of appellee on account of the negligence of his wife as his agent, as well as his ©wn negligence in controlling or failing to control the operation of the car. Of course, we express no opinion on the weight of the evidence further than to say that it is legally sufficient to justify a submission of the issues in regard to negligence.

For the error in taking the case away from the jury the .judgment is reversed, and the cause remanded for a new trial.

Wood and Hart, JJ., dissent.