text:
    Ex parte Smith.
    Opinion delivered December 22, 1924.
    1. Habeas corpus — effect of demurrer to response. — One confined in a hospital as insane and a dangerous person to be at large is entitled to have his mental condition inquired into, for the purpose of determining whether he is entitled to be discharged; but, where a response to a petition for habeas corpus shows that “he is a paranoiac with homicidal tendencies,” a demurrer to the response concedes such fact to be true.
    2. Insane persons — duty of hospital authorities. — Hospital authorities having rightful custody of an insane person are charged with the same duties as any other person having custody of such a person, namely, not to abandon him until he can be taken into custody of such person or institution as by law is charged with the duty to care for the insane.
    3. Insane persons — right to discharge. — Where hospital authorities rightfully receive an insane person into their custody, the court will not require the absolute discharge of such person from such custody, so long as no steps are taken under the statute (Crawford and Moses’ Dig., § 5854) for his care and custody.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      Walter M. Purvis, for petitioner.

      J. I. Trámele, for respondent.
   McCulloch, C. J.

The petitioner, William L. Smith, has brought here on certiorari the record of proceedings before the Pulaski Chancery Court involving his right to be discharged from the United States Veterans’ Hospital No. 78, located near the city of Little Rock.

The petitioner applied to the chancery court for a writ of habeas corpus directed to the superintendent of the hospital, directing the latter to produce petitioner before the court and show cause why he should not be discharged. In the petition for habeas corpus it was alleged that petitioner was “imprisoned and illegally restrained of his liberty by the medical officers of U. S. Veterans’ Bureau Hospital No. 78, located in Pulaski County, Arkansas, by reason of, so he is informed and verily believes, the impression and belief of said medical officers that he is insane and a dangerous person to be at large.” The petition reads further as follows:

“Your petitioner further states that he is not so imprisoned and restrained by reason of the judgment or order of any court whatsoever, and that the only pretext for his said imprisonment and restraint is the erroneous belief of said officials that said imprisonment and restraint is beneficial to petitioner’s health; the only offer for petitioner’s release was conditioned upon his attorney signing the paper hereto attached as ‘Exhibit A’ which is made a part hereof, and whereas, on the contrary, petitioner states that said imprisonment and restraint and close confinement is damaging* to his peace of mind and to his physical health, that no good and sufficient reason therefor now exists.”

The prayer of the petition was that petitioner be “discharged from said unlawful imprisonment and restraint.”

After service of the writ, the superintendent of the hospital appeared and filed a response to the petition, il which he stated, in substance, that petitioner was a patient in said hospital, and was being detained therein in accordance with the rules and regulations governing the institution; that respondent admitted that he had no legal right to detain petitioner, but that the latter was a dangerously insane man, and should not be turned loose upon the community by being* discharged from the hospital without being taken charge of by some one capable of taking care of him. A paragraph in the answer reads as follows: “It'is not the disposition or intention of the hospital authorities to detain any persons in said institution where there is some one who will take the responsibility of patient to be discharged, and further respondent states that if said William L. Smith were permitted to be discharged and run at large he would be a menace to the public.” The response makes reference to exhibits showing the personal and military history of petitioner, which exhibits are made part of the response, and those exhibits show that petitioner was brought to the hospital for treatment, and, according to his personal history and physical examination, he is a paranoiac with homicidal tendencies; that he killed two of his comrades while in the army, and was acquitted on the ground of insanity, and that, immediately before his being placed in the hospital, he fired a gun at a man on the street for the reason that, as he said, the latter ‘ ‘ spit at him., ’ ’

Petitioner demurred to the response, and, upon the demurrer being overruled, petitioner stood upon the demurrer and suffered his petition to be dismissed, and, as before stated, has brought the record here for review on certiorari.

Petitioner was entitled to have his mental condition inquired into for the purpose of determining whether or not he was entitled to be discharged from the hospital, but Ms attorney was content with standing upon the demurrer to the response, which set forth all the facts and circumstances under which petitioner is being detained in the hospital. The demurrer conceded those facts to be true, and we must treat the case here as if the chancellor had found, upon proper evidence, the state of facts set forth in the response. According to those facts, the petitioner is insane, and is a dangerous paranoiac, on account of having homicidal tendencies, which have been demonstrated by overt acts in the commission of homicides and by another recent homicidal attempt. Under those circumstances, the petitioner is not entitled to an absolute discharge from the custody of the hospital authorities. According to the allegations of the response, which 'must be taken as true, the hospital authorities rightfully received petitioner into their custody, and the court should not require them to turn him loose and permit him to go at large, if he is afflicted in the manner and to the extent set forth in the response. In this respect the hospital authorities are in the same attitude and are charged with the same duties as any other person having rightful custody of an insane person. The duty is not to abandon an insane person until he can be taken into custody by such person or institution as is charged by law with the duty to care for the insane. The statutes of this State provide that, when a person is insane so as to endanger his own person or the person or property of others, “it shall be the duty of his guardian, or other person under whose care he may be, and who is bound to provide for his support, to confine him in some suitable place until the next term of the probate court for his county, which shall make such order for the restraint, support and safekeeping of such person as the circumstances of the case shall require.” Crawford & Moses’ Digest, § 5854. Adequate provision is made by law for the custody and care of insane persons, and, of course, these statutes have full application to an insane person in the United States Veterans’ Hospital, but, until some steps are taken for the legal care and custody of such, insane person, the court will not require the absolute discharge of the patient from custody. The facts of the case, as detailed in the response of the superintendent of the hospital, do not show that petitioner is entitled to an absolute discharge, and the chancery court was correct in refusing to grant relief.

Affirmed.

Hart, J., dissents.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Wisconsin & Arkansas Lumber Company v. Scott.
    Opinion delivered December 22, 1924.
    Damages — duty to minimize loss. — Though the destruction of plaintiff’s pasture fence by fire was caused by the negligence of defendant, plaintiff cannot recover for the loss of his cattle if he knew of such destruction in time, by the exercise of ordinary care, to prevent the escape of the cattle and their consequent loss.
    Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge;
    reversed.

      T. D. Wynne and Henry Berger, for appellant.
    The court erred in not directing a verdict for the defendant. 159 Ark. 484. A property owner is required to do whatever is reasonably necessary to protect his property from injury, and cannot permit the injury to occur and claim full damages when he might have prevented it or lessened its effect by a reasonable expenditure. 123 Ark. 8; 102 Ark. 246.

      D. D. Glover and A. W. Jernigam, for appellee.
   Wood, J.

This action was instituted by Eva Jernigan, Sarah McKee Vance and J. T. Scott against the Wisconsin & Arkansas Lumber Company and Arkansas Land & Lumber Company. The plaintiffs, Jernigan and. Vance, alleged that they were the owners of certain lands over which the defendants had constructed their railroad; that, on the first of August, 1922, defendants negligently set out fire and burned plaintiffs’ fence, to their damage in the sum of $75; that J. T. Scott had rented the lands for the year 1922, and, by reason of the burning of the fence, they had been unable to collect their rent from Scott in the sum of $75. 'They prayed for damages in the sum of $150.

J. T. Scott alleged that he had rented the lands from the co-plaintiffs, and that he was using the same as a pasture for his stock, consisting of horses, hogs and cattle; that he had sustained damage by reason of the loss and destruction of the fence in the sum of $150, and had been deprived of the use of the pasture in the additional loss of $50, and prayed judgment in the sum of $200.

The defendants denied the allegations of the complaint. The cause was submitted to the jury, which, upon the evidence adduced, returned a verdict in favor of the defendants against Mrs. Yanee and Mrs. Jernigan and in favor of the plaintiff, Scott, in the sum of $112.50. Judgment was rendered in favor of the plaintiff, Scott, against the defendants in that sum, from which the defendants appeal.

The appellee predicates his right to recover upon the alleged negligence of the appellants in setting out fire and destroying the fence, which he alleged caused his damage. The appellants, on the other hand, denied that there was any negligence. The issue as to whether appellants negligently set fire to the fence which inclosed the land appellee had rented was submitted to the jury under correct instructions, and it suffices to say that this issue, under the evidence, was one of fact for the jury, and their verdict is conclusive here on that issue.

Among other instructions, the court gave the following, at the instance of the appellee: “No. 4. You are instructed that, if you find from the evidence in this case that the defendant company negligently burned the fence that inclosed the plaintiff, John Scott’s, hogs, and you find from the evidence that the defendant company knew that the stock was so inclosed, it would befits duty to exercise ordinary care to prevent them from escaping from said inclosure, and if you find from the evidence that it did not exercise that degree of care, and you find that the plaintiff’s damage was caused thereby, it will be your duty to find for John Scott in whatever sum he was damaged by its failure to exercise ordinary care, unless you further find that John Scott did not exercise proper care to prevent said loss.” And, at the instance of the appellants, the court gave the following instruction: ‘‘No. 7. The court instructs the jury that it was the duty of John T. Scott to do whatever was reasonably neces^ sary to protect his hogs from straying away from the premises complained of, after the fire, and if you find from the evidence in this case that he did not reasonably exert himself to prevent said hogs from straying off, then, in that event, he cannot recover, and your verdict will be for the defendant.”

The appellee testified to the effect that, when he saw the fire late Friday evening, the section crew of the appellants was with the fire and had it under control, and he expected that they would put up a fence or guard it so that no further damage could occur. He went early Saturday morning, and worked about two weeks to^ get what stock he could. He knew that the stock Would get out of the inclosure unless some one prevented them from doing so. He had something else to do, and made no effort to gather together the stock, nor did he employ any one to watch the burned space to prevent the stock from getting out. About sixty head of stock escaped from the pasture, and seventeen head of hogs were entirely lost, weighing about 150 pounds each, and worth at least $150. It cost him at least $50 to feed them by-reason of the loss of the use of the pasture, and he placed his entire damage at the sum of $250.

The above instructions were in conflict and calculated to mislead the jury. If the appellee had knowledge of the destruction of his inclosure by the appellants soon after it occurred and in time for him to prevent the escape of his stock, it was his duty to exercise ordinary care to prevent his stock from escaping, and this duty did not devolve upon the appellants. But instruction No. 4, given at the instance of the appellee, was calculated to cause the jury to believe that it was the duty of the appellants to prevent appellee’s stock from escaping after the fence was destroyed, even though the appellee had knowledge of the fact that the fence was destroyed and could himself, by the exercise of ordinary care, have prevented the escape of his stock. To be sure, if the destruction of appellee’s pasture fence was caused through the negligence of the appellants in putting out fire, and this negligence w¡as the proximate cause of the appellee’s damage, then he was entitled to recover. Opi the other hand, even if the appellants ’ negligence caused the destruction of the fence, yet if the appellee knew of such destruction in time that by the exercise of ordinary care he could have prevented the escape of his stock and failed to exercise .such care, then the proximate cause of the damage caused by the escaping of the animals was the appellee’s own negligence.

As was said by us in L. N. O. & Texas Rd. Co. v. Jackson, 123 Ark. 1-8: “The property owner is required to do whatever is reasonably necessary to protect his property from injury, and cannot permit the injury to occur and then claim full damages when he might have prevented it or lessened its effect by a reasonable expenditure.” See also Western Union Tel. Co. v. Ivey, 102 Ark. 246.

For the error in giving appellee’s prayer for instruction No. 4, the judgment is reversed and the cause remanded for a new trial.


text:
    Cruce v. Missouri Pacific Railroad Company.
    Opinion delivered December 22, 1924.
    1. Trial — directing verdict. — In determining on appeal the correctness of the trial court’s action in directing a verdict, the rule is to take that view of the evidence that is most favorable to the party' against whom the verdict is directed, and, where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it was error to take the case from the jury.
    2. Trial — directing verdict. — In an action against a railroad company for personal injuries to a locomotive fireman caused by negligence in not having the tool rack in the locomotive properly inspected and repaired it, it was error to direct a verdict for defendant where there was evidence tending to prove that the company was negligent in not having the tool rack properly inspected and repaired, that the tool rack was in a defective condition, and such defect was the proximate cause of the injury to plaintiff, that plaintiff did not appreciate the danger, and that the danger was not one of the ordinary risks of the employment.
    3. Trial — directing verdict. — Where there are issues of fact on which reasonable minds might reach different conclusions, it was error to direct a verdict.
    Appeal from Jackson Circuit Court; Dene■ H. Coleman, Judge;
    reversed.

      John W. Stayton and Brundidge <& Neelly, for appellant.
    Tbe proof was sufficient to sbow that tbe train upon wliicb plaintiff was injured was engaged in interstate commerce. 117 Ark. 44; Ann. Cas. 1916B, 482; 60 L. ed. 868. A servant assumes tbe ordinary risks and dangers of bis employment, and tbe extraordinary risks and dangers which be knows and appreciates. 245 IT. S. 441; 38 Sup. Ct. 139; 63 L. ed. 385; 153 Airk. 77; 160 Ark. 362; 66 L. ed. 482; 147 Ark. 75. Tbe doctrine of res ipsa loquitur applies in this case. 286 Fed. 663; 222 N. Y. 482; 119 N. E. 86; 233 IT. S. 80; 34 Sup. Ct. 566; 58 L. ed. 860; 228 U. S. 233; 33 Sup. Ct. 416; 57 L. ed. 815; Ann. Cas. 194 D, 905; 166 N. Y. 188; 59 N. E. 925; 52 L. R. A. 922; 82 Am. St. Rep. 630; 211 N. Y. 203; 105 N. E. 206; 51 L. R. A. (N. S.) 1221; Ann. Cas. 1915C, 511; 167 Fed. 16; 92 C. C. A. 478; 114 Fed. 737; 52 C. C. A. 369; 132 Fed. 801; 65 C. C. A. 101; 149 Fed. 667; 82 C. C. A. 115; 8 L. R. A. (N. S.) 677; 80 Fed. 865; 26 C. C. A. 201; 132 Fed. 593; 67 C. C. A. 421; 139 Fed. 737; 71 C. C. A. 555; 123 Fed. 61; 59 C. C. A.-279.
    The court erred in giving a peremptory instruction for the defendant. 89 Ark. 372; 103 Ark. 401.

      Pryor & Miles, for appellee.
    In an action Toy a servant against a master for alleged negligence, where the servant is in an equal or better position than any other person to know what constituted the negligence, the doctrine of res ipsa loquitur does not apply. 169 F,ed. 609; 218 Fed. 604; 96 Ark. 206; ,32 Okla. 575. The doctrine of .res ipsa loquitur does not apply as between master and servant. 201 Fed. 637; 138 111. App. 131; 229 Fed. 559; 181 Fed. 91; 67 C. C. A. 421; 132 Fed. 593; 139 Fed. 737; 152 Fed. 417. Conjecture is an unsound and unjust foundation for a verdict. 98 C. C. A. 281; 174 Fed. 377; 76 C. C. A. 201; 145 Fed. 327; 105 Wis. 311; 148 Pa. 180; 23 Atl. 989; 15 L. R. A. 416; 101 Wis. 371. See also the following cases on the doctrine of res ipsa loquitur: 79 Ark. 76; 87 Ark. 190; 87 Ark. 321; 91 Ark. 388; 96 Ark. 500; 100 Ark. 422; 79 Ark. 437; 100 Ark. 467; 101 Ark. 117. There was no error in directing a verdict in favor of the defendant. 41 Ark. 542; 68 Ark. 316; 95 Ark. 136; 97 Ark. 486; 100 Ark. 156.
   Wood, J.

C. M,. Cruce was a fireman in the employ of the Missouri Pacific Railroad Company. On the 12th of June, 1922, while engaged in the performance of his duties as fireman on one of the company’s locomotives running from Little Rock to McGehee, he was injured by a tool-box falling upon him. The train, at the time of Cruce’s injury, was engaged in interstate commerce. Cruce instituted this action on September 13, 1923, to recover damages for the injury, and alleged that, while he was in a stooping position, putting coal in the furnace, the tool-chest fell from the rack in which it was placed, upon his back with great force and violence, causing him severe injury; that the company, its agents and employees, negligently and carelessly permitted the tool-rack, which was constructed above the place where his duties required him to work, to become out of repair and insecure, in that the same was bent or broken and did not have the proper fastening to hold the tool-box in position; that the company, its agents and employees, in placing the same in said rack had negligently and carelessly failed to see that it was properly adjusted so that it would not be thrown from its position by the movement of the train; that the company, its agents and employees, had negligently and carelessly failed to make the proper inspection of the placing of said tool-box in the rack in order to see that the same was not an element of danger. The action was brought under the Federal Employers ’ Liability Act, approved April 22, 1908.

.The company in its answer denied all the material allegations of the complaint, and set up the affirmative defenses of contributory negligence and assumed risk.

The testimony of Cruce was to the effect that, on the morning of June 12, 1922, he was firing an engine that was pulling a freight train from McGehee to Little Rock; that this train was made up in Louisiana.

The testimony on the issues of negligence, contributory negligence and assumed risk, is substantially as follows: The engineer testified that the injury to Cruce occurred at Jefferson Springs, about seventeen miles from Pine Bluff, between Pine Bluff and Little Rock. The groaning of Cruce attracted witness’ attention, and he looked around and saw that the tool-box was lying, one end on the apron and the other on Cruce’s shoulder. Cruce w¡as lying down in the entry, on his side. The toolbox had fallen out of the rack on Cruce, and witness lifted it off of him. They took Cruce off of the engine at Jefferson Springs and put him on a caboose, and brought him to Little Rock to the hospital. "When witness got to Little Rock, he reported the rack on the engine as in bad condition. After lifting the tool-box off of Cruce witness saw one of the fingers was bent on the rack. Witness was familiar with the duties of a fireman on freight trains. When witness got on his engine, he had occasion to get the monkeyvwrench out of the tool-box, and, in attempting to lift the box out of the rack, found that he could not move the tool-box with his hands. The rack has a bar of iron something like 3/8 of an inch in thickness and 2% or 3 inches wide, and there are strips running across and riveted to a sheet on the face of the tank. It has fingers that turn up. The tool-box is made of sheet iron about 15" on 16" long and 4%" or 5" wide. The tool-box sits in the rack. The prongs stood up at each end about three inches high, and the .strips of iron forming the rack turn up and make what they call the fingers of the rack. The strips of iron stick up in front of the box about two or three inches high. The 'box is held at the back by the sheet iron of the tank. The two strips were riveted to the tank, and then turned straight out the width of the box and then turned up three inches. The prongs or fingers, two in front and one on each end, held the box in the rack. The left prong or finger on the rack was bent out to an angle of about 45 degrees, and that left one prong straight up on the front. The one front prong and the prong on each end would keep the box from falling out. W¿tnés.s didn’t see how the bent prong had anything to do with the box falling out. The rack was bolted to the top sheet that makes a part of the front part of the coal tender. There is a space in the tank where the coal stays that is surrounded by the tank that holds the water. The bottom of the tool rack is about four and a-half feet from the floor. The box itself was four or four and a-half feet high. Prom the door of the firebox to the gates that hold the coal in the tank running through the center of the engine is something'like 7y2 feet. The coal gates were right under where the tool-box hung. When the fireman .stoops down to take up. a scoop of coal, he stoops under the tool-box. It is something like 4% feet from the place where he takes his coal to the box. The bent prong of the tool-rack would be in plain view of him when he turned each time to get the coal. Witness had never noticed the bent prong until he picked the tool-box off of Cruce. The witness looks forward more than the fireman to see where the engine is running. The box is a portion of the tank equipment. The fireman has charge of the coal of the engine, and loads it. He also takes the water. In order to get over the water tank the fireman goes over the tank wall by the box or around it. It is usual for him to go straight over. The fireman had a better opportunity than witness to observe and inspect the condition of the box, as he worked under it and around it. It was the duty of the fireman to keep a lookout.

The plaintiff, Cruce, testified, in addition to his testimony already set out, that he had been working as a fireman on the Missouri Pacific nearly three years when the injury occurred. He was injured near Jefferson Springs by the tool-box falling out of the rack on to his back. The rack was fastened on the top of the cab just over the coal gates. It was 5% or 6 feet over the top deck. One as tall as witness w'ould have to climb over the coal gate to get tools out of the box, if it was necessary for him to get them. The company had a man at the end of the terminal at the roundhouse to put the tool-box in the rack for the engineer’s use. Witness had nothing to do with that. Witness was in a stooping position, putting in the coal. He had reached ’back for the second or third scoop, and, as he was in the act of opening the firebox, the tool-box fell out of the rack and hit him between the shoulders, in the small of the back. The tool-box would weigh between fifty and seventy pounds. Witness had not noticed the tool-box when he got on the engine, further than looking up to see if the coal gate, the shaker bar, and clinker lever, were in proper place. Witness noticed that the box was in the rack just by glancing at it. He saw nothing wrong about it. When the box fell on witness, it knocked him down. He remembered the engineer stopping the engine and whistling for the crew to come. About the last witness remembered was when they were taking him off of the engine. Some people had got up there about that time, and 'witness beard them ask tbe engineer, Read, if witness was dead or killed. Witness heard a lady’s voice ask Mr. Read if witness was killed. He said he didn’t know. She asked what happened, and' he said the tool-box fell on witness. She asked him how come it to fall, and he said the rack was bent; that was the last witness remembered. Witness then described the nature and effect of his injury, which testimony it is unnecessary to set forth.

Witness further described the tool-box and the tools it contained, and stated that when the box fell the lid came open and the tools scattered all around witness on the deck. Witness was conscious about five minutes from the time he got hurt until they took him off the. engine. The engine should have been inspected at McGehee or Little Rock. They are inspected at each of the terminals and at the roundhouse. The company had two or three shifts of inspectors at McGehee and Little Rock. Cook was the inspector at McGehee. He got off duty soon after witness arrived there — about 3:30 in the morning. He would not have had time to inspect. There are three hours that they have no inspectors. The inspector is supposed to be relieved at 4 o’clock in the morning, and thereafter there is no inspector until 7 o’clock in the morning. The engine witness was on could not have been inspected that morning. There was no inspector there. He was still on duty when witness got there, but would not have had time to inspect the engine, because it takes an hour or an hour and a-half to do that. The engine was turned over to the hostler in the yards, whose duty it is to put them in the roundhouse and bring them from the roundhouse and connect them with the trains. On that morning they "stayed there about three hours, doing what was called ‘doubling the route.’ They seldom did that. This was the second time wdtness doubled on that road in about three years. Witness had no instructions from the engineer about inspecting the tool-box and tools. When witness glanced at the tool-box, he saw nothing wrong— nothing out of the ordinary. Witness was supposed to see that the tools he used in firing were on there — Ms shovel, coal pick, clinker bar and shaker. These do not go in the tool-box. When these tools are not on the engine, he notifies the engineer, and the engineer calls the hostler to have the supply man put them on. Witness didn’t use any of the tools in the tool-box. If there was anything wrong, witness didn’t observe it. Witness was asked what caused the box to fall out of the rack, and answered, “The prong being out of shape, and probably the box was too small.” Witness supposed the rack was in bad order. It could have been both this and the box being too small. As witness climbed up on the engine and noticed the box up in the rack, it was three or four or five feet from witness. Witness saw the box up in the rack when he left Little Rock. He didn’t have any light in the cab on the engine going down to McGehee, except the water glass light. They were supposed to have a light over the coal gates to reflect down on the deck, but witness didn’t remember whether it was up there on that particular night or not. They arrived at McGehee at 3:30 and left at 6:45. It was daylight when witness got on the engine and looked at the box. Witness didn’t see that it was put correctly in the rack — didn’t pay any particular attention. It was not in witness’ line of duty, but he always looked to see if everything was in the proper place. Witness doesn’t have to inspect the engine unless directed to do so by the engineer. Firing is the most that witness had to do. If inspection and cleaning are assigned to witness, he is supposed to do it. Witness was under the engineer’s jurisdiction. It was the duty of witness, as fireman, to inspect everything about the tank that came under his observation, but it was not his place to inspect, because witness didn’t have any time for that. His duty was to run the engine from his seat and get down and oil it around under the cab. Witness’ duties kept him turning towards the tank and back most of the time to get the coal. Witness was asked: “Every time you turn back to get coal, it put this tool-box in your line of vision, didn’t it? A. No sir; if you did, you would have to look up every time. You always look down when you go to get a scoop full of coal.” Witness was asked, “When you go back to get water, you would go back past the tool-box, wouldn’t you, every time? A. I didn’t go over it. I got down to the side of it. I either dropped off — (generally, I dropped off on the ground. * * * 1 dropped off on the ground, and would catch the rear of the tank and go up on the ladder. ’ ’ Witness then described to the jury the position he was in and the movements he had to make when he was putting coal in the firebox. He states, “When I swung back to get the coal, I would swing back under it, stooping, and, with the engine running as fast as we were, I judge it would be 4% feet high.” After describing the position witness would be in in putting the coal in the firebox, he was again asked how high the box was, and answered, “Five feet;” that it was up over witness’ head, probably 5y2 or 6 feet. The coal was back 7% feet from the fire-box. When witness straightened up to get on the fireman’s seat, he would be about four or five feet from the box. Witness was asked if any one on the train connected with the train crew up to the time this box fell was in a better position than witness to tell the condition of the box, and answered, “I think so. I think any member of the crew would have been, for the simple reason that the fireman is the only one that works. Every time the engine whistles at a bunch of cattle or a crossing, the fireman has to go to firing. ’ ’ The fireman could tell if there was any defect in the tool rack if he saw it, but he had no reason to see it. He didn’t get any of the tools. The engineer didn’t tell witness to get any of the tools. Witness stated that the tool-box fell because it was in bad order; that it would not have fallen if it had been in proper condition. If the rack had been in good order, the box would not have fallen out, unless the engine had turned over or hit some rough track. It might have been possible to have thrown it out, but witness didn’t think it would have fallen if the rack liad been in proper condition. Witness didn’t remember whether they hit any rough track.

A witness by the name of Pump testified that it was his duty to make tool-boxes and racks to hold them on the engine. He described the manner in which the rack was made and attached, substantially the same as already set forth in the testimony of the engineer. The toolboxes were 30 inches long and 8 inches square. The box with its equipment of tools would weigh between 50 and 55 pounds. The prongs or fingers come up straight to hold the box in. Witness was asked what effect it would have on the box as to making it safe if one of the prongs or fingers is bent out at an angle of 45 degrees, and answered, “I don’t know much about that — how it would be affected at all. It would jump out if it was bent. The purpose of putting the prongs there at all is to hold the box in.” On cross-examination witness was asked, “If there were just one of those prongs in front, the box would have sufficient prongs to hold it in there, wouldn’t it?” and answered, “No, it would slip out on just one.” He further stated that with one of the front prongs bent and another front prong three inches high holding and one at each end holding, the box would jump out easy, according to witness’ idea.

Another witness testified for the plaintiff to the effect that he was working for the defendant company at McGrehee in June, 1922, as inspector. He went on at eight p. m. and off at 4 a. m. The next inspector came on at 7 a. m. Witness didn’t inspect the engine on which Cruce was injured. It came in at 3:45 in the morning. It is the duty of the inspector to inspect the engine all around for defects in any of the running equipment or safety appliances. It was a part of witness’ duty to inspect the tool-box, tool-rack, etc.

A rule of the company was introduced which specified,' among other things, that firemen must “assist in the inspection and 'cleaning of the engine on the road and do the cleaning assigned to them.”

At the conclusion of the testimony the court instructed the jury to return a verdict in favor of the defendant- 'company, which was done. Judgment was rendered in favor of the defendant, from which is this appeal.

In Jones v. Lewis, 89 Ark. 372, it is said: “In determining on appeal the correctness of the trial court’s action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and, where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury.” Williams v. St. Louis-San Francisco Ry. Co., 103 Ark. 401, and many cited in the above.

Under the above rule, we are convinced that reasonable minds, giving the evidence its strongest probative force in favor of the appellant, might reach a different conclusion from that reached by. the trial judge. There was testimony to warrant a jury in finding that the company was negligent in not exercising ordinary care to have the tool-rack properly inspected and repaired; that the tool-rack was in a defective condition, and that such defect was the proximate cause of the injury to appellant; that appellant did not know and appreciate the danger of the defective condition of the toolrack; that the defect was not so obvious that appellant was bound, in the exercise of ordinary care for his own protection in the discharge of his duties, to have discovered the same; that the danger from the defective rack was not one of the ordinary risks incident to appellant’s employment.

These were issues of fact under the testimony on which reasonable minds might reach different conclusions. The court therefore erred in not submitting these issues to the jury under appropriate instructions. For the error in directing the verdict the judgment is reversed, and the cause is remanded for a new trial.


author: Wood, J. McCulloch, C. J.,

text:
    Beard v. Read.
    Opinion delivered December 22, 1924.
    Brokers — contract to produce purchaser. — Where a real estate broker contracted to make a sale of real property, he has performed his contract by the production of a purchaser financially able to buy and with whom the owner actually makes an enforceable contract of sale, and- the failure of the purchaser to carry out the contract does not deprive the broker of his right to commissions.
    Appeal from Hempstead Circuit Court; W. V. Tompkins, special Judge;
    affirmed.

      Steve Carrigcm, for appellant. .
    The plaintiff was entitled to his commission only upon the completion of the sale. 29 L. B. A. (N. S.) 533; 78 N. E. 106; 101 Mass. 257; 3 Am. Bep. 352. Notwithstanding the plaintiff furnished a purchaser ready, willing and able to purchase the property, the sale was not completed and the commission was not earned. 81 Ark 97; 149 Ark 188; 78 N. E. 107; 101 Mass. 257; 3 Am. Bep. 352.

      B. B. Downie, O. A. Graves and John W. Newman, for appellee.
    Plaintiff, having furnished a purchaser ready, willing and able to purchase the property, was entitled to his commission. 87 Ark. 506; 117 Ark. 593; 132 Ark. 378.
   Wood, J.

This is an action by A. C. Bead against Nina B. Beard, Sarah Dodge Brandebury and O. L. Beard, to recover the sum of $2,437.50 alleged to be due him as agreed compensation for procuring a purchaser for a large body of lands, embracing about 2,840 acres, in Hempstead County, Arkansas. The plaintiff alleged that, after incurring expense in advertising and showing the lands, he received an offer from H. T. Brown, which he submitted to the defendants on February 11, 1922, and they accepted the offer, and at the same time stipulated to pay the plaintiff as commission for procuring the purchaser the amount above mentioned; that Brown was ready, willing and able to purchase the land, for the sum of $48,750, and offered that amount, which the defendants accepted, and entered into an agreement with Brown for the sale of the property for said sum, and thereafter failed and neglected to convey the lands to the purchaser in accordance with agreement. Plaintiff alleged that the defendants were nonresidents and the owners of the lands which he described in his complaint, and prayed for judgment in the sum of $2,437.50.

An attachment was issued at the instance of the plaintiff, and levied upon the lands described, and a Us. penclens notice given.

The defendants, in their answer, admitted that.they agreed, about September 27, 1921, to allow A. C. Read to sell certain of their lands, situated in Hempstead County, and that he procured one H. T. Brown as a prospective purchaser. They admitted that they offered and agreed to sell the lands, according to their contract with the plaintiff on September 27, 1921, but denied that they agreed to pay the plaintiff a commission of $2,437.50 or any other sum for the sale of defendants’ lands to H. T. Brown or any other purchaser, until said sale was consummated and the money actually paid on the purchase price of the lands. They denied that the plaintiff procured Brown as a purchaser for the land at the sum of $48,750, and denied that Brown was ready, willing and able to purchase and pay that sum for the lands. They denied generally that plaintiff ever procured any purchaser for their lands who was ready, willing and able to purchase the same at any time, and denied that they were indebted to the plaintiff in any sum. They alleged that they entered into a contract with the plaintiff on September 27, 1921, under which plaintiff undertook to handle the defendants’ lands, which contract is as follows:

“To A. C. Read Real Estate Co.:
“For and in consideration of one dollar, the receipt of which is hereby acknowledged, I hereby appoint you exclusive agent to make sale of the real property herein described as
“About 3,000 acres located in Hempstead County, Arkansas, in sections 18, 8, 19, 20, 30, 29, 31, 32, containing about 3,000 acres, more or less, all for the price of not less than $20 per acre, upon the following terms-: one-third cash, balance secured by mortgage thereon for equal payments 1-2-3 years at 7 per cent.; and you are hereby authorized to accept a deposit to be applied on the purchase price, and to execute a binding contract for sale on my behalf. In case the above described property is sold or disposed of within the time specified, I agree to make the purchaser -a good and sufficient warranty deed- to the same, and to furnish a complete abstract of title, if required; and it is further agreed that you shall have and may retain from the proceeds arising from such sale five per cent, commission on the above price, and twenty per cent, of all of the consideration for which said property is sold over and above price specified, and, in case said property is sold within said time, either through you, myself or any other person, then in that case I promise to pay you five per cent, on the whole amount for which said property may be sold. This contract to continue until January 1, 192'2, and thereafter until terminated by me, giving unto you as agent ten days ’ notice in writing.”

The defendants allege that they were at all times ready and willing to comply with the above contract with Read; that they furnished to plaintiff a complete abstract of title to be turned over to any prospective purchaser; that, by the terms of the contract, they agreed to pay plaintiff five per cent, commission on any sale, which amount plaintiff was to retain from the proceeds of such sale. They alleged that no proceeds had arisen from any sale of defendants’ land in Hempstead County by the plaintiff or by any other person. They prayed that plaintiff take nothing by reason of his action.

A. O. Read testified, and introduced in evidence the contract -on which he bottoms his action, which is the same as that set forth in the answer. Witness constituted the A. C. Read Realty Company. He showed the land to Brown, 'and Brown made a proposition which witness accepted under authority from the owners, and the owners and Brown entered into a contract on February 4,1922, by which the defendánts agreed to sell and Brown to purchase the lands which defendants had listed with witness for sale. Witness introduced the contract, by the terms of which the defendants agreed to sell the lands and certain personal property for the sum of $48,750, $5,000 to be paid in cash upon delivery of the contract, and the balance at the times and on the terms mentioned therein. It was agreed that, should Brown or his assigns fail to make the payments as provided, he would surrender the premises and execute a quitclaim deed transferring the property back to the sellers. It was agreed that Brown should have possession of the premises, and that he would cut no merchantable timber therefrom prior to January 1,1924. It was stipulated that, at the time of the delivery of the contract, or within a reasonable time thereafter, the defendants should furnish to 'Brown an abstract of title to the lands. Prior to the delivery of the deed Brown was to insure certain buildings for the benefit of the defendants, and farm the premises in a workmanlike manner, and pay all taxes and assessments against the same. Brown was to.take immediate possession and keep the labor on the place during the year 1922. When Brown made the payments and carried out the agreement specified, the sellers were to execute to him a deed. The contract contained the following provision: ‘ ‘ This contract and the said notes shall be delivered and the first money paid to the parties of the first part, or their duly authorized representatives, at the office of the A. C. Read Realty Company, Little Rock, Arkansas, and all subsequent payments hereon shall be made to the parties of the first part, or their duly authorized representatives, at such place as may be from time to time designated by them in writing. ’ ’

The plaintiff testified that his commission would have been five per cent, on $48,750, which the defendants refused to pay. On cross-examination he stated there had never been any proceeds from the sale, but it was not his fault or the fault of the purchaser. The sellers didn’t object to furnishing a warranty deed, but they didn’t furnish an abstract of title, as they contracted to do, and that was the reason the contract fell down. Witness and his agent, Porterfield, who conducted the negotiations up to the time that defendants and Brown entered into the contract, thought that the title to the lands was all right, but Brown’s attorney didn’t think it was a merchantable title. Witness used every effort he could to get the attorneys representing the sellers and the buyers together on the contract. The defendants offered to introduce a letter written by Bead on March 3, 1922, to Mrs. O. L. Beard, which was to show that. Bead and his agent, Porterfield, thought that the title to the lands was good. The court excluded the letter, to which the defendants excepted.

The contract between Brown and the sellers provided that Brown was to pay the $5,000 to witness upon delivery of the contract. Brown never paid the $5,000 in cash. Brown saw the contract before the $5,000 was paid. Witness didn’t think that he loaned Brown or his attorney one of the two contracts to look over — didn’t remember — and didn’t think that Brown had one of them at that time. Brown probably had one of the contracts to read, and gave it back to witness in an hour or two after he received it. They had been working on the abstract for several days. Mrs. Beard brought the contracts back, and they were finally executed by Brown in witness’ office. Mrs. Beard was there, and Brown refused to go through the deal on account of some defect in the title, and didn’t pay the $5,000 as the contract provided. Witness wrote to O. L. Beard, at Cincinnati, on the 17th of February, 1922, in which letter he stated, among- other things, that he would take one of Brown’s notes for $1,437.50, indorsed by the defendants without recourse, and that, if the notes were not paid, the plaintiff agreed not to hold the notes as a claim against the property. It was understood then between the plaintiff and the defendants that the plaintiff was to get five per cent, as his commission. The only contention ever made by the defendants was that plaintiff was not entitled to any commission because there had been no proceeds. Mrs. Beard, who handled all the negotiations for the other heirs, was in witness’ office on February 15, when Brown signed and acknowledged the contract, and she agreed for witness to have a five per cent, commission on the total purchase price. The letter of February 17, in which witness agreed to take Brown’s note for $1,400, referred to the balance of witness’ commission, and was dividing Brown’s first $3,000 note into two notes, one for $1,562.50 and the other for $1,437.50. Witness never received any commission on the deal. Mrs. Beard put Brown in possession of the land after the contract was signed, and he stayed there for something like a month.

John Newman, the attorney representing Brown in the negotiations between Brown and the defendants, also represented witness in this action. Witness understood that he approved the title to this land for a loan from the Federal Land Bank, and the loan was made upon his opinion.

Mrs. Nina Beard testified for the defendants. She didn’t consider .that Mr. Bead had made a sale of the lands. He got Brown there, and she entered into a contract with him in writing on February 4, which had been introduced in evidence. The contract provided that, at the time the contract was delivered to Brown, he was to pay $5,000; that was never paid. She allowed Brown to go into possession of the farm, after they had made the preliminary agreement which witness made with Brown the first time she was down there on this business. This was before the contract was signed with Brown. She never gave A. C. Bead or any member of his firm authority to change the contract by delivering it to Brown without his paying the $5,000 as provided therein. It was given to Read with the idea that he Was to hold it in trust until the money was paid. The contract provides that the commission was to be paid from the proceeds of the sale of the property. It also provides that the sellers were to make the purchaser a warranty deed to the property. They did not refuse to make the deed. They furnished the purchaser a complete abstract of title, so far as witness knew. Just before the contract in evidence was signed by the prospective buyer, Mr. Porterfield, who had this tract of land for sale during the lifetime of witness’ father, assured witness that the title was good — that he knew it very well. Porterfield represented A. C. Read in the negotiations. Witness was asked if she signed that contract relying on what Porterfield said that the title was good, and the court refused to permit the witness to answer the question, to which ruling the defendants duly excepted. Witness stated that defendants had never brought suit against Brown to enforce the contract of sale with him. She wrote to Read to keep whatever securities he had there for awhile until they could determine what to do. In regard to the division of the first $3,000 note referred to in the letter of February 17 from Read to Beard, and introduced in evidence, witness stated that Read was to take that note. She was to have nothing whatever to do with it. She was anxious to get home, and they told her if she would sign the contract they would take good care of her and see that everything was done to get the notes and the money. She signed the contract only with the idea that the contract was not complete or would not be in force until this delivery — or until after the abstract was delivered. It was not to bind witness in any way until then, and witness put the papers in Porterfield’s and Read’s hands with the understanding that they were to take care of her the same as a lawyer. They told her she didn’t need a lawyer. She was to have nothing whatever to do with taking this note transaction as a part of the commission. Witness was to furnish the abstract, and she did so. She left some of them there then. She didn’t have them all, but didn’t know it when she got there. The rest of them were in the Federal Loan Bank. She left a part of the abstracts and the contract there for them to close the matter up and accept the $5,000, and she sent the rest of the abstracts later.

At the close of the testimony the plaintiff asked the court to instruct the jury to return a verdict in his favor in the sum of $2,437.50, which the court did. The defendants duly excepted to this ruling of the court. The defendants presented prayers for instructions numbered one to eleven, which the court refused, to which ruling the defendants duly excepted. Judgment was entered in favor of the plaintiff in the sum of $2,437.50, from which judgment is this appeal.

The appellants contend that the appellee is not entitled to any compensation under the contract of September 27, 1921, between him and the Brandebury estate, because there was no completed sale; that the third paragraph of the contract shows that there was to be a completed sale, with a payment of $5,000 cash as a condition precedent to the payment of commission; that the commission could only be paid out of the proceeds arising from the sale. We cannot concur in this view of the contract. Construing the contract as a whole, it occurs to us that it was a contract by which Bead, the appellee, agreed to make a sale of the property upon the terms therein mentioned, and, for his services in making the sale at the price named, he was to receive a commission of 5 per cent, and 20 per cent, of any consideration above the price specified, and that he was to receive 5 per cent, of the whole amount for which the property was sold, until the agency was terminated by ten days ’ notice from the seller, whether the sale was made by appellee or by any other person. The language of the contract, when taken as a whole, is nothing more nor less than a contract by which the appellee agreed to furnish a purchaser, ready, willing and able to pay for the lands described the price named therein, or a greater price, and upon the terms of payment therein mentioned. The contract, as we construe it, comes clearly within the doctrine announced by this court in Pinkerton v. Hudson, 87 Ark. 506; Womack v. Perkins, 132 Ark. 378; and many other cases of this court, holding that “where a real estate broker contracts to produce a purchaser who shall actually buy, he has performed his contract by the production of one financially able and with whom the owner actually makes an enforceable contract of sale. The failure to carry out that contract, even if the fault be that of the purchaser, does not deprive the broker of his right to commission.”

The undisputed proof in this record justified the court in finding that the appellee had complied with the terms of the contract on his part. He furnished the purchaser, Brown, with whom the appellees entered into the contract of February 4,1922, for the sale of the lands in controversy. The undisputed testimony shows that the failure to consummate the sale contemplated by that contract was not the fault of the appellee. The undisputed testimony shows that Brown, the prospective purchaser, refused to carry out the contract on his part because of an alleged failure on the part of the other parties to the contract to furnish an abstract of title such as the contract called for. On the other hand, the appellants claim that they did not fail to comply with the contract in that respect. This controversy between Brown and the. appellants was no concern of the appellee, inasmuch as the undisputed testimony of Nina B. Beard, who conducted the negotiations for the appellants, shows that the appellants did not undertake to enforce the contract; and the undisputed evidence shows that Brown was financially able to carry out the contract, on his part, and that same could have been enforced if he had violated same. The appellee owed the appellants no duty with reference to the enforcement of the contract between the appellants and Brown.

It is unnecessary to discuss in detail the oral testimony in the record. The decision of the cause turns upon the construction of the contract, and we are convinced that the trial court correctly construed the same, and, under the undisputed evidence, did not err in directing a verdict in favor of the appellee. The judgment is therefore affirmed.

McCulloch, C. J.,

(dissenting). The decision of the case turns on the question whether the contract provides for payment of a commission merely on production of a purchaser, or whether a sale must be consummated before a commission is earned. There is no question involved as to bad faith or recalcitrancy on the part of the owner in refusing to accept the purchaser produced by the selling agent. Nor is it shown that the seller had no title. The proof shows only that the attorney for the purchaser pointed out a supposed defect, which the seller was able and willing to cure.

It seems to me that the plain language of the contract provides for the payment of a commission only on consummation of a sale. The initial statement in the contract is that the agent is appointed “to make sale o,f the real property” described. This means what it says— to make a sale, not merely to produce a purchaser. And this is followed by a statement as to how the commission is to be paid — by retention of the amount “from the proceeds arising from such sale.” The agent is authorized to “ accept a deposit to be applied on the purchase price ■and to execute a binding contract for sale.” The parties themselves construed the contract to mean one for consummating a sale, not merely to produce a purchaser, for the appellee made persistent efforts to obtain a consummation of the sale and did not claim a commission until the purchaser withdrew without fault on the part of appellant. ‘‘ Tell me what you have done under a deed and I will tell you what that deed means. ’’ Gauss v. Orr, 46 Ark. 129. In the case of Robbins v. Kimball, 55 Ark. 414, Chief Justice Cockrill said that what the parties to a contract did under a contract “is the best guide attainable for its interpretation.” The following decisions are directly in point: Lewis v. Briggs, 81 Ark. 101; Vaughan v. Odell, 148 Ark. 123; Coleman v. Edgar Lbr. Co., 153 Ark. 275; Phanz v. Hamburg, 83 Ohio St. 1, 29 L. R. A. (N. S.) 533; Munroe v. Taylor, 191 Mass. 483, 76 N. E. 106.

My conclusion is that the appellee failed to show that he was entitled to a 'Commission — at least that the issue should have been submitted to the jury.


text:
    Martin v. Street Improvement District No. 324.
    Opinion delivered December 22, 1924.
    1. Municipal corporations — promoter op improvement district.— Since Const, art. 19, § 27, contemplates the voluntary formation of improvement districts by property owners, the Legislature cannot authorize the commissioners of improvement districts to employ promoters to urge owners to create the district; a “promoter” being one who promotes, urges on, encourages, incites, advances, etc.
    2. Municipal corporations — improvement district — preliminary expense. — 'The services of a promoter in circulating the petition and creating sentiment for organization of an improvement district is not a “preliminary expense” within Crawford & Moses’ Dig., § 5741.
    3. Contract — invalidity.—A contract by commissioners of an improvement district employing a promoter to circulate a petition and create sentiment for organization of the district is against public policy, and void.
    Appeal from Pulaski Circuit Court, Second Division ; Richard M. Mann, Judge;
    affirmed.

      E. G. Shojfner, for appellant.
    Section 5741, C. & M. Digest, constitutes specific authority for the contract which appellant sues on. The necessary inference to be drawn from the court’s language in 112 Ark. 260 (where the suit was brought under act of March 3, 1913, the preliminary work having been done before the passage of said act) is that the service rendered by appellant was authorized and a valid charge.

      Philip McNemer, for appellee.
    Where a decision is correct on the whole case, it is immaterial on what ground the court below based its finding. 85 Ark. 1; 117 Ark. 304. The meeting of the board at which the alleged contract was made was not legal, and the contract is therefore not valid. 69 Ark. 159; 109 Ark. 125. Tbe interveners have a right to attack the contract. 158 Ark. 241. The contract is unreasonable. 158 Ark. 242; 143 Ark. 446. A promoter’s fee is not a necessary preliminary expense under § 5741, C. & M. Digest, and does not fall within the description of such expenses as outlined in 119 Ark. 189. See also 161 Ark. 570; 155'Ark. 308; 151 Ark. 53. Promoters’ contracts are odious to the law and contrary to public policy. 42 L. R. A. 347; 76 N. W. 476; 48 L. R. A. 294; 162 Fed. 533; L. R. A. 1915C 823; 134 Ark. 328; 159 Ark. 36.
   Wood, J.

This is an action brought by Melbourne M. Martin against Street Improvement District No. 324 of. the city of Little Rock, and George M. Heard, Mrs. Dixie F. Jackson and J. E. Lord, commissioners thereof. The plaintiff alleged that he entered into a contract with the defendants whereby they agreed to pay plaintiff the sum of $300 for services performed in the promotion and organization of the district; that the contract had been performed on the part of plaintiff and the defendants had refused to pay him for his services under the contract.

Two of the commissioners and certain property owners filed an answer for the district, in which they denied the material allegations of the complaint, and denied that the district was liable. Among other things, they set up that the act of 1913, upon which the plaintiff relies as authority for the contract upon which he bottoms his claim, was not intended to cover a promoter’s fee, especially when the same attorney had attended to the legal work of its organization. They set up that the appellant had received the sum of $522.90 as attorney for the district, which was paid to him with the understanding that it was the entire sum to be paid for the services he rendered the district; that the sum thus paid him was a reasonable compensation for his services.

The plaintiff introduced the contract, which, among other things, specified “that for and in consideration of work done in the promotion o;f Street Improvement District No. 324 by the party of the second part, the party of the first part hereby agrees to pay said party the sum of $300 for said services.” The plaintiff testified that, at a meeting of the board of commissioners of the district, at which all the members were present, the matter of his fee as attorney for the district and promotion work was discussed, and it was agreed by all members of the board to pay plaintiff $500 attorney’s fee and $300 for promotion work, consisting of circulating the petition, creating a sentiment for the improvement, etc.; that he was directed to prepare and did prepare written contracts, one of which is the contract upon which he bottoms his action.

Plaintiff stated that he asked for his services $1,000, and, by way of compromise, they agreed to give him two per cent, attorney’s fee, amounting to the sum of $500, and $300 for promotion, which was to be evidenced and was evidenced by two separate contracts. The witness then testified that, by his personal efforts, he created a sentiment for the district, and. walked from house to house for about thirty days until he got a majority in valuation to sign the petition. Among other things the witness said: “I not only procured the signatures that I have testified about, but I walked the streets, Rock Street, frequently late at night, seeing the property holders in this district, because it was a bitterly contested district; so much so that we were successful in carrying it only to Twentieth Street. * * * I experienced great difficulty in getting signatures on the petitions, and there were several I had to interview three or four times. I consented to go on with the legal work only in view of the fact that they would pay my promoter’s fee of $300, to which they agreed I was justly entitled.”

The plaintiff’s testimony as to the promoter’s contract for a fee of $300 was corroborated by Mrs. Dixie F. Jackson, one of the commissioners. There was testimony for the district to the effect that the drawing of the ordinances and petitions for the district and the improvement was the work of a lawyer, and two per cent, of the cost of the improvement, where such cost exceeded $25,000, or, in this case, $500, was a reasonable charge; that the attorney’s fee in an improvement district usually included the work of a lawyer in organizing the district. It was shown that the sum of from $10 to $25 was a reasonable fee for circulating a petition.

The cause was submitted to the court upon substantially the above facts. The court found generally against the plaintiff, and rendered judgment against him, from which is this appeal.

Section 6 of act No. 125, approved March 3, 1913, § 5741, C. & M. Digest, provides: “The commissioners of improvement districts are authorized to pay a reasonable compensation to the persons who have done necessary preliminary work in the organization thereof. ’’ In Deane v. Moore, 112 Ark. 254-260, the commissioners of an improvement district sought to pay a party who circulated the petition for the improvement the sum of $100, under the authority of the above act. At the time the petition was circulated the act of March 3, 1913, supra, had not been passed, and we held that the charge of $100 for circulating the petition was not justified, saying: “The act of 1913, which authorized the board of improvement to pay a reasonable compensation to the persons who have done necessary preliminary work in the organization thereof, is not retroactive and does not authorize payment to the promoter of a district organized prior to the passage of the act.”

The appellant contends that the court, in the above case, holds, at least conversely, that the act of 1913 authorized payment to the promoter of a district organized after the passage of the act, but we did not, in the above case, undertake to determine whether the act authorized a promoter’s fee. That question was not presented. In that case it was merely conceded that, even if the act was valid, the charge for circulating a petition for the improvement before the passage of the act would not be authorized, because to so construe the act would make it retroactive. But, in the case at bar, the services for which the appellant charged, as evidenced by his contract, were rendered after the passage of the act, and the issue here necessarily involves the question whether compensation for promotion services is authorized by the act; for, unless the act authorized a contract for such services, the commissioners had no authority to enter into the contract with the appellant for the services rendered by him.

Section 27, art. 19, of the Constitution, authorizes local improvements in towns and cities under such regulations as may be prescribed by law, to be 'based upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected. This provision of the Constitution contemplates an entirely voluntary action upon the part of the property owners. The Legislature has no right, under this provision of the Constitution, to authorize the commissioners to enter into a contract to pay promoters to urge property owners to create local improvements. “A promoter is one who, or that which, promotes, as urging on, encouraging, inciting, advancing,” etc. Standard Dictionary. The services of a promoter are incongruous with the idea that the property owners have voluntarily created the improvement.

In Thibault v. McHaney, 119 Ark. 188-201, it is said: “It is in the power of the Legislature to -provide for the preliminary expenses, that is, those expenses that have been incurred in the formation of the district, and in all such proceedings as were necessary, and as were had, in determining the feasibility of the improvement contemplated. * * * * Under the terms ‘ preliminary expenses’ would be included the cost incurred in litigation to determine whether or not the act creating the district was valid, and. attorney’s fees as counsel to the board in the preliminary work of organization, etc.; such costs as expenses for maps, plats, surveys of land, and for engineering expenses in preparing the plans and specifications. In other words, all expenses incident to the investigations by which it is sought to determine whether the value of the benefits to the lands by the improvement contemplated would exceed the cost of such improvement and thereby warrant its completion. ’ ’

The services of a promoter are not embraced in any of these. To authorize such services is tantamount to saying that property owners may employ an agent to persuade themselves to create an improvement, which the Constitution contemplates they shall do sit,o motu and without any inducement or incitement so to do by an agent or third party. The statute cannot be invoked as an authority for the allowance of a promoter’s fee for services such as is embraced in appellant’s contract with the district. The most that could be included therein would be the work of preparing the petitions and other expenses, such as are defined in Thibault v. McHaney, supra. See also, Elkins v. Huntington Mid. Highway Dist., 161 Ark. 570; Gould v. Sanford, 155 Ark. 304.

It is well settled that contracts for the payment of money to induce men to lobby for or against bills or ordinances, the compensation for such services contingent upon success, are contrary to a sound public policy. McDonald v. Buckstakk, 76 N. W. 476; 81 N. W. 309; 48 L. R. A. 294; Miller County Highway and Bridge Dist. v. Cook, 134 Ark. 328; Hyland v. Oregon Hassam Pav. Co., 144 Pac. 1160, L. R. A. 1915C, 823. The contract under consideration, in view of the provision of our Constitution, may be likened unto lobbying contracts and placed in the same category. Such contracts are contrary to a sound public policy, and void.

The judgment of the court therefore is correct, and it is affirmed.


text:
    Thornton v. McDonald.
    Opinion delivered December 22, 1924.
    Adverse possession — constructive possession. — Where, under a deed conveying four adjacent lots, the grantee took actual possession of two of the lots and held same adversely for more than seven years, the other two lots being unoccupied, his constructive adverse possession includes the two unoccupied lots.
    Appeal from Union Chancery Court, Second Division; George M. LeCroy, Judge;
    affirmed.

      Geo. R. Hayme, for appellant.
    To justify a decree of reformation the evidence must be clear and. convincing. 66 Ark. 155. Mere preponderance of the evidence is not enough. 82 Ark. 234; 89 Ark. 313; 84 Ark. 352; 83 Ark. 132. To maintain title by limitation, there must be actual, open, visible, notorious and continuous possession under claim of title for the full period of limitation. There must be no abandonment. 49 Ark. 266. There must be proof of adverse possession for the required time. 45 Ark. 89. Valid requirements from those having title require no statute to support them. 133 Ark. 593; 97 Ark. 35; 43 Ark. 469; 135 Ark. 321. Possession follows title, in the absence of any actual possession adverse to it. 60 Ark. 163; 43 Ark. 469; 73 Ark. 344.

      Mahony, Yocum & Saye and J. N. Saye, for appellee.
   Wood, J.

This action was begun by the appellants as trustees of the Methodist Episcopal Church South at Smackover, Union County, Arkansas, against the appellees to recover the possession of the east half of lot 1, block 47, of said town. Appellants alleged that, on the 21st of October, 1899, the lot mentioned was conveyed by warranty deed from E. L. Murph and wife to J. W. Young and P. V. McDonald, the then trustees of the church; that the trustees immediately entered into possession and held continuous possession until the month of September, 1922, when the appellees took possession, without right, of subdivision lots 3, 4, 5 and 6 of lot 1, block 47, above mentioned, and were claiming to be the owners and entitled to the possession thereof. Appellants prayed for possession and for damages for wrongful detention.

The appellees answered and denied all the allegations of the complaint, and alleged that there was a mistake in the description of the land conveyed in the said deed from Murph and wife to the trustees mentioned; that the church, through its trustees, purchased from Murph and wife only the east half of subdivision lots 1 and 2 of lot 1, block 47, and that it was the mutual intent of the parties that the deed should cover only those lots. The appellees further alleged that, in 1909, Murph and wife conveyed to Dekalb McDonald, by warranty deed, the east half of subdivision lots 3, 4, 5 and 6 in lot 1, block 47, which deed was duly filed for record; that Murph and wife had sold to McDonald the lots mentioned in 1905, and that he went into possession of the lots in that year, although the deed was not obtained until 1909; that he and his successors had been in the actual, open, notorious and adverse possession thereof and paid taxes thereon since the year 1905. Appellees alleged the transfer by McDonald to the other appellees and asked for a confirmation of the title in the appellees.

Three separate actions were begun in the circuit court, and the causes, on motion of the appellees, were transferred to the chancery court, where the same were consolidated for hearing. The appellees, by stipulation, admitted that the deed was executed by Murph and wife to the trustees of the church, as alleged in the complaint. The court heard the cause upon the pleadings, documentary evidence, and the testimony of witnesses taken ore tenus before the court, which testimony was after-wards reduced to writing, duly authenticated, and brought into the record. The court found generally in favor of the appellees, and entered a decree in their favor, from which decree is this appeal.

We find it unnecessary to discuss the issue as to whether there was a mutual mistake between Murph and wife and the trustees of the church, by which Murph and wife conveyed the EVz of lot 1, block 47, in the town of Smackover, Arkansas, instead of the Eli of subdivision lots 1 and 2 in the east half of lot 1, block 47,, as contended; by the appellees. For, conceding without deciding that there was no mutual mistake in this deed, nevertheless we find that the appellees have acquired title to the lots in controversy by the seven years ’ statute of limitation. The testimony of the appellees on the issue of the statute of limitation is substantially as follows :

D. McDonald testified-that he purchased the lots in controversy from Murph in 1907. He fenced the property before Murph and wife executed the deed. Murph at the time was living in Smackover, and witness got the lots from him, and about that time Murph moved to Junction City, and told witness he would make the deed, and he did make the same after he got to Junction City. The deed was executed August 23,1909, and duly recorded on July 15, 1910. Witness built his house, on some of the lots, and the other he fenced and used as a pasture. The fence didn’t include all of lots 3 and 4. He supposed there were 25 or 30 feet between his fence and the EVz of lots 1 and 2. Witness had always claimed the property as his own, and used the same as a pasture. At the time he fenced the property he didn’t know who the trustees of the -church -at Smackover were. They raised no objection to- witness’ fencing the property, and laid no claim to the property prior to the institution of the suit. At the time the deed was executed in 1909 the lots were worth approximately $2.50 or $3 each. At the time of the institution of this suit the lots had increased in value, on account of the discovery of oil in the vicinity of Smackover, till their reasonable value was $300 each. The first fence witness built around the property remained there until the oil boom. The first fence was a plank fence, and when it rotted down it was replaced by one of woven wire. When -the boom came, witness tore the fence away and opened up all streets and alleys he had fenced.

Tax receipts were in evidence showing that D. McDonald had paid the taxes on the E% of lots 3 and 4, and on 5 and 6 of lot 1, block 47, from 1909 to 1922, inclusive.

There is a sharp conflict in the testimony of the witnesses as to the boundaries of appellees’ inclosure under his deed from Murph. The appellants contend, and the testimony of E. H. and Gr. M. Cannon was positively to the effect, that D. McDonald’s fence was on the line between lots 4 and 5, and therefore only inclosed lots 5 and 6 of the lands embraced in his deed from M;urph, leaving lots 3 and 4 embraced in the deed uninclosed, with no improvements on them. On the other hand, the testimony of the witnesses for the appellees tended to prove that D. McDonald’s fence inclosed all of subdivision lot 4 and a portion of subdivision lot 3 of lot 1, block 47, town of Smackover. The lots were 25x75 feet, and the church building occupied the center of subdivision lots 1 and 2 of lot 1, block 47. The building was 39x40 feet. The church had never placed an inclosure around the E% of lot 1, block 47, and the space covered by the church building is the only visible manifestation of adverse occupancy. There is no testimony tending to prove that the church had ever inclosed subdivision lots 3 and 4 and lots 5 and 6 of lot 1, block 47, town of Smack-over. Such being the facts in the case, the law applicable to these facts clearly places the title to the lots in controversy in the appellees by limitation.

As to lots 5 and 6 of the land in controversy, the testimony is undisputed that they had been inclosed by D. McDonald since 1907, and that he had been in the actual, open, continuous, and adverse possession of these lots since that time. If it be conceded that Murph had no legal title to the lots in controversy at the time he conveyed the same to McDonald, nevertheless his deed embraced lots 5 and 6 and subdivision lots 3 and 4 of lot 1, block 47, in the town of Smackover. McDonald went into possession of lots 5 and 6, as the undisputed proof shows, by inclosing the same as a pasture, and his actual possession of lots 5 and 6 would give Mm constructive possession of subdivision lots 3 and 4, as they, too, were included in Ms deed from Murph. See Fletcher v. Joseph, 105 Ark. 646; Johnson v. Elder, 92 Ark. 30; Snow v. State, 85 Ark. 203; Van Etten v. Daugherty, 83 Ark. 534. See also Morehead v. Dyer, 134 Ark. 548; Hargis v. Lawrence, 135 Ark. 321; Carter v. Stewart, 149 Ark. 189.

Conceding that the church had legal title to the lands in controversy at the time Murph executed his deed to McDonald, and that, as such owner, it had actual possession of subdivision lots 1 and 2, on which the church was built, and constructive possession as the owner of all of lot 1, block 47, town of Smackover, nevertheless the deed from Murph to McDonald and the actual possession by him thereunder of lots 5 and 6 was an actual invasion and possession adverse-to the rig’hts of the church, and carried with it, under the rule stated, constructive possession to lots 3 and 4. Ringo v. Woodruff, 43 Ark. 469; Woolfolk v. Buckner, 60 Ark. 163; Haggart v. Raney, 73 Ark. 344; Hardy, v. Investment Guaranty Co., Ltd., 81 Ark. 141.

The case of Hargis v. Lawrence, supra, upon which the appellants rely, under the facts as we view them, does not support their contention, but is rather an authority against them. There Hargis was claiming two small tracts under a deed to an entire tract of land of which these smaller tracts were a part. Those who claimed the small tracts had entered into possession of a part of those tracts, and thus had constructive possession of all of the -small tracts, whereas Hargis had never taken actual possession of either of the small tracts nor any part of the entire tract which included them, and did not hold adversely to the claimants of same. We held that his deed to the whole tract and the payment of taxes thereon would not avail him and give him title as against those who were in actual -adverse possession of the small tracts. Here McDonald, as the facts show, had entered and was holding adverse possession of lots 5 and 6 under Ms deed, and, by thus taking the actual possession and holding adversely to the church, be bad also-constructive possession of lots 3 and 4, because they were likewise included in bis deed, and, under tbe doctrine of tbe above cases, including Hargis v. Lawrence, be acquired title by adverse possession not only to lots 5 and 6, but also to subdivision lots 3 and 4, in lot 1, block 47, town of Smackover. If McDonald bad not taken possession of any part of tbe land described in Ms deed from Murph, His position would be analogous to that of Hargis in the above ease.

Tbe decree of tbe court is in all things correct, and it is therefore affirmed.


text:
    O’Brien v. Root.
    Opinion delivered December 22, 1924.
    Animals — petition for stock law — withdrawal of signatures.— Where a petition to exempt a township from a stock law (Sp. Acts 1923, p. 479) was signed by a majority of the qualified electors of the township, such petitioners could not, after the petition had been filed and the cause come on for hearing, withdraw their names from the petition and have them entered as remonstrators.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    affirmed.

      Gulbert L. Pearce, for appellant.
    Tbe right to withdraw names from a petition of this nature before presentation is like the>right given a plaintiff to dismiss bis case or take a nonsuit. TMs right is plainly given. See 9 R. C. L., p. 193, 196, 197; 15 Ark. 148; 74 Ark. 536; 17 Ark. 435; 76 Ark. 400; 133 Ark. 570; 131 Ark. 36. Tbe rule announced by this court many times as to petitions under tbe three-mile law is not applicable here.

      Avery M. Blount, for appellee.
    Tbe rule applied in local option cases by this court in the following cases is also applicable here. See 51 Ark. 159; 70 Ark. 175; 75 Ark. 154; 112 Ark. 342. The court was correct in refusing to allow the petitioners to withdraw their names.
   Wood, J.

This is the second appeal in this case. See 164 Ark. 156. The facts are correctly stated in appellants ’ brief as follows:

“On November 7, 1923, after having given proper notice, some of the appellees filed a petition in the county court, praying that Cypert Township be exempted from the provisions of act No. 239, as provided by § 11 of said act. The .appellants made themselves parties to the proceedings by filing a remonstrance, denying, among other things, that the petition for exemption, contained a majority of the qualified electors of the township. A hearing was had on November 12, 1923, and the court denied the prayer of the petitioners because their petition did not contain a majority of the qualified electors of the township. No appeal was taken from that order. Thereafter, on December 28, 1923, O. R. Root and thirty-nine others, after having given proper notice, filed their petition in the county court, seeldng the same relief as in the first instance. Thereafter, on January 7, 1924, J. E. O’Brien and twenty-nine others, qualified electors, and three othérs who were not electors, made themselves parties to the proceeding by filing a remonstrance and a motion to dismiss on the ground of former adjudication. In their remonstrance they set up that they were qualified electors of Cypert Township and landowners therein, and, as such, had an interest in the subject-matter of the petition, and asked to be made parties to the proceedings, and alleged that there were no good reasons why the township should be exempted from the provisions of the act and many good reasons why it should not be exempted; that they constitute a majority of the qualified electors, landowners and taxpayers of the township, and that they are fully satisfied with the provisions of the act, and favor a general stock law. They prayed that the petition for exemption be denied and that the stock law remain in full force and effect. During the term, A. J. Mote and eleven others, who signed the original petition for exemption, filed separate petitions, asking that their names be stricken from the petition for exemption and that they be counted as remonstrators and opposed to exemption. Mote stated that many farmers had planted crops on open lands in the township, relying on the stock law for protection, and that, if exemption were granted, their crops would soon be overrun and destroyed by live stock. The other petitioners stated that, after due consideration, they had reached the conclusion that it was not best for the township to be exempted from the provisions of the stock law, and that they desired their names stricken from the petition and counted among those opposing exemption. These petitions were subscribed and sworn to before officers authorized to administer oaths, on different dates from December 29, 1923, to August 14, 1924.

On August 15, 1924, the cause came on for hearing-on the merits, and the petitioners, except Mote and the eleven others whose names were on the original petition of December 11, 1923, moved the court to deny the petitions of Mote and the eleven others who were asking that their names be stricken from the petition for exemption, on the ground that they were parties to the proceedings in the nature of co-plaintiffs, and were not entitled to withdraw therefrom without the consent of their co-plaintiffs or by permission of the court.

The judgment of the court recites as follows: “The court finds that there were sixty-two qualified electors residing in Cypert Township on December 28, 1923, the date the petition for exemption herein was filed in the county court; that of said sixty-two, twelve qualified electors, namely, A. L. Carter, A. J. Mote, N. E. Walls, John Skelton, J. W. Mote, Jim Mote, A. Jackson, Mrs. H. H. Ramey, H. H. Ramey, D. O. Ramey, E. Walls, and S. H. Chapman, have this day filed herein individual petitions asking that their names be stricken from the petition for exemption and that they be counted as remonstrating against the granting of the petition; that the petition asking that said' township be exempted herein contains the names of forty of the sixty-two qualified electors of said township, which includes the twelve asking that their names be stricken therefrom.”

Upon these findings, the court denied the request of the twelve parties named above to have their names stricken from the petition for exemption, and entered a judgment granting the prayer of the petitioners for the exemption of Cypert Township for a period of five years from January 24, 1924, to which findings and judgment the remonstrators, including the twelve who were seeking to be made remonstrators, excepted, and proseeute this appeal.

The appellants contend that the court erred in overruling the petition of A, J. Mote and the eleven others to have their names stricken from the original petition for exemption of Cypert Township and asking that they be counted as remonstrants against the original petition which they had signed. Section 11 of act No. 239, Acts of 1923, p-. 479-485, involved in this action, provides: “After the adoption of this act as herein prescribed, if the qualified electors of any political township want said township exempted from its provisions, they may, after giving twenty days’ notice by publication, present a petition to the county court, signed by a majority of the qualified electors of said township, praying that said township be exempted from all or any part of the provisions of this act for a period of not more than five years, and, upon a hearing' in open court, if said petitions appear to have been signed by a majority of qualified electors, the court may enter an order exempting said township according to the prayer of the petition, and shall cause said order to be published. Said order of exemption may be rescinded or modified at any time upon petition of a majority of the qualified electors in the affected territory, as in the original petition for exemption. ’’

It appears from the findings by the trial court that the petition for exemption of Cypert Township was signed by forty qualified electors, including Mote and the eleven others, who, when the cause came on for hearing on August 15, 1924, asked that their names be stricken from the original petition for exemption. The striking of these names from the original petition would leave the same signed by less than a majority of the qualified electors of the township, and would deprive the court of jurisdiction under the act to enter an order exempting Cypert Township from its provisions. The court did not err in holding that A. J. Mote and the eleven others could not have their names stricken from the petition and entered as remonstrants after the petition for exemption was filed and the cause came on for hearing. The stock-law act of White County is an exercise of the police power of the State, and the controlling principle here is announced in many local option cases under the three-mile local option liquor law.

In McCullough v. Blackwell, 51 Ark. 159, we said: “The question arising on the appeal is this: Where a petition to put the three-mile law in force has been acted upon by the county court, and an appeal from the order prosecuted to the' circuit court, has the petitioner the unqualified right to withdraw from the petition in the circuit court? The question is answered in the negative by the decisions in Williams v. Citizens, supra. Speaking of the right of a petitioner to withdraw from the petition in the county court — the court of first instance— it is said that, if the original signatures were obtained intelligently and without fraud, and have not been erased before presentation, or afterwards by leave of the court for cause, they fulfill the requirements of the statute. See Grinnell v. Adams, 34 Ohio St. 44; Hays v. Jones, 27 Ohio St. 219; Dutten v. Village of Hanover, 42 Ohio St. 215. The petition is in the nature of an election. When the county court has acted, the votes have been cast, and the election returns made, and an appeal does not invest the petitioner with the power to change his vote or to withdraw it, except for good cause, as is indicated in Williams v. Citizens, supra. While the circuit court tries the issue on appeal de novo, it can award or refuse a prohibitory order only upon the petition as signed when acted upon by the county court. No cause for striking from the petition the names to which objection was made was shown or offered. The remonstrants alleged that they were unduly obtained, but that the allegations of the remonstrance are not. evidence was decided in Williams v. Citizens, supra.”

And in the case of Bordwell v. Dills, 70 Ark. 175, among other things, we said: “Before the filing with the clerk, where petitioners adopt that method of presentation to the judge, the petition is in the power of the signers. Each signer may control his signature. It is not yet a petition in which the public is interested. The matter is as yet in fieri, so to speak. But, when the petition has been filed with the county clerk, it has been then delivered, presented to the court, made a court record. The public has now become interested in it. The jurisdiction of the subject-matter has now attached. In the absence of something in the statute permitting it, no individual signer, nor indeed all the signers, could thereafter withdraw or erase their names from the petition without leave of the court. And the court should not grant such leave without some good cause shown therefor. * * * The law makes no provisions for protests and remonstrances, for signing and countersigning. It only provides for the petition.” In addition to the eases cited in the above case, see Calvin v. Finch, 75 Ark. 154, and McClure v. Topf & Wright, 112 Ark. 342.

But counsel for appellants contend that this construction of the statute is contrary to the last clause of § 11, which is as follows: ‘ ‘ Said order of exemption may be rescinded or modified at any time, upon petition of a majority of the qualified electors in the affected territory, as in the original petition for exemption.” This clause of § ll does not contemplate that those who have signed the petition for exemption provided for in the first part of the section and who have filed the same with the clerk of the county court, and thus given the court jurisdiction to hear the petition, shall thereafter withdraw and erase their names from the petition without leave of the court. Those who have signed the original petition for exemption will not thus be permitted “to march up the hill” to give the court jurisdiction, and then “march down again” to destroy such jurisdiction in the same proceeding. The signers of the original petition for exemption should not be allowed, as is said in Bordwell v. Dills, supra, “to play fast and loose with the interest of society.” “The law makes no provision for protests and remonstrances, for signing and countersigning.” The clause quoted, upon which counsel relies, does not permit a change of heart in the same proceeding after the jurisdiction of the court has attached by the filing of the petition for exemption. It only authorizes a petition for rescinding or modifying the order of exemption, and that must be signed by a majority and presented in the same manner as in the original petition for exemption.

The judgment of the circuit court is in all things correct, and it is therefore affirmed.