author: Habt, C. J.,

text:
    Yates v. State.
    Opinion delivered September 22, 1930.

      W. D. Swaim, for appellant.

      Hal L. Norwood, Attorney G-eneral, and Robert F. Smith, Assistant, for appellee.
   Habt, C. J.,

(after stating the facts). The only ground relied upon for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict. It is claimed that Chester Benson was an accomplice in. the theft of the automobile, and that there -is no substantial corroboration of his testimony as required by the statute. .

An accomplice is one who could himself be convicted of the crime charged against the defendant, either as principal or accessory. Henderson v. State, 174 Ark. 835, 297 S. W. 836.

Under the, evidence adduced, the jury might have found that Chester Benson was present and participated in the theft of the automobile. It is true that he denied having anything to do with the theft of .the automobile and said that he was not present when it was taken, but it cannot be said that his testimony in .this respect, is uncontradicted. According to the testimony of the owner of the automobile, four distinct sets of tracks of persons were found near where the automobile had stood just before it had been stolen. One set of tracks appeared to have been made by a crippled person who walked with a cane or a crutch. According to the testimony of the sheriff, he found Chester Benson- and Buster Yates hiding hear the automobile where it had stalled in the road for lack of gas.’ He arrested both of them, and had them, in the car with him when he returned the automobile to its owner. The owner of the automobile testified that the sheriff, had Buster Yates and the crippled fellow in the car when he returned it to him. From, this testimony it' might be inferred that Chester Benson was the crippled fellow, 'and it might also- be inferred from the testimony of the owner -of the car that the tracks of the crippled fellow found near the car were those of Chester Benson. Hence, if Benson was found to be an accomplice, it was necessary to corroborate his testimony by that of other witnesses tending to connect the defendant with the commission of the crime, and this testimony must be of a substantive character. Middleton v, State, 162 Ark. 530, 258 S. W. 995 ; and Griffin v. State, 172 Ark. 606, 289 S. W. 765.

;. This brings us to a consideration whether there is any substantive testimony, independent of that of Chester Benson, tending to connect the defendant with the theft of the automobile." The uncontradicted evidence shows that Chester Benson, Buster Yates, Leonard Yates, Boy Cook, and, Jaimes Poster and Fred Taylor, all escaped from, jail about 8:30 o ’clock one evening, and went into the woods near the home of the parents of the Yates brothers. On the next morning Búster Yates went to the home of his parents and got them some breakfast. About noon of that day, Fred Taylor left the party and later on the day was captured by the sheriff. He told the sheriff about the others being camped in the woods near an old mill site. The owner of the automobile also reported its theft to the 'sheriff. The sheriff followed the tracks of the automobile down towards Pordyce, and found it stalled in the road because there was no gas in the tank. He searched in the woods' nearby, and arrested Buster Yates and Chester Benson who were hiding there apparently in charge of the automobile. They reported that Leonard Yates and Boy Cook had gone to secure some gas. The sheriff took Chester Benson and Buster Yates in.the car with him and went to Fordyee. Upon his return he found some gas had been placed in the tank of the automobile during his absence, and that there were two sets of trácks leading away from the automobile.- Neither'of these tracks''were those'of a crippled" person. This indicated that the ■ tracks were those of other persons than Buster Yates and Chester BenSon, who, as we have already ■ seen, was crippled. These facts tend to show‘that these parties had kept, together, and all participated in the theft of the automobile. -It is true that Buster Yates, Boy Cook and the defendant all testified that they had left the other-persons before the automobile was stolen, but the jury might not haCe believed them. All óf the witnesses testified- that Fred Taylor left them about noon on the next day after they escaped from jail. As we have already seen, the jury might hiave found that four persons were present and participated in the theft of the automobile. Buster Yates and Chester Benson were arrested near the automobile on the next morning after it was stolen. It is not shown that any other persons besides Leonard Yates and Boy Cook had been recently with them. Hence, the jury might have found that, notwithstanding their testimony to the contrary, they continued with Bolster Yates and Benson and united with them in the theft of the automobile. Therefore, the judgment will be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Grady v. Gatlin.
    Opinion delivered September 22, 1930.

      M. P. Huddleston, for appellant.

      N. F. Lamb, for appellee.
   Smith, J.

Appellant alleged, as constituting the cause df action here sued upon, the following facts. The defendants are the executors of the last will and testament of his uncle, Dr. N. H. Grady, who died testate in February, 1926. That on August 4,1924, Dr. Grady sold him 22-2/3 shares of the capital stock of the Citizens’ Independent Gin Company, of Monette, Arkansas, of the par value of $566:66, which sum was paid by plaintiff to Dr. Grady by a cheek dated January 6, 1925, but Dr. Grady had failed and neglected to transfer the stock, and his executors now refuse to do so. It was prayed that the gin company, which was also made a defendant, he required to reissue the stock to plaintiff, and that the purchased stock outstanding in the name of Dr. Grady be canceled.

The gin company filed an answer disclaiming any interest in the litigation and offered to obey any order of the court in regard to the stock, and there was also tendered into court by the gin company certain dividends which had been earned.

The executors filed an answer, in which it was denied that Dr. Grady had sold any stock, in the gin company to plaintiff, but admitted that Dr. Grady had, as a gift, “presented to the plaintiff ten (10) shares of stock, and, although these defendants have offered to have said ten (10) shares of stock covered by certificate issued to plaintiff, he has refused to receive the same.”

Upon the final submission of the cause the chancellor found the facts to be that the plaintiff had not purchased any stock from Dr. Grady, but that “the defendants (the executors) have tendered to the plaintiff ten shares of stock in Citizens’ Independent Gin Company in settlement of this suit, which plaintiff has refused and still refuses; that N. H. Grady, deceased, at one time had intended to> give to plaintiff ten shares of said stock, but had never carried out his intention, ” and upon this finding the complaint was dismissed as being without equity.

The testimony in the case relates principally to a stockholders’ meeting olf the gin company which was held on August 4, 1924. In the minutes of the meeting, as written up by the secretary of the company, it was recited that “Dr. N. H. Grady announced that he wished to retire and, having selected H. D. Grady to represent his gin interest, suggested him as his successor,” and that H. D. Gr'ady was elected a director to succeed his uncle, Dr. N. H. Grady. The secretary admitted, however, that, while he had attended the stockholders ’ meeting, he was absent from the place of meeting at the time Dr. Grady made the statement which led to the election qf a director to succeed him, and that the portion of the minutes relating to this statement had been based upon statements made to the secretary 'by stockholders, who had attended the entire meeting.

. The depositions of a number of stockholders who Were present at the meeting above referred to were taken about three years after the meeting was held, and this lapse of time accounts for the dimness of the recollection of the witnesses as to the exact statement which Dr. Grady then made,' but the consensus of this testimony is that Dr. Grady then stated that he had given, or had sold, a portion, or all, of his stock to his. nephew, and that he desired this nephew to be elected a director in his place.

Appellant offered in evidence a check dated January 6, 1925, for $566.66, which was payable to, and had been cashed by, Dr. Grady, upon the face of which there was written: “For Gin Stock.’’ Appellant testified that this check was given in payment of the stock, but the chancellor found otherwise, and so do we. It appears that the corporation earned in 1924, and paid in January, 1925,'a dividend of 100 per cent. Appellant received' this dividend from the company and receipted for it, which was 'the exact amount remitted to Dr. Grady; The conclusion that this check was not received by Dr. Grady as payment for the stock upon a sale of it is confirmed by the disposition which appellant made of the dividend earned •and paid for the year 1925. This dividend amounted to 50-per cent., all of which was remitted to Dr. Grady except the dividend on ten shares of the stock, which appellant retained.

The secretary of the corporation identified a letter .which he had written to Dr. Grady on January 23, 1926, this being only a few days prior to Dr. Grady’s death, which,we think correctly recites the facts in regard to this stock, This letter reads in parkas follows:

“Here is the exact standing of your and H. D.’s. position with gin company. You made certain statements to the body, setting out that you would like to- have D. H.'take yóur place; had sold him 10 shares of stock sd that he would be a legal director. Later H. D. presented your letter to the board, which supported your statement to them; it was noted in minutes. While H. D. did not actually have his stock in hand,-they felt him to be a legal director. The body felt that you had made them a wise and useful member, were glad to have him with them and sorry- to see you go out. H. D. has also made them an entirely satisfactory officer, showing a wise judgment in matters of business. Being satisfied on the matter, the board has never called it up. As to issuing the 10 shares to H. D., they feel -that 10 should be presented for cancellation before having the- authority or right to- issue the corporation' stock. That is the only way they ever make a reissue. It will be entirely satisfactory with them to split up your holdings for you in any way you wish, but require equal amount to be placed in their hands for retirement. 'So you see you hold the matter of issuing that stock entirely in your hands. I could not put it out even if I wished.”

Wé think it clear that the gin company and its officers regarded appellant as the owner of a part, at least, of the stock which Dr. Grady had owned; otherwise he would not have been elected a director. The transaction was something more than an unexecuted gift, although the stock was never actually transferred. There was some — 'although slight — consideration for the transaction-. Dr. Grady’s health failed, and he left his home and spent a considerable part of his time in Hot Springs, but desired appellant to succeed him as 'a director, -and this was done. Appellant served as a director, and collected and remitted tó Dr. Grady his dividends.

We -conclude, therefore, that the equity Of the case requires that ten shares of this -stock be reissued to appellant, and it is ordered that this he done. Bnt, inasmuch as appellant might have had this relief without suit, and might have had this relief in the court below without prosecuting this appeal, it is further ordered that he pay all costs, including the costs upon this appeal.


text:
    Shaver v. Clark County Bank.
    Opinion delivered September 22, 1930.
    J. S. Townsend and J. H. Lookadoo, for appellant.

      McMillcm & McMillan, for appellee.
   Smith, J.

Appellee bank brought this suit to enforce the collection of a note to its order for $1,100 given in part payment of an automobile purchased from' it by appellant.

An answer was filed in which it was alleged that the automobile was sold under a warranty that it was a new car, and had not been driven more than 250 miles, whereas it was an old car and had been driven so long that its machinery was hadly worn, and that on this account the car was not worth more than $300. It was alleged that the consideration for the car had failed in part, and, as $550 had been paid on the purchase price of the car, judgment was prayed for the recovery of the $250 paid in excess of its value.

The writing sued on was not merely a note; it was a contract of sale which recited the conditions of the sale, but contained no warranty of any kind. Appellant testified that the cashier of the bank, who negotiated the sale of the car, represented to him that the car was practically new, and that he regarded this representation as a warranty, and relied upon it as such, but he later discovered that the car was old, and had been in a wreck, which had necessitated very extensive repairs, and frequent subsequent repairs were required to keep the car in running order, on account of its worn condition.

The testimony of appellant, and that of the mechanic who had frequently repaired the car, was objected to upon the ground that the contract of sale was complete, and contained no warranty, and that it was not permissible to engraft a warranty upon a contract of sale which contained none.

After the conclusion of all the testimony, the record recites that: “Thereupon the court stated to the attorneys that defendant’s answer would be treated and considered as amended so as to allege false representations to defendant by plaintiff as to the condition of the automobile in controversy; also to raise the issue of the failure of consideration for the execution of the note sued on.” .

After making this order, the court directed the jury to return a verdict for the balance due on the note or contract of sale, and from the judgment rendered upon this verdict is this appeal.

It was said in the case of Lower v. Hickman, 80 Ark. 506, 97 S. W. 681, that: “A warranty is so clearly a part of a sale that where the sale is evidenced by a written instrument, it is incompetent to engraft upon it a warranty proved by parol. The character of the written instrument is not important, so long as it purports to be a complete transaction of itself, and not a mere incomplete memorandum or receipt for money or part of a transaction where there are other parts of it other than warranties. ’ ’

' That case has since been frequently followed and approved, and we have no intention of impairing its authority. But, while a parol contract may not be en-grafted upon a complete written contract of sale containing no warranty, it is permissible to show that the exécution of such a contract was procured by false representations, upon which the purchaser had the right to rely, and did rely, in making the contract; and if these false representations induced the purchaser to promise to pay a sum in excess of the value of the article sold, he may recoup the difference in value arising out of the false representations.

The instant case is sufficiently similar to that of Hayes v. Gammon, 168 Ark. 1116, 272 S. W. 644, to be controlled by it. In that case the contract of sale was evidenced by a writing which not only did not contain a warranty, but, on the contrary, contained the express recital that “the property is transferred in its present condition, and no warranties,” yet, we upheld the action of the trial court in that case in admitting testimony showing that the execution of the contract had been procured through false representation as to the age of the car there sold, which had induced its' execution, and affirmed the judgment which had assessed damages on that account.

Appellee insists that the action of the trial court should be affirmed upon the authority of the case of Federal Truck & Motors Co. v. Tompkins, 149 Ark. 664, 231 S.W. 553 ; The opinion in that case recites that the purchaser defended upon the ground that he had been deceived and induced to buy a second-hand truck by false representations in regard to. its ag’e and condition; but the opinion also recites that the case was not tried upon that issue in the court below. The defendant there sought to defeat a recovery against him by relying upon a contract having the incidents of-a sale with a warranty, but to sustain that defense he was required to engraft a warranty by parol upon a complete written contract which contained no warranty, and upon the authority of Lower v. Hickman, supra, it was held that this could not be done.

The trial court was correct therefore in holding that a recovery in the instant case could not be defeated on the ground that there had been a breach of warranty. Appellant could not prove a warranty, because his. written contract of sale did not contain a warranty, and he could not engraft one upon it by parol testimony; but,- when the trial court ordered that the “answer would be treated and considered as amended so as to allege false representations,” a different case was presented. The rule of evidence which excludes parol testimony engrafting a warranty upon a valid -and complete written contract of sale containing none does not operate to also exclude ■testimony tending to show that the execution of such a contract was induced by false representations.

Appellee says that no additional testimony, was offered after this ruling of the court was made, and that there was therefore no error in directing a verdict in its favor. But, while appellant was unsuccessful in proving a contract containing a warranty, this was true pnly because the rules of evidence excluded testimony offered for that purpose, and while the testimony could not, for this reason, raise the issue of a breach of warranty, we think it was sufficient to- raise the issue for the jury as to whether the execution of the contract had been procured by false representations. If so, appellant had the right to recoup such damages as arose out of the false representations, and this issue should have been submitted to the jury after it had been ordered that the pleadings be treated as amended to raise the issue.

The record before us presents no question as to whether the court was required, under the circumstances stated, to permit this amendment of the pleadings at the time the amendment was made; nor does the record present the question as to the conditions which might have been imposed as to costs or a continuance, had that been asked.

The amendment of the pleadings was made, and there was testimony tending to show that the execution of the contract was procured by false representations as to the age and condition of the car, and this issue should have been submitted to the jury, and for the error in not doing so the judgment must be reversed, and it is so ordered, and the cause will be remanded for a new trial.


author: Humphreys, J.

text:
    Goodson v. Comet Coal Company.
    Opinion delivered September 22, 1930.

      Cochran-S Arnett, for appellant.

      Hays, Priddy <&' Smallwood and R. M. Priddy, for appellee.
   Humphreys, J.

This suit was brought by appellant against appellees to cancel a certain supplemental coal lease executed by appellee, E. M. Thompson, to his coappellee, the Comet Coal Company; and to recover damages for hauling coal, rock and refuse from adjacent lands through passages under the south eighteen acres of the southwest quarter southwest quarter section 36, township 8 north, range 26 west, in Logan County for dumping same on the surface near the entry to the coal mine on said eighteen-acre tract.

Upon the trial of the cause the chancery court decreed that the title to the coal mine and passages under said eighteen-acre tract incident to mining the coal thereunder was in appellee, E. M. Thompson, under and by virtue of a reservation in his deed of said eighteen-acre tract to appellant, J. A. Goodson, of date November 9, 1925, and that he (Thompson) was entitled to lease and receive rentals for the use of the entry to and passages through the mine for hauling coal, rock and refuse from lands adjacent to said tract of land, from which is this appeal.

The facts necessary to a determination of the only issue involved on this appeal are as follows: E. G. Parrott, owner of the eighteen-acre tract of land, leased the' coal under same, with mining privileges thereto, on September 30,1922, to the Hindrix 'Coal Company. The Hindrix Coal Company assigned the lease to appellee, Comet Coal Company. This lease did not authorize the use of the entry and underground passages for the purpose of hauling coal, rock and refuse from adjacent lands and dumping same on the eighteen-acre tract near the entry to the mine. It was a lease in ordinary form, granting the right to the Hindrix Coal Company to prospect and mine coal from the eighteen-acre tract for a period of twenty years, to erect all necessary buildings around the opening to the slope, to take out the coal, to use the surface about the opening for dumping rock and refuse from the mine, for storing coal necessary for the business of mining .same, to cross said land to the public wagon road, and for a royalty or rental of twenty cents per ton for the merchantable coal removed therefrom. It did not purport in any of its terms to convey the title to the coal in place.

On the 8th day of February, 1924, R. G. Parrott and wife sold and conveyed by warranty deed without reservations or exceptions said eighteen-acre tract of land to R. M. Thompson. On the 9th day of November, 1925, R. M. Thompson and his wife sold and executed a warranty deed to appellant, J. A. Goodson, to said eighteen-acre tract with the following reservation: “Reserving all coal, oil and gas and mineral with the usual mining privileges. Grantor reserves the right to use the surface about the mine opening for mining purposes during the life of said coal mine. ’ ’ On the 2d day of February, 1926, R. M. Thompson executed a supplemental lease to the Comet Coal Company upon said eighteen-acre tract of land, granting to' it and its successors the right to mine coal from adjacent lands and dump the rock and refuse therefrom upon the surface of the above-described land in consideration of live cents royalty a ton, for all coal mined and hauled through underground entries, except that when coal should be mined from lands other than adjacent thereto', and said second party had to pay adjacent landowners an underground haulage fee, then and on that coal the royalty should be two and one-half cents, a ton for all coal hauled through underground entries. The lease also stipulated that it should be supplemental to the former lease and made part thereof and should be governed by the terms and conditions therein expressed. Before its original lease expired the Comet Coal Company began to mine coal from adjacent lands and haul same through the underground passages and out of the entry on said eighteen-acre tract, and to dump rock and refuse therefrom near the entry on said tract, and at the time of the institution of this suit had paid R. M. Thompson $598.75 in royalties under the terms of said supplemental lease.

Appellant contends for a reversal of the decree upon the theory that title to the coal under the eighteen-acre tract passed to the Hindrix Coal Company under the lease from R. G. Parrott to it and to the Comet Coal Company by assignment of the lease, which lease contained no authority to haul coal, rock and refuse from adjacent lands over the underground passages through the entry and dump same on the surface of said tract of land. The case of Bodcaw Lumber Co. v. Goode, 160 Ark. 48, 254 S. W. 345, 29 A. L. R. 578, is cited in support of the contention that the original lease operated as a present sale of the coal and conveyed title thereto. 'The case cited is not authority to the effect that a lease of minerals constitutes a present sale thereof, but is authority to the effect that the title to the minerals and title to the surface can be severed by exception or reservation of said minerals in a deed conveying the title to the surface, and that mineral rights in lands may be sold and conveyed separate from the surface. The lease in question conferred the right upon the lessee for the period of twenty years to enter upon and mine the coal under said eighteen-acre tract of land, and did not attempt to pass or convey the present title to the coal in place to said lessee. This did not constitute by sale a severance of the coal. The lease in the instant case did not constitute by sale a severance of the coal under the tract of land from the land itself. The rule announced by this court relative to ordinary mineral leases in the case of Osborn v. Arkansas Territorial Oil & Gas Co., 103 Ark. 175, 146 S. W. 122, the lease was not a present sale or transfer of title to the coal, hut simply a contract to mine coal under the land for a period of twenty years at a fixed price per ton. The Comet Coal Company acquired no right under the lease from Parrott except to mine the coal under the eighteen-acre tract of land. After the execution of the lease by Parrott he and his wife conveyed the land to R. Gr. Thompson without reservation, the effect of which was to convey the entire title, including the Parrott coal lease, and all rights thereunder to him. Subsequently, on the 9th day of November, 1925, R. G. Thompson combed the eighteen-acre tract to appellant, reserving all the coal, oil, gas and mineral -with the usual mining privileges and the right to use the surface about the mine opening for mining purposes during the life of said coal mine. 'The coal mine is in operation, never having been abandoned, and there being coal yet to be mined under the eighteen-acre tract. The reservation contained in the R. M. Thompson deed to appellant warranted the execution of the supplemental lease of date February 2, 1926, to appellee, Comet Coal Company, to haul coal, rock and refuse from the adjoining lands over the underground passages and out of the entry and dump same on the surface of the eighteen-acre tract near the entry during the life of the original lease. The rule, supported by the great weight of authority, is that the owner of coal in place, as Thompson was under his deed from R. Gr. Parrott, has the absolute right until all the coal is exhausted, to use the passages open for its removal for any and all purposes whatever, including- the right to transport coal over the underground passages and out of the entry, having due regard for the rights of the surface owner. 2 Snyder, Mines, p. 853 ; 18 R. C. L. 1149 ; 20 Am. & Eng. Enc. Law, 2d ed., 774 ; Lillibridge v. Lackawanna Coal Co., 143 Pa. 293, 22 Atl. 1035, 13 L. R. A. 627 ; Westerman v. Pennsylvania Salt Mfg. Co., 260 Pa. 140, 103 Atl. 539 ; Armstrong v. Maryland Coal Co., 67 W. Va. 589, 69 S. E. 195 ; Bagley v. Republic Iron & Steel Co., 193 Ala. 219, 69 So. 17 ; Schobert v. Pittsburg Coal & Mining Co., 254 Ill. 474, 98 N. E. 945 ; Moore v. Indian Camp Coal Co., 114 Iowa 56, 80 N. E. 6 ; St. Louis Union Trust Co. v. Galloway Coal Co., 193 Fed. 106 ; affirmed in 201 Fed. 1022. See extensive annotation in A. L. R. 967.

In view of the fact that R. M. Thompson owned the title to the coal in place under the reservation in his deed to appellant, the court correctly refused to cancel the supplemental lease, and correctly decreed the rents and royalties earned under same to him.

The decree will therefore he affirmed.


author: Kikby, J.

text:
    Rural Special School Districts Nos. 17 and 95 v. Ola Special School District No. 10.
    Opinion delivered September 22, 1930.

      Hays, Priddy dfr Madole, for appellant.

      Wilson S Wilson, for appellee.
   Kikby, J.

Certain electors residing in appellant rural special school districts Nos. 17 and 95 in Tell County filed a petition in the circuit court for a certiorari requiring the appellees to bring up for review an order of the county board of education consolidating appellant school districts with the Ola Special School District, and creating the territory into the Ola Special School District No. 10 and abolishing appellant districts.

It was alleged that the order was made without the notice required by law and void, and should be quashed.

Appellees answered, and upon a hearing the court denied the relief and dismissed the petition. It appears that the order of the board of education sought to be quashed was made on the 20th day of April, 1929, upon a petition for the creation of the district and a remonstrance filed thereto by residents of both districts, and after a hearing by the board, which found that the petition for the district contained a majority of the qualified electors residing in the territory affected, and that it was for the best educational interests of all parties affected that the territory be reorganized into the district as prayed for, the petition was granted accordingly.

No appeal was attempted to be taken from the order. At the annual school election in May thereafter six directors were elected for the district, the election being* held in the town of Ola therein. The newly elected school board employed teachers and summer schools were held in the territory formerly embraced in the appellant districts and attended by the pupils living- therein. After the time for appeal had expired, the board purchased buses to transport the pupils to the schools in the new district in the town of Ola, and employed teachers for the school. No school election was held in the territory of the old districts nor tax voted, and some of the electors of each of said districts voted in the election held in the new and appellee district. On the 24th day of September, 1929, appellants filed a petition for a writ of certiorari in the circuit court, which ordered the records brought into court. Appellee filed an answer in due time, and upon a hearing the court denied and quashed the writ of certiorari, approved and confirmed the order of the board of education made on the 20th day of April, 1929, consolidating school districts 17 and 95 with and into the Ola Special School District No. 10, and from this order the appeal comes.

It'is insisted by appellants that the order and judgment of the board of education, sought to be quashed, was void, being made without giving the notice required by the statute, § 8821, C. & M. Digest. In Consolidated School District No. 2 v. Special School District No. 19, 179 Ark. 822, 18 S. W. (2d) 349, it was held that said statute requiring the notice given had not been repealed by the amendatory act 156 of 1927. No objection was made in the remonstrance filed against the petition for the creation of the district before the school board, and no appeal was attempted to be taken during the time allowed by law therefor from the order of said board creating the district, it being announced by the board at the time the order was made that the law allowed a certain time for an appeal therefrom. After this time had expired with no appeal taken, the board of directors of appellee district caused summer schools to be held in the-territory of the old districts, which were attended by the pupils residing therein, and no school elections were held in said districts. They then purchased buses for transporting- the children and pupils residing in said territory to the central school in Ola, employed all additional teachers necessary to teach the school with the increased number of pupils, the school election at the regular time being held only in appellee district at which some electors of the old districts voted.

The order of the board, sought to be quashed, was made on April 20, 1929, no appeal was taken therefrom, and this proceeding was begun on the 24th day of September, 1929, more than five months thereafter, without an excuse offered for the delay.

An effort to quash an order or judgment in a matter involving the public interest or of a public nature, such as the consolidation and creation of school districts, is not entertained as of right, but is a matter resting in the sound discretion of the court, which should not grant relief unless the'remedy is sought within apt time or without an unreasonable delay in applying therefor. Here appellants appeared and remonstrated against the making of the order without objecting that notice had not been given of the application therefor, made no effort to appeal from it, and sought no relief by this proceeding until more than five months after the order was made, the entire status changed, and the unusual expenses incurred necessary to the carrying- out of the order and conducting the schools in the territory as consolidated. No elections were held or school tax voted in. the old districts because of the consolidation, and some of the electors residing therein participated in the school election in the new district.

Confusion and injury would necessarily have resulted from the quashal of the order, to the deprivation of the privilege of attending public school to all the children residing in the territory of the old districts, since ho school could have been held therein because of a lack of funds resulting in a great public inconvenience. Certiorari is not a writ of right but one of discretion, and will not be granted except to do substantial justice, and we hold there was no abuse of discretion by the court in withholding the writ and denying the issuance thereof herein. See School District No. 12 v. School District No. 46, 137 Ark. 457, 208 S. W. 788 ; Black v. Brinkley, 54 Ark. 372, 15 S. W. 1030 ; Burgett v. Apperson, 52 Ark. 213, 12 S. W. 559 ; Johnson v. West, 89 Ark. 606, 117 S. W. 770 ; Butler v. Blackshare, 162 Ark. 69, 257 S. W. 379.

The judgment is accordingly affirmed.


author: Kirby, J.,

text:
    Texarkana v. Offenhauser.
    Opinion delivered September 22, 1930.

      Willis S. Smith and J. A. R. Moseley, Jr., for appellant.

      Will Steel and Gustavus G. Pope, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists for reversal that the court erred in holding that the funds due from the city to the contractor and paid to his surety company for completing the improvement were subject to garnishment for debts due from the contractor to either of appellees, not being for materials furnished or labor done in connection with the construction of the improvement. It has long been the established rule that an improvement district or governmental agency is not subject to garnishment at the instance of creditors of the contractor prior to the completion of the improvement contracted to be constructed. Newell Construction Co. v. Elkins, 161 Ark. 625, 257 S. W. 54 ; Wharf Imp. Dist. of Helena v. U. S. Gypsum Co., 181 Ark. 289, 25 S. W. (2d) 425.

The court’s finding that the improvement to be constructed was completed at the time of the issuance of the garnishments was contrary to the preponderance and weight of the testimony, which was virtually undisputed, that it had not been completed, and the court erred in holding otherwise.

Under the terms of the bond, a common law bond, the surety company was liable to the payment of the accounts for feed furnished the contractor for the mules used in the construction of the improvement as well as for the gasoline purchased for operation of the motor equipment used thereon. The bond provides: ‘ ‘ This bond is also made for the use and benefit of all persons, partnerships, firms or corporations whoi may furnish materials and labor for or on account of said contractor, or any of his sub-contractors in the construction of said landing strips, and this bond is conditioned that such contractor or contractors shall pay all indebtedness for labor and material furnished in the construction of said landing strips or in making said public improvements; and until said indebtedness for labor and material is fully paid, said bond shall continue in full force and effect, and said contractors, material furnishers and persons who perform labor upon said landing strips and each of them are hereby made obligees hereunder, the same as though their own proper names were written herein as such and they, and each of them may sue hereon.”

In the application for the bond the contractor made an assignment and transfer of all deferred payments and retained percentages that might be due and payable to him at the time of any default in the contract or that might thereafter become due him under the contract “to be by it credited upon any loss, cost, damage, charge and expense sustained or incurred by it under said bond.” The terms of the bond herein are broad enough to cover and include the payment of these claims and the case is not controlled by the decision in Goode v. Ætna Cas ualty & Surety Co., 178 Ark. 471, 13 S. W. (2d) 6, but rather upon a proper construction of its terms by the rule announced in Mansfield Lbr. Co. v. National Surety Co., 176 Ark. 1035, 5 S. W. (2d) 294, and Leslie Lbr. & Supply Co. v. Lawrence, 178 Ark. 574, 11 S. W. 458.

This bond recites it is also made fo.r the use and benefit of all persons who may furnish materials or labor for or on account of said contractor in the construction of the landing strips, conditioned “that such contractor or contractors shall pay all indebtedness for labor and material furnished in the construction of said landing strips or in making said public improvements”; and expressly that all such persons are made obligees in the bond and entitled to sue thereon.

There is no question here of the materials furnished not being used in the construction of the improvement within the meaning of the bond, nor of any proper assignment of the claims not being made. The groceries charged for were furnished to the contractor and by him advanced and distributed to the laborers. It is also true that the surety on the. contractor’s bond who completed the contract in accordance with its terms upon default of his principal is subrogated to the rights of the obligees in the bond to the extent necessary to reimburse himself, and has an equity in the funds due the contractor under the terms of the contract superior to that of a g-eneral creditor or an assignee or one who loans money to the contractor to pay for labor or materials necessary to complete the work. Lacey v. Maryland Casualty Co., 32 Fed. Rep. (2d) 28 ; Riverview State Bank v. Wentz, 34 Fed. (2d) 419 ; Note 45 A. L. R., p. 381 ; Prairie State Bank v. U. S., 164 U. S. 227, 17 S. Ct. 142 ; Henningsen v. U. S. F. & G. Co., 208 U. S. 404, 28 S. Ct. 389.

None of the money paid to the surety company by the city upon completion of the improvement by it was paid to the contractor after writs of garnishment were served, and he had no claim to the funds remaining in the hands of the city after making default on his contract, and there was therefore no money in the hands of the city belonging to the contractor at the time the garnishments were served which could have been subjected to the payment of the claims of appellees, and, as already said, the improvement was not completed- at the time the garnishments were issued and the city was not subject to garnishment. The decree is reversed accordingly, and the cause remanded with directions to dismiss the complaints of appellees against the city, garnishee, for want of equity.


author: Mehaffy, J.

text:
    Phillips v. Phillips.
    Opinion delivered September 22, 1930.

      Nance & Anderson and John Mayes, for appellant.

      Combs & Johnson and Earl Blansett, for appellee.
   Mehaffy, J.

Wood Phillips, appellee, commenced this suit to annul the marriage contract entered into with appellant, Crete Phillips, alleging that he was forced to marry her by threats and duress. The appellee is 48 years old, and the appellant is 35 years old. They had been acquainted more than twenty years. When the appellant was about 16 years of age, she married Jasper Culwell and one child was born to them, a girl, who is now about 13 years of age. Tbe appellee during all this time was a married man, and the father of three children. Soon after the appellant and Oulwell were married, appellee began to have illicit relations with appellant, and this continued up to the time of the marriage of appellant and appellee. This relation between appellee and appellant brought about a separation and divorce of appellant from her first husband, and she thereafter married J. W. Hensley. During the time appellant lived with Hensley the illicit intercourse between appellee and appellant continued, and this brought about a separation and divorce from her second husband. After appellant married Hensley, she lived in Conway, Arkansas, and appellee wired her to come back to her home, which was near where he lived, and she came back. Appellee’s wife died on September 29, 1929, her death being caused by cancer, from which she had suffered a long while. The illicit intercourse between appellee and appellant continued during the sickness of appellee’s wife. Appellee’s wife died on Sunday, was buried on Monday, and on the following Thursday appellee and appellant went to Eureka Springs and were married. They met at Hinds-ville, according to agreement, and drove to Eureka Springs, procured license, and were married by a justice of the peace, then went back home.

Appellee contends and testified that appellant threatened to kill him or do Mm bodily harm, and also threatened that her brothers intended to do him harm and blow up their houses unless he married her, and that it was these threats and the fear caused by them that induced him to marry appellant, and that but for this he would not have married her. He admits, however, that the illicit relationship with appellee and himself began when she was very young, shortly after she married the first time, and continued up to the time of their marriage at Eureka Springs. The undisputed evidence shows that they agreed to keep the marriage secret because of the unfavorable comment a marriage entered into so shortly after the death of his wife would cause. About one hundred citizens met and told the parties, appellant and appellee, that they should not live together in that community, and these citizens sought to have appellee convey his property to his three children. Appellant refused to sign the deed. The parties then concluded to leave the community for a while and go to California. They went as far as Locust Grove, Oklahoma, where they spent the night together, and then decided to return to their home. Appellee testified that he talked appellant into coming back; she thought they had better stay away from the community. They lived together secretly after their marriage for 23 days.

The evidence as to when the illicit intercourse between them began, and as to its continuing up to the time of their marriage, is undisputed. The only conflict in the testimony is as to the threats and duress. The appellant testified that there were no threats, and that appellee married her of his own free will. There is some slight corroboration of appellee’s testimony as to threats, but we think his own testimony disproved his contention that he was forced to marry appellant. The chancellor found that the testimony tending to prove duress preponderated in favor of the plaintiff, and that the coercion or threats of defendant continued up until the time of the suit, but he also found that the evidence of duress and coercion was weak, and that, standing alone it would not be sufficient ground to annul the marriage contract. He held, however, that society is interested in every marriage contract, and that the children of the plaintiff are a part of this society and have an interest in the result of the lawsuit, which should be protected by the court. He also held that neither the plaintiff nor defendant had any standing in a court of equity, and that, if their rights alone were to he considered, the court would dismiss the case, but that society as a whole, and especially plaintiff’s children, would suffer or be benefited by the action of the court, and that to hold the contract valid would be giving the court’s acquiescence to such conduct. He also held that if the marriage contract were annulled, society would be protected from such a morbid and unusual contract and entered a decree annulling the marriage contract.

We agree with the chancellor that the evidence tending to show duress and coercion is weak and not sufficient to justify the court in annulling the marriage con. tract.

“Every intendment of the law is in favor of matrimony. When a marriage has been shown in evidence, whether regular or irregular, and whatever the form of the proof, the law raises a strong presumption of its legality; not only casting the burden of the proof on the party objecting, -but requiring him throughout, and in every particular, plainly to make the fact appear, against the constant pressure of this presumption, that it is illegal and void. So that it cannot be applied like ordinary questions of fact, which are independent of this sort of presumption.” Estes v. Merrill, 121 Ark. 361, 181 Ark. 136.

In this case, while the appellee testified that he was induced to marry appellant by threats of bodily harm and blowing up his property, he also testified to the illicit relation with appellee extending over a number of years; that they met by agreement at Hindsville and went to Eureka Springs and were married. They came back together and lived as husband and wife. That, because of the threatening attitude of the people and the fear that they would be harmed if they remained in the community, they concluded to go away for a few days. They were ■intending to go to California and went as far as Locust Grove, Oklahoma. There appellee talked her into coming back home. She did not want to come back. It appears that he was not only not afraid of her, but that she came back because he wanted to-come back. According to appellee’s story, lie was between Scylla and Charybdis, afraid her brothers would blow up his property and do him bodily harm if he did not marry her immediately, and afraid the citizens would run him out of the country if he did marry immediately after the death of his wife. They therefore agreed to keep their marriage secret for a while, and nothing was said by him about having the marriage annulled until about 100 citizens met and notified them that they could not live together in that community. On. the night before these citizens met, appellee stayed with appellant, occupying the same room and bed. We therefore think the court was clearly right in holding that the evidence was insufficient to justify a decree annulling the marriage.

The statute under which this suit was brought reads as follows: “When either of the parties to a marriage shall be incapable from, want of age or understanding, of consenting to any marriage, or shall be incapable from physical causes of entering into the marriage state, or where the consent of either party shall have been obtained by force or fraud,,the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction.” Crawford & Moses’ Digest, § 7041.

The subjects of marriage, divorce and annulment are regulated by statute, and no divorce can be granted for any cause other than those specified in the statute, and no decree of annulment can be had except for the causes mentioned in the statute.

“'Marriage was instituted for the good of society, and the marital relation is the foundation of all forms of government. For that reason the State has an interest in every divorce suit, and the marital relation once established continues until the marriage contract is dissolved upon some ground prescribed by the statute.” Marshak v. Marshak, 115 Ark. 51, 170 S. W. 567 ; 14 Cyc. 577 ; Ib. 593 ; 7 Enc. P. & P., p. 70.

Again it is said: “It is generally conceded in all jurisdictions that public policy, good morals and the interests of. society require that the marriage relation should be surrounded with every safeguard and its severance allowed only in the manner and for the causes prescribed by law.” Vanness v. Vanness, 128 Ark. 543, 194 S. W. 498 ; 14 Cyc. 578.

The chancellor found that the appellee was not entitled to a decree under the statute, that the evidence was too weak to justify a decree on the ground of force or fraud. The court was without authority, as we have already said, to grant a decree'for any cause other than the cause mentioned in the statute. The decree is therefore reversed, and the cause remanded with directions to dismiss appellee’s complaint.


author: Mehaeey, J.

text:
    Southwestern Bell Telephone Company v. Roberts.
    Opinion delivered September 22, 1930.

      Mami & McCulloch and Edward B. Downie,°iov appellant.

      Daggett & Daggett and Smith d Fitzsimmons, for appellee.
   Mehaeey, J.

This action was begun by appellee, H. E. Roberts, to recover damages against appellant for personal injuries alleged to hiave been caused by the negligence of I. A. Hughes, an employee of appellant, in the city of Marianna, Arkansas, between 7 and 8 o’clock in the morning of August 24, 1928. Hughes was foreman of a construction crew of the appellant company. Roberts, appellee, was 63 years old, had been living in Marianna about 23 years and was engaged in selling marble and granite work. The accident occurred on Texas Street, where the appellee then lived. He had moved into the place the day before and on the morning of the accident had hiad breakfast about 7 o’clock. He gut in his Ford touring car and drove out of the gate and stopped the car on the south side of Texas Street, the oar facing west. As he stopped the car, he got out to get a cow belonging to Mrs. Jordan back into the enclosure. The cow had got out of the gate after he had opened it and driven his car out. He stopped his car about 16 feet west of the gate. "When he got out of his car, he had a plain view for about 300 yards and did not see any automobile in the street, and testified that there was none there at that time. Appellee ran after the cow and his back was towards the west, he was running in a northeasterly direction and did not see the automobile before it struck him. Hughes was driving his automobile east on Texas Street. After appellee was struck, he told Hughes he did not think he was hurt. Hughes was driving east on Texas Street, and, according to his testimony was going 15 or 20 miles an hour, and he also testified that appellee ran out from behind his car and that it was impossible to prevent striking him. The oar which Hughes was driving belonged to him and not to the appellant, and the appellant did not pay him for the use of the car and'had nothing to do with it. Some of the witnesses testified that Hughes was going about 25 or 30 miles an hour.

There was a verdict and judgment for $1,000, and this appeal is prosecuted to reverse said judgment.

The only question raised on this appeal is the sufficiency of the evidence to support the verdict.

It is first contended by appellant that there was no negligence on the part of Hughes, the driver of the car; that he was driving at a moderate rate of speed and ringing his bell, his car having a bell instead of a -horn; that Roberts had got out of his car and gone behind it to close the gate, and that Roberts stepped out from behind his car so quickly that Hughes did not have time to stop after Roberts appeared.

Roberts testified that he drove his car into Texas Street, got out and undertook to drive the cow back into the enclosure, but that, before he did this, he looked west on Texas Street, the direction from which Hughes came, and that there was no car in sight. He had a plain view for about 300 yards, so that according to his testimony, after he got out and started to drive the cow back, Hughes turned into Texas Street and drove east on Texas Street until he struck Roberts. After coming into Texas Street, he had more than half a block to go before he reached the place where Roberts was.

Hughes himself does not testify to any fact showing that he exercised any care at all except that he rang his bell until about the time he hit Roberts, his testimony being that Roberts came out from immediately behind his car and stepped in front of his automobile. Hughes could have seen Roberts immediately if he had been keeping a lookout after he entered Texas Street. Roberts also testified that he was 53 feet east of the point where his car was stopped when he was struck. Roberts and one or two other witnesses testified that Hughes said he was driving fast to catch the boys who had gone on ahead. There is also testimony that his car was running at about 25 or 30' miles an hour. This was sufficient evidence to submit to the jury the question of Hughes ’ negligence.

It is next contended by appellant that Hughes was not engaged in the performance of the duties of his master, but was on a private errand of his own. It is true that Hughes testifies to this, but he is not supported by any witness and is contradicted by the physical facts. Mrs. Bearden, the woman he said he was going to see, lives on Mississippi Street two blocks from the hotel where Hughes’ car was when he started out that morning. To gO' to Mrs. Bearden’s he would only have to drive two' blocks on Mississippi Street. At the time he struck Roberts he was considerably further from Mrs. Bearden’s residence than when he started, and was going in the direction of the place where the crew had to work that day and where, according to the weight of the testimony, they had already gone. Appellant argues that Mrs. Bearden testified that Hughes called at her house between 7 and 8 o ’clock the next morning and told her about the accident. She does testify that Hughes called at her house the morning after the conversation she and Hughes had after her return from Texas and told her about the accident, but she did not testify that the accident had occurred that day. She testified very positively that she did not know whether it wias that day or some other day, and that she did not know whether it was on that trip or some other trip; that he came to her house many times, and one time he told her about the accident. Whether he was going direct to his work, or, as contended by appellant, on a private errand of Ms own, was a question of fact properly submitted to the jury, and the verdict on that issue is conclusive here. Moreover, if he was engaged in the performance of the duties of the master, a slight departure would not relieve the appellant frota liability, as has been held by this court several times. It is true, that if a servant steps aside from the master’s business to do an independent act of1 his own and not connected with his master’s business, the relation of master and servant is for such time suspended, and for any act of the servant when he is not engaged in the master’s business, the master is not liable. It was said in the case cited and relied on by appellant: “If a servant completely turns aside from the master’s business and pursues entirely his own, the master is not responsible.” Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229, L. R. A. 1918D, 115. The law is well settled in this State that, in order to make the master liablé for the negligent acts of the servant, the servant must be at the time engaged in the master’s business, engaged in the performance of his duties as a servant.

It is nest contended by appellant that it is not responsible for the injuries to appellee because Hughes was at the time driving a car owned and maintained by himself, and appellant cites and relies on the case of St. L. I. M. & S. R. Co. v. Robinson, 117 Ark. 37, 173 S. W. 822. It argues that that case is precisely in point, but in that case the court said: “If the service required oif the call boy could not have been performed in the time given therefor without the aid of the instrument used, the bicycle, it would have occasioned a necessity, and the knowledge by the agent of such use in the performance of the service would have amounted to an implied authorization thereof, making the railroad liable for a negligent injury thereby. ” There was sufficient evidence in this case to justify the jury in finding" that the service to be performed by Hughes could not have been performed, as he says, by walking, without the use of the instrumentality. used, without the use of automobile or some means of conveyance. He was the foreman and had charge of construction of all the lines, not only in the city of -Marianna, but the lines running out from Marianna. Oakwood was some distance south of Marianna, and the place where the crew was at work on this day was some distance south of Oakwood, so it was necessary for appellant’s servant to travel some three or four miles to -get to the place where the crew was to work. It was at least a question of fact as to whether it was necessary to- use the instrumentality in the performance of his duties, and-this question was submitted to the jury under proper instructions, to which no objection is urged. Moreover, Hughes wa-s using this automobile in the performance of his duties for the master, and the undisputed proof shows that the master knew it. While he' said it was not necessary because he could have walked, the facts and circumstances show that he could not have walked and performed his duties. He admitted that his duties in the supervision of the work covered practically the whole of the system in Marianna as well as lines leading* in and out, and while he tried repeatedly to show that he did not use the automobile in the company’s business, yet on the very day of the accident he went to Oakwood and the place where the crew was at work, in the automobile and stayed there a while and went elsewhere. He testified that he did not stay with the crew all the time. He evidently had other places to go in the performance of his duties. He was asked if he went to Oakwood that day, and he- said he did, that he drove out there, but that he did not stay with the job all the time. That he went out to- the job, and when asked if he meant to tell the jury the first time he -used the automobile on the company’s business was the day this accident occurred, he said, “No, sir, I mean to tell you that the company never did pay me for the use of my car on the job.” Again, he was asked, “You did drive down there on that particular morning?” and he answered, “Yes, sir.” He was then asked, “That was the first time from 1926 up to the date of the accident that you drove it on the company’s business?” and he answered, “No, sir, I drove it many times on the company’s business.” On the morning of the accident and immediately after the accident, Eolberts and other witnesses testified that Hughes said he was driving a little fast in order to overtake the crew. All of the evidence shows that Hughes was at the time of the accident about the business of the master, was acting within the scope of his employment or authority. The question of Hughes’ negligence, the question as to whether or not he was at the time acting within the scope of his employment and the question whether he used the automobile in the performance of his duties with the knowledge of the master, are all questions of fact, were all submitted to the jury under proper instructions, and the rule here is, if there was any substantial evidence to support the verdict, it will not be disturbed by this court. In this case there was substantial evidence to support the verdict, and the judgment is therefore affirmed.


author: McTIaney, J.

text:
    Combs v. Owen.
    Opinion delivered September 22, 1930.

      S. E. Gillimn, for appellant.

      Mahony, Yocum S Saye and Joiner Stevens, for appellee.
   McTIaney, J.

This is an appeal from a judgment against appellant in the sum of $1,000, in favor of the appellee, for conversion of twenty head of mules by appellant, on which appellee held a deed of trust. Appellee sold twenty head of mules, about 500 acres of standing timber, a sawmill, 'and other personal property to W. E. Babb, and for the purchase price took a deed of trust or mortgage from Babb and wife to himself which was dated May 18, 1927, but which was executed and acknowledged on the 19th day of May, 1927, by Babb and wife, and filed for record in Union County, Arkansas, on May 20,1927. The mortgage was also recorded in Columbia County but on November 22,1927. During the month of September, 1927, appellant purchased the mules from Balbb and disposed of them, and this action for conversion of the mules followed, by reason of the fact that Babib failed to pay his note given for the property purchased from appellee, which was secured by the deed of trust on all the property.

At the conclusion of the testimony appellant requested an instructed verdict in his favor, which the court refused .and which was assigned as error in the motion for a new trial. A number of other errors are assigned and urged for our consideration, but in view of the disposition we make of the first it becomes unnecessary to discuss the others. We think the request for an instructed verdict in appellant’s favor should have been granted. Our statute, § 7380, C. & M. Digest, provides that mortgages for personal property shall be recorded in the county in which the mortgagor resides, if a resident of this State. Section 7381 of the Digest provides that, “every mortgage, ’whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder’s office for record, and not before; which filing shall be notice to all persons of the existence of snch mortgage.” Under these sections of the statute, this court has many times held that a mortgage is good between the parties to it even though not acknowledged and recorded, but that such a mortgage does not constitute a lien upon the mortgaged property, as against strangers, unless it is acknowledged and recorded, even though they may have actual notice of its existence. It has been further held many times that the record of a chattel mortgage in a county other than that of the mortgagor’s residence is no notice to third persons. From Main v. Alexander, 9 Ark. 112, down to the present time, one of the recent cases being Hall v. Cartwright, 179 Ark. 1082, this court has so construed said statutes. Whether a chattel mortgage should be filed in the county of the residence of the mortgagor at the time of its execution or whether it should be filed in the county of the residence at the time of filing, this court has never decided, so far as the diligence of counsel discloses, nor have we found such a case by our independent investigation. We do not find it necessary to determine this question in this case as we have reached the conclusion that there is no substantial testimony in the record to show that the mortgagor, Babb, ever established a residence in Union County. The burden of proof in this regard was on appellee. In 11 C. J., p. 528, the rule is stated as follows: “Where the mortgagor’s residence controls as to the proper place of record, one claiming under the mortgage must establish that the mortgagor’s residence was such as to render the filing proper.” Capon v. O’Day, 165 Wis. 486, 162 N. W. 655, 1 A. L. R. 1657, is cited to sustain the text, which it does under a statute similar to ours. “Residence means something more than a mere presence in a place, particularly where the mortgagor has at the same time a permanent place of abode in another locality. * '* * The fact of actual residence is to be determined by the ordinary and obvious indicia of residence.” 11 C. J., p. 527. It is undisputed in this record that Babb, at the time of the execution of the mortgage to appellee, was a resident of Columbia County, living in the town of Waldo. Appellee so testified and further stated that he went to Union County to operate the sawmill some two or three days after- the execution of the mortgage. As above stated, the mortgage was executed on the 19th day of May, 19'27, and was filed ifior record on the 20th in Union County. It was, therefore, not filed in the county of his residence either at the date of execution or at the date of filing. When he went to Union ’County to operate the saiWmill he left his wife and children living in his home in Waldo, in Columbia County, where they continued to reside as long as he remained in Union County, some four or five months, when be left for parts unknown. The only article of furniture he took with him to Union County was a bed for sleeping purposes during his stay there in the operation of the sawmill. Since he had a permanent place of abode in -Columbia County and since the facts and circumstances in the case indicate that he was merely in Union County temporarily and had no intention of removing his residence from Columbia to Union County permanently, we are of the opinion that the appellee failed to' establish the residence of the mortgagor in the county where the mortgage was filed. True, it was filed in Columbia County, but at the time of its filing, the rights of appellant, a third person, had already accrued and such filing was no notice to him.

It necessarily follows from what we have said that the court erred in refusing to direct a verdict in appellant’s favor. The judgment will therefore be reversed, and the cause remanded for a new trial. It is so ordered.


author: Butler, J.

text:
    Houston v. American Insurance Company.
    Opinion delivered September 22, 1930.

      George W. Reed, for appellant.

      M. E. Vinson and Charles Q. Kelley, for appellee.
   Butler, J.

Appellee company, plaintiff in the court below, brought this suit alleging that the appellant Houston was employed by it in May, 1924:, as its agent to solicit and write insurance and at the time of the employment a written contract and commission agreement was entered into, and an agency bond executed by Houston with the appellants Jones, Battin and Goodman as sureties thereon. A copy of the contract was attached to the complaint as Exhibit A, a copy of the commission agreement as Exhibit B, and a copy of the agency bond as Exhibit C. It was further alleged that by the terms of the contract with the appellant Houston the appellee reserved the right to cancel any policy of insurance procured by him and to return to the insured the unearned premium and to charge and collect from its said agent the unearned commission on the premium returned; that it was stipulated in the contract of agency that the agent might terminate the contract upon notice to the appellee company, and that the contract might be terminated “at the pleasure of the company”; that to secure the performance of the terms of the contract the appellant Houston was required to, and did, execute a -bond with the appellants Jones, Battin and Goodman as sureties, in which bond among other things the maker and sureties became bound for the “refund to the company of the unearned commissions on the premiums returned under canceled policies.” The complaint further alleged that from time to time during a period of nearly four years the appellee company canceled policies written at the solicitation of the appellant Houston, returned the unearned premium to those insured and charged to Houston’s account with it the unearned commissions on such premiums refunded, and filed with its complaint an itemized list of the canceled policies, giving opposite each policy a detailed statement otf the facts regarding it,including the amount otf full premiums received, amount of same returned and the amount of the commissions due to be refunded on the unearned premiums. It was alleged that the total of the unearned commissions due amounted to $898.04, that the agent Houston had failed to repay same, and that because of this the agency of Houston was canceled and judgment prayed for the above amount.

Appellant Houston filed the following answer and cross-complaint:

“He denies that he is indebted to plaintiff in the sum of $898.04 or in any other sum. He denies that he is indebted to plaintiff on the policies mentioned in plaintiff’s exhibit to its amended complaint in any sum whatever, viz., policy 811898 — $6.48. (Then follows the numbers of 122 policies mentioned in said Exhibit D and the amount as claimed in said exhibit). He denies that it was the intention and meaning of his contract and the bond which he executed with R. E. Jones, W. L. Battin and J. A. Goodman as his sureties that after he had procured the applications for insurance, the same had been approved by plaintiff and policies issued by plaintiff to applicants and the same delivered by defendant and his commission paid to him that the plaintiff could arbitrarily and without cause cancel said policies and demand of defendant and his 'bondsmen the return of his commissions which he had earned and which had been paid to him.
“He alleges that each and every one of the above named policies were approved and written by the plaintiff and delivered to defendant for the insured, that defendant’s commission was paid him, and that, with a very few exceptions, the plaintiff without cause arbitrarily canceled said policies and is now seeking by this suit to recover from him and his bondsmen the commissions which he justly earned and had received; that the few exceptions where policies were canceled for cause he has paid plaintiff the commission on the unearned premium, and that he is not indebted to plaintiff in any sum for unearned commission.
“He denies that, exercising any rights and authority it had under said agent’s contract, and acting for its safety, protection and best interests, it canceled a number of policies of insurance which had been written by it by virtue of its contract with defendant; and states the fact to be that the same were arbitrarily, wantonly and without just cause so canceled. He denies that the policies canceled by plaintiff by which he was obligated to refund to plaintiff, over and above those settled and paid for, amounts to $898.04 or any other sum. He denies that he,is indebted to plaintiff for “court costs suit filed 9/19/27” in the sum of $15 or any other sum. He denies that he is indebted to plaintiff for “bond 2/24/28” in the sum of $10 or any other sum.”

For his cross-complaint against the said American Insurance Company, this defendant, W. S. Houston, and cross-complainant says:

“That he honestly and conscientiously entered into the said contract with plaintiff and cross-defendant fully believing he could in the course of time build up an insurance agency which would be profitable to himself and reiminerative to said companytliat he devoted about three years of his entire time honestly and diligently working to that end, and had established an agency well worth the sum of $1,000, when without any just cause said plaintiff and cross-defendant canceled his agency arbitrarily, to his damage in the sum of $1,000.
“Wherefore, premises seen, this defendant and cross-complainant prays that plaintiff take nothing by its complaint herein, and that this defendant and cross-complainant have judgment against plaintiff and cross-defendant, the American Insurance Company, in the sum of $1,000 and all his costs in this cause expended.”

The appellant sureties answered denying the indebtedness and adopted the answer of the appellant Houston as their own.

The appellee interposed its demurrer to the cross-complaint of Houston, and without waiving its demurrer filed a reply. The court treated the demurrer as going to both answer and cross-complaint and sustained the same. The appellants elected to stand upon their answer and cross-complaint and refused to plead further, whereupon the court entered the following decree and judgment:

“On this day this cause coming on for hearing upon the regular call of the calendar, and comes the plaintiff, the American Insurance Company, by its attorneys, M. E. Vinson and Charles Q. Kelly, and the defendants come by their attorney, George W. Reed.
“The plaintiff’s demurrer to the defendant’s answer and cross-complaint comes on for hearing, consideration and ruling’ by the court, and, after hearing the argument of the counsel for both the plaintiff and defendants and being well advised in the premises, the court doth sustain the plaintiff’s demurrer to the defendants’ answer and cross-complaint and dismisses the same, to which ruling of the court in sustaining said demurrer the defendants at the time excepted and asked that their exceptions be noted of record, which is done. And the defendants electing to stand upon their answer and cross-complaint and refusing- to plead further herein. It is therefore by the court considered, ordered and adjudged that defendants’ answer and cross-complaint be dismissed and held for naught, and that the plaintiff, the American Insurance Company, do have and recover of and from the defendants, W. S. Houston, ft. E. Jones, W. L. Battin and J. A. Goodman, the sum of $957.65 and costs of this action, and that this judgment shall bear interest at the rate of six per cent, per annum from this date; and upon this judgment let execution or other process issue.”

The appellants made no specific objection to the action of the court in treating the demurrer as applying to the answer as well as to the cross-complaint, but all parties seem to have acquiesced in this action of the court. The appellants merely contend in their brief and argument that the answer stated a defense and the cross-complaint a cause of action, and that in holding otherwise the court erred. There was no denial in the answer of the cancellation of the policies, or that the unearned premiums had been refunded to the parties insured, and while there was a denial of any indebtedness to the company, both as to total amount sued for and the specific amounts mentioned accruing as unearned commissions on the specific policies mentioned, from an examination of the answer, giving to each part and to the entire plea every reasonable intendment, it is clear that the denial of liability is based on the allegation of the answer “that after he had procured the application for insurance, the same had been approved by plaintiff and policies issued by plaintiff to applicants and the same delivered by the defendant and his commission paid to him * * * the plaintiff, without cause, arbitrarily canceled said policies and is now seeking by this suit to recover from him and his bondsmen the commissions which he justly earned and had received; that the few exceptions where policies were canceled for cause he has paid plaintiff the commission on the unearned premium, and that he is not indebted to plaintiff in any sum for unearned commission

The theory of the appellant Houston is untenable because it is in conflict with the terms of the agency agreement and bond, by which it was expressly agreed that the agent “should refund to the said company the unearned commissions on premiums returned under canceled policies.” Therefore, as is said in the case of Hill v. Ætna Insurance Co., 180 Ark. 401, 21 S. W. (2d) 180: The appellant was liable for the unearned commissions collected.” The cross-complaint states no cause of action because it, too, conflicts with the contract. For by it the agent might terminate his agency upon written notice to the company to that effect, or it might be terminated at the pleasure of the company, and in the same paragraph of the contract is the further provision that the cancellation of the contract should not terminate or change the liability of the agent to- the company for returned commissions upon policies canceled prior to the cancellation of the contract.

It follows that the judgment and decree of the trial court is correct, and it is therefore affirmed.


text:
    Johnson v. Commonwealth Building & Loan Association.
    Opinion delivered September 22, 1930.

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

      Powell, Smeacl S Knox, for appellee.
   Butler, J.

H. M. Johnson, some time prior to- March 28, 1926, purchased a lot in El Dorado upon which was a .dwelling and which, after his purchase, he occupied with Ms father and mother and a sister. On July 30, 1926, he borrowed $7,000 from the appellee association, to secure which he conveyed by mortgage the said property, representing to' the mortgagee, and including in said mortgage the statement that he was an unmarried man. He agreed to pay to said association a stipulated sum each month, in default of which it was agreed that the mortgage might be foreclosed. Johnson failing to pay a number of said monthly installments, the association brought suit to foreclose the mortgage on May 28, 1929, alleging that since the execution of the mortgage Johnson had married; that Mrs. Jimmie Johnson (the mother of H. M. Johnson) claimed to have a deed to the property, and others who were named held mortgages executed by Mrs. Jimmie Johnson and the other defendants covering the property, and that still others claimed to have judgment liens of some nature against said property all of whom were made parties defendant, and summons was duly issued and served upon the defendants on* May 29, 1929.

The defendants, H. M. Johnson, T. E. Barton and the Exchange Bank & Trust Company filed their separate answers, but none of the other defendants, including Mrs. Ruth Johnson.(the wife of H. M. Johnson) and Mrs. Jimmie Johnson, his mother, filed any answer.

On November 4th, the case was called for trial and H. M. Johnson and the Exchange Bank & Trust Company appeared and confessed the justness of the claim of plaintiff and their willingness that judgment be entered against said H. M. Johnson in favor of the plaintiff association for the amount sued for, and that said judgment be decreed a first mortgage lien on the property, and that the plaintiff have a decree of foreclosure. Thereupon the court found that Mrs. Ruth Johnson, Mrs. Jimmie Johnson, and the other defendants, save those named above who made answer, had been duly summoned but had failed to appear to make defense, and rendered a judgment against them by default and against the defendants who had answered on their confession and decreed á foreclosure of the mortgage and a sale of the property. From this decree no appeal was prosecuted.

Sale was made on December 6, 1929, at which the appellee association became the purchaser and on December 16, 1929, the said sale was confirmed. On January 5, 1930', a writ of assistance was procured, and on the 4th of February following H. M. Johnson, Mrs. Ruth Johnson and Mrs. Jimmie Johnson filed their motion to quash the writ of assistance and for a bill of review, alleging that the decree was taker by default, that Mrs. Ruth Johnson at the time of the execution of the mortage was the wife of H. M. Johnson, that the property contained in the mortgage was their homestead, and that she did not join in the execution of the mortgage which rendered the same void, and asked that the decree of foreclosure he set aside and the bill of foreclosure be dismissed.

The appellee association responded controverting the allegations of the petition, and on a trial of the issues the petition to quash the writ of assistance and for bill of review was overruled, from which order and decree of November 4,1929, the petitioners (appellants) have prosecuted this appeal and filed a supersedeas bond February 14, 1930.

The appellants, insist that under $ ©542 of Crawford & Moses’ Digest, providing that no mortgage affecting the homestead of any married man shall be of any validity except for taxes and other liens and the purchase money, unless his wife joins in the execution of such instrument and acknowledges same, and, by virtue of our decisions construing said statute, the mortgage under which appellee claims was and is void, and that the decree of foreclosure and the order made denying the petition for bill of review should be reversed and set aside.

The law is well settled as contended for by the appellants, but the appellee takes the position that the appellants may not benefit thereby for a number of reasons: first, that appellants have failed to comply with rule 9 by not having furnished an abstract of the pleadings and testimony; second, that the proof fails to show the property involved to have been the homestead of H. M. Johnson; third, that H. M. Johnson and Mrs. Jimmie Johnson are estopped from asserting the invalidity of the mortgage; fourth, that whatever rights Mrs. Ruth Johnson might have had are precluded by a decree of divorce; and, fifth, that having been made parties to the foreclosure proceeding and duly summoned to answer and having failed to do so, and no errors appearing upon the face of the record, the decree of November 4,1929, as to them was res judicata.

I.

In the statement of the ease the declaration is made that the facts are not in dispute, and in each fact stated there is a reference to the transcript for its verification. The facts appear to be fairly well stated, and indeed the appellee makes no complaint of any misstatement, and we therefore conclude that there was a sufficient compliance with rule 9.

Our decision on points Nos. 3 and 4 is decisive of the questions involved, and therefore it will be unnecessary to discuss or decide the questions raised by points Nos. 2 and 5.

II.

On the trial of the issues joined on the petition for the quashing of the writ of assistance it was disclosed that, although H. M.. Johnson represented himself to be a single man on July 30, 1926, in fact he was not. On March 26, preceding, in Ruston, Louisiana, he married Miss or Mrs. Ruth Davis. Just when he began to live with her after the marriage or where is not shown, but on January 29, 1927, in a divorce proceeding instituted by Mrs. Ruth Johnson against H. M. Johnson, in which he failed to appear and make defense, she obtained a decree of divorce and on October 10, 1927, following, she and H. M. Johnson were remarried. On January 16, 1928, they jointly conveyed the property in controversy to appellant, Mrs. Jimmie Johnson, mother of TI. M. Johnson, by deed of general warranty, who, on December 17, 1928, to secure a loan of $4,200, executed a 'mortgage to the Exchange Bank & Trust Company in which she specifically stated that “this mortgage is subject and inferior to a certain mortgage executed on the 30th day of July, 1926, by H. M. Johnson, unmarried, to Commonwealth Building & Loan Association covering- the above land and of record in the office of the recorder of Union'County, Arkansas, in book No. 225, page No. 155.”

If, at the time of the conveyance by H. M. Johnson and Ruth Johnson, his wife, to Mrs. Jimmie Johnson, Mrs. Ruth Johnson had any interest in or right to the property as her homestead this right was abandoned by virtue of said conveyance to Mrs. Jimmie Johnson. Burel v. Baker, 89 Ark. 168, 116 S. W. 181 ; Gatlin v. Lafon, 95 Ark. 256, 129 S. W. 284 ; Bowen v. Black, 170 Ark. 237, 279 S. W. 782. Consequently, thereafter, and at the time of the filing of the petition aforesaid, she had no right or interest in the property, and was therefore not a proper party to the proceeding’s.

As a privy in estate is one who takes title to the property in question by purchase or by conveyance, Mrs. Jimmie Johnson, by reason of the conveyance to her by H. M. Johnson, became his privy in estate. 50 C. J. 407, sec. 3 ; Collum v. Hervey, 176 Ark. 714, 3 S. W. (2d) 993, and, while Mrs. Ruth Johnson, as the wife of H. M. Johnson, was not bound by the false representation of Johnson in the procurement of the loan and the execution of the mortgage to secure the same, Mrs. Jimmie Johnson, by reason of her privity in estate, was and is bound. Therefore, as H. M. Johnson, although the owner of a homestead, having conveyed it on the representation that he was single, would have been and is estopped to now claim otherwise, so also is Mrs. Jimmie Johnson because of her privity in estate. Mason v. Dierks Lumber Co., 94 Ark. 107, 125 S. W. 656, 26 L. R. A. N. S. 574, and cases cited. Mrs. Jimmie Johnson also expressly and falsely represented that H. M. Johnson was unmarried at the time of the execution of the mortgage to the appellee company by a recital in the mortgage made by her to the Exchange Bank & Trust Company, where a statement to that effect was reiterated.

Our conclusion on this proposition necessitates the affirmance of the decree of the court below, but on the fourth point raised we conclude that the rights of Mrs. Ruth Johnson to the homestead was divested by the decree of divorce rendered January 29, 1927, for in that decree, which was offered in evidence in the case, there is a recital that on the representation of plaintiff’s attorney the matters of property right and alimony had been settled. The effect of this decree of divorce was to divest Mrs. Johnson of all dower and homestead rights so that then and thereafter H. M. Johnson was the owner as if he had always been a single person. See Taylor v. Taylor, 153 Ark. 206, 240 S. W. 6 ; Moore v. Warren, 160 Ark. 629-630, 255 S. W. 306 ; Oliver v. Halley, 170 Ark. 763, 281 S. W. 17.

The order and decree of the court below is correct, and it is therefore affirmed.


author: Hart, C. J.,

text:
    Zorub v. Missouri Pacific Railroad Company.
    Opinion delivered September 29, 1930.

      Murphy S Wood, for'appellant.

      R. E. Wiley and Richard M. Ryan, for appellee.
   Hart, C. J.,

(after stating the facts). It is first earnestly insisted by counsel for the plaintiff that the undisputed evidence shows negligence on the part of the defendant. In making this contention, they point out that several 'disinterested witnesses saw the shipment of guods when they were delivered to the plaintiff’s- store in Hot Springs, and that one of the boxes appeared to have been tampered with, that it appeared to have been opened before it was delivered to the plaintiff, and that about one-half of the contents of the box appeared to be missing and that the remaining contents of the box were Oriental rugs.' The agent of the transfer company who handled the shipment at Hot Springs said that one of the boxes appeared to have been tampered with when the goods were delivered to the transfer company, and that it was not tampered with while in the possession of the transfer company. The transfer agent who handled the shipment at Eureka Springs testified that when the shipment of goods was delivered to him at the store of the plaintiff in Eureka Springs, the goods were securely packed in strong boxes, and that the goods were delivered to the railroad company in Eureka Springs in the same condition as when received. It will be noted, however, that the plaintiff alone testified that the goods now claimed to be missing were packed in the boxes that were shipped from E'ureka Springs to the shipper’s order at Hot Springs. Now, the gist of the action was the recovery of the value of five Oriental rugs claimed to be missing and to be worth something’ over $1,300.

In the first place, this court is committed to the rule that where a witness is a party to the suit and thereby interested .in the result of it, his testimony cannot be said to be undisputed and the case must be submitted to the jury. Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52, 12 Ann. Cas. 243 ; Ford v. Wilson, 172 Ark. 335, 288 S. W. 712. ; and Blankenship v. Modglin, 177 Ark. 388, 6 S. W. (2d) 531. Zorub being the plaintiff in the action and being the only person who testified that the five rugs were packed in the box, under the rule above announced, the question was properly submitted to the jury on this issue. The .jury might have found that the testimony of Zorub was not true, or that he was mistaken, and that the five rugs which were the basis of this suit were never packed and shipped with the other rugs.

Again, it cannot be said that the testimony was undisputed. Of course, if the witnesses for the transfer company who handled the goods and the witnesses who saw the boxes on the platform when they were delivered to the plaintiff are telling the truth, one of the boxes appeared to have been tampered with and was only about half full of goods. As above stated, the jury might have found that the five rugs now claimed to be missing were never placed in the box or, if'they were placed there, that they were abstracted before the box was received by the defendant. According to the testimony of the witnesses for the defendant, the shipment did not appear to have been tampered with, but they might have been mistaken in this. At any rate, they testified in unequivocal terms that the boxes were not tampered with in transit while they were in. the possession of the defendant; and their testimony in this respect, if true, tended to contradict the testimony of the witnesses for the plaintiff. The jury was the judge of the credibility of the witnesses and might believe such of their testimony as it thought to be true and reject that part which it thought to be false. In the exercise of its discretion in this respect, it cannot be said that the plaintiff established his case by uncontradicted testimony. Hence, we hold this assignment of error is not well taken.

In the next place, it is contended that the court erred in refusing to give an instruction to the jury requested by the plaintiff. We do not deem it necessary to set out the instruction, for in other instructions given to the jury at the request of the plaintiff the case was fully and fairly submitted to the jury under the principles of law repeatedly decided by this court. Mo. Pac. Rd. Co. v. American Fruit Growers, Inc., 163 Ark. 318, 260 S. W. 39, and cases cited. In that case, it was held that, in the absence of proof to the contrary, damages to goods in transit is presumed to have occurred on the line of the delivering carrier. The court instructed the jury on this point as requested by the plaintiff, and the jury might have found that under the evidence adduced by the defendant that the loss, if any, to the shipment occurred on the line of the initial carrier and not on the line of the defendant as the delivering carrier.

It is next insisted that the judgment should he reversed because the circuit court found that the verdict was against the preponderance of the evidence, and that it became its duty to set it aside. This court is committed to the rule that where the trial court finds that the verdict is against the preponderance of the evidence, it must be set aside and a new trial granted. Mueller v. Coffman, 132 Ark. 45, 200 S. W. 136 ; Pettit v. Anderson, 147 Ark. 468, 227 S. W. 772 ; Bean v. Coffee, 169 Ark. 1052, 277 S. W. 522 ; Spadra Coal Co. v. Harger, 130 Ark. 374, 197 S. W. 705 ; Spadra Coal Co. v. Callahan, 129 Ark. 448, 196 S. W. 477 ; and Twist v. Mullinix, 126 Ark. 427, 190 S. W. 851.

We do not think the record sustains the contention of counsel. When a motion for a new trial was first presented to the court, certain remarks were made by the court with reference to it which are as follows:

“I really thought Mr. Zorub was entitled to recover something and was surprised at the verdict of the jury, but I don’t know whether the court should set up his judgment against the judgment of the jury, but I believe Mr. Zorub was entitled to something.”

Then the court took the motion for a new trial under advisement. Several days thereafter, when he finally overruled the motion, he made the following statement:

“I remember when the motion for a new trial was presented that we discussed it considerably, and that part of the motion that appealed to me at the time was your persistence in asking some question of Borland that I had held to- be incompetent. That was with reference, I believe, to Mr. Zorub’s reputation and standing; I had held that that was not a competent question, and, as I remember now, you asked that question a time or two afterwards and I felt really at the time, and do now, that that wasn’t just a mere oversight on your part, but the purpose of it maybe was to create a feeling against Mr. Zorub. That was the part of the motion for a new trial that appealed to me, but at the time the objection was made to that question I told the jury not to consider it, and I know I had quite a bit to say about the practice among some of the attorneys with reference to asking questions that I felt they knew to be improper, and if this had been the only time that that practice had been indulged in I would have set the verdict aside just on that ground. Now, I think I remember, too, expressing some opinion I had as to what I thought the verdict of the jury might be and I think did state that I thought the jury would find in his favor for some amount. I know 3 had that sort of an opinion about it at the time, and it is likely that I expressed such an opinion the day we had the motion for a new trial up. Of course, what I had to say at that time was just in conversation with the attorneys who were present on said occasion. I don’t remember, however, saying that I would set the verdict aside except for the fact that the Supreme Court would reverse it; I don’t remember that I had an idea of that kind about the matter. ’ ’

Mr. Scott Wood: “Just let that part of it go out then; fix it there to make it reflect the truth as you remember it, Judge; that is all we want.”

“The court then struck out the last clause of the court’s purported remarks on page 160, reading as follows: ‘and if I thought the Supreme Court would not reverse the case I would set the verdict aside.’

The court: “I took it under advisement for the purpose of determining whether I would -set it aside for your persistence in asking some question that I had held to be incompetent, but some of the attorneys have done that, and rather practiced it to some extent, and I just didn’t want to do that for the first time in this case, but that was the part of the motion that I considered the most seriously. Of course, on the merits of the case I likely had not considered the facts in the case as fully as the jury had; I may sometimes express an opinion about what a jury will likely do about a ease, when I perhaps had not followed the testimony as closely as the jury had, but I think I made the statement about as it is here, with the exception I don’t remember saying that I would set it aside if I didn’t feel the Supreme Court might reverse my order in setting it aside.”

What was said by the court has been presented thus fully in order that the trial judge’s mental attitude in passing on the motion for a new trial may be ascertained from the record. When the whole matter is considered, we do not think it can be said that the circuit court in any sense found that the verdict of the jury was against the preponderance of the evidence. As stated by the court, what was said by the trial judge when the motion was first presented was merely a conversation with attorneys in the case. It is one thing for a judge to express surprise about the verdict of a jury, because in his opinion many things might have entered into the minds of the jury in finding it. In order to find that it has erroneously overruled a motion for a new trial, it is necessary that a circuit court make a finding that the verdict of the jury is against the weight of the evidence; and a mere declaration that the court would have found the verdict differently does not amount to such finding. The court must not only differ with the jury in its conclusion upon the facts, but must find that the verdict of the jury is against the weight of the evidence, before the verdict should be set aside.

It is next insisted that the judgment should be reversed because of the improper conduct of the attorney for the railroad in -the cross-examination of the plaintiff. The record shows that the attorney for the defendant asked the plaintiff if he had not had a claim against an express company for a case uf imported nuts which turned out to be a case of Scotch whiskey. He was permitted to explain about the shipment and why he withdrew his claim against the express company. There was no error in this respect. It is true that the trial court should never permit counsel to browbeat or intimidate a witness or to ask him questions which are impertinent or insulting and which have no reasonable bearing upon the issue to be tried. It is well settled, however, that such discretion is vested in the trial court, and that, for the purpose of testing the credibility of the witness, counsel may in good faith ask him questions relating to his moral delinquencies and other things of that sort. Webb v. State, 138 Ark. 465, 212 S. W. 567 ; and Ogburn v. State, 168 Ark. 396, 270 S. W. 945. Many other cases to the same effect might be cited, but the rule is so well setlled that it is unnecessary to do so. In this connection, it may be stated that the same rule obtains in civil as in criminal cases.

It is next insisted that the court committed a like error in the cross-examination of J. Gus Bourland, a witness for the plaintiff. The court properly permitted this witness to be asked about certain contradictory statements he was claimed to have made with regard to the transaction. There is nothing to show that the examination of the witness in this respect was not made in good faith, and the trial court properly allowed it as testing the credibility of the witness, and no attempt was made to contradict his answer to the questions. Other matters alleged to be erroneous were excluded from the jury, and no answer was made by the witness to these questions. Hence, no prejudice could have resulted to the plaintiff in this respect, whether the questions in the cross-examination of the witness were proper or not.

We find no reversible error in the record, and the judgment will be affirmed.

Mr. Justice Kirby dissents.