text:
    St. Louis-San Francisco Railway Company v. Haynes.
    Opinion delivered April 30, 1928.

      E. T. Miller, E. L. Westbroohe, Jr., and E„ L. West-broohe, for appellant.

      Walter L. Pope and Tom W. Campbell, for appellee.
   McHaNey, J.

Appellee received personal injuries and Ms wagon was destroyed on account of being struck by appellant’s fast passenger train where tbe dirt road leading to appellee’s house crosses the railroad track south of and near Bay, Craighead County, Arkansas. Appellee lived on a farm, Ms house being about 250 yards west of appellant’s main line, on the inside of the field fence. East of the railroad, and parallel with it, running north and south, is the paved highway. To get to the highway, appellee had to cross the railroad tracks on the crossing above mentioned. This was a- regular crossing for appellee and others desiring to get on the public highway across the tracks, and was at an angle of about 45 degrees with the railroad in a northeasterly direction from appellee’s house, the railroad being elevated about ten feet above the surrounding land. The railroad was fenced at this point, and appellee had to pass through a gate to cross the tracks, and in driving from his home, traveling in a northeasterly direction to the paved highway, and while crossing the tracks, he was struck by appellant’s train and injured, as aforesaid.

Some small houses were along the right-of-way, and appellee’s view was obstructed to the south, the direction from which the train approached, but the view was open as he approached the track for quite a distance to the south. Appellee says he looked, but did not see the train, neither did he hear it. He testified that the statutory signals were not given as the train approached this crossing, either by ringing the bell or blowing the whistle, and in this he was corroborated by several other witnesses who saw the accident. He did not actually see the train, nor did he hear the whistle until it was almost upon him. The jury returned a verdict for $500.

It is first urged for a reversal of this case that, since appellee could have plainly seen and heard the train, he is presumed, as a matter of law, to have seen and heard it, and he cannot recover, regardless of whether the statutory signals were given. In other words, the gist of this contention is that appellee was negligent in going upon the track without seeing what was plainly to he seen, and that he cannot recover, whether appellant was negligent or not in failing to give the statutory signals. We cannot agree with counsel in this contention. It is undisputed that he did not actually see the train. It is only insisted that, by the exercise of care for his own safety, by looking-and listening, he could have seen the train. It was admitted in this case that appellee was negligent, that is, he was guilty of contributory negligence. Appellant cites several cases to support his contention in this regard, the latest of such cases being Chicago, R. I. & P. Ry. Co. v. Batsel, 100 Ark. 526, 140 S. W. 726, holding to the effect that the injured person would be deemed to have seen and heard the train where the undisputed evidence shows that, by looking and listening, he could have seen the train, and could not have failed to have seen it by the exercise of care in this regard, -and that a recovery could not be had because the injured person would be guilty of - contributory negligence as a matter of law. This and all the other cases cited by counsel were prior to the act of 1919, now § 8575, C. & M. Digest, which provides :

“In all suits against railroads, for personal injury or death, caused by the running of trains in this State, contributory negligence shall not prevent a recovery, where the negligence of the person so injured or killed is of less degree than the negligence of the officers, agents or employees of the railroad causing the damage complained of; provided that, where such contributory negligence is shown on the part of the person injured or killed,the amount of recovery shall be diminished in proportion to such contributory negligence. ’ ’ ■

Under this section the court very properly instructed the jury that no recovery could be had for the damage to the wagon, which was destroyed in the accident, for the reason that the statute above quoted does not cover injuries to personal property, but only for personal injury, or death. We cannot therefore • say, under the circumstances of this case, and in view of the above section of the statute, that appellee was guilty of such negligence as would 'bar him from maintaining this action.

It is next contended that the undisputed evidence shows that the statutory signals were given. We have examined the evidence carefully on this point, and find it to be in conflict. Four eye-witnesses, including appel-lee, testified that the signals were not given, or that they did not hear them. The fireman and engineer testified positively that they were given, and it is said that the witnesses for appellee do not say positively that the signals were not given, hut only that they did not know, or that they did not hear them. We think the evidence is stronger than that, and is sufficient to take the case to the jury upon this point. As was said in St. L. S. F. R. Co. v. Horn, 168 Ark. 195, 269 S. W. 577: “The engineer and fireman both testified that the bell was kept ringing from the whistling post down to the crossing, and the engineer testified that the whistle was sounded again after passing the post and before reaching the crossing. But there is substantial testimony from which the jury might have found that there were no signals given, either by bell or whistle, after the whistle was sounded at the post. It is contended by learned counsel for appellant that the testimony on that point is merely negative, but we are of the opinion that the testimony is of more force than that. Witnesses testified that they did not hear the bell, and the jury 'might have found that the bell was not rung, otherwise the witnesses would have heard it.”

It is next insisted that, although the signal's were given, appellant was not required to give the statutory signals for this crossing, as it was a private crossing and not a public road crossing, and that, under the law, it was not required to give the signals at such crossing. ■ The statute does not require the road crossing the railroad to be a public road. It requires the bell to be rung or the whistle blown “at the distance of at least 80 rods from the place where the said road shall cross any other road or street, and be kept ringing,” etc. “Any other road” means exactly what the 'Statute says, any road which crosses the railroad tracks, whether the road he a public highway or not. The proof shows in this case that the road was used by any person desiring to pass through at this point in any kind of a vehicle, and that the crossing was a regular grade crossing. We think this such a crossing as requires appellant, under the statute, to give the prescribed signals.

Complaint is made of the giving of instructions 2, 3 and 5, and of the refusal to give instruction Nos. 3 and 10 requested by appellant. Instructions 2 and 3 given for appellee related to the giving of the signals, and were entirely proper instructions. No. 5 was the charge upon the comparative negligence statute above quoted, and was also entirely proper. No. 3 requested by appellant and refused by the court was that “the evidence is not sufficient to sustain the allegations that the employees in charge of the train failed to blow the whistle or ring the bell, as required by law, ’ ’ but what we have said already disposes of this, as we think there was sufficient evidence to submit this question to the jury.

Requested instruction No. 10, which was refused by the court, was properly refused. It told the jury “that the evidence of the engineer and fireman, when reasonable, and uncontradicted, cannot be arbitrarily disregarded by you.” There are two reasons why the court properly refused this instruction; one is that the evidence of the engineer and fireman, as we have already seen, was not uncontradicted, and in such case it would be improper to single out certain testimony and give it prominence over other testimony.

It is finally submitted that the evidence is not sufficient to sustain the verdict; but what we have already said disposes of this assignment. The evidence was legally sufficient to take the case to a. jury, and is sufficient to sustain a. finding for or against appellant.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: McíIaney, J.

license: Public Domain

text:
    Ætna Insurance Company v. Daggett & Yancey.
    Opinion delivered April 30, 1928.

      Mann & McCulloch and McMillen & Scott, for appellant.

      Coleman & Riddick, for appellee.
   McíIaney, J.

On-January 1, 1923, appellant issued to appellees a fire insurance policy, No. 100,019, insuring the buildings and certain personal property on the plantation owned by appellees, known as the Grant place, against loss or damage by fire, in the sum of $9,200, distributed as follows: $800 on barn No. 1, $600 on barn No. 2, $1,000 on grain of all kinds, $300 on hay, straw, etc., $1,000 on harness, saddles, wagons and farm implements, and $5,400 on 28 tenant buildings.

The total premium was $941.65, payable $188.33 in cash and $188.33 due and payable on the first day of January for the years 1924, 1925, 1926 and 1927, and for the deferred payment notes were given, each of which provided that, if any installment be not paid when due, the policy would not be effective while said installment remained unpaid; and the policy contained the following provision: “If any such notes or installments be not paid when due, this policy shall be suspended, inoperative, and of no force or effect while said note or installment remains unpaid, and it is hereby agreed that this company shall not be liable for any loss or damage occurring during such default. ’ ’

On February 16, 1924, appellant issued another policy to appellees, No. 537, in the sum of $1,000, covering the harness, wagons, farm implements, tools, etc», on the Grant place. Appellees paid the premium notes due January 1, 1924, 1925, 1926, but failed to pay the one due January 1, 1927, until the 13th day of January of that year, on which date appellee Jesse Daggett, who kept the books and looked after insurance matters for the partnership composed of himself, 0. E. Daggett and C. E. Yancey, mailed a check covering the last premium note to appellant at Oklahoma City, which was received on January 15, by appellant. Eeceipt of such check was acknowledged from the Oklahoma office of appellant under date of January 17. The Home Fire Insurance Company had a blanket policy for $6,000 covering generally tools, harness,- buggies, corn, feed, etc., without any particular distribution on the separate items of property. On January 12, barn No. 2, under policy 100,019, grain of the value of $6,288 and tools of the value of $944.79 were destroyed by fire. The Home Company paid $2,193.78 of the loss on grain and $1,114.10 of the loss on tools as its share of the loss covered by the two companies.

Appellant sent two notices to appellees regarding the installment note due January 1, 1927, one advising them of the due date, and the second, after January 1, reminding them that the installment had not been paid, in which it called attention to the fact that, by the provision of the note and the policy, the insurance thereunder was suspended while the note remained unpaid. Jesse Daggett was away from his office from January 1 to the 13th, and, on returning to his office on the latter date, found the notice regarding the note on his desk, at which time he immediately sent cheek to cover, at a time when he knew nothing about the fire having occurred the day before, and did not learn thereof until the next day. On Saturday, January 15, the manager on the Grant place came to Marianna and reported to appellees that barn No. 2 and its contents had been destroyed by fire on the 12th, and this was the first knowledge that appellees had that the barn had burned. They had heard that one of the small cabins on the place back of the barn had burned. Mr. Hugh Mixon, the local agent, was immediately notified of the fire. Mixon received this notice of the loss under both policies of appellant on January 15, but did not send in his. agency report covering the loss to the company until Monday, the 17th. He made two reports to the company, one under policy 100,019, and the other under policy 537. In the report of the loss on policy 100,019 he inadvertently reported the loss as having occurred on the 17th, whereas under policy 537 he correctly reported the loss as having occurred on January 12. Both- reports were received by appellant at its Oklahoma City general office on January 19, four days after the receipt of the money covering the premium note due January 1. Mr. Mixon, the local agent, assured appellees that appellant would settle the loss promptly, but his statements in this regard were made without any knowledge that the premium note was in default of payment at the time of the fire.

The Home Company settled its share of the loss promptly, but an adjuster for appellant did not go to Marianna until March 16, at which time the high water from the overflow covered a large territory, extending from the outskirts of Marianna across the Grant place, some nine miles distant. Appellees secured for the adjuster a boat in which to get to and inspect the loss, and paid the charges therefor. Oh. arriving at the place he was advised that the fire occurred on the 12th. He returned to Marianna, and, upon Mr. Daggett’s refusal to sign a nonwaiver agreement, he left without adjusting the loss, but made no contention that there was no liability on account of failure to pay the note prior to the fire. The only complaint he made was regarding the additional insurance on the property covered by the Home policy, which he suggested was not permitted by appellant’s policy. On March 17 the adjuster sent a written report to appellant, advising, among other things, that the fire had occurred on January 12. On March 24, appellant having taken no further steps to adjust the loss, appellees instituted this action to recover $1,624.90 under both policies. The case was submitted to the jury, and a verdict was returned in said sum, plus interest, penalty and attorney’s fees, from which is this appeal.

Appellant admits. liability under policy 537, and makes no contention here against it thereunder. Its principal contention is that policy 100,019 was not in force at the time of the fire, by reason of the failure of appellees to pay the premium note prior to the fire. It is undisputed that the note was not paid until after the fire, and it is undisputed that both the note and the policy provide that the company shall not be liabLe for any loss occurring during default in the payment of the note. Counsel for appellant, in their brief, say: i£The fire having occurred during the time the policy was suspended, appellant is not liable under that policy, unless there was a waiver of the suspension.” Our attention is directed to several of our own cases and many from other courts holding to the effect that, when default occurs in the payment of a note given for the premium, or an installment of the premium on an insurance policy, the clause providing for suspension during the time of default is self-operating, and the policy is automatically suspended without notice to the insured. Two of our leading cases on the subject holding to this effect are Jefferson Mutual Ins. Company v. Murray, 74 Ark. 507, 86 S. W. 813 and Patterson v. Equitable Life Ins. Society, 112 Ark. 171, 165 S. W. 454. We agree to these decisions, but we do not consider that they are controlling in the case at bar. Here the policy in question, although covering many different items of property, was one indivisible contract. Appellees did not suffer a total loss under this policy, but only three or four items covered by the policy were involved. The policy covered two barns, 28 tenant bouses, and many different items of personal property. Only one barn was destroyed, together with a lot of grain and farming implements. The payment of the premium on January 13, received by the company on the 15th, was for the full term of one year, and covered the total liability of appellant on all property mentioned in the policy for the full term of one year, and not from January 15 or January 17. Appellant’s agent in Mari-anna had notice on the 15th that a loss had been sustained under both policies on the 12th. He so recorded the loss in his agency records. He waited until the 17th to report the loss, and then, through error, reported the loss under the policy in question as having occurred on the 17th, the very date he was sending the notice of the loss under policy 537 as having occurred on the 12th.

Appellant’s general office at Oklahoma City knew, on the 19th day of January, that this fire had occurred on January 12, and the slightest inquiry from its own agent at Marianna would have disclosed its agent’s error in reporting the loss under this policy as having occurred on the 17th. Therefore on the 19th day of January it had notice that the fire occurred on the 12th, instead of the 17th, both through its own agent at Marianna and through his report under policy 537, and it elected to keep the whole premium for the whole year’s insurance until ten or twelve days after suit was- brought to recover under both policies, when it returned the whole amount of the premium to appellees, which they refused to accept. Under such circumstances, we think it would be manifestly unjust to permit appellant to retain this premium for a period of nearly three months, during which time appellees were led to believe, both by the assurances of the local agent, Mr. Mixon, and the silence of appellant in this regard, that appellant would settle its liability under this policy. During all this time the appellant’s general agent at Oklahoma City knew that the fire had occurred on the 12th day of January, or could have so known by reference to the report of the loss under policy 537, and by thus keeping the premium until after it had sent its adjuster to adjust the loss, and until after suit had been brought to enforce payment of the policy, it must be held to have waived its right to insist upon enforcing the suspension clause in the policy. Even on the adjuster’s visit to Marianna he raised no question regarding the failure to pay the premium when due. It may be said that he did not know of this fact, but appellant’s general agent did know of it. This clause, regarding the suspension of the policy on failure to pay the premium on the date specified, was inserted in the policy for the benefit of appellant, and, like any other clause for its benefit, with the knowledge of the facts before it, may be waived by an actual agreement to that effect, or by its affirmative conduct inconsistent therewith. Certainly it could not be said that, if appellant had extended the time of payment by agreement with appellees, they could still insist on the non-effectiveness of the policy, and it occurs to us that, by retaining the premium for the period of time it did retain it, with the knowledge of the date of the fire before it, thereby inducing appellees to believe that the policy was in effect, and that this clause therein would not be insisted upon, constitute an election on the part of appellant to treat the policy as in force and effect as regards this clause.

In addition to this, with the knowledge of the date of the fire before it, appellant caused its adjuster to go to Marianna to adjust this loss, and at considerable trouble and some expense the appellees provided him means to get to and from this property.

In the recent case of American Life Assn. v. Vaden, 164 Ark. 86, 261 S. W. 320, this court said:

“It occurs to us that the above affords substantial testimony to carry to the jury the question of whether the company, after having knowledge that the note for the first premium had n.ot been paid at the time of the death of Cox, did not, by its affirmative conduct for several months thereafter, induce the appellee to believe that it would not insist on a forfeiture because of such nonpayment, and thereby cause her unnecessary expense, and put her to unnecessary trouble, while acting under the belief that the company intended to settle her claim.”

Again, in the same case, the court said: “The jury might have found that the company, in arousing these false hopes, had waived a forfeiture, under the doctrine announced by this court in numerous cases.”

In Camden Fire Ins. Assn. v. Meloy, 174 Ark. 84, 294 S. W. 378, we said: ‘ ‘ Further, the demand and acceptance of the premium after the fire, and after the adjuster had made his investigation, and with full knowledge of the alleged breach of the ‘record warranty’ or ‘iron-safe’ clause, constituted a waiver of these defenses.”

We there quoted from Scottish Union & National Ins. Co. v. Wylie, 110 Miss. 681, 70 So. 835, as .follows: “By the acceptance of the premium by the agent of the insurance company after the fire, when he had knowledge both of the mortgage on said property and of the other additional insurance upon the same, he waived all irregularities which mig’ht or could have existed, either in the issuance or during the continuation of said policy.”

■ In 3 Joyce on Insurance (2d ed.) § 1369, it is said: “The retention of a premium on a fire insurance policy, after knowledge of a breach of a condition involving a right to forfeiture, is an election to waive such breach and continue the policy in force, and the policy should then be construed as though such condition had never existed.” See also 24 Cyc. 194, and New York Life Ins. Co. v. Adams, 151 Ark. 123, 235 S. W. 412.

Appellant does not dispute the principles announced in the quotation above made, but says a distinction should be made in the breach of a condition involving a right to a forfeiture and a clause in the policy providing for the suspension of the policy for failure to pay the premium; that in the latter case it automatically goes into operation and makes the policy null and void ipso facto, and cannot be waived. In other words, appellant says it is insisting upon the contract as it stands. However, as we have already seen, the liability of appellant here involves only two or three items of a policy covering many different items, and, being one contract, appellant had the right to elect as to whether it would treat the whole policy as in effect, or to treat the whole policy as void and of no effect for nonpayment of the premium prior to the fire by returning the whole amount of the premium immediately upon receipt of information that the fire had occurred prior to the payment of the premium. Not having done so, it having elected to keep the premium for nearly three months after receipt of knowledge of the correct date of the fire, we think appellant is bound by its election to treat the whole policy as being in effect from the first day of January, throughout the remainder of the year.

Appellant also complains, of instructions Nos. 1 and 2 given at appellee’s request. They are as follows:

“No. 1. If you find that the company, with knowledge of the forfeiture, neglected to insist upon it, but by its conduct recognized and treated the policy as being in force, and induced the insured to believe, that the company would not insist on the forfeiture and to incur expense and trouble by reason of such belief, then the company waived the forfeiture, and plaintiff is entitled to recover.

“No. 2. Any agreement, declaration or course of action on the part of an insurance company which leads a party insured to honestly believe that, by conformity thereto, a forfeiture of his policy will not be incurred, followed by due conformity on his part, will constitute a waiver of the forfeiture. ’ ’

They were correct declarations of law, as will be s'een from the principles alreadj^ discussed and announced herein, and it becomes unnecessary to discuss, them further. We find no error, and the judgment is affirmed.


author: HaRT, 0. J.,

text:
    Gault v. Nolen.
    Opinion delivered May 7, 1928.

      Davis & Rolloiv, for appellant.
    Hays, Priddy & Rorex, for appellee.
   HaRT, 0. J.,

(after stating the facts). The Legislature of 1925 passed an act to amend the general act relating to the formation of local improvement districts in cities and towns. Among other things it is provided that the petition for such improvement, signed by the majority in value of the owners of real property in the district, shall specify what percentage of the value of the real property as shown by the last county assessment the said improvement shall not exceed in cost. The section contains a proviso that no single improvement shall be undertaken which, alone, will exceed in cost fifty per cent, in value of the real property in such district as shown by the last county assessment. The section contains a further proviso that an improvement may be made which does not exceed one hundred per cent, of the. assessed value determined as above if seventy-five percent. of the property owners in value in said district petition therefor. Acts of 1925, p. 548; Castle’s Supplement to Crawford & Moses’ Digest of the Statutes of Arkansas, § 5666.

. The owners of the real property in the proposed street improvement district proceeded under the last proviso of the section of the act above referred to. In other words, they petitioned to construct an improvement not exceeding one hundred per cent, of the assessed value of the real property in the district as shown by the last county assessment; and in order to do this, seventy-five per cent, of the property owners in value were required to sign, the petition. According to the allegations of the complaint, owners of real property of the value of $61,930, as- shown by the last county assessment, signed the petition which was presented to the council on the 12th day of November, 1927. At that time the council found the total assessed value of all the property in the district as shown by the last county assessment to be the sum of $83,625. Nevertheless, the council proceeded with the establishment of the district.

If the finding- of the council was correct, a mathematical calculation will show that seventyTfive per cent, of the owners of real property in the district did not sign the petition. On the 2d day of January, 1928, at a regular meeting of the common council of said town, the same members of the council who were present at the meeting of November 12, 1927, adopted a resolution reciting that a mistake had been made in finding the total assessed value of the real property to be,$83,625. The council found that the error was due to a mistake in adding up the assessed value of the real property in the district as taken from the last county assessment, and that the true value of all the real property in the district as shown by the last county assessment amounted to $81,825. The council amended its record to show this latter sum to he the total value of all the real property in the district-as shown by the last county assessment. If the council had the right to make this correction, then a mathematical calculation will show that seventy-five per cent, of the owners of real property in the district as shown by the last county assessment signed a petition praying for the construction of the proposed improvement at a cost not exceeding one hundred per cent, of the assessed value of the real property.

The sole reliance of counsel for appellant for a reversal of the decree is that the council had no right to change the finding made by it on the 12th day of November, 1927, as to the. total value of all the real property in the improvement district as shown by the last county assessment. Now, according' to the allegations of the complaint, this sum was found by adding- up the assessed value of the separate valuations of real property in the district as shown by the last county assessment.' A mistake was made in adding up these figures, and the council only attempted to correct such mistake at the meeting held on the 2d day of January, 1928. The same members of the council were present, and no effort was made to change the result in any way, the only change was to correct a clerical error or mistake in adding up a column of figures, which were a permanent record as shown by the last county assessment. The common council not only had the right to correct such clerical error, but it would seem to be its duty to do so. Under the statute, if seventy-five per cent, of the owners of real property in a proposed district sign a petition praying for the construction of a proposed improvement not to exceed one hundred per cent, of the assessed value of the real property as shown by the last county assessment, they have the right to do so and the council could not defeat their will by making a mistake in adding up a-column of figures. The common council had complete and plenary power to correct a clerical error or mistake which it had made in arriving at the total value of all the real property in the district as shown by the last county assessment.

Therefore, the decree will be affirmed.


author: Hart, C. J., Hart, C. J.

text:
    Foreman v. Dickinson.
    Opinion delivered May 7, 1928.

      J. F. Wills and Frank Strangways, for appellant.

      E. B. Parham, for appellee.
   Hart, C. J.,

(after stating the facts). The decree of the chancery court was in favor of Frank Strangways and W. F. Strangways, and the record shows that they refused to join in this appeal, which is prosecuted alone by Herbert Foreman. ■ Herbert Foreman, in his answer, which was filed on December '29, 1926, disaffirmed his contract for the purchase of the automobile. His dis-affirmance is placed on the ground that he was a minor at the time the contract was executed on the 7th day of June, 1926, and that he was still a minor at the time the answer was filed on December 29,1926.

The decree of the chancery court is based upon the theory that Herbert Foreman ¡became of age on the 10th day of October, 1926. There is no testimony in the record to warrant such a finding except the negative testimony in the statements made by Herbert Foreman in his purchaser’s statement and in the representation he made to the salesman of the Little Rock Motor Car Company at the time he made application to purchase the car and in another statement he made to another business firm with a view to purchasing goods from it. All the positive testimony in the record shows that Herbert Foreman was born October 10,-1906, and did not become of age until October 10, 1927. Herbert Foreman testified that this was the date of his birth and that he had seen it recorded in the family Bible. His grandfather, who was the physician who attended his mother at the time of his birth, testified that Foreman was born October 10, 1906, and that he recollected the date of his birth and that after his daughter’s death he set down the age of her child in the family Bible. An uncle testified that he recollected that Herbert Foreman was born October 10, 1906.

The date of a person’s birth may be testified to by himself or by members of his family. This falls -within the rule admitting parol evidence in matters of pedigree, which includes birth, marriage and death. Lincoln Reserve Life Ins. Co. v. Morgan, 126 Ark. 615, 191 S. W. 236.

This court has also held that an infant is not estopped by his misrepresentations as to age to avail himself of the right to disaffirm his contract. Arkansas Reo Motor Co. v. Goodlett, 163 Ark. 35, 258 S. W. 975. In this case it was also stated that an infant was entitled to recover the price paid for an automobile purchased by her on returning the car although she had misrepresented her age to the seller, such article not constituting a “necessary” for an infant.

The chancellor was not justified in holding that the positive testimony of the witnesses in the record as to the age of Herbert. Foreman was overcome by his misrepresentations as to his age. A preponderance of the evidence clearly shows that Herbert Foreman did not become of age until October 10, 1927, and that before this time he had disaffirmed his -contract for the purchase- of the automobile. Indeed, the decree of the chancery court was rendered against him -before he became of age.

It follows that the decree must be reversed, and the cause will be remanded with directions to the chancery court to render a decree dismissing the complaint of J. A. Dickinson against Herbert Foreman, and for further proceeding’s in accordance with the principles of equity, and not inconsistent with this opinion. It is so ordered.

OPINION ON REHEARING.

Hart, C. J.

We cannot grant the request of counsel for appellees to consider the liability of Frank Strang-way sas indorser of the note of Herbert Foreman, for the following reasons: The decree in favor of Frank Strangways was entered of record in the chancery court on July 6, 1927. No appeal was taken from the decree in his favor by the Little Rock Motor Car Company until January 5, 1928. The time for -appeal expired on the next day. No summons was issued until March 15, 1928. Summons was served Frank -Strangways on that day; and on April 30, 1928, he filed a motion to dismiss the appeal against him. There was an unreasonably -delay in the issuance and service of summons. -Summons should have been issued immediately and served within a reasonable time. Therefore we must dismiss the appeal of the Little Rock Motor Car Company so far as Frank Strangways is concerned. Claiborne v. Leonard, 88 Ark. 391, 114 S. W. 917, and Birmingham v. Rice, 90 Ark. 306, 118 S. W. 1017.

The fact that Frank Strangways appeared as -attorney for Herbert Foreman did not enter his own appearance to the appeal. It follows that the motion for a rehearing must be denied.


author: Hart, C. J.,

text:
    Mercer v. North Little Rock Special School District.
    Opinion delivered May 7, 1928.

      L. P. Biggs, for appellant.
    J. F. Wills, Tom F. Digby and Carmichael & Hendricks, for appellee.
   Hart, C. J.,

(after stating the facts). It appears from the statement of .facts, which need not be repeated here, that the school district advertised and sold the bonds with the following: “said bonds to be offered unconditionally.” The bonds were sold unconditionally, and E. M. Ream & Company became the purchaser thereof. The record shows that the bid of the American Southern Trust Company for the bonds was $8,617.60 higher than the bid of E. M. Ream & Company, and that the bid of Brown-Crummer Company was $39,304.70 higher than the bid of E. M. Ream & Company. Hence, it is insisted that one of these bids should have been accepted by the school district. The American Southern Trust Company disclaimed any right in the premises. This leaves Brown-Crummer Company as the contesting bidder. The school district sold the bonds to E. M- Rearo. & Company because it made an unconditional bid, and this was in accord with the resolution of the school board relating to the sale of the bonds and with the advertisement pursuant to the resolution.

The bid of the American Southern Trust Company contained a provision that the check attached to the bid was not to be cashed until the bonds were delivered with the approving opinion of J. B. McDonough of Fort Smith, Arkansas, whose fee the bidder agreed to pay. The bid of the Brown-Crummer Company also contained a provision that the school district was to furnish it with the approving opinion of Mr. J. B. McDonough or of Rose, Hemingway, Cantrell & Loughborough, and was also to have the bonds certified and trusteed. Thus it will be seen that both of these bids were conditional. According to Bouvier’s Law Dictionary, bidding, in its comprehensive sense, is making an- offer; but, in its ordinary sense, it is signifying the making of an offer at an auction. The language referred to in both bids plainly shows that the offer made by each bidder was conditional. The bid of Ream & Company, who became the purchaser of the bonds, was an unconditional bid in accordance with the proposition and advertisement of the school board. The board properly accepted the proposition made in accordance with the terms of the resolution and advertisement of the sale of the bonds, provided it acted in good faith in the premises.

In Trowbridge v. City of New York, 53 N. Y. Supp. 616, it was held that a bid for municipal bonds, containing the clause, “Our bid is to be subject to the approval of the legality of the issues by our counsel,” is a conditional bid.

This view is in accordance with our own holding on the question. In Bank of Eastern Arkansas v. Bank of Forrest City, 94 Ark. 311, 126 S. W. 837, the court held that a county depository act which directs that the county court shall advertise for sealed bids and shall select ;as depository of the county funds the bidder offering the highest rate of interest on such funds, contemplates an unconditional offer, and that a bid whereby the bidder offered to pay a certain percentage more on the funds than the highest and 'best bid that should be made by any other bidder should not be received.

Again, in Casey v. Independence County, 109 Ark. 11, 159 S. W. 24, it was held in a similar case that an offer from a bank whereby it agreed to pay a certain per cent, more on county funds than any other bid received was not such a bid as the statute contemplated.

In Grant County Bank v. McClellan, 112 Ark. 550, 166 S. W. 550, the court said there can be no real competition unless all bidders are required to bid upon the same basis and that no proposition can he considered to be a bid unless it is complete in itself as declared by the courts. Hence, it was again held that where a bank seeking to become the depository of county funds proposed to pay a certain per cent, more than any other bid offered, this did not constitute a bid, for the reason that it could not be acted upon alone without reference to anything outside of itself.

In the present case, E. M. Ream & Company was a client of J. B. McDonough, a well-known bond lawyer, and had secured his approving opinion based upon an examination of the records of the school district. While Ream & Company exhibited this approving opinion to the school board, the latter had no control over the opinion and had no right to deliver it to other bidders to be used by them in making their bids. McDonough expressly testified that the opinion had been sent to be used by E. M. Ream & Company, and that no other person had a right to use it. Hence, the other bidders not only made conditional bids, but attached to their bids a condition which could not be honorably complied with by the officers of the school board. They could have, under the circumstances, no right whatever to use McDonough’s opinion for the benefit of other bidders than E. M. Ream & Company, for which the opinion was made and which alone had the right to make use of it.

This brings us to a consideration of whether there was any fraud practiced by the school board in selling the bonds to E. M. Ream & Company. The record shows that it was first agreed that the bonds should be sold at auction, and that the approving opinion of a nationally known bond attorney should be procured by E. M. Ream & Company for the benefit of all who might bid at the public sale of the bonds. Later, E. M. Ream & Company reported to the school board that such an approving opinion could not be secured without causing much delay in the sale of the bonds. The school board then decided to rescind its original contract with E. M. Ream & Company and to make an unconditional sale of the bonds. This it had a right to do if it acted in good faith in the matter, and if there was no fraud or collusion between the school board'and E. M. Ream & Company in the premises. There is nothing in the record to indicate fraud or collusion of the school board with E. M. Ream & Company, unless two circumstances, which we shall now proceed to discuss, amount to fraud or collusion.

In the first place the advertisement for the sale of the bonds was made in the twice-a-week Gazette instead of the daily Gazette or some other daily paper. The record shows that the twice-a-week Gazette has a bona fide circulation in Pulaski County, where the bonds were to be sold. It is suggested that the daily Gazette or some other daily paper might have a greater circulation. This is not sufficient to show fraud or collusion. The record shows that all the parties who wished to bid knew about the sale and were given an opportunity to bid. The record does not show why the advertisement was made in the twice-a-week Gazette, but perhaps it was done because it was cheaper, and the school district knew as a matter of fact that all persons who wished to bid had actual knowledge of the time, place and terms of the sale. Indeed, the proceedings of the school board were public records, and, as such, were accessible at all reasonable times to any interested person,

Again, it is submitted that there was fraud or collusion between tbe officers of tbe school board and Beam & Company because the bid of Brown-Crummer Company amounted to $39,304.70' more than the bid of Beam & Company. As we have already seen, the bid of Brown-Crummer Company was made upon the express condition that the school board should furnish it with the approving’ opinion of Mr. James B. McDonough or of Bose, Hemingway, Cantrell & Loughborough, and also upon the condition that the bonds be certified and trus-teed. If this contention should be sustained, the practical effect would be that a bidder could change the method of sale from an unconditional to a conditional one. This might not be to the advantage of the district. The officers of the school district were public officers, and, as such, are accountable for any breach of trust. The bidder at the sale is accountable to no one. He might make a conditional or an unconditional bid, just as he liked. In the present case the bidder must have known that the sale was to be unconditional, and yet made a conditional bid. The bidder knew that the sale was unconditional. He might have secured the opinion of any lawyer he liked. The school district was not interested in what lawyer approved the 'bonds for the bidders. It cannot be said that the making of a conditional bid, when an unconditional sale was advertised, showed fraud because the unsuccessful bidder bid $39,304.70 more than the successful bidder.

We are of the opinion that there is not sufficient evidence in the record to justify us in finding that the officers of the school district acted in bad faith or acted fraudulently or collusively with E. M. Beam & Company, the successful bidder, in making the sale of the bonds.

Therefore, the decree will be affirmed.

Justices Wood, Kirby and Mehaeey dissent.


text:
    Dickerson v. St. Louis-San Francisco Railway Company.
    Opinion delivered May 7, 1928.

      David L. King, for appellant.

      E. T. Miller, E. L. Westbroohe, Jr., and E. L. West-broohe, for appellee.
   Hart, C. J.,

(after stating the facts.) The first assignment of error is that the court erred in holding that the defendant was entitled to open and close the case to the jury. In order to secure the opening and closing argument in the case before the jury, the defendant admitted the injury and death of the three boys and the loss and damage to the truck by being struck by one of the passenger trains of the defendant at a public crossing in the town of Williford, Sharp County, Arkansas. The admission of the defendant was insufficient to change the burden of proof in the whole case and to give it the right to open and conclude the argument. It was still necessary for the plaintiff to prove the amount of his damages, and he had the right to open and close, unless the defendant admitted the whole amount of damages claimed by the plaintiff.

In Thompson on Trials (2d ed.) § 228, it is said that, where the plaintiff has anything to prove, in order to g’et a verdict, whether in an action ex contractu or ex delicto, and whether to establish his right of action or to fix the amount of his damages, the right to begin and reply belongs to him. Continuing, the learned author said that the unfailing test of this rule is to consider what party would, in the state-of the pleadings and of the record admissions, get a verdict for substantial damages if the cause were submitted'to the jury without any evidence being offered by either. In § 230, the same author says that in all actions for unliquidated damages, except where the defendant, by his plea or answer, admits not only the cause of action but also the amount of damages claimed, the right is with the plaintiff ; since he must introduce evidence showing the extent of his injury, as where, in any action sounding in damages, the cause of action is admitted, and a plea of confession and avoidance is filed, leaving the amount of damages claimed subject to affirmative proof. Our own case of St. Louis, Iron Mountain & Southern Railway Company v. Taylor, 57 Ark. 136, 20 S. W. 1083, is cited.

In that case a railway company was sued for the killing of stock, and admitted the killing thereof by its train, but denied the value of the animal. The court held that the plaintiff was still entitled to begin and reply, because he was not entitled to a recovery in accordance with the prayer of his complaint if no evidence had been introduced.

In the case of St. Louis & San Francisco Ry. Co. v. Thomason, 59 Ark. 140, 26 S. W. 598, the railway company was sued for killing stock, and admitted the killing by its train and the value thereof. It was there held that the railway company was entitled to open and conclude the argument, because the plaintiff would have been entitled to a recovery in accordance with his pleading if no evidence had been introduced.

In a well considered case by the Supreme Court of the State of Georgia, it was held that, to entitle the defendant to the opening and conclusion of the argument in the trial of a case arising ex delicto, when the act complained of was not one which, under the law, could be justified, it is necessary that the defendant, by proper pleadings, admit, not only the commission of the act which it is alleged was wrong, but also such other facts as would entitle the plaintiff to have a verdict, without proof, for the amount claimed in the petition. Brunswick & W. R. Co. v. Wiggins, 113 Ga. 842, 61 L. R. A. 513, 39 S. E. 551. That case was an action instituted by a widow for the killing of her husband by the negligent operation of a train of cars by a railroad company. Among the States cited as supporting this doctrine by adjudicated cases was Arkansas.

In the application of the rule, we are of the opinion that the plaintiff has the right to open and' close unless the defendant admits the whole amount of damages claimed by the plaintiff.

It is next insisted that the judgment must be reversed because the court erred in giving instruction No. 6, which reads as follows:

“The court instructs you that,’if you find from the evidence that the train was operated at an ordinary rate of speed and that the signals were given, then under the law there could be no liability, and your verdict should be for the defendant.”

The vice of this instruction is that it did not submit to the jury the question of keeping a lookout or the question of comparative negligence. This is not like the case of Davis v. Scott, 151 Ark. 34, 235 S. W. 407, where it was held that it was not necessary to submit to the jury the question of keeping a lookout because the testimony of the engineer that he was keeping a lookout was undisputed and was reasonable and consistent in itself.

Such is not the case here. This case on this point is more like that of Gregory v. Missouri Pacific Rd. Co., 168 Ark. 469, 270 S. W. 621. There it was said that, when all the attendant circumstances were considered, the testimony of the employees of the railroad company that they were keeping- a lookout could not be said to be undisputed. The court recognized that it was the duty of the driver of the motor bus to look and listen for approaching trains and to stop if necessary to allow such trains to go over the crossing in advance of his motor bus. The court, however, said it was equally the duty of the operators of the train to keep a constant lookout for travelers along the highway, and if the appearance of the motor bus indicated that it was not going to stop' for the crossing, the fireman, who saw it approaching, should have signaled the engineer to stop before the motor bus got too close to the crossing.

In the application of the rule to the facts in the present case, it cannot be said that the testimony of the engineer, to the effect that he did not see the truck with the boys in it until he was passing the depot, and that, after he did see it, he did all that he could to stop the train, is undisputed. It is fairly inferable from the evidence adduced in favor of the defendant that the engineer could not see the boys any sooner because his vision was obstructed by the depot, notwithstanding the fact that the track was straight south of the depot. It will be remembered that the engineer testified that he applied the brake in emergency as he was passing the depot and slowed the train doivn at least five miles an hour before striking the boys at the crossing, which was two hundred feet north of the depot. Witnesses for the plaintiffs, however, testified that they were watching the approach of the train, and that it did not seem to be checked in speed at all. They said that it was going at a rate of speed between fifty-five and sixty miles an hour. The father of one of the boys said that it was going faster than he had ever seen it go. Another witness testified that the engineer admitted to him that he was running the train at the rate of a mile and a quarter a minute. The engineer admitted on the stand that he was eight 'minutes behind time and that he was trying to make up lost time. The jury might have inferred from the testimony of the witnesses for the plaintiffs that the engineer could have seen the approaching truck sooner than he did, notwithstanding the depot, if he had been keeping a lookout. The track was practically straight for a mile south of the depot, and there was no other, obstruction to the vision of the engineer of the approaching truck except the depot. It was inferable to the jury, when the testimony of all the witnesses is considered in the light of the attendant circumstances, that the engineer co-uld have seen the approaching truck with the boys in it sooner than he did and that he could have slacked the speed of the train so as to avoid striking it, if he had done so. Under these circumstances, it was the duty of the court to have submitted to the jury the question of whether the defendant’s engineer was keeping a lookout.

We also call attention to the fact that this instruction closes with the stereotyped phrase “your verdict should be for the defendant,” without submitting to it the doctrine of comparative negligence. In Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676, it was held that an instruction should be complete in itself when it undertakes to tell the jury when a verdict should be returned for one of the parties, and the court should not instruct the jury that it must find for the plaintiff or the defendant, as the case may be, upon a partial or incomplete statement of the law applicable to the material facts of the case.

We call attention to this question in view of the fact that the judgment must be reversed, and the cause remanded for a new trial, because the court erred in holding that the defendant was entitled to open and close the case in the argument before the jury, and because instruction No. 6 was erroneous in not submitting to the jury the question of keeping a lookout, without deciding whether the instruction complained of would have been erroneous in leaving out of consideration the question of comparative negligence. In any view of the matter, it would have been better to have left out the concluding part of the instruction to the effect that “your verdict should be for the defendant” unless the question of comparative negligence was also referred to.

For the errors indicated the judgment must be reversed, and the cause will be remanded for a new trial.


author: Wood, J.

text:
    Jernigan v. Pfeifer Brothers.
    Opinion delivered May 7, 1928.

      Sidney Kelley, for appellant.

      J. M. Burroiv, for appellee.
   Wood, J.

On May 28, 1923, Pfeifer Brothers instituted an action in the circuit court of 'Sharp County, alleging that the defendant Jernigan was indebted to the plaintiff in the sum of $323.82 on open account for merchandise, for which plaintiff asked judgment. Summons was issued on the 28th day of May, 1923, and served on the defendant on that day. The defendant filed his answer on January 7, 1924, denying all the material allegations of the complaint. On January 8, 1924, on motion of the defendant, the court entered an order dismissing the cause for want of prosecution. On July 14, 1924, the court entered an order dismissing the motion of the plaintiff which had been filed at a former term of the court, to reinstate the cause. On September 9, 1924, the plaintiff refiled the original complaint in the circuit court, and summons was issued thereon on the 30th day of June, 1925. Summons was served on the defendant July 2, 1925.

The defendant filed an answer, in which he set up that the last item of the account on which suit was brought was charged to the defendant on December 24,1920; that the action was instituted on September 9, 1924. The defendant therefore pleads especially the statute of limitations as a complete bar to the cause of action. After the jury was impaneled to try the cause, the defendant moved the court to direct a verdict in his favor on the ground that the action was barred by the three-year statute of limitations. The attorney for the appellant testified on the motion as follows:

“I want to state that when this suit was originally filed and dismissed, after the court gave me permission to refile it, I left the papers with the clerk of the court, and I have a letter from the clerk in which he states that the sheriff refused to serve the papers because the filing was not accompanied with the cash for service. He would not serve the summons because I did not leave the cash for the service.” The witness filed the complaint the last time when the court gave witness the right to refile it at that same term of the court. The court did not, at tliat juncture, pass upon the motion, hut the trial judge announced that he would look up the docket entries and pass upon the motion later. Testimony was thereupon adduced by the plaintiff, which, in view of the conclusion we have reached, it becomes unnecessary to set forth.

At the conclusion of the testimony on behalf'of the plaintiff, counsel for the defendant renewed his motion for a directed verdict in favor of the defendant, which motion the court overruled. The court allowed testimony to be introduced on the motion, which consisted of the summons that was issued on May 28,1923, and served on May 31, 1923,- also a summons that was issued on June 30,1925, and served on July 2,1925, together with a letter signed by Sidney Kelley, showing that a summons was served on December 10, 1924, and stating that the summons was on a form for chancery court, and that neither the sheriff or his deputy noticed the difference. The court thereupon instructed the jury, and the jury returned a verdict in favor of the plaintiff in the sum of $320.- The defendant filed motion for a new trial, in which he moved the court to set aside the verdict and judgment. One of the grounds of his motion for a new trial is that the court erred in overruling the defendant’s motion for a directed verdict upon his plea of the statute of limitations. The motion was overruled, and the court rendered judgment on the verdict in favor of the plaintiff against the defendant in the sum of $320, from which is this appeal. The record entries of the proceedings had in this cause are somewhat confusing, but it sufficiently appears that the original action, filed May 28, 1923, was dismissed, and that the appellees refiled their complaint on September 9, 1924. It appears from the exhibits, which were introduced in evidence, that summons was not issued on the complaint filed September 9, 1924, until June 30, 1925, upon which service was had on July 2, 1925. It appears from the testimony in the bill of exceptions that the original action was bottomed upon an open account, the last items of which were furnished in December, 1920. The original complaint was filed in May, 1923, before the cause of action was barred by the three-year statute of limitations. But the action on the original complaint was dismissed January 8, 1924, and the complaint upon which the judgment was rendered was filed September 9, 1924. Summons was not issued, however, on this complaint until June 30, 1925. It therefore appears that one year, five months and twenty-two days had elapsed between the judgment dismissing the original action and the institution of the new suit based upon the same claim as in the original cause of action. While the last complaint was filed within a year from the time the original cause of action was dismissed, the summons on the last complaint was not issued until a year had expired after the dismissal of the original complaint or cause of action.

The statute declares as follows: “A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon.” Section 1049, €. & M. Digest. Construing this statute in the case of Clemens v. Davis, 163 Ark. 452, 260 S. W. 402, we said: “In the case of Hallam v. Dickinson, 47 Ark. 120, 14 S. W. 477, it was decided that the filing of a complaint does not constitute a commencement of an action; but that summons must also be issued, 'and that until then the running* of the statute of limitations is not arrested.” See also Simms v. Miller, 151 Ark. 377, 236 S. W. 828; Kansas City So. Ry. Co. v. Akin, 138 Ark. 10, 210 S. W. 350. It appears from the record that the original action was dismissed by the court for want of prosecution, which the court had the authority to do under § 1261 of C. & M. Digest, subdivision No. 2. This dismissal of the action by the court did not bar appellees’ right to institute a new action on the same cause of action under the above statute. See Floyd v. Skillern, 121 Ark. 454, 181 S. W. 298; Forschler v. Cash, 128 Ark. 412, 194 S. W. 1029. But, on the refiling of the complaint on the 9th of September, 1924, the appellees failed, according to the facts set forth in the bill of exceptions, to have a summons issued until June 30, 1925. Under the above authorities therefore the new action was not commenced until summons was issued, which, as we have seen, was a year, five months and twenty-two days after dismissal of the original action for want of prosecution. Therefore, under the facts, the appellees do not bring their new action Avithin the provisions of § 6969 of C. & M. Digest.

In Watkins v. Martin, 69 Ark. 311, 65 S. W. 425, we said: “The three-year statute of limitation having been pleaded in bar of the action, the burden of proof was upon the appellant to show when his cause of action accrued, and that the writ issued Avas sued out within the three years, or, if two actions were brought upon the same account, and one was dismissed before the commencement of the other, that the first was begun within the time, and that a nonsuit was suffered therein, and that the last was brought within one year after the nonsuit. ’ ’

Counsel for appellees state in their brief, in substance, that it appears in the files that a new summons was issued after the original action had been dismissed and a new action begun, and that summons was issued in time and placed in the hands of the sheriff and his promise secured to serve same, but, after searching diligently in the bill of exceptions, we do not find any such statement. We find a letter as Exhibit No. 3 from Sidney Ivelley, dated January 2, 1925, stating, in substance, that the summons was served on December 10, 1924, on a form for chancery court, and that the difference had not been discovered until just then. This letter does not sufficiently prove that summons had been issued on the complaint filed September 9, 1924. There is no definite, affirmative proof in, this record that any summons was ever issued and delivered to the sheriff on the complaint filed September 9, 1924, except the summons of June 30, 1925. To be sure, if a summons had been issued and delivered to the sheriff within a year from the dismissal of the original,action, that would have tolled the statute of limitation, even though such summons had not been served until after the statutory period had elapsed. Simms v. Miller, supra. All that we can say from the record before us is that it seems probable that a summons may have been issued on this complaint and delivered to the sheriff, but there is no satisfactory proof of same. We can only try a cause here from the facts as they appear in the record. It appears from the record entries proper and the bill of exceptions, as above set forth, that the appellees are barred by the statute of limitations from maintaining this action. The trial court erred in not so holding. The judgment is therefore reversed, and the cause is remanded for a new trial.


author: Smith, J.

text:
    Business Men's Assurance Company of America v. Burks.
    Opinion delivered May 7, 1928.

      M. F. Elms, for appellant.

      W. A. Leach, for appellee.
   Smith, J.

Appellee, Bay 0. Burks, was formerly the owner of a tract of land in Arkansas County, and, while such owner, procured a loan of several thousand dollars from the Fidelity Land Credit Company, and, as security therefor, gave a mortgage on the land. The notes evidencing the indebtedness and the mortgage securing them were sold and assigned to appellant, Business Men’s Assurance Company of America, hereinafter referred to as the company. The loan contract required that insurance against the hazards of fire and windstorm he maintained on the buildings on the land and that a standard mortgage clause in favor of the holder of the mortgage be attached to the insurance policy.

On February 25, 1924, appellee Burks sold and conveyed the land to Aner Nearhood, a resident of the State of Iowa, and thereafter, on or about March 5, 1924, an insurance policy wa,s procured on. the buildings protecting against fire and storm, to which was attached a standard mortgage clause in favor of the company. At this time Nearhood was the owner of the land and the buildings thereon, but, through mistake, the insurance policy was made payable to appellee Burks, instead of to the owner, Nearhood.

The residence on the land, one of the buildings insured, was destroyed by fire, 'and the insurance company denied liability on the policy which it had written, and a lawsuit resulted. On March 7, 1927, a decree was rendered in favor of Nearhood and the company for $1,500, the face of the policy, with penalty, interest and costs, and the amount thereof was later paid to appellant’s attorney, who had successfully conducted that litigation.

The sale of the laud to Nearhood by Burks was not a cash transaction, but involved an exchange of Iowa lands for the Arkansas lands, all of which were incumbered, and the grantors exchanged their respective equities. Litigation arose out of this transaction, and Nearhood 'brought suit in Iowa against Burks, who retaliated by bringing a suit in Arkansas against Nearhood.

Pending* this litigation, and by way of compromise thereof, Burks negotiated a sale of the Arkansas land to Mrs. Carrie A. Phillips, which was finally consummated by the execution of a deed from Nearhood to Mrs. Phillips. Burks and Nearhood each dismissed his suit against the other. Mrs. Phillips imposed as a condition to her purchase of the Arkansas land that Burks rebuild the residence thereon, and this he did.

On November 18, 1925, Burks wrote a letter to the company advising* that the residence had burned, and that, through the error of making the policy payable to him instead of to Nearhood, the insurance company had denied liability, and it was stated that the assistance of the company might be required to collect the policy. This letter contained the following statement: “Would like very much to use the insurance to build another house on the place, and want to know if this will be satisfactory if we would build a house back that would cost much more than the insurance. The amount of the insurance is $1,500;”

In reply to this request the company wrote a letter, under date of November 21, 1925, which contained the following* statement: “It will be entirely agreeable to us to have the proceeds of the insurance in its entirety used for the replacement of the house. We, however, suggest that we want to take the same course that we would if we were collecting* the insurance for the purpose of retaining the same, but we will make the proceeds of the insurance available to meet the expense and cost of the new improvements as the bills in connection therewith accrue.” . .

On November 23, 1925, Burks answered the letter of the 21st from the company, in which he explained the mistake in the issuance of the insurance policy, which letter concluded with the following statement: “Thanking yon for your -willingness to allow the entire amount to go back in the new building. ’ ’

Prior to January 4, 1926, the company received a letter from Nearhood in regard to using the insurance money in rebuilding the residence, and on January 4, 1926, the company wrote Burks as follows: “We have indicated our willingness to carry out the same arrangement with said present owner that we indicated we would do with you. However, as'you are the maker of the paper which we hold, we do not want to act in this matter in any way that would disturb your responsibility to us as such maker, and will appreciate hearing from you authorizing the use of the proceeds of the insurance as is contemplated. ’ ’

Burks answered this letter under date of January 9, 1926, as follows: “Answering your favor of .January 4, regarding the insurance on the property that I was the maker of the loan on, in your company’s favor. It would be perfectly satisfactory to let the insurance go to Mr. Elms, attorney for the present Aner Nearhood. Thanking you for calling my attention to this, and assure you it will be all right to let the proceeds go as outlined. ’ ’

The company wrote a letter to Burks advising that the policy had been sent to Nearhood’s attorney for collection, and on January 15, 1926, Burks, answering this letter, stated: “It is perfectly all right for you to send this insurance policy, to Mr. Elms, as he represents Mr. Nearhood, and is going to sue the company, if necessary, to collect the insurance. The trouble with the insurance is that it was made out in my name through error of the agent here, and the land had already been transferred to Aner Nearhood. They are trying to get out of paying the insurance on this technicality. I do not believe they can do it, but in all probability he will have to sue them to get the premium. It will be all right to apply this premium on tlie indebtedness when collected, or allow Mr. Nearhood to build a house instead.”

Relying upon this correspondence, Burks rebuilt the residence, and, on March 19, 1927, advised the company that he had done so, and inclosed a fire insurance policy on the new building’ in the sum of $1,600. This letter also advised the company that the cost of the new building was $2,100, and had been fully paid for, and that the materialman would so advise the company. In addition to the residence, a barn and garage had also been built at a cost of a hundred dollars. This, letter referred to the former correspondence, and requested the company to direct the attorney who had collected the judgment against the insurance company to pay the writer the amount of the insurance on the old building.

In answer to this letter the company wrote, under date of March 25, 1927, as follows:' “We presume that Mr. Elms will be remitting us for the fire loss shortly,, and, when received, will be handled in accordance with our understanding covered in our correspondence concerning the same.”

A letter of even date was written by the company to the attorney, in which it was stated that: “There is no intention on our part to default in our promise heretofore made in this connection. What we must be certain about is who paid for the 'building of the new dwelling. The J. I. Porter Company have written us that the house built on the SW14 of 34-3-5, at the contract price of $2,100, has been paid for in full, both as to material and labor, and that the house is now occupied by a tenant. We prefer that the fire loss when collected be remitted to us and we will account for it as hereinbefore stated, and I think this method of handling it will, or should, be satisfactory to Mr. Burks. I assume that the judgment you have obtained is in our favor, as you have represented us in bringing the suit. ’ ’

When the attorney had shown Burks, the last-mentioned letter, as he. was directed to do, Burks sent a telegram inquiring about his money. In reply to this telegram, the company answered and reviewed the correspondence, which was interpreted by the company as giving the company the right “to elect as to applying the proceeds of the fire loss to our loan on the property, or apply it to the rebuilding of a dwelling.” The letter also called attention to the fact that the value of the security had depreciated since the mortgage loan was made, and that the property had been acquired by a lady, who was a nonresident of the State and who was in possession of the farm by a tenant, thus making the loan less desirable. The following proposition was then submitted: “If the sum of $750 of this fund be lodged with us as additional security to the loan (your note), you to retain the 'balance, and when the loan is paid or reduced from its present sum to the extent of $750 we will pay over to you the sum deposited as collateral. * * * This tentative proposal is made subject to the approval of our loan committee, which approval I feel justified in assuring you can rely upon will be forthcoming when your acceptance of same is in hand, and you may exhibit this letter to Mr. Elms for his guidance so far as our interests are concerned.”

Upon receipt of this letter Burks brought this suit and made the attorney a party defendant, and prayed that the attorney be enjoined from paying over the insurance money to the company, and that he have judgment for the amount of the insurance, less, any sum due the attorney as a fee for collecting the insurance.

It was stipulated that nothing was past due or unpaid to the company on the principal debt and that the interest thereon had been fully paid.

Upon this record the court rendered a decree in favor of Burks against the company for the sum of $1,500, and directed the attorney to pay that amount of the insurance money to Burks, and this appeal is from that decree.

It is not questioned that, under the mortgage clause in the insurance policy making it payable to the mortgagee as its interest might appear, the company had the right to collect the proceeds of the policy and apply the same to the mortgage debt; but the testimony set out above very clearly shows that it waived this right by agreeing- that Burks might apply the amount of the face of the policy to the building of the new residence, which is of course subject to the lien of the mortgage. The security of the company has not therefore been impaired. But it would be immaterial if it had been, as the correspondence set out above shows very clearly that Burks relied upon the promise of the company in advancing the money to rebuild the residence, and the company could not thereafter impose other or additional conditions.

It is said that the company wished to protect itself from the possible assertion of liens of any character against the building and, as a means to that end, reserved the right to settle with the materialmen and laborers, but this contention is answered by saying that in the agreed statement of facts it is recited that Burks has paid in full all bills of every character. It is immaterial therefore that the company was not allowed to pay these bills, as they have in fact been paid. It was further stipulated in the agreed statement of facts that the new building is of less value than the one destroyed, but the amount of this difference was not shown. However, that fact is immaterial, as Burks’ original proposition was not to erect a building of greater value than the old one was, but that he would build a house which would cost more than the insurance, and the agreed statement of facts shows that he did this.

The decree of the court below accords with principles of equity, and it is therefore affirmed.


author: ■Smith, J.

text:
    England v. State Highway Commission.
    Opinion delivered May 7, 1928.

      Chas. A. Walls and Ben B. Williamson, for appellant.

      Reed & Beard, II. W. Applegate, Attorney General, Claud Duty, Assistant, and Coleman & Riddick, for appellee.
   ■Smith, J.

Appellant 'brought this suit to enjoin the State Highway Commission from, entering1 upon and appropriating a portion of her farm, and for her cause of action alleged that she was the owner of a tract of land in Lonoke County through, which a section of a State highway ran. That, on October 29,1927, the county court of Lonoke County entered an order widening, extending and changing the right-of-way of said road, in doing which three acres of her land were appropriated. This order was made a.t the request of the State Highway Commission, and, pursuant thereto, certain persons under contract with the Highway Commission are about to enter upon and take possession of said land, which was alleged to he of the value of four thousand dollars. It was alleged that; inasmuch as the road which the Highway Commission was about to widen and straighten was a part of the State highway system, the county court was without jurisdiction to make the order condemning plaintiff’s land.

The order of the county court, which was made an exhibit to the complaint, recited the facts to be that the proposed changes in the road are practicable and will be for the best interest of the .county, and are of sufficient importance to the public to warrant the payment of damages, if any, for the land taken. It was also alleg’ed that the county court was. without jurisdiction to make the order for the proposed changes in the road or to allow a claim against Lonoke County for the damages occasioned thereby.

In the answer filed by the Highway Commission it was admitted that the road which it was proposed to widen and straighten was a part of the State highway system, and that the order was made by the county court at the request of the commission, and it was denied that the county court was without jurisdiction to make the order or to allow a .claim covering* the damages which the execution of the order would occasion. It was alleg’ed that Lonoke County had sufficient funds appropriated for roads and bridges available to pay plaintiff for the additional right-of-way which the Highway Commission was about to use and the damages incident to such taking of her property.

A demurrer to the answer was filed and overruled and the icause was dismissed, and the plaintiff has appealed.

The order of the county court was made under the authority of § 69 of act No. 5 of the Acts of 1923 (Acts 1923, Special Session, page 84), commonly called the Harrelson Law, and the question for decision is whether that section conferred jurisdiction on the county court to make the order under which the Highway 'Commission is about to appropriate the plaintiff’s land, in view of later legislation on the subject.

It is very earnestly insisted that this § 69 has been repealed by act No. 11 of the Acts of 1927 (Acts 1927, page 17), commonly called the Martineau Road Law, and by act No. 116, passed at the same session of the General Assembly (Acts 1927, page 352).

The argument in support of this contention is that § 1 of the Martineau Road Law declares it to be the policy of the State to take over, construct, repair, maintain and control all the public roads in the State comprising the State highways as defined in that act. Section 3 of the same act provides that “All roads of the road districts referred to in this section are hereby taken over by the State, but only such portions of said roads which are now or may hereafter be embraced in the State higliway system shall be maintained by the State.” By $ 4 of the same act it is made the duty of the Highway Commission to construct the roads in the State highway system which are not now constructed, the work of construction to be pushed as rapidly as funds are available for that purpose.

It is further insisted that § 69 of the Harrelson Road Law has been repealed by act No. 116 of the Acts of 1927, supra, § 5 of which provides that “The State’s right of eminent domain may be exercised by the State Highway Commission in the same manner as in the case of railroads, telegraph and telephone companies for the purpose of condemning land for highways, bridges and their approaches, for securing building material, and for any other use which said commission may, under the laws of this State, require property for the carrying out of enterprises intrusted to. its supervision, hut without the necessity of making a deposit of money before entering into possession of the property condemned.”

It is not contended that either act 116, from which we have just quoted, or the Martineau Road Law expressly repeals § 69 of the Harrelson Road Law, but it is insisted that there is an implied repeal, resulting from the repugnancy between those statutes.

It is pointed out, in support of this argument, that it was held by this court, in the case of Connor v. Blackwood, 176 Ark. 139, 2 S. W. (2d.) 44, that the effect of the legislation passed at the 1927 session of the General Assembly was to give the Highway Commission the right of eminent domain in the construction of State highways, and that the exclusive- original jurisdiction of the county courts extends only to county roads and county bridges, and that the county courts do not have exclusive original jurisdiction over 'State roads and State bridges, and therefore the Highway Commission might condemn rights-of-way for State highways independently of the county courts. It was not held in that case, however, nor has it been held in any other case, that § 69 of the Harrel-son Road Law has been repealed. No act passed at the 1927 session of the General Assembly professes to repeal § 69 of the Harrelson Road Law, and no canon of construction has been more uniformly followed than the one that repeals by implication are not favored.

In one of the latest cases on the subject, that of Ouachita County v. Stone, 173 Ark. 1004, 293 S. W. 1021, we quoted from the slightly earlier case of State v. White, 170 Ark. 880, 281 S. W. 678, as follows:

“In a recent decision we undertook to cover this subject in the following statement: ‘It is a principle of universal recognition that the repeal of a law merely by implication is not favored, and that the repeal will not be allowed unless the implication is clear and irresistible, but there are two familiar rules or classifications applicable in determining wlietlier or not there lias been such repeal. One is that, where the provisions of two statutes are in irreconcilable conflict with each other, there is an implied repeal by the later one, which gwerns the subject, so far as relates to the .conflicting- provisions, and to that extent only. * * * The other is that a repeal by implication is accomplished where the Legislature takes up the wdiole subject anew and covers the entire ground of the subject-matter of a former statute, and evidently intends it as a substitute, although there may be in the old law provisions not embraced in the new’ (Citing cases).” See also Cordell v. Kent, 174 Ark. 503, 295 S. W. 404.

We think it will appear from a consideration and comparison of the 1927 road legislation with § 69 of the Harrelson Road Law that there is nothing in the 1927 legislation to overcome the presumption that there was no implied repeal of § 69.

In the first place, the Martineau Road Law does not purport to take up the whole subject anew or to cover the entire su'bject-matter of the Harrelson Road Law. On the contrary, the Martineau Road Law is expressly stated in its title to be an amendment of the Harrelson Road Law. Its title reads as follows: “An act to amend act No. 5 of the extraordinary session of the Forty-fourth General Assembly of the State of Arkansas, approved October 10, 1923.”

Act No. 5 of the extraordinary session of the Forty-fourth General Assembly, which the Martineau Road Law professedly amends, is itself the Harrelson Road Law, in which the § 69 referred to appears as a part.

Moreover, § 2 of the Martineau Road Law expressly repeals ten sections of the Harrelson Road Law, and § 69 of the Harrelson Road Law is not included in that number. We think it fair to assume that, had that purpose been intended, that section would-have been included in the § 2 which did expressly repeal ten sections of the prior act.

We are of the opinion also that there is not such irreconcilable conflict between § 69 of the Harrelson Road Law and the later legislation as to imply repeal of the earlier legislation. Section 69 of the Harrelson Road Law reads as follows:

“The State Highway Commission shall call upon the ¡county court to change or widen, in the manner provided by § 5249 of Crawford & Moses’ Digest, any State highway in the comity where the State Highway Engineer deems it necessary, for the purpose of constructing, improving- or maintaining the road. In the event the county court should refuse to widen the road, as requested, the commission may refuse to construct, improve or maintain that portion of the road until a suitable right-of-way is provided. ’ ’

It is insisted that § 5 of act No. 116 of the Acts of 1927, which we have previously quoted, is so far in conflict with § 69 of the Harrelson act as to work a repeal by implication. The argument is that, inasmuch as it was held in the Connor-case, supra,, that the Highway Commission might condemn rights-of-way for State highways independently of the county courts, § 69 of the Har-relson Road Law must necessarily be repealed, otherwise there would be and is a conflict of jurisdiction.

This, however, does not follow. It was not held in the Connor case that the county court was deprived of the jurisdiction to condemn land for the use of the Highway Commission, but it was only held that “they do not have exclusive original jurisdiction over State roads and State bridges.”

It follows therefore that if § 69' of the Harrelson Road Law is still in force — and we hold that it is — the county courts of the State have the power, upon the request of the Highway Commission, to provide suitable rights-of-way for the use of the commission in changing or widening existing highways.

The county courts are not required to accede to the request of the Highway Commission. On the contrary, §. 69 expressly recognizes their right to refuse such a request. But they may do so in a case where it is found, as the county court of Lonoke County expressly found, that the proposed changes in a road “are practicable ones, and that they will be for the best interest of the county and of sufficient importance to the public to warrant the payment of damages, if any, for the land taken.”

Of course, if, for any reason satisfactory to the county court, the request of the Highway Commission should he refused, the commission, under the authority of § 5 of act No. 116, could condemn the necessary right-of-way, in which event it would have to pay therefor.

In other words, the county court has the jurisdiction to comply with the commission’s request; and it has also the discretion to refuse to do so, and the commission has the authority to condemn rights-of-way at its own expense where the construction or maintenance of the State highways requires that action.

The existing state of the law, as announced in the Connor case, sufra, is therefore that the Highway Commission has jurisdiction over State roads, and the county ■court has jurisdiction over county roads, and there is no conflict in this jurisdiction, nor is there a concurrent jurisdiction, as appellant insists.

Section 5 of act No. 116 and § 69 of the Harrelson Road Law are not in conflict, but make provision for different contingencies. It is easily conceivable that such local conditions might exist that these agencies — each operating’ in its own sphere — could, by cooperation, beneficially serve the local interests in a way which would not be done if the Highway Commission took into account only the through traffic for which the State highways provide. The county courts were left with this jurisdiction under % 69 of the Harrelson Road Law, and we conclude therefore that the county court of Lonoke County had the jurisdiction to make the order here complained of as being void for the lack of jurisdiction to make it.

"We have entered into this extensive consideration of- the subject because of the public interest involved, although, as a matter of fact, the opinion in the case of Crawford County v. Simmons, 175 Ark. 1051, 1 S. W. (2d.) 561, is decisive of all questions raised by this appeal.

In that case the county court of Crawford County had made an order identical with that of the Lonoke County court in the instant case.

In the Crawford County case the court made, at the request of the State Highway Commission, on September 20, 1927, which is more than a month earlier than the order here complained of, an order condemning certain additional right-of-way for the purpose of improving a State highway. The Martineau Road Law and act No.- 116 of the 1927 session were then in force as the law of the land, as the time within which they might have been referred under the referendum clause of our Constitution had expired. The opinion in that case recites that the county court of Crawford County had proceeded under § 69 of the Harrelson Road Law, just as the county court of Lonoke County did in the instant case, and the order of the Crawford County Court was upheld by an undivided court as a valid exercise of its. jurisdiction. That case appears therefore to be conclusive of this one, unless it should be overruled, which we are unwilling to do, for the reason that we think it is correct.

The decree of the chancery court-dismissing appellant’s complaint is therefore affirmed.


text:
    American Agricultural Chemical Company v. Bond.
    Opinion delivered May 14, 1928.

      Shaver, Shaver & Williams and H. E. Rouse, foi appellant.

      Byron Good-son and J. R. Campbell, for appellee.
   Hart, C. J.,

(after stating the facts). The judgment of the circuit court was wrong. The undisputed evidence shows that Luther M. Bond executed the note sued on to J. L. Cannon, and that the note was transferred before maturity, for value, to the plaintiff. The undisputed evidence shows that the plaintiff kept the note in its possession until July 24, 1926, when it delivered it to a bank in St. Louis, to be forwarded to the First National Bank of DeQiueen, Arkansas,' for collection. That bank never was able to collect it. It is true that J. L. Cannon gave a check to the cashier of the bank in payment of the note, but the check was never paid, and the bank never collected the note.

The bank was the agent of the plaintiff, and not the agent of J. L. Cannon or the J. L. Cannon Company, for the collection of the note sued on. Neither J. L. Cannon nor the J. L. Cannon Company paid the note or had possession of it after they indorsed it to the plaintiff. The plaintiff became a bona-fide holder for value of the note before it was due, and the note, after it was transferred to it, remained in its possession and that of the banks through which plaintiff had endeavored to collect the note. This evidence is not disputed, and the plaintiff is entitled to recover on the note. Koen v. Miller, 105 Ark. 152, 150 S. W. 411; Taylor v. Oliver, 137 Ark. 515, 208 S. W. 595; Exchange National Bank v. Little, 111 Ark. 263, 164 S. W. 731; and J. I. Porter Lumber Co. v. Bonner, 172 Ark. 828, 290 S. W. 606.

But it is claimed that J. L. Camion or the J. L. Cannon Company was the agent of the plaintiff, and that it was. bound toy its acts. Hence they contend that plaintiff is bound by the agreement of J. L. Camion with the plaintiff to sell his produce and pay the note out of the proceeds. It is well settled that one dealing with an agent, without inquiring of the principal the extent of his authority, does so at his peril. Pine Bluff Heading Co. v. Bock, 163 Ark. 237, 259 S. W. 408; and Standard Pipe Line Co. v. Haynie Construction Co., 174 Ark. 332, 295 S. W. 95. The contract between the plaintiff and the J. L. Cannon Company was in writing. It is somewhat lengthy, and we do not set it out for that reason. It makes the J. L. Cannon Company the agent of the plaintiff to sell fertilizer for it on commission; but, under its terms, the J. L. Cannon Company could only sell for cash. There could be no apparent authority. It is made plain in the last case cited that, to authorize an inference of authority in an agent, it must appear that the thing done or transaction made was necessary in order to promote the duty or carry out the purpose expressly delegated to him. The fact that the plaintiff made the J. L. Cannon Company its agent to sell fertilizer for it on certain terms, in no sense carried with it the implied authority to take notes for the fertilizer payable to J. L. Camion, and to make an agreement to pay the notes out of the proceeds of produce grown by the buyer of the fertilizer and delivered by him to J. L. Cannon to be sold. The notes were payable to J. L. Cannon, and the contract of plaintiff was made with the J. L. Cannon Company, a corporation.

On this point it is insisted that there is no proof that the J. L. Cannon Company is a corporation and therefore a different person from J. L. Cannon. The credit manager of the plaintiff testified in positive terms that the J. L. Cannon Company was a corporation, and that J. L. Cannon was the secretary-treasurer of it. No attempt was made to contradict his testimony. This evidence was sufficient to show that the J. L. Cannon Company was a corporation. Kelley v. Stern Publishing & Novelty Co., 147 Ark. 383, 227 S. W. 609, and cases cited.

There is no question of the ratification of the unauthorized acts of the J. L. Cannon Company presented by the record. The undisputed evidence shows that the J. L. Cannon Company had no authority, real or apparent, to sell the fertilizer of the plaintiff and take notes payable to the order, of J. L. Cannon in payment therefor, with an agreement that said notes should be paid out of the proceeds of the sale of produce delivered by the maker to the payee of the note. The undisputed evidence also shows that the plaintiff became the bona fide holder of the note before maturity, and that the note has never been paid. The check-given by J. L. Cannon to the cashier of the bank in payment of the note was never paid, and was never received -by the bank which held the note for collection in payment of it. The fact that other notes of similar kind were also transferred to the plaintiff does not change the result. Where an agency is created by contract, the nature and extent of the agent’s authority must be ascertained from the contract itself, and, unless the language of the contract is technical or ambiguous, it cannot be extended by parol proof of a custom. Ozark-Badger Co. v. Roberts, 171 Ark. 1105, 287 S. W. 401.

The result of our views is that the plaintiff was entitled to a directed verdict, and, for the error in not granting his request therefor, the judgment must be reversed; and, inasmuch as the case seems to have been fully developed, the judgment will be entered here in favor of the plaintiff against the defendant for $85.30, with interest thereon at the rate of ten per cent, per annum from March 10,1926, until paid. It is so ordered.