author: Kirby, J.

text:
    Rose v. W. B. Worthen Company.
    Opinion delivered November 2, 1931.

      Carmichael <& Hendricks, for appellant.

      E. G. Shoffner, for appellee.
   Kirby, J.

This apneal challenges the validity of a mortgage by the guardian or curator of certain minors made to secure a loan with which to pay certain lieiug on their real estate and for their maintenance and support.

Pearl Dooley, the widow of Geo. H. Dooley, now Pearl Dooley Rose, was first appointed administratrix of her husband’s estate and later was discharged or resigned, and appellee company was duly appointed curator or guardian of the minors, who owned certain property, three pieces of real estate of west 12th Street in Little Rock, one piece of which had been mortgaged and upon which there were several liens for taxes, etc.

Appellee company filed a petition asking authority as curator to mortgage the lands of its wards, alleging that the widow’s dower had never been assigned to her, and the two children were absolutely destitute and badly in need of food and clothes and must be taken out of school and put into a charitable institution unless they were afforded immediate relief as prayed;

The petition reads in part as follows: “Petitioners pray that, in order to care for the many liens, to keep the heirs in school and prevent them becoming subjects of charity, and to prevent the waste and loss of the balance of the estate, that petitioner, as guardian and curator, be authorized and directed to borrow from such source as may be available, the sum of $750, at the best possible rate of interest, and to mortgage or pledge such real estate as may be necessary to secure the payment of said loan, and petitioner further prays for such other relief as may be necessary to protect the interest of the minors.”

The petition was dated April 21, 1930', filed April 2'2, and granted on the same day. The order recites:

“W. B. Worthen Company, curator of the estates of George Leon Dooley and Emma Loraine Dooley, is therefore by the court authorized, directed and ordered to borrow from such source as it may deem best the sum of $750 at the best possible rate of interest, and it shall pledge or mortgage to secure the repayment of said money lot 1, block 1, Worthen and Brown’s Addition to the city of Little Rock the property of said minors. Said sum shall be expended by said curator, under the orders of this court, to relieve the situation recited above in the finding of this court. The note or notes executed by the curator for said sum and the mortgage or deed of trust executed to secure the payment of such note or notes shall be a valid and binding obligation on the estates of the said minors and shall constitute a valid and subsisting lien against said lot 1, block 1, Worthen and Brown’s addition to the city of Little Bock.”

The curator reported the borrowing of the money to the court for the minors from the bank or its trust agent, and prayed an order authorizing the payment of certain claims, etc. The court confirmed the report of the curator reciting the amount borrowed, that it was not less than two-thirds of the value of the minors ’ interest in the lot mortgaged, which was not the homestead of the minors or their mother, and that the widow of George Dooley, having a right of dower therein, signed with the curator as principal, etc.

The complaint attacking the validity of the mortgage was demurred to, as also were the two amendments thereto, and the demurrer was finally sustained, and the complaint dismissed for want of equity.

Under our former statutes no authority was given executors, administrators or guardians to borrow money and mortgage real property of the estate to secure funds for maintenance and education of the minors. But act 195 of 1927 authorizes such executors, administrators and guardians to borrow money for certain purposes and secure the same by mortgage upon the real estate belonging to the estate represented by them. Section 120b, Castle’s Supplement to Crawford and Moses’ Digest, provides the procedure and reads as follows:

“When any administrator, executor or guardian presents to the probate court of the county in which any real property belonging to the estate represented by such administrator, executor or guardian is situated, his petition for permission and authority to mortgage the real property, or any part thereof, belonging to said, estate, in Arkansas, for the purpose of raising money to pay obligations secured by liens against any real property belonging to the estate represented by such administrator, executor or guardian, wherever situated, such probate court shall examine the same, and hear the evidence, and if satisfied that it would be to the best interest of such estate, then said court shall grant the petition and authorize such administrator, executor or guardian to borrow money and execute notes for the same, secured by a mortgage or trust deed to be executed by said administrator, executor or guardian on any part of the real estate belonging to such estate, situated in Arkansas. Provided, that the homestead shall not be encumbered by mortgage or trust deed except for the purpose of satisfying existing liens against said homestead.”

There is no authority granted by this statute to borrow money and secure the same by a mortgage or deed of trust except for the purposes specified in the act, and it contains no expression authorizing the borrowing of money for the maintenance and education of the minors. The probate court was without power to authorize the. borrowing of money and execution of a mortgage by .the guardian, etc., for any other purpose than as expressed in the statute, and its order authorizing it, as well as the mortgage executed in pursuance thereof for money to be used for any other purpose were void, and such mortgage constituted no lien against the lands and cannot be enforced against them for any money borrowed and-expended for any purpose other than as specified .in said statute.

We do not decide whether the dower interest of the widow of the decedent, the mother of the minor children, who joined in the execution of the mortgage and • whose dower in the property mortgaged had not been assigned, bound such interest to the payment of any money furnished her, it not being necessary to the determination of the cause, herein.

For the error designated the decree will be reversed, and the canse remanded with directions to enter a decree in accordance with this opinion. It is so ordered.


source: Caselaw Access Project

author: Mehaeey, J. Smith, J.,

license: Public Domain

text:
    Mississippi River Fuel Corporation v. Senn.
    Opinion delivered November 2, 1931.

      J. O. Williamson, Lamar Williamson, and Adrian Williamson, for appellant.

      W. P. Norrell and R. W. Wilson, for appellee.
   Mehaeey, J.

This action was brought by the appellee against the appellant, Mississippi River Fuel Corporation, and R. R. Hudgins, to recover damages for a personal injury alleged to have been caused by the combined and concurring carelessness and negligence of the defendant, Mississippi River Fuel Corporation, and R. R. Hudgins.

The appellee and R. R. Hudgins were employees of the appellant, Mississippi River Fuel Corporation, and were moving and carrying by means of hand sticks a large and heavy meter from a truck to the place on the appellant’s pipe line where it was to be installed.

It is alleged that R. R. Hudgins, an employee of appellant, carelessly and negligently, and- without notice to appellee, caught hold of the end of the hand stick opposite where appellee was working, and suddenly and carelessly and negligently, and without warning, jerked and raised the opposite end of the handsstick to that held by appellee, and thereby threw practically all the weight of the heavy meter, and placed upon him the burden of lifting or holding up more than 1,000 pounds; that appellee was strained in his entire body, and otherwise injured as described in his complaint.

He alleges that the injuries were permanent, causing him great mental anguish and physical pain, and that he was compelled to undergo a major operation; that he was wholly incapacitated to perform any physical labor, and will be totally and permanently incapacitated to perform physical labor and earn a livelihood. He asked damages for his injuries in the sum of $15,500.

The appellant, without entering' its appearance for any other purpose, filed motion to dismiss, alleging that the court had no jurisdiction. This motion was overruled by the court and a guardian was appointed for R. R. Hudgins, who was a minor, and answer was filed denying the material allegations in the complaint.

The appellant then filed a second motion to dismiss on the ground that the court had no jurisdiction. This motion was overruled, and appellant then filed a demurrer, alleging as grounds for demurrer, that the court had no jurisdiction over the person of the defendant, and that there is a defect of parties defendant, in that the defendant, R. R. Hudgins, is improperly joined as a party defendant. This demurrer was overruled by' the court. The appellant saved proper exceptions to the overruling of each of its motions and the demurrer.

' The appellant then filed answer specifically denying each material allegation in the complaint and alleging that if appellee was injured, the same was caused by physical infirmity or disease, for which appellant was not responsible. It alleged in its answer that, if appellee was injured as alleged in his complaint, said injury was caused by appellee’s own negligence.

It also alleged that, if appellee was injured as stated ■ in his complaint, his injury was caused -by a risk necessarily incident to his employment and which was assumed by him.

The appellant owned a gas conduit pipe line extending from the gas fields of Louisiana across the State of Arkansas to St. Louis, Missouri. Its main line passed through Drew County, Arkansas. From a point six or seven miles west of Monticello, a branch line was constructed to Monticello.

The appellee was 27 years of age and had been employed in this work for two or three weeks. The appellant, at the time of the injury complained of,, was installing two gas meters near the western corporate limits of Monticello. The meters had been brought to the place by truck and placed on the ground about 30 feet from the point where they were to be installed.

The meters were to be put on a platform about 24 inches above the ground. In moving the meters from the place where they had been put on the ground to the platform, a crew of nine men, including the foreman, was engaged. The meter had a short extension of pipe four inches in diameter and about eight inches long sticking out of each end of the meter with a collar or flange where it would be connected with the gas line. Six men carried the meter. to the platform by placing an iron crowbar under each of these pipes, one man lifting at each end of the crowbar, and one man lifting at the end of the extension pipe.

The appellee, had hold of one end of the crowbar, and Yirgil White had hold of the other end of the crowbar. The foreman, A. B. Willey, was on the platform, assisting in putting the meter on the platform.

When the crew undertook to put the meter on the platform, some of them called for help, and Ralph Hudgins, who is charged with the negligence complained of, took hold of the end of the crowbar held by White, and opposite to the end held by appellee. When Hudgins caught hold of the end of the crowbar, he lifted it something like three inches higher than the opposite end, which was held by the appellee. Appellee claims that when this was done practically the entire weight of the meter was thrown on him; that the walls of his stomach burst his appendix, and that he was ruptured. He estimates the weight of the meter at from 1,000 to 1,500 pounds.

None of the persons with appellee knew that he was injured in any w¡ay. The injury was alleged to have occurred on Thursday, and he worked Friday and Saturday; but he alleges that he turned hot, cold and blind, but he made no complaint at the time. He did not do anything for about 30 minutes; his work on Friday and Saturday was light. Prior to the injury he had complained from time to time of a pain in his lower right side and on Sunday afternoon he complained, and he did not work Monday. On Monday afternoon he became seriously ill, and the doctor said he had appendicitis, and he grew steadily worse until he was taken to Pine Bluff on Wednesday the 26th, where he was operated ,on for appendicitis, according to Dr. Clark’s evidence. Dr. Simmons and Dr. Duckworth said he was operated on for hernia.

Appellee did not, notify any of the officers, agents, or employees of appellant that he claimed to have been injured while working, but he testified that some days before he filed suit he wrote to some official of appellant, and on May 10th filed suit in the Drew Circuit Court.

While the appellee alleged concurrent negligence of Hudgins and appellant, the verdict and judgment is based on the alleged negligence of Hudgins, and the judgment against appellant is for the negligence of its servant, Hudgins alone. The .jury returned a verdict in favor of Hudgins, and a verdict against the appellant for $10,500. The case is here on appeal by the Mississippi River Fuel Corporation.

Appellant’s first contention is that the verdict in favor of R. R. Hudgins exonerates appellant, Mississippi River Fuel Corporation, from liability. It is its contention that a verdict in favor of the servant is inconsistent with a verdict against the master for the servant’s negligence.

We agree with appellant that there is no negligence shown except the negligence of the servant, Hudgins. The verdict of the jury in favor of the servant, Hudgins, did not mean that Hudgins was not guilty of negligence. Appellant cites numerous authorities to support its contention that a verdict in favor of the servant exonerates the master in cases where the master is sought to be held liable solely on the ground of the negligence of the servant.

In one of the cases relied on the court said: ‘ ‘ Where a recovery is sought in an action against a principal and his agent based upon the act or omission of the agent which the principal did not direct and in which he did not participate and for which his responsibility is simply that cast upon him by law by reason of his relationship to the agent, a. judgment in favor of and exonerating the agent generally ex proprio vigore relieves the principal of responsibility and may be availed of by the principal for that purpose.’’ Patterson v. Risher, 143 Ark. 376, 221 S. W. 468.

In another case cited and relied on by the appellant, and which appellant says is one of the leading American cases on the subject, the court said: “The general rule undoubtedly is that, where one has received an actionable injury at the hands of two or more persons acting in concert, or acting independently of each other, if their acts unite in causing a single injury, all of the wrongdoers, ho'wever numerous, are severally liable to him for the full amount of damages occasioned by such injury, and he may enforce the liability in an action against them all jointly, or in any one of them severally, or against any number of them less than the whole. "While the wrong’ committed is the joint wrong of the several parties participating’ therein, it is also, in contemplation of law, the several wrong of each of the participants. On this principle at common law, a jury in actions ex delicto against several persons, contrary to the rule -in actions ex contractu, were permitted to find against one or more of the defendants and in favor of the others. The rule with regard to actions ex delicto remains the same under the Code, and the practice now permits the jury in an action for tort against several defendants to return a verdict against so many of them as the proofs show-are guilty of the wrong charged, and in favor of the others. As it is the peculiar province of the jury to determine the guilt or innocence of the several defendants, a verdict finding in favor of some and against others, even though there may be no very apparent reason for the distinction made, is not for that reason alone su far arbitrary or inconsistent as to require a reversal of the judgment entered thereon against those who have been found guilty.” Doremus v. Root, 23 Wash. 710, 63 Pac. 572, 54 L. R. A. 649.

The above rule is the rule adopted by this court in all actions against joint tort feasors. But this court and all the courts, so far as we know, which hold that a verdict in favor of the servant exonerates the master, where the liability of the master is based wholly on the negligence of the servant put it on the ground that a verdict in favor of the servant is a finding by the jury that the servant is not guilty of negligence, and, since the master’s liability is based solely on the negligence of the servant, finding- in favor of the servant exonerates the master. We know of no decision that puts the right of the master to be exonerated on any other ground.

This court, in the case of Patterson v. Risher, supra, and in other cases has followed the above rule.

A holding- that the master would be exonerated because of a verdict in favor of the servant on any other ground would be absurd. The finding in favor of the servant in the case at bar was not necessarily a finding that the servant was not guilty of negligence. The appellant, in its answer, pleaded the contributory negligence of the appellee, and requested, and the court gave, instructions on contributory negligence requested by appellant. It is now argued that the appellee was guilty of no contributory negligence, but that is immaterial. The appellant evidently thought there was evidence sufficient on which to base its instructions on contributory negligence, and the trial court evidently thought there was sufficient evidence to submit the question to the jury, and certainly the jury had a right to believe that the court held there was sufficient evidence to submit the question of appellee’s contributory negligence to it.

It cannot be said then that the finding in favor of the servant was a finding that he was not guilty of negligence. Under our law, any individual, as the servant in this, case, who may be guilty of any negligent act resulting in injury to another, cannot be held liable if the injured party’s negligence contributes in any degree to produce the injury, so that but for his contributory negligence the injury would not have happened; but this is not the law with reference to corporations.

Our statute provides that in actions against corporations for personal injuries, the fact that the injured employee might have been guilty of contributory negligence shall not bar a recovery. Section 7145, Crawford & Moses’ Digest.

It will therefore be seen that it might be perfectly proper to find a verdict in favor of the employee charged with negligence and against the master, because appellee would be-entitled to a verdict against the corporation, notwithstanding his contributory negligence, but would not be entitled to a verdict against the servant, no matter how guilty he may have been of negligence, if the injured party was guilty of any contributory negligence.

If a suit was prosecuted against a corporation, based solely on the negligence of a servant, and it was shown that the injured party was guilty of contributory negligence, to hold that the verdict in favor of the servant, because of the injured party’s contributory negligence, exonerated the master would abrogate the comparative negligence statute.

None of the.cases cited and relied on by appellant discussed the question here involved, and this question was not involved in any of the cases cited, but all of the cases relied on based their holding* that a verdict in favor of the servant exonerates the master on the ground' that the verdict is a finding- that the servant was-not guilty of negligence. '■ • , • . q

The rule is stated in C. J., as follows: “Under comparative negligence rule, where an action for negligence against a corporation and certain of its employees, there is a plea of contributory negligence on the part of the defendant and evidence tending to establish it, the jury may, if the evidence justifies it, under the comparative negligence rule, find in favor, of such employees and against the corporation. ” 39 C. J. 1369. See also Arnett v. Ill. Central Rd., 188 Iowa 540, 176 N. W. 322; Gardner v. So. Ry. Co., 65 S. C. 341, 43 So. 816; Davis v. Hareford, 156 Ark. 67, 245 S. W. 833; K. C. Sou. Ry. Co. v. Cockrell, 169 Ark. 698, 277 S. W. 7.

If appellant’s contention is correct, then in cases where the master and servant are sued for damages, based solely on the negligence of the servant, and where the servant may be relieved because of the contributory negligence of the injured party, and the master may be liable notwithstanding such contributory negligence, then it would, be the duty of the court to direct the jury that they could not find against one without finding against both. If the injured party was guilty of contributory negligence and the master was liable because of the negligence of its servant, then the jury would be required either to find against the servant, when they knew that contributory negligence was a bar, and the verdict against him was unjust, or to find in favor of the corporation notwithstanding the negligence of its servant causing the injury, and notwithstanding he was entitled to recover, although guilty of contributory negligence. We do not think any court is committed to this doctrine.

We do not think it necessary to review the authorities cited by appellant extensively, because they are not applicable to the facts in this case, and there is no dispute about the rule announced by these authorities.

It is next contended by the appellant that the verdict is not supported by any evidence. The appellee testified that they had carried the meter along about 6 inches above the ground until they got to the platform; that the platform was about two feet high. When they got there, Hudgins came and took hold of the bar on White’s side, the side opposite to that of appellee; that Hudgins got hold of the bar and lifted it higher than the side appellee was on, throwing the meter on him, and he just had to stand there and hold it. When Hudgins came and took hold with White, they raised their end of the crowbar 3 or 4 inches higher, which caused the meter to slip over on appellee.

Appellee is corroborated by other witnesses, who testified that when Hudgins took hold he raised his end of the crowbar 2 or 3 inches higher. The witnesses corroborating him put it at from 1 to 3 inches. This testimony is undisputed.

It was a question for the jury to say whether, under the circumstances, taking hold of the crowbar with White and raising it up 3 or 4 inches when there was no one holding the other end of it except appellee, was negligence. The question was submitted to the jury under proper instructions, and we cannot say that there was no evidence to support their finding.

This court has many- times held that when there is any substantial evidence to support the verdict of the jury, the verdict is conclusive here. It is true that the burden was upon appellee to show that his injury resulted from the negligence alleged in his complaint.

The master was not an insurer of his safety, but it is liable only for negligence, and the test as to whether it was guilty of negligence is whether Hudgins did what a person of ordinary prudence would have done under the circumstances.

The jury had a right to believe that Hudgins took hold of thé bar with White, knowing that the other end of the bar was held by appellee alone, knowing that the meter was very heavy, and, without notice or warning of any kind, lifted the end of the crowbar from 1 to 4 inches, causing the injury to appellee. There is no presumption of the master’s negligence, but we think there is substantial evidence to support the verdict of the jury that Hudgins was guilty of negligence.

The rule is that where fair-minded men might differ honestly as to the conclusion to be drawn from the facts, either controverted or uncontroverted, the question should go to the jury, and it is the province of the jury to pass on the weight of the evidence and the credibility of the witnesses, and, even if it appears that the verdict is contrary to the preponderance of the testimony, this furnishes no ground for reversal. Armour & Co. v. Rose, 183 Ark. 413, 36 S. W. (2d) 70; Ark. P. & L. Co. v. Cates, 180 Ark. 1003, 24 S. W. (2d) 846; Hyatt v. Wiggins, 178 Ark. 1085, 13 S. W. (2d) 301; Mo. Pac. Rd. Co. v. Juneau, 178 Ark. 417, 10 S. W. (2d) 867; S. W. Bell Tel. Co. v. McAdoo, 178 Ark. 411, 10 S. W. (2d) 503; Harris v. Ray, 107 Ark. 281, 154 S. W. 499.

It is next contended that the court erred in permitting the introduction in evidence of the drawing of the meter prepared and introduced by witness Thompson. We do not think there was any error in permitting the introduction of the drawing, and no prejudice could possibly have resulted from its introduction. The evident intention was to give a representation of the meter which could not otherwise be as conveniently shown or described by the witness. St. L. S. F. R. Co. v. Horn, 168 Ark. 200, 269 S. W. 576; Harrelson v. Eureka Springs Elec. Co., 121 Ark. 269, 181 S. W. 922; Sellers v. State, 91 Ark. 175, 120 S. W. 840.

It is next contended ¡by appellant that the court erred in permitting witness Dr. W. H. Simmons to answer a hypothetical question. After the appellant had objected because it stated that the hypothetical question did not take into consideration some of the facts, the court held that there were other things proper to be stated, and those things were stated, and witness permitted to answer the question. The hypothetical question mentioned the material facts, and then asked the doctor, assuming those things to be true, what, in his opinion, caused the conditions as he found them. The doctor stated in answer to the question that, considering the man’s position, when a strain is suddenly thrown on him, it might be very slight and still cause hernia, such as was found in appeh lee; that it depended somewhat upon the position he was in. To say exactly this particular strain was enough ordinarily, he said he did not know but he said that if he had a history that had any kind of a strain and immediately felt pain and became nauseated and had cold sweat, he would say the injury was the cause of the trouble.

We do not think there was any error in permitting the hypothetical question and permitting the doctor to answer it. See Taylor v. McClintock, 87 Ark. 294, 112 S. W. 405; Ince v. State, 77 Ark. 429, 93 S. W. 65; St. L. I. M. & S. Ry. Co. v. Hook, 83 Ark. 589, 104 S. W. 217.

Appellant next contends that the court erred in giving appellee’s instruction No. 6. Instruction No. 6 is as follows: “ You are instructed that if you find from the evidence that the plaintiff, Oscar Senn, while working for the defendant in moving and carrying by means of hand sticks a large and heavy meter from a truck on a pipe line where it was to be installed, the defendant, Mississippi River Fuel Corporation, carelessly and.negligently and 'without notice to the plaintiff, grabbed or suddenly took hold of the end of the hand stick opposite where'plaintiff was working and suddenly and carelessly and negligently and without notic.e or warning to plaintiff, jerked up or raised the end of the hand stick opposite to that held by plaintiff and thereby caused the meter to roll and turn and threw the weight of the meter on the plaintiff and placed upon him the burden of holding same, if you fin'd it was negligence to do so, and his injuries, if any, were caused solely by the acts of said R. R. Hudgins, then your verdict should be for the plaintiff and against the defendant.”

The objection to this instruction was general, no specific objection being made, and the instruction was not inherently wrong. If appellant thought it was wrong for the reasons now urged, it was its duty to make specific objections to'the instructions.

We have carefully examined all of the instructions, and, when considered as a whole, they furnished a correct guide to the jury.

It is next contended that the court-was without jurisdiction to render judgment against the appellant. Suit was filed in Drew County, Arkansas, and summons directed to the sheriff of Pulaski County, Arkansas, and it was returned duly served. The summons was issued May 10, 1930, and returned served by the sheriff of Pulaski County on May 14, 1930. On September 8, summons was issued to the sheriff of Pulaski County and returned September 15, showing it had been served. But on September 8, a summons was issued against the appellant and R. R. Hudgins, to the sheriff of Drew County, returned September 9, 1930.

The appellant is a foreign corporation, and § 1152 of Crawford & Moses’ Digest, provides that foreign or domestic corporations who maintain in any county of this State a branch office or other place of business, are subject to suits, etc.

Evidence was taken showing that appellant had a place of business at Wilmar, Drew County, and this place of business was in charge of J. C. Lemons. Evidence was taken by the court on this question, and this evidence shows that the appellant had purchased several acres of land, built a warehouse, kept supplies there, and that Lemons, on whom the service was had, was in charge of the warehouse and in charge of the maintenance.

Several witnesses testified and Lemon testified that he was foreman of Division No. 2, and, if it was necessary, he would have the freight bills in his warehouse at Wilmar; that he was in charge of the job, was in charge of the construction of the meter platform in a way, and in charge of everything being built in that division.

We think there was ample evidence to establish the fact that the appellant maintained a branch office and place of business at Wilmar, and that Lemon was in charge of it. This being true, the service on Lemon at Wilmar was sufficient. Ramey v. Baker, 182 Ark. 1043, 34 S. W. (2d) 461; Ark. P. & L. Co. v. Hoover, 182 Ark. 1065, 34 S. W. (2d) 464.

It is next contended that the verdict of the jury was excessive. The verdict was for $10,500. The evidence shows that appellee was 27 years of age, made his living by farming mostly, was in good health before the injury, weighed 165 to 175 pounds, and according to his testimony was sound physically, and could do as much work as any other man of that size. He testified that there was nothing wrong with his abdomen before the injury. His expectancy was 37 years. He has been unable to work at anything that requires lifting or physical exertion. He is compelled to wear across his lower abdomen a piece of cloth, something like a truss.

The doctors examined him, operated on him, and Dr. Simmons testified they decided he had a rupture that was strangulated and had developed peritonitis from it. This doctor testified that the operation was to relieve that condition, and in his opinion he would have died if he had not been operated on. . .

There is no 'dispute in the evidence that he had to have an operation, and that since the injury he has not been able to do the kind .of work he did before his injury.

If' the injury to appellee was caused in the manner that he claims it was and is as severe as the evidence shows it to be, the amount found by the injury is not excessive.

We have very carefully examined all of the evidence and the instructions given by the court, and have reached the conclusion that there is no error in the record.

The judgment is therefore affirmed.

Smith, J.,

(dissenting). The relevancy of the discussion of the right of an injured servant to recover against one or more of the joint tort-feasors who have injured him — ■ under the undisputed testimony in this case —is not apparent. The master has been held liable in this case, not as a joint tort-feasor, but finder the doctrine of “respondeat superior.” Cooley on Torts, (3rd ed.) page 254.

It is necessary to strip this case of its superfluities in order to ascertain the applicable principles of the law of master and servant which should be applied in its solution and decision.

It is true, as stated, that the answer alleged that the injured servant — the plaintiff — was guilty of contributory negligence, and that his injury had resulted from a risk which he had assumed. These pleas are so usual in all ordinary personal injury cases that the lawyer who failed to allege them would himself be guilty of negligence. It is true also that instructions submitted these issues. Appellant having asked such instructions, it is settled law that no prejudicial error was committed in giving them, although they were abstract. One cannot complain that an abstract instruction was given at his request. But it is a wholly different proposition to say that either an allegation in a pleading or an abstract instruction can supply a total absence of evidence to prove an essential fact.

The majority say the jury may have found that the injured servant was guilty of contributory negligence and upon this finding applied the comparative negiig'ence doctrine, and, in its application;; excused Hudgins, the fellow-servant," against whom contributory negligence was an absolute defense, yet held-the master liable, for the reason that contributory negligence was not an absolute- defense in its favor and that, as against the master, the doctrine of comparative negligence applies.

But what are the undisputed facts? The plaintiff alleged no act of negligence against any one' except Hudgins, and the majority, say that'“the judgment against appellant (the master) is for'the negligence of its; servant, Hudgins, alone.” Although the master alleged plaintiff was- guilty of contributory negligence; this fact was denied by the plaintiff,' and not a scintilla of evidence wás.-offered in support óf it, and appellee’s able counsel solemnly asserts in his brief filed in this case and in the oral argument before us that plaintiff was not guilty of contributory negligence. I am unable to see why this statement should not, therefore, be accepted as an undisputed fact, and, if so accepted, the question of comparative negligence passes out of the case. 'Where only one person was negligent, there is no negligence to compare, and even an abstract instruction cannot supply a total absence of testimony. The discussion of the doctrine of comparative negligence, under the undisputed testimony in this case, is as much aside as is the discussion of the right to recover against one or more joint tort-feasors.

The majority opinion mentions the fact that the foreman was standing by while the meter was being put in place; but this fact adds no new issue. Even though the foreman had ordered Hudgins to assist in putting the'meter in place, it is not contended that he gave any directions as to the manner in which this simple duty should be performed, and there is no allegation or issue that Hudgins was known to be a careless or incompetent servant. Certainly, there was no negligence in ordering Hudgins to assist. His assistance meant only the presence and participation of another servant in placing the heavy meter in the desired position. Had Hudgins, while standing by and available, not assisted, the contention might have been made that the employees were ordered to perform a duty without sufficient assistance. Ordering Hudgins to assist could only fix his status as an employee, and not a volunteer, and the case presents no such issue.

The quotation in the majority opinion from 39 C. J. page 1269, affords no support to the conclusions reached. I have placed in italics the portion of the quotation which destroys its application to the facts of this case. As thus italicized it reads: “Under comparative negligence rule, where, in an action for negligence against a corporation aud certain of its employees, there is a plea of contributory negligence on the part of defendant and evidence tending to establish it, the jury may, if the evidence justifies it under the comparative negligence rule, find in favor of such employees and against the corporation. ’ ’

It thus appears that, to make the comparative negligence doctrine apply so that the master may be held liable for the negligence of his servant and the servant himself excused, there must, not only be a plea of contributory negligence, but “evidence tending to establish it,” and this necessity of testimony to present the issue cannot be supplied by abstract instructions. It would be a new doctrine, and one which I think the majority do not intend to announce, to say that an instruction which merely declares the law applicable to a particular state of facts can supply the necessity of proving those facts.

The case of Patterson v. Risher, 143 Ark. 376, 221 S. W. 468, was a well-considered case, and I do not understand that the majority intend to impair its authority. They have quoted the quotation appearing and approved in that case taken from the case of Bradley v. Rosenthal, 154 Cal. 420, but, in my opinion, they have not applied the rule there approved to the facts of this case.

The principle applied in the Patterson v. Risher, supra, case is that, while the master is responsible for the negligence of his servant, and must respond in damages for such negligence, yet, where the sole claim for damages against the master is that the servant’s negligence inflicted the injury and caused the damage, a finding that the servant was not negligent necessarily discharges the master, because, if the servant was not negligent, then there is nothing for which the master should respond. Here we have not only an entire absence of testimony .that the plaintiff was guilty of contributory negligence, but. we have the contention of his able counsel made before us that he was not guilty of contributory negligence. There is therefore no negligence to compare, and the doctrine of comparative negligence is unavailing.

There are certain exceptions to the rule announced in Patterson v. Risher, but they are more apparent than real. For instance, in the case of Davis v. Hareford, 156 Ark. 67, 245 S. W. 833. Without questioning the law as declared in Patterson v. Risher, we distinguished it from: the case of Davis v. Hareford, and the distinction was just this: The Davis case was a suit for damages against both a railroad company and its engineer, whose negligence was alleged to have caused the plaintiff’s injury. There was a verdict against the railroad company and in favor of the engineer, and we said the verdict was not inconsistent, because there was a statutory presumption of negligence against the railroad company, which the jury might have found was not overcome, whereas there was no such presumption against the engineer, and the finding may have been made in that case that the statutory presumption against the railroad company was not overcome, whereas, as against the engineer, the testimony might not have been sufficient unaided by that presumption, to establish negligence on the part of the engineer.

The majority say, in effect, that this principle may have been applied in the instant case, inasmuch, as against the master, the doctrine of comparative negligence applied, whereas, as against the servant Hudgins, contributory negligence was an absolute defense. In other words, the jury might have found that the plaintiff was guilty of some negligence contributing to his injury, and for this reason his right to recover was defeated as against Hudgins, whereas, as against .the master, a corporation, the rig'ht to recover would not have been defeated unless the negligence of the plaintiff was equal to or greater than that of Hudgins.

But it may again be answered that this theory has no place in this case, for the reason that the plaintiff denied at the trial and now denies in his brief on this appeal that he was guilty of any negligence whatsoever, and there is not a particle of testimony in the record that he was guilty of the slightest negligence. Certainly he should be bound, if not by his contention at the trial, then by his solemn admission before us.

The sole ground upon which liability has been asserted against the defendant corporation is that Hudgins was negligent, and that this negligence was the sole cause of the plaintiff’s injury, and as the jury has found that Hudgins was not guilty of negligence, and as appellee insists 'thalt he> too, was not negligent, the doctrine of the Risher case applies, and in our opinion therefore the judgment against the defendant corporation should conform to the jury’s finding, and if this is done the judgment ag’ainst the master should be reversed and the case dismissed.

We therefore respectfully dissent from what we regard as the inconsistency of holding the corporation liable when Hudgins has been found by the verdict of the jury not to have been guilty of negligence.

I am authorized to say that Mr. Justice McHaney concurs in the views here expressed.


author: Mehaeey, J.

text:
    Irwin v. Alexander.
    Opinion delivered November 2, 1931.

      M. E. Vinson and George W. Reed, for appellant.

      Wallace Townsend and 8. 8. Jefferies, for appellee.
   Mehaeey, J.

The appellants brought suit in the Cleburne Chancery Court asking for a review of the correctness of the judgment of the Cleburne County Court to the effect that there is in existence indebtedness in the county in the sum of $35,000 which may be funded by the issuance of bonds, asking that the court find and decree that there is no indebtedness which may be funded, and praying that the court find and decree that the county court has no authority to issue or order to be issued any bonds of Cleburne County to fund any indebtedness under Amendment No. 8 to the Constitution of the State of Arkansas.

The only question for us to determine is whether Cleburne County had the legal right to issue bonds under Amendment No. 8 of the Constitution.

The county court on June 1, 1931, made an order that the court on that day ascertained and declared that, of the total indebtedness of the county at the time of the adoption of Amendment No. 8, there is an amount of $35,000 which had not been funded, which can now be funded by the issuance of bonds. The court had, on June 17, 1925, after the adoption of Amendment No. 8, found the indebtedness of the county existing at the time of the adoption of the amendment and at the time of the order to be $64,974.27, and it is contended that since the county did not issue all the bonds that it might have issued at that time, it now has the right to issue the difference between the existing indebtedness and the bond issue of 1925.

The court entered a decree dismissing the complaint of plaintiffs for want of equity, and the case is here on appeal.

It is true, as contended by appellee, that the finding of the county judge in 1925 as to the amount of indebtedness existing then and at the time of the adoption of the amendment to the Constitution became final after 30 days. The court, however, at that time issued an order calling in all outstanding warrants, except the courthouse warrants, for the purpose of re-issuing as provided in § 1994 of Crawford & Moses’ Digest, and on July 21, 1925, the county court made an order in which it found that warrants of the county had been filed for re-issue in the total sum of $26,381.50, and on the same day the court made an order finding that it was to the best interest of the county not to fund outstanding courthouse warrants. All warrants that were not filed for re-issue in compliance with the court’s order were void. Under the order of the court at that time, the only bonds that could be issued would be 'bonds to take up the $26,381.50.

Section 1996 provides: “All persons who shall hold any warrants of said county, and neglect or refuse to present the same as required by the order of the court and the notice aforesaid, shall thereafter be 'forever debarred from deriving any benefits from their claims.”

It seems therefore clear that there was no authority to issue any bonds except to pay the $26,381.50-.

It is now contended by appellee that, since the $29,900 bonds for the payment of the courthouse indebtedness were not issued and sold, they can now be issued and sold, and that they represented indebtedness outstanding on the courthouse debt at the time former bonds were sold. There is no claim that any of the other indebtedness of Cleburne County now existing existed at the time or prior to the adoption of the amendment. Therefore there is no contention that any bonds can be issued by the county except to redeem the courthouse warrants.

The appellee contends that the judgment or order of the county court of 1925 became after 30 days res judicata, and that, we think, is correct. At that time, however, the court expressly found that it was to the best interest of the county not to refund outstanding courthouse warrants, and they were not refunded. Before making the order in controversy here, Amendment No. 17 to the Constitution of the State of Arkansas was adopted, and that amendment provides the procedure for taking up any indebtedness existing at the time of the adoption of said amendment in 1928.

We think it is wholly unimportant to decide whether the county court, after making the order finding that it was not best to refund the courthouse warrants, could refund courthouse indebtedness under Amendment No. 10 prior to the adoption of Amendment No. 17. After the adoption of that amendment the county court had no right to refund the courthouse indebtedness except by complying with the provisions of said amendment.

Section 1 of Amendment No. 17 is as follows: “The power and right is hereby vested in the qualified electors of each respective county in this State, by a majority of said electors voting on the question, to authorize the construction, reconstruction, or extension of any county courthouse or county jail and to authorize the levy of a tax not to exceed one-half of one per cent, on the dollar of the valuation of all properties in such county subject to taxation to defray the cost and expenses thereof or to take up any indebtedness existing at the time o'f the adoption hereof incurred in building, construction, or extending any county courthouse or jail.”

It will be noticed that the power and right to authorize the construction of courthouses or jails or to take up existing indebtedness is vested in the qualified electors by Amendment No. 17. Therefore, the county court did not possess the power and right to issue bonds to pay the courthouse debt after the adoption of Amendment No. 17.

As we have already said, the only question involved is the right of the county to issue bonds for the courthouse indebtedness because there is no claim and no evidence that any other indebtedness now existing existed prior to the adoption of Amendment No. 10. The county can issue bonds to take up the warrants for the courthouse indebtedness only by complying with Amendment No. 17. Boydston v. Condray, 183 Ark. 336, 36 S. W. (2d) 64; Carter v. Cain, 179 Ark. 79, 14 S. W. (2d) 250.

The decree of the chancery court is reversed, and the cause remanded, with directions to enter a decree prohibiting the issue of bonds except by complying with the provision of Amendment No. 17.


author: McHaney, J.

text:
    Glick v. Daniel.
    Opinion delivered November 2, 1931.

      Coleman & Riddich, for appellant.

      Henry Donham and Martin K. Ftdlc, for appellee.
   McHaney, J.

Appellee sued appellant to recover a broker’s commission of 5 per cent, of the sale price of certain laundry properties for procuring the signing and delivery of a contract between appellant and S. R. Morgan which contemplated a sale to a new corporation at a price of $222,500. The complaint alleged that appellant was the owner of all the capital stock of the Glick Cleaning & Laundry Company, with a plant in St. Louis and one in Port Smith; that he contemplated the purchase of the Rose City Laundry in Little Rock; and that he desired to transfer all these properties to a new corporation; that about September 1, 1929, appellant employed him to execute a sale of the properties and to procure the execution of a contract to that end; that he brought Morgan and appellant together which resulted in the execution and delivery of the agreement between them hereinafter set out; that he was entitled to 5 per cent, of the value of said properties as fixed in the contract as commission, in the sum of $11,075. Appellant answered denying all the allegations of the complaint, and by amendment pleaded failure to comply with the “Blue Sky” act in bar of the action. The written contract between appellant and Morgan follows:

“This instrument of writing witnesseth:
“An agreement between Joseph Grlick, a resident of Fort Smith, Arkansas, and S. R. Morgan, a resident o'f Little Rock, Arkansas, to-wit:
“That said Joseph Grlick is and or shortly will for himself and or with others, be or become the sole owner of all the assets of every kind and character of three certain laundries and cleaning plants, free and clear of any incumbrances or liabilities whatsoever, situated repectively in the cities of St. Louis, Missouri, Fort Smith, Arkansas, and Little Rock, Arkansas, which said three properties, said Joseph Grlick undertakes and contracts to deliver to a corporation shortly' to be caused to be brought out by. the said S. R. Morgan for and in consideration of the sum o'f two hundred and twenty-two thousand and five hundred dollars, ($222,500) and other considerations below7, to be more fully set out.
“By the payment of the sum of eighty-seven thousand and five hundred ($87,500) in cash to retire the present sundry incumbrances on the three properties, in the amounts of approximately thirty-six thousand dollars ($36,000), fourteen thousand dollars, ($14,000) and thirty-seven thousand five hundred dollars ($37,500) and the further sum of twenty-five thousand dollars ($25,-000) in cash to be paid over to the said Joseph Grlick, or a grand total of one hundred and twelve thousand and five hundred dollars ($112,500); and the further consideration of eleven hundred (1,100) shares, par value one hundred dollars ($100) per share, seven per cent. (7%) quarterly dividend preferred stock of the said new corporation to be caused to be brought out by the said S; R. Morgan, total consideration two hundred and twenty-two thousand and five hundred dollars ($222,500).
“It is contemplated and hereby agreed that said S. E. Morgan will attempt to discharge the liens and payments above referred to by nse in substitution or otherwise of the notes, debentures or bonds of the new corporation to be brought out for the securities of the existing companies. This is a burden assumed by S. E. Morgan, and, in the event of his inability to arrange said indebtedness as above contemplated, then in that event he contracts and agrees herein to make the said loans himself, or cause them to be made by other banks or bankers.
“It is further agreed that the new corporation to be brought- out will have an authorized issue of ten thousand (10,000) shares of no par common stock; fifty per cent. (50%) of the said common shares of stock are to go to the said Joseph Glick as additional consideration to the two hundred and twenty-two thousand and five hundred dollars ($222,500) above enumerated, and the remaining fifty per cent. (50%) of common stock is to be paid to said S. E. Morgan in consideration of his services in arranging the financing above set out, and for such further financial service as he may and will render to the said new corporation; it being the intention herein that said Joseph Glick and said S. E. Morgan will move on a fifty-fifty basis (50-50) basis in equity of the property.
“It is understood that some ten or fifteen days will be required to arrange the mechanics and the machinery for the authority of the new corporation to function in the States of Missouri and Arkansas, and the said S. E. Morgan agrees to go about expeditiously to the bringing out of the said corporation. In the meantime, it is desirable to the two parties that the sum of $.............................. be at this time paid over to acquire a Little Eock unit of the properties, and the said S. E. Morgan agrees to at this time furnish the $..............................to discharge the final payment due on the Little Eock unit under the agreement that should, through the possibility of uncertainties, anything arise to prevent the carrying out of this agreement in full; then he will cause the Little Eock property to be conveyed to the nominee of the said Joseph Glick upon the return of the amount furnished by him, plus the expenses incident thereto, at any time upon the order of the said Joseph Glick prior to October 1,1929.
“It is agreed that said S. R. Morgan is moving up to this time upon the representations, appraisals and valuations of the said Joseph Glick on the Fort Smith, Arkansas, and the St. Louis, Missouri, units of the property, and it is agreed that he is to have and is hereby allowed fifteen days from date hereof to approve or disapprove of said properties at the figure of one hundred and eighty thousand dollars ($180,000) such approval or disapproval to be in writing, by registered mail, addressed to the said Joseph Glick, Fort Smith, Arkansas, on or before midnight, September 14, 1929, such acceptance or rejection without assignment of reason or cause on the part of the said S. R. Morgan to be -absolute.
“Witness our hands and seals this, the 31st day of August, 1929.
(Signed) “S. R. Morgan,
“Joe Glick.”

A jury trial resulted in a verdict and judgment in appellee’s favor for $1,775.

For a reversal of the judgment it is first argued that appellee’s contract with appellant “is void because prohibited by the laws of Arkansas,” first, by act 148 of 1929, p. 742, providing for the licensing of real estate dealers and brokers, and, second, by §§ 750' to 771, Crawford & Moses’ Digest, commonly known as the “¡Blue Sky” act. Appellant did not plead act 148 of 1929 in bar of the action, but we think it has no application to the facts in this case. So far as shown by the evidence, no real estate was involved in the deal. Nor does the “Blue Sky” act apply, as appellee was not selling stocks, bonds or other corporate securities, nor otherwise violating that act. He brought appellant and Morgan together, who entered into the above contract, which did provide for and contemplate a sale of certain laundry plants to a corporation which Morgan would cause “to be brought out.”

It is next argued that, conceding appellee was employed by appellant, he cannot recover because' he failed to, perform his contract. In this connection, it is said the complaint alleges he was employed to “execute” the sale of certain properties and to procure the “execution” of a certain contract; that the contract between appellant and Morgan was conditional and could not have been executed until the conditions were performed; and that this was never done and the contract never performed. We think the obvious meaning of the word “execute” as used in the complaint was to sign and make a contract for the sale o'f the properties. In other words, appellee was employed to procure the maldng and signing of a contract for the sale of the properties satisfactory to both parties, which he did. He did not make nor sign the contract himself. He was not a party to it in any way except to bring the parties together. He did not prepare it, but, on the contrary, it was prepared by Morgan’s attorney, to the apparent satisfaction of appellant, who was present representing himself, and signed the contract. We do not think it necessary to determine whether the contract was valid and binding after the lapse of the time which was given him to inspect the properties and to organize a new corporation. The ’fact is it was performed in part by the payment by Morgan of $36,000 to complete the purchase of the Little Rock property and some $2,000 additional was advanced for othér purposes, all of which was returned by appellant to Morgan in June, 1930, and the agreement canceled apparently by consent. Appellant said he considered he had a valid and binding contract, and that Morgan breached it. He said Morgan advanced only $38,000, yet he voluntarily paid back to Morgan $42,500 which is the sum Morgan claims to have advanced. Under this state of facts and, in view of the testimony of appellee that his commission was due when the contract was made, we cannot say there is no evidence to support the jury’s finding’ that he did perform his contract.

Appellant next contends the case should he reversed for errors in the instructions and the admission of testimony. The testimony of Mr. Garner that the usual commission for services of the kind claimed by appellee is from 5 per cent, to 15 per cent, of the money obtained ■under the contract was admitted over appellant’s objections. It is claimed that this constituted a variance and was further emphasized by the giving of appellee’s instruction No. 5 to the effect that, even though the jury might find there was no contract between them for an agreed compensation, yet, if appellee performed services for appellant of such a nature as to induce.the belief that the parties understood compensation was to be had, then a recovery might be had on quantum meruit. We think it was not error to admit the testimony and to give the instruction, but if so it was harmless. The verdict of the .jury was for $1,775, which is 5 per cent, of $35,500, approximately the amount Morgan paid appellant for the balance of the purchase price of the Little Eock plant and was a finding on disputed facts that there was a contract between them for 5 per cent, of the purchase price. We cannot say that the jury’s verdict was based on a quantum meruit, and therefore no prejudice could have or did result to appellant.

What we have already said makes it unnecessary to discuss instructions 3 and 11 requested by appellant and refused by the court and assigned as error. It appears to us that the court fully and fairly instructed the jury; that the verdict is supported by substantial testimony; and that the case must be affirmed. It is so ordered.


author: McIIaney, J.

text:
    Consolidated Indemnity and Insurance Company v. State use Craighead County.
    Opinion delivered November 2, 1931.

      Baher S Gautney, for appellant.

      Chas. D. Frierson, Jr., and Chas. D. Frierson, for appellee.
   McIIaney, J.

Prior to February 21, 1930, the American Trust Company of Jonesboro, hereinafter called the bank, was designated by proper orders of the county court a depository of the public funds of Craighead County, conditioned upon its giving bond. On said date the bank as principal and appellant as surety, executed a bond to the county treasurer and the State in the sum of $50,000, referred to as the penalty, and conditioned that the bank should, during the term thereof beginning that date and ending December 31, 1930, “promptly pay over on proper legal order such cash and cash items as shall have been actually and regularly deposited with it during the terms of. this bond in an account subject to check, together with the balance of cash or cash items to the credit of the obligee at the beginning of said Term, as well as the amount of interest which the bank has contracted to pay thereon, then this obligation shall be null and void; otherwise to remain in full force and effect.” On November 1, 1930, the bank became, or was insolvent, and was placed in the hands of the Bank Commissioner for liquidation with George A. Knox, special deputy in charge. On that date the county treasurer had on deposit in the bank subject to check $80,459.70. Thereafter demand was made on appellant to pay the amount of its bond, $50,000, which it declined to do, and this suit followed, making the bank, the Bank Commissioner, the special deputy, Knox, and appellant defendants. Appearance was entered by all defendants except appellant. It thereafter filed a petition and bond for removal of the cause to the Federal District Court for the Eastern District or Arkansas on the ground of diversity of citizenship, it being a foreign corporation. It was alleged in the petition that, as between it and appellees, there was a controversy that could be wholly determined without affecting the interest of its co-defendants; that the bank was insolvent and in the hands of the Bank Commissioner; that the appellees’ claim had been filed and allowed, there being no dispute about the amount of it, and that further litigation could not under the law gain for the treasurer any additional right or remedy in the collection thereof; that, on account of the nature of the action involving public funds affecting the interests of taxpayers and public of the county, it could not get justice in the State court, by reason of prejudice and local influence; and that the cause was separable; that the other parties defendant are not necessary parties and were joined for the wrongful purpose of preventing a removal. The court heard and denied the petition to remove on the ground that the requisite diversity of citizenship between the parties did not exist, and that there was no separable controversy between citizens of different States, it being a suit against principal and surety, the former being a citizen 'of this State and the latter of a different State, and that all defendants were properly joined. Appellant answered under protest, denying its full liability under said bond, and pleaded certain provisions thereof hereafter set out as reducing the amount of its liability thereunder. The bank, the Bank Commissioner and the special deputy answered admitting liability of the bank, but that such liability must be liquidated under the 'State banking laws.

The case was submitted to the court sitting as a jury and judgment was rendered against appellant for the full amount of the penalty of its bond, with interest, and against the bank and Bank Commissioner for the full amount of the deposit without execution on the bank, but to be paid in the regular course of liquidation. Appellant only brings the case here for review on appeal.

It is first said the court erred in refusing to remove the cause to the Federal court. No error was committed in this regard as there was no separable controversy, such as entitles appellant to remove. This is a suit against the principal, the bank, and the surety, appellant. The obligation is joint and several. Both the bank and appellant agree in the obligation that they are held and firmly bound to the obligee “in the full and just sum of fifty thousand and n-o/100 dollars ($50,000) * * * for the payment of which well and truly to be made, we bind ourselves, our successors and assigns, jointly aotd severally, firmly by these presents.” So it is denominated in the bond that the obligation is joint and several. As said in 21 R. C. L., § 123, p. 1081: “As a surety is one who enters into a contract with another as principal, either jointly or jointly and severally, he may in all chses be sued jointly with the principal. But, if the obligation is joint and several, the creditor has the undoubted right to proceed against the surety alone, or, if he chooses, he may sue the principal and at the same time bring an action also against the surety, and prosecute both suits concurrently until he obtains satisfaction from one of them.” Appellees therefor had the undoubted right to sue both •the bank and appellant jointly as has been done in this action, and it can make no difference that the claim has been presented to and allowed by the Bank Commissioner and his liquidation agent, nor that the bank acknowledges the indebtedness and admits the amount thereof to he justly due. There might be and probably are a number of reasons why appellees desire to secure this judgment against the bank, the principal in the bond. Whatever these reasons may be, and although the bank is admittedly insolvent, appellees had the right to join these parties as defendants at their option under the statutes of Arkansas and the decisions of this court. By § 1099, Crawford & Moses’ Digest it is provided: “Persons severally liable upon the same contract, including * * * sureties on the same or separate instruments, may all, or any of them, * * * be included in the same action at the plaintiff’s option,” and § 1100 provides: “Where two or more persons are jointly bound by contract, the action thereon may be brought against all or any of them, at the plaintiff’s option.” See also’ § 1076, Crawford & Moses’ Digest. Appellees having the absolute right to join appellant with the other defendants, there is no separable controversy and no right to remove as such. The other allegations of the petition for removal do not amount to a charge of fraudulent joinder. Moreover, it appears that the charge of local prejudice among the taxpayers and because of the subject of litigation being public funds passesi out of the case as a jury was waived, and trial was had before the court, against whom no. charge of prejudice was made.

Passing now to the arguments made on the merits, appellant concedes that it is liable in some amount, but that the full penalty of the bond should be reduced by reason of three certain terms and conditions of the bond. It is also conceded that the facts are undisputed, which is true. The bond contained the following three express conditions, which are made precedent to the right of recovery:

“(1). If any time during the term of this bond the obligees, to the amount of $25,000, which, to that the moneys deposited with the bank, such security shall not be released without notice to, and the written consent of the surety.
“ (2). In case the moneys on deposit with the hank to the credit of the obligee shall, at the time any loss is sustained on this bond, exceed the penalty of the bond, and obligee shall not hold additional security equal to the amount of such excess deposits, the liability of the surety hereon shall be limited to such proportion of the penalty of this bond as the said penalty shall bear to the total sum of money on deposit at the time of the loss.
“(3). The suretjr shall be liable hereunder only for such proportion of the total loss sustained as the penalty of this bond shall bear to the aggregate amount of all bonds and securities, whether collectible or not, furnished to the obligee and in no event shall the surety be liable hereunder in any sum in excess of the penalty of this bond.”

It appears that at the time appellant executed the bond in question, there had been for some time certain United States Government 4% per cent, bonds and certain improvement district bonds of the par and actual value of $25,000 held in a safety deposit box of the bank under the joint control of the bank and the county treasurer, as collateral security for the county funds, and that a personal bond, called by appellant a “blanket bond”, had been executed and delivered by certain persons, officers and directors in the bank, to the county treasurer, guaranteeing’ the payment by the bank of all the county’s funds on demand. This latter bond was executed in April, 1929, and had never been released. The county treasurer was advised by the Attorney General that it was not lawful for collateral to be held in escrow to secure public funds, but that a surety company bond was required. Whether this advice was correct or not, the collateral held under joint control was taken down when appellant executed this and two other like bonds — one to the collector for $50,000, later reduced by agreement to $5,000', and the liability thereon of about $800 paid, and one to Drainage District No. 7 for $32,000, and the liability thereon for $31,000 paid or conceded. And, at the same time, the collateral above mentioned in the snm of $25,000 and an additional snm of-$25,000 of like collateral were delivered to appellant as indemnity to it against liability on the three bonds. No part of the $50,000, collateral, consisting of $30,000 government bonds, was demanded or returned to the bank when the liability on the collector’s bond was reduced by $45,000, but it still holds same at this time.

■Back now to the three conditions of the bond above quoted:

No. 1. As to No. 1, the security held by the county in the form of collateral was released to the bank and deposited by it with appellant with notice to and its written consent in the form of a receipt therefor to the bank. This disposes of condition No. 1.

No. 2. As to No. 2, it is undisputed that at the time the loss was sustained on the bond, the obligees had moneys on deposit to their credit with the bank in a sum in excess of the penalty of the bond by $36,459.70, and it is also undisputed that the obligees had additional security equal to the amount of such excess deposits over the penalty of the bond. Therefore condition No. '2 has no application, as it applies only in case obligees “shall not hold additional security equal to the amount of such excess deposits.” The so-called blanket bond is the additional security. Whether it is good or otherwise we are not called upon to say, but it had not been .released or canceled.

No. 3. Under this condition appellant argues that since its bond was for $50,000 and the “blanket bond” was'for the whole deposit of $86,549.70, it should be held liable only for such proportion of the total loss sustained as the penalty of its bond bears to the aggregate of both bonds, $136,459.70, or approximately 5/13 of $86,459.70. We cannot agree with this contention. The prior personal bond or “blanket bond” was executed nearly a year prior to the bond of appellant by the officers and directors, or some of them, of the bank. These same parties caused the bank to deposit collateral in a safe deposit box, under the joint control of the bank and the obligees, to the amount of $25,000, which, to that extent, reduced their personal responsibility. Later the bond in suit was executed, and this same collateral was by the bank, with the knowledge and consent of its officers and directors, together with $25,000 additional, turned over to appellant to indemnify it against loss, and still it insists that the two bonds should share the loss in such proportion. They are not on a parity. One is a paid surety and the other is not. The manifest intention was, just as the learned trial judge held, to indemnify the county to the extent of $50,000 against loss in the bank. It exacted and took from the bank bonds of the par value of $50,000 but of an actual value in excess of that amount. It being a paid surety, the terms of the bond, like an insurance contract, will be construed most strictly against it. K. C. S. R. R. Co. v. U. S. F. & G. Co., 174 Ark. 318, 295 S. W. 705. Under the facts and circumstances in this case, we are of the opinion that this holding accords, with the intention of the parties, and is not in conflict with a fair construction of the provisions of the bond.

Judgment affirmed.


text:
    Fort Smith v. United States Rubber Company.
    Opinion delivered November 2, 1931.

      George W. Dodd, for appellant.

      Hill, FitsJmgh & Brizsolara, for appellee.
   McHaney, J.

The appellee, Eureka Fire Hose Manufacturing Company, operates as a department of the United States Rubber Company and both -will hereafter be referred to as appellees. The city of Fort Smith operates under a commission form of government with a mayor, and two commissioners known and designated as commissioner No. 1 and commissioner No. 2, the mayor being in charge of the Department of Public Affairs and being the chief executive officer of the city, and commissioner No. 1 being in charge of the Department of Accounts and Finances and the Department of Health and Safety, the Fire Department being a part of the Depart-' ment of Public Safety. These will hereafter be referred to as appellants. Appellants were in need of 6,000 feet of fire hose and advertised for bids to be submitted December 22, 1924, for said quantity with the right to take a lesser amount. Appellees submitted the. lowest bid, $1.40 per foot, and on that date the parties entered into a written contract for the purchase and sale of '2,000 feet of two and one quarter inch, Paragon Brand, fire hose of certain specifications for a consideration of $2,800, payable one-half July, 19'25, and one-half July, 1926. On December 29, 1924, appellant, through commissioner No. 1, ordered an additional 1,000 feet of the same kind of hose and on the same terms as that of December 22, the written order reciting that, at a meeting of the city commission, he was instructed so to do. Again, on March 8, 1925, on account of a disastrous fire in Ft. Smith, which showed the necessity for additional hose, commissioner No. 1 ordered by telephone an additional 3,000 feet of the same kind of hose and on the same terms as the first order above mentioned, and on March 14, 1925, confirmed this order by letter, and, in addition to the telephone request, ordered 1,500 feet of one and one-half inch hose. In this letter it was stated that “This order is to be handled in the same manner as under date of December 2'2, 1924.” This completed the total amount of hose for which bids were asked as of December 22, and 1,500 feet of smaller hose in addition.'All these orders were promptly accepted and shipped by appellees to appellants who found the hose up to specifications and who accepted same, put it into immediate use, and is still using same, being practically all the hose appellants have. When pay day came, appellants neglected to pay, and appellees have been sending statements regularly ever since, requesting and demanding payment, but no part of the debt has been paid. The total amount is $9,'900, being $8,400 for the larger, and $1,500 for the smaller hose. This suit followed, being filed February 10, 1931. It was tried by consent before the court without a jury, and judgment was rendered against the city for the full amount sued for.

No contention is made by appellants as to the validity of the contract as to form of the first order for 2,000 feet of hose, dated December 22, nor is much contention made as to the second order of date December 29, although irregularly done, as it is conceded that the city may be estopped to question the validity thereof, so far as the formality required by law is concerned, as was held by this court in Natural Gas & Fuel Corporation v. Norphlet Gas & Water Co., 173 Ark. 174, 294 S. W. 52. The commission form of government act, act 13 of 1913, as amended, provides in § 10 that the mayor shall be the chief executive officer of the city and, inter alia, shall “sign all bonds, contracts, conveyances and other written obligations of the city.” It is contended that the third order confirmed under date of March 14, 19'25, is void and unenforcible, because the city commission took no action thereon, made no minute of it, and the order or contract was not signed by the mayor, was an oral contract and barred by the three year statute of limitations, to be hereafter discussed. We think the third contract not invalid on account of the informalities in its execution, and that the city is estopped in the same manner as on contract No. 2. Natural Gas & Fuel Corp. v. Norphlet Gas & Water Co., supra. The city also ratified the unauthorized act of its agents, if unauthorized, by accepting, keeping and using the fire hose, and it-would do violence to one’s sense of common honesty and fair dealing to hold that collection could not be enforced because of mere irregularities in making the contract or that the agent exceeded his authority in doing so. As said by this court in International Harvester Co. v. Searcy County, 136 Ark. 209, 206 S. W. 312: “The county could not retain the property which it might then legally purchase, continue to use it and defeat a recovery for the price thereof. This follows from the principles decided in Howard County v. Lambright, 72 Ark. 330, 80 S. W. 148, and Forrest City v. Orgill, 87 Ark. 389, 112 S. W. 891. In the latter case the city of Forrest City purchased machinery for water works, and the contract was void because not executed as required by § 5473 of Kirby’s Digest. The city, however, kept the machinery and continued to use it. The court held that, inasmuch as the contract was one within the power of the municipality to make, although it was made without authority, it could not retain the machinery, use it, and at the same time defeat a lien for the price thereof.” See also Ark. Valley Bank v. Kelley, 176 Ark. 387, 3 S. W. (2d) 53; Scott County v. Advance Rumley Thresher Co., 288 Fed. 739; Texarkana v. Friedell, 82 Ark. 531, 102 S. W. 374. “The theory of these cases,” says Judge Kenyon in the Scott County case, supra, “is that a corporation, such as a county or city, should not be permitted to stultify itself by accepting property for necessary use, use it for years until it is worn out, and then refuse to pay on the ground of a lack of authority to make the contract. A municipal corporation, which has enjoyed the fruits of a contract, fairly made, cannot, when called to account, deny the corporate power to make it.”

It is next sought to avoid payment on account of the provisions of what has been referred to in many of our decisions as Amendment Number 11 to our Constitution, but what in fact is Amendment Number 10. This amendment became effective December 7, 1924, 15 days prior to the execution of the first contract in this ■ case. Matheny v. Independence County, 169 Ark. 925, 277 S. W. 22. The pertinent parts of said amendment are as follows: ‘ The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis * * *; nor shall any city council, board of aldermen, board of public affairs or commissioners of any city of the first or second class, * * * enter into any contract or make any allowance for any purpose whatsoever, or authorize the issuance of any contract or warrants, scrip or other evidence of indebtedness in excess of the revenue for such city or town for the current fiscal year; nor shall any mayor, city clerk, or recorder, or any other officer or officers, however designated, of any city of the first or second class * * * sign or issue any scrip, warrant or other certificate of indebtedness, in excess of the revenue from all sources for the current fiscal year.” Then follows the bond issuing provision for debts existing at the time of the adoption of the amendment. As was said in Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002, with reference to counties (and the same applies to cities), this amendment was drawn and adopted with two purposes in view: “(1) to prevent them from incurring any indebtedness in any fiscal year in excess of the revenue from all sources for such year; and (2) to provide a way to pay indebtedness existing at the time of the adoption of the amendment.” The prohibition therein is against the making of contracts and allowances in any fiscal year in excess of the revenue from all sources for that year. Just what the fiscal year of the city of Fort Smith was in 1924 is not shown, but the enabling act of 1925 made it the same as the calendar year. Act No. ’210 of 1925, p. 611, § 7. The amendment does not prohibit the city from going in debt, but from going in debt in excess of the revenue from all sources for the fiscal year. It was prospective in operation and had no effect on indebtedness existing prior to its effective date. Shroll v. Newton County, 173 Ark. 1121, 295 S. W. 1, but did prohibit the incurring of indebtedness thereafter in excess of the revenue for the fiscal year. Since the city had no fiscal year at the time of the adoption of this amendment, December 7,1924, we think it reasonable to establish it from that date to December 7, 1925, and, if so, we find the revenue largely in excess of $200,000, whereas this debt was only $9,900. Or if we say the fiscal year was the calendar year, the same thing is true for the year 1925. Or if we say it comes under the 1924 fiscal year from January 1 to December 31 inclusive, it is not shown that the debts contracted during that year were of themselves in excess of the revenue of that year. True, taking into consideration the old debts, contracted prior to 1924, and the payments made thereon from revenue during that year, there was a deficit in the revenue; but that is not what the amendment prohibits. There has not been a year since this debt was incurred, no matter on what basis the fiscal year is fixed, that the revenue was not in excess of this debt. As said in Miller v. Woodruff County, 176 Ark. 889, 1 S. W. (2d) 998, with reference to the construction of this amendment as applied to counties: “A county, whether it issues bonds or not, cannot increase the amount of its existing indebtedness; but it is not an increase of indebtedness if a county, which cannot redeem all of its outstanding warrants, issues others which cannot be redeemed through the lack of funds, but which, when issued, are not in excess of the indebtedness outstanding at the end of the prior fiscal year. To illustrate: If a county has an outstanding indebtedness of $19,441, as Woodruff County had at the beginning of the fiscal year, it may, during that year, issue warrants which, while they cannot be redeemed, do not exceed the indebtedness existing at the beginning of that year. The amendment does not prohibit this. The prohibition of the amendment is. against increasing the amount of the indebtedness.” So here the contracts of the city for 1924 did not exceed the revenues of that year. This debt was to be paid one-half in 1925 and the balance in 1926, and was for the accommodation of the city. Being valid when contracted, the indebtedness may be paid out of the revenues of subsequent years. Polk County v. Mena Star Co., supra; Miller v. Woodruff County, supra.

Finally, it is argued that the order for hose in March, 1925, was an oral contract, made by telephone, and is barred by the three-year statute of limitations. We cannot agree with appellants in this contention. It is true the order was given over the telephone, but later it was confirmed in writing, was accepted by appellees in writing by shipping the hose and rendering invoice. This was a written contract. Moreover the record discloses several letters from appellants to appellees acknowledging the debt and tolling the statute.

We find no error, and the judgment is affirmed.


author: Butler, J.

text:
    Hill v. Zanone.
    Opinion delivered November 2, 1931.

      R. E. Wiley, for appellant.

      L. G. Auten and Carl E. Bailey, for appellee.
   Butler, J.

The question in this case involves the right of the executor to commissions for the administration of the estate of R. B. Oliver, and comes to this court on exceptions to the claim of the executor for credit on his final settlement for commissions, which exceptions were sustained by the trial court and the credit asked was denied.

The clause of the will upon which the trial court based its finding is as follows: “I * * * do hereby appoint as my executors to serve without bond and without pay my son-in-law, Dr. Joe Zanone, my partners, D. B. Hill and J. H. Oliver.’’ The persons named offered the will for probate and applied for letters testamentary. The will was admitted to probate and letters testamentary ordered issued, requiring however, (the desire of the testator notwithstanding) that the applicants for letters be required to give bond in the sum of $50,000 for the performance of their duties. Prom the statement made in appellant’s brief it appears that the probate court discovered that Dr. Zanone was a nonresident and eliminated his name from the petition by marking it out with a pen. Contemporaneously with the order appointing the executors, J. H. Oliver, one of the executors, filed his written resignation as such, and the court made an order accepting the same. D. B. Hill was the only- one of those named in the will as executors and appointed by the court who qualified and proceeded with the administration of the estate, satisfactorily accounting for a sum slightly in excess of $190,000.

At common law executors and administrators were not entitled to compensation for their personal trouble and loss of time in the discharge of their duties, and it is only ¡by the direction of the testator or where the will is silent, that compensation is allowed by virtue of the statute. In some States, where no provision for compensation is made by statute or in the will, the courts allow reasonable compensation, and in one jurisdiction (Maryland) it has 'been held that, since the statute allows commissions for the administration of an estate, the will cannot deprive the executor of that right; but in Woerner’s American Law of Administration (3d ed.), it is said: “The current of authorities, however, is that, if the testator has given a legacy in lieu of commissions or imposed upon his executors the condition that they should not have commissions, the court cannot defeat the provision of the will.” Volume 3, p. 1827-28. That rule has been adopted in this State.

“While there is some conflict in the authorities, the great weight of authority sustains the proposition that a testator can fix the compensation of his executor. * * * If the executor named.in the will is not willing to serve for the compensation fixed by the will, he is not required to serve, but may decline to do so.” Gordon v. Greening, 121 Ark. 617, 182 S. W. 272.

“In this connection, it may be stated that, when the trustee accepts the trust and qualifies and enters upon the discharge of his duties as such trustee, he accepts the trust upon the conditions named in it and is entitled to no other or greater compensation than the will allows.” James v. Echols, 183 Ark. 826-830, 39 S. W. (2d) 290.

It is the opinion of the majority that, although the court required bond against the express wish of the testator, and one of the executors named was disqualified and another resigned, Hill by undertaking to- administer the estate brought himself within that clause of the will requiring him to serve without compensation and therefore the rule announced in the above authorities applies to him, and the order denying him compensation was correctly made and must be upheld; that this is true notwithstanding the fact that the executor might have been advised that he would be entitled to. compensation or that his consent to act was induced by the solicitation of the beneficiaries under the will. Hill offered testimony to establish this state of facts, which testimony was refused by the trial court; but, as this evidence was immaterial, the court committed no error in refusing to permit its introduction.

It is the view of the Chiee Justice and of Mr. Justice Kirby, in which the writer concurs, that, because of conditions which1 arose not contemplated by the testator, and which are reflected by the record itself, the administration by Hill was equivalent to that of administrator with the will annexed; that the rule heretofore announced does not apply, and that the executor is entitled to a reasonable commission not exceeding that fixed by the statute.

The appellant suggests that the character of the transactions as reflected by the account and settlement shows that the executor is bound to have incurred expenses in the administration of the estate, and that, if we should conclude that he is not entitled to commissions, he asks that he be given an opportunity to show the amount of the expenses incurred and for such to be allowed and paid to him out of the estate. Appellee replies that this question was not raised in either the probate or circuit court. This is true, but it does not follow that the executor would not be entitled to his legitimate expenses in the administration of the estate, and may not 'yet file his claim therefor. Hilton v. Hilton (Ky.) 109 S. W. 905; Adamson v. Parker, 74 Ark. 168-172, 85 S. W. 239. In James v. Echols, supra, it is said: “It may also be stated for the future guidance of the court that the executor was entitled to. credit for personal expenses necessarily and reasonably incurred by him in transacting the business of the estate, but he must prove the particular items of expense and cannot claim the amount of a gross sum without a specification of particular items. He would be entitled only to traveling expenses bona fide incurred and such other expenses as must necessarily be incurred in the court and management of the estate. All expenses of this kind are regarded as expenses of administration.” Holland v. Doke, 135 Ark. 372, 205 S. W. 648; Scroggins v. Osborn Co., 181 Ark. 424, 26 S. W. (2d) 95. Therefore the executor may present his claim to the probate court for expenses incurred in the administration of the estate of the character and in the manner prescribed in James v. Echols, supra.

Affirmed.