text:
    Howe v. Hatley.
    4-2694
    Opinion delivered October 24, 1932.

      Arthur G. Frankel, A. P. Patton, W. M. Hall, A. J. Cole, N. A. McDaniel and Lamb .& Adams, for appellants.

      W. A. Jackson, W. J. Schoonover and Walter L. Pope, for appellee.
   McHaNey, J.

This litigation arose out of an automobile accident which occurred in the city of Benton in Saline County on March 20, 1931. Appellant Howe is a resident of that city, and is the owner of a truck driven by Ms employee, one Cabe, which collided with a car owned and driven by appellant Belford at the intersection of Main and Conway streets in said city. Belford is a citizen of Bandolph County.

Mrs. Hatley, the wife of appellee, an invited guest in appellant’s car, was instantly Mlled as a result of said collision. Appellee brought this action against both appellants, charging that their joint and concurrent negligence caused the death of his wife. Howe denied any negligence on the part of Cabe, pleaded contributory negligence of Mrs. Hatley and that the accident was caused by the negligence of appellant Belford.

Belford denied any concurrent negligence or any negligence on his part, alleged that the accident was caused wholly by the negligence of the driver of Howe’s truck, and filed a cross-complaint against Howe seeMng to recover damages for personal injuries sustained by him as a result of the wreck.

Trial resulted in a verdict and judgment against both appellants in the sum of $10,000.

The first assignment of error made by appellant Bel-ford, that the court committed reversible error in telling the jury, in effect, that there could be no recovery against Howe unless there was also a recovery against Belford, must be sustained. The court gave an instruction number 30 on its own motion reading as follows: “You are further instructed that under the law in this case you will have to find that both the driver of the truck, Fletcher Cabe, and the defendant Belford, were negligent before you could find a verdict in favor of the plaintiff, and if either one of them were not negligent, you should find for the defendants.” This instruction was objected to by appellant Belford only. It was an erroneous instruction and prejudicial to appellant Belford. While it is true that the complaint charged the joint and concurrent negligence of the drivers of both cars, under well-settled principles of law, there were three possibilities of recovery in the case: first, if both were negligent, there might he a recovery against both; second, if Belford was negligent and the driver of the Howe truck was not, a recovery could he had against Belford alone; and third, if the driver of the Howe truck were negligent and Belford was not, there could he a recovery against Howe only, provided he “failed to object before the judgment to its proceeding against him.” Section 1178, Crawford & Moses’ Dig’est. The judgment of the court recites that, “after the introduction of all the evidence in the case on-the part of the plaintiff and the defendant, F. E. Belford, the defendant J. E. Howe filed his motion objecting to the jurisdiction of this court, under § 1178 of Crawford & Moses’ Digest, which motion is by the court overruled, thereupon defendant excepted and asked that his exceptions be noted of record. ’ ’ The court correctly overruled this motion, as it had jurisdiction of both the subject-matter and the parties at that stage of. the proceeding. Had there been a verdict against Howe alone, he could have again objected to its proceeding against him at any time prior to the judgment. Stiewel v. Borman, 63 Ark. 30, 37 S. W. 404; Wood v. Stewart, 81 Ark. 41, 98 S. W. 711; Seelbinder v. Witherspoon, 124 Ark. 331, 187 S. W. 325.

Prior to giving instruction number 30, the court gave instruction number 16 at Howe’s request reading as follows: “Defendant Howe’s No. 1 — Given: You are .instructed, in so far as the defendant, J. E. Howe, is concerned, that the burden is on the plaintiff, J. R. Hatley, in this case to prove by a preponderance or greater weight of evidence that the accident resulting in the damages complained of was attributable to the negligence of Fletcher Cabe, who at the time of the alleged accident was driving the truck of the defendant Howe, and if he has failed to show this by a preponderance of the evidence, then you are told that it is your duty and you are instructed to return a verdict for the said defendant, J. E. Howe, in this action.” The court also gave at the request of appellant Howe instruction-number 17 which is along the same line as number 16 and relating solely to the liability of Howe.

• The court also gave its instructions number 21 and 26 at the request of appellant Belford, relating to his liability alone, which provided in substance that if he were not negligent they could not find against him. The latter part of 26 provides: “If you find that the defendant, Belford, acted as an ordinary prudent person would have acted under the same or similar circumstances, then your verdict would be for the defendant, F. E. Belford.” These individual instructions were entirely proper, but they are in irreconcilable conflict with instruction number 30, given by the court on its own motion. The court first tells the jury, in effect, they can find only against the defendant that is negligent. It then tells the jury that it has to find against both of them to find against either of them. It is said that this is not prejudicial because it is more favorable to appellant Belford than he is entitled to have given. We cannot agree with appellee in this regard. While it is a fact that one of the defendants was a non-resident and there could be no judgment against him over his objections unless there was also a judgment against his co-defendant who was a resident of the county, still it was not the duty of the court to so instruct the jury and was therefore prejudicial to the resident defendant. The evidence of negligence on the part of appellant Belford, if any at all, is very meager, and it might have been possible that the jury would not have returned any verdict against him at all if they had not been told that in order to find against Howe they must also find against Belford. It is also contended that Belford invited this error on the part of the court by requesting an instruction of similar import, which was given by the court as number 23. We cannot agree with this contention, however, as this instruction was in response to appellee’s theory of joint and concurrent negligence.

Other assignments of error are argued in the briefs of appellants, but, since the case must he reversed for the error indicated, we think it unnecessary to discuss them. Appellant Howe did not object to the erroneous instruction nor has he assigned any such error in his motion for a new trial. But, since there can be no judgment against him, over his timely objection, unless there is also a judgment against Belford, we reverse and remand the case for a new trial as to both appellants.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Rural Special School District No. 19 v. Special School District No. 37.
    4-2690
    Opinion delivered October 24, 1932.

      Wade Kitchens and W. H. Kitchens, Jr., for appellee.

      Marsh, McKay & Marlin and McKay i& Smith, for appellee.
   Butler, J.

The undisputed facts are as follows: Appellant school district hied a petition, under § 55 of act 169 of the Acts of 1931, signed by a majority of the qualified electors of the district, requesting that it be dissolved and the territory embraced therein annexed to appellee school district. In accordance with said § 55, the hoard of directors of appellee school district filed its written consent to the consolidation with the county hoard of education. Thereafter, and before the county board of education entered its final order, a number of the signers of the petition first mentioned filed a written demand that their names be stricken from the petition. With the names of the patrons stricken off as requested, there remained less than a majority of the qualified electors on the petition first filed.

There was a stipulation in the ag’reed statement of facts that “no notice was published in any newspaper published in Columbia County, Arkansas, which was filed by the county school superintendent, or otherwise, or by orders of the board of education giving notice as to the time and place that the board of education would hear and determine the petition, or that it was published once a week for two weeks.”

The county board refused to entertain the request of the electors that their names be stricken from the petition first filed and entered an order dissolving appellant' district and consolidating it with the appellee district as prayed in the first petition. On appeal to the circuit court, that order was upheld, and to review this action comes this appeal.

Section 55, supra, is as follows: “The county board of education may dissolve any school district and annex the territory thereof to any district, when petitioned to do so by a majority of the qualified electors of the district to be dissolved, and the board of directors of the district to which the territory is to be annexed. Provided further, that no district shall be attached to another district without the consent of the board of directors of the district to which the dissolved district is to be annexed.”

Section 48 of that act, which the appellant contends is the section regulating the procedure,- is as follows: “When a petition is filed for the formation of a new school district and the dissolution of other districts, or for the annexation of territory to any district, purporting to be signed by a majority of the qualified electors in each district affected, notice thereof shall be given by publication in a newspaper having bona fide circulation in the county, to be given by the county superintendent on order of the .county board of education, and published once a week for two weeks, giving the date of the hearing of such petition. At such' hearing the county board of education shall consider whether the petition is signed by the requisite number of electors, provided that, for the purpose of determining whether said petition contains a majority of the qualified electors of each district, a majority shall be determined as of the date said petition is considered by said county board of education, and if it finds that it is, it may grant the prayer of the petition if it deems it best for the interests of the inhabitants of the territory affected, provided that any elector signing said petition may have his name stricken from said petition, upon written demand, at any time prior to the final action of said county board upon said .petition. Appeals may be taken to the circuit'court from the findings of the board on the ground that the requisite number of electors have not signed the petition, or because the notices herein required were not given. The findings of the county board of education otherwise will be conclusive provided this section shall not apply to suits now pending or on appeal from the county board.”

It was and is the insistence of the appellee that § 55 is entirely independent and in no way connected with the procedure provided by § 48. It is a familiar rule of statutory construction that any section of a statute shall be interpreted in the light of the entire act. Act No. 169 was a comprehensive statute enacted for the purpose of providing for a complete system for the organization and administration of the public common schools. * Section 55 of that act authorized the county board of education to dissolve any school district and annex its territory to another district upon petition of the majority of the qualified electors of the district to be dissolved, with the consent of the board of directors of the district to which the dissolved district was to be annexed. Section 48 prescribes the procedure where a new district is sought to be established and a district is to be dissolved, or, where territory is sought to be annexed to any district, notice is required, and the manner in which it is to be given is provided for. Provision is made that any elector signing a petition for the purpose first mentioned in the section may have his name stricken from said petition upon written demand at any time prior to the final action of the board upon said petition. That section also provides “that appeals may be taken to the circuit court from the finding of the county board.” It gives the board the discretion to grant or withhold any order petitioned for named in the section, as it deems best for the interest of the inhabitants of the territory affected and prescribes that the question of a majority shall be determined as of the date said petition is considered by the board.

We are of the opinion that, when all of these provisions are considered, it is clear that the power of the county board is fixed by § 55 with respect to the dissolution of school districts and the annexation of territory to any other school district, and the procedure is given by § 48 preceding. Therefore, the notice provided by the last-named section was a prerequisite, and any petitioner was entitled to have his name stricken from the petition upon written demand made before the final action of the board. Since it appears that with the names deleted from the original petition there would be less than a majority and the notice was not given as required, the action of the board in granting the prayer of the petition first filed was, and is, void, and the trial court erred in not so finding.

The judgment is therefore reversed, and the cause remanded with directions to enter an order in conformity with this opinion.


text:
    Drainage District No. 7 v. Haverstick.
    4-2700
    Opinion delivered October 24, 1932.

      Chas. D. Frierson, for appellant.

      C. T. Carpenter, for appellee.
   Butler, J.

This is an action for damages to lands of the appellee occasioned by the construction of Drainage District No. 7 in Poinsett County. There was a verdict and judgment for the appellee in the trial court, from which judgment is this appeal.

Drainage District No. 7 was created for the purpose of reclaiming a large territory of swamp lands. The general description of the district may be fonnd in the cases of Sharp v. Drainage District No. 7, 164 Ark. 306, 261 S. W. 923; Keith v. Drainage District No. 7, 181 Ark. 30, 24 S. W. (2d) 875, and Hogge v. Drainage Dist. No. 7, 181 Ark. 564, 26 S. W. (2d) 887. In the course of the construction of the district, a floodway was dug and leveed leading from the drainage district to a point on the St. Francis River practically opposite the lands of the appellee in Crittenden County. The St. Francis River and Little River were closed by dams and levees so constructed that with these dams a large territory was inclosed, and the waters which were accustomed to drain down the St. Francis and Little Rivers were diverted from a natural flow, and, with a great amount of other waters from an area above draining into the rivers, were impounded and in times of high water flowed through the floodway with such violence and in such volume as to overflow the banks of the St. Francis River, flooding the lands of the appellee and destroying its value for agricultural purposes. From the point where the St. Francis River was dammed on the southern boundary of the district to the appellee’s land, following the meanderings of the stream, is an estimated distance of forty miles, while the floodway which leaves the district at a short point west of the dam is approximately nine or ten miles in length. The flow of the water is therefore greatly accelerated, resulting in a volume of water on appellee’s land in a given space of time much greater than that it received before the construction of the improvement, with the result that the lands were overflowed and their agricultural value destroyed.

Among the assignments of error is that the court erred in refusing to grant instructions Nos. 4 and 5 asked 'by the appellant. These instructions are as follows:

“No. 4. If you find from the evidence that the flow of water is accelerated through the floodway and the heigflt of the waters increased thereby at or near the lands of the plaintiff, but further find that said floodway, although it takes flood waters from the St. Francis River, puts the same back into the river at a lower point, then said drainage district is not liable for damage due to the floodway.”

“No. 5. If you find from the evidence that the flow of water is accelerated through the fl’oodway and the height of the waters increased thereby at or near the lands of plaintiff, but further find that said floodway, levees and dam or any one of them, if they divert water from the St. Francis River, put same back into the same river at a lower point and before it reached the land of plaintiff, then your verdict should be for the defendant.”

In support of the correctness of these requested instructions, appellant relies upon the case of Board of Drainage Commrs. v. Board, 130 Miss. 764, 95 So. 75, 28 A. L. R. 1250.

The case of Baird v. Drainage Dist. No. 7, 181 Ark. 1145, 26 S. W. (2d) 892, was a case almost identical with the instant case and involved the question of injury to the fractional northwest quarter of section 5-35-6. This land adjoins the lands of appellee, and the damage to it arose from the same causes as the damage to appellee’s lands. The facts in that case are not set out in the opinion nor a review of the cases upon which the drainage district relied, but its chief reliance was the principle announced in the Mississippi case, supra, from which extensive quotations were made. The court in that case adopted the view expressed in the case of Mizelle v. McGowan, 129 N. C. 93, 39 S. E. 729, 85 Am. St. Rep. 705, which announced the rule that the right to drain into a natural water course is not limited to the natural capacity of the stream. It was admitted, however, that the rule of the North Carolina court was against the weight of authority, and that the majority of the courts and the text-writers held that the right of the upper owner to drain into the water course is qualified to the extent that the flow must not he increased beyond the capacity of the stream. We think it unnecessary to announce our adherence to either of the conflicting rules, because, as we see it, neither is applicable to the facts of this record. The Mississippi case was a case where, as is said in the opinion, “the water is discharged at different points and in separate quantities, not by one person nor any one body, but by many landowners acting separately and independently in the exercise of their right to drain into the natural water course of the water-shed,” and in that state of case the court said: “It is true the appellees are entitled to the benefit of the rule that water should flow as it is wont to flow, but we think with this exception or qualification that it may be increased by a riparian owner who, in the reasonable exercise of his right of drainage, discharges into the stream in excess of its capacity.”

In the case at bar the drainage district concentrated the surface waters of a large territory and diverted them by dams and levees from their natural flow and through an artificial channel accelerated the flow of the surface waters of the Little and St. Francis rivers, discharging it in one body into the river further down at a point practically opposite the lands of the appellee. This, therefore, is not a case, as was the Mississippi case, where upper owners drain surface waters into the water course, but where such water courses were diverted and the waters draining into them not allowed to follow the natural flow of the streams.

The instructions refused were in effect peremptory instructions, as there is no dispute but that the waters diverted by the levees and dam into the floodway finally reached again the stream of the St. Francis River át a lower point. These instructions also ignore the diversion of the waters from their natural flow, which fact is undisputed and is the basis of the cause of action.

Complaint is also made of the court’s refusal to give instruction No. 9, as follows: “If you find tliat the defendant drainage district has not diverted the course of any stream hut has simply so drawn its levee lines and constructed its ditches as to protect as much land within the district as possible and that the damage, if any, to plaintiff results solely from the placing of levee lines and ditches in such way as to protect the lands of the district, then for such damage the plaintiff: cannot recover.”

It is insisted that whether there was an impounding and diversion is a matter of argument, since the engineer witnesses for the appellant maintained “that the structures constituted a placing of levee lines and ditches in a manner best adapted to the protection of the lands of the drainage district as a whole.” But, regardless of the opinion of these witnesses, the undisputed fact remains that the St. Francis and Little rivers were dammed and their waters diverted from a natural flow into the floodway, and thus precipitated in increased volume upon the lands of the appellee. There was therefore no question for the jury regarding the diversion of the course of any stream, and the requested instruction would have improperly submitted that issue to the jury.

The appellant requested the following instruction: “You are instructed that there was a mortgage upon the lands at the time of the bringing of the suit and also at the time of the damage complained of; and the mortgagee is not a party to the suit, and there can he no recovery for lack of complete title in plaintiff at the time of alleged injury, and your verdict will therefore be for' the defendant.” The appellee’s lands were mortgaged, and the appellant insists that the mortgagee was a proper party and should have been joined as a plaintiff; that it knew nothing about the title until appellee, himself, in his testimony disclosed the existence of a mortgage, and that the court erred in its refusal to grant the instruc-iion requested. Of course, at the beginning of this suit the appellant could- have discovered the existence of the mortgage and the condition of the title, had it made any investigation, and the lands being in Crittenden County would not constitute such an obstacle as would prevent an investigation of the title. The mortgagee, while a proper party, was not an indispensable one, and, by failing to raise that question by motion, demurrer or answer, it must be deemed to have waived same. Less v. English, 75 Ark. 288, 87 S. W. 447. The general demurrer interposed did not reach the defect of want of proper parties (Love v. Cahn, 93 Ark. 215, 124 S. W. 259) and the instruction raised the objection for the first time and was properly refused. Crawford & Moses’ Dig., §§ 1189, 1190.

Complaint is also made that no instruction detailing-defendant’s theory except on the amount of damages was given. A sufficient answer to this is that defendant ’s theory has been all along that its liability for damage falls within the rule announced in City Oil Works v. Helena Imp. Dist. No. 1, 149 Ark. 285, 232 S. W. 28, that where a landowner’s property is left outside of a levee he is entitled to no damages because of the failure to protect his land or because the levee as constructed may prevent water from flowing off of his land as it otherwise would or may deepen the water in an overflow of the land between the embankment and the river. In cases arising out of injuries occasioned by the construction of the appellant district we have repeatedly held that the principle contended for had no application because the damage in those cases and in the instant case was caused, not by the erection of levees to prevent streams from overflowing and for the purpose of confining waters within the bed of the stream, but because there was an obstruction of the flow of the waters in the stream and a diversion of them by dams and levees. Sharp v. Drainage Dist. No. 7; Keith v. Drainage Dist. No. 7; Hogge v. Drainage Dist. No. 7, supra.

We have discussed the assignments of error not as presented in appellant’s brief, bnt as we view them according to their importance, and we now come to a consideration of what appears to ns to be the main ground relied upon by the appellant for a reversal. Appellant contends that the complaint and evidence show that the suit is barred by the statute of limitation, and that the court should have directed a verdict for the appellant as requested in its instruction No. 1, and that, if it was not entitled to a directed verdict, it was entitled to have the question of limitation submitted to the jury by its request for instructions No. 10 (a) and No. 10 (b), which were to the effect that, if the jury should find that the damage complained of occurred more than one year before the institution of the suit, its verdict should he for the defendant.

In Hogge v. Drainage Dist. No. 7, supra, we held that on the question of limitation, § 3942 of Crawford & Moses’ Digest applies. This section is as follows: “All actions for the recovery of damages against any levee or drainage district for the appropriation of land, or the, construction or maintenance of either levees or drains, shall he instituted within one year after the construction of such levees or drains, and not thereafter; provided, that any person, persons, or corporations, who may have any existing claims against any levee or drainage district, suffered on account of appropriation of land, for the purpose of constructing either a levee, ditch, canal, or drain, or on account of the construction or maintenance of either a levee, ditch, canal or drain, shall bring their action within six months after the passage of this act, and not thereafter. ’ ’ The action in the case at bar must have been begun within one year after the construction of the district. The original complaint was filed on June 5, 1924, and it is insisted that the complaint on its face showed that the action was barred. The allegation depended upon is as follows:

“That the main waterway of defendant district was completed and opened into the St. Francis River early in the year 1923, and at and since that time snch vast amounts of water were, through said waterway, discharged into the St. Francis River; that said river has been caused to overflow its banks and to entirely submerge the lands of this plaintiff and to keep them submerged during the latter part of the winter season, all of the spring season and far up into the summer season of each year, preventing the raising of crops of any kind, except a few unprofitable late crops, rendering said lands unfit and worthless for agricultural purposes, or for any other purpose whatever, and resulting in a permanent damage to the lands of this plaintiff in the sum of the value of said lands, all said damage being caused by the construction of the improvements herein described.”

Several amendments to the original complaint were filed, the last one according to its recitals being filed in compliance with the ruling of the court, and, after reciting that several former amendments to the original complaints had been filed, it concludes paragraph I with the prayer that “this be treated as his complaint in chief containing all the allegations constituting his cause of action. ’ ’ This, therefore, was not only an amendment to the complaint, but a substituted complaint, and it was to this that the answer was filed. In this complaint the allegation in the original complaint quoted, supra, was omitted, and the complaint therefore contained no reference to the date on which the structures were completed, nor did the original complaint, except as to the main waterway of defendant district (the floodway). It will ■be observed that the point from which the statute begins to run is from the “construction of the improvement” and not from the date of the damage, so that, although the damage might have fully accrued in January, 1923, the one year statute of limitation would not begin to run from that date, but from the date of the construction of the improvement. We are of the opinion that the term nsed in the statute (Crawford & Moses’ Dig., § 3942) “after the construction of such levees or drains, and not thereafter,” means the completion or finishing of the levees or drains, and the statute would begin to run from the completion of the work. This interpretation is warranted by the cases cited by the appellant. In Board of Directors of St. Francis Lev. Dist. v. Barton, 92 Ark. 406, 123 S. W. 382, the statute was held to run from the date when the levee was finished at that point. In Davis v. Dunn, 157 Ark. 125, 247 S. W. 793, it was held that, where the injury is permanent and the structure is permanent, the statute of limitation begins to run from the time of the completion of the structure. In St. L. I. M. & S. R. Co. v. Morris, 35 Ark. 626, it was held that the statute began to run as soon as the company had finished its work about the embankment, trestles and ditches.

It therefore remains to be ascertained from the evidence in the instant case the .dates when some essential and substantial part of the work of the district remained uncompleted, and to which the injuries complained of might be referable. The testimony on this question is undisputed, and was elicited from the engineer witnesses of the appellant. The floodway was opened in January, 1923, the last 300 feet of which was excavated with dynamite, and it is not shown when the levees on the east side of the floodway were completed, but, as is shown by the plat which was introduced by both parties, the levees run on either side of the floodway to the St. Francis River and on the right bank of the same down to the appellee’s land in section 6, township 9, range 6, in Crittenden County. This floodway was but a part of the drainage district. Other essential portions of it were the levees inclosing the storage basin or reservoir and the dam across the St. Francis River. The uncontradicted evidence is that immediately upon the opening of the flood-way great damage resulted to the lands of the appellee, and that the levees on the western side of the storage ■basin and all tlie way down tlie west side of tbe floodway were finished in January, 1923, bnt that the dam was not pnt in the river nntil the winter of 1924 or the early part of 1925, and that the lock and dam was completed in January, 1925. This is in the testimony given by 0. M. Fairley, a member of the firm of Pride & Fairley, the engineers for the appellant district, and this testimony stands nncontradicted. The dam was an essential part of the structure. It was not completed until after the original complaint was filed, and therefore, according to the uncontradicted testimony, the appellant district had not been completed within a year before the filing of the complaint, and the court correctly overruled the demurrer to the complaint and refused to submit the question of limitation'to the jury.

There remains to be considered the question as to the excessiveness of the verdict which was $20,000. The damages awarded are large, but we cannot say that they are excessive. The uncontradicted testimony is to the effect that the lands of appellee were very fertile, producing from three-fourths to a bale and a half of cotton per acre according to the season and sixty bushels of corn per acre; that the lands in the tract, exclusive of waste land, amounted to 565 acres, ten acres of which was cleared when purchased by the appellee; that the purchase price for the property, exclusive of the waste land, was between twenty-three and twenty-four dollars per acre, of which sum appellee paid $5,000 in cash and from his earnings and money borrowed he spent $20,875 in clearing, fencing and otherwise improving the property. At the beginning of the year 1923 he had subdued and improved 255 acres, which made 265 acres including the ten in cultivation when he bought it. Of the 300 remaining acres half was deadened preparatory to cultivation. The lowest estimate of value placed by any of the witnesses for this property was $100 an acre for the land in cultivation and $35 an acre for the remainder. A majority of the witnesses placed the value of the cultivated land at $125 an acre. Six witnesses, including the appellee, testified as to the value of the lands. One did not testify as to the value of the uncultivated land, but two of five witnesses placed the value of the uncultivated land at $50 per acre, two at $40 per acre, and one at from $35 to $40 an acre. This testimony was not contradicted. So, while the verdict is large, it is supported not only by substantial testimony but by all the evidence. The testimony also is undisputed that this land had this value for agricultural purposes, and that this was the sole purpose to which it was adapted and that the value had been completely destroyed. It follows from the views we have expressed that the judgment of the trial court is correct, and it is therefore affirmed.

Smith, J., dissents.


author: Smith, J.

text:
    Morrow v. Strait.
    4-2845
    Opinion delivered October 31, 1932.

      Williams & Williams, for appellant.

      W. P. Strait, for appellee.
   Smith, J.

Appellant Morrow and appellee Strait were opposing candidates for the nomination of the Democratic party for the office of Prosecuting Attorney in the Fifth Judicial Circuit in the State-wide primary election held August 9, 1932. This circuit is composed of four counties, and the vote of each, as certified after a canvass thereof by the respective central committees, was as “follows: Pi £ o o o te u o o a CD

For appellant Morrow:

Conway County. CM CO iO

Pope County. lO H CO r — (

Yell County . b— CO 00

Johnson County... Oi O o CM

Total ... 5293

For appellee Strait:

Conway County.3016

Pope County .2373

Yell County.2349

Johnson County . 519

Total ... 8257

Majority for appellee... 2964

Appellant brought suit in the Johnson Circuit Court to contest the nomination of his opponent, and has challenged the vote cast in both Pope and Conway counties.

Certain grounds of contest are alleged in the complaint which are not abstracted in the brief, but the grounds relied upon and abstracted by contestant are: (a) That persons were permitted to vote whose poll tax was paid later than the last Saturday before the first Monday in July, 1932; and (b) “Because there was no certified authenticated sworn list of qualified electors filed with the clerk of Conway County (and also Pope County) by the collector, as provided by law, and that the purported list was not filed by the collector with the clerk within the time provided by law, and that no legal election was held in said Conway County (nor Pope County), Arkansas.”

The court overruled a motion to dismiss the complaint, which motion was filed upon the ground that the supporting affidavit required by § 3772, Crawford & Moses’ Digest, was made only by citizens of Johnson County, where the suit was filed, whereas the elections complained of were held in Conway and Pope counties. It was also insisted, as ground to dismiss the suit, that it should have been brought in the Pulaski Circuit Court, and that no other court had jurisdiction.

Section 3772, Crawford & Moses’ Digest, reads as follows: “A right of action is hereby conferred on any candidate to contest the certification of nomination or the certification of vote as made by the county central committee. The action shall be brought in the circuit court. If for the office of representative or a county or township office, in the circuit court of the county; and if for a circuit or district office, within any county in the circuit or district wherein any of the wrongful acts occurred ; and if for United States senator or a State office, in the Pulaski Circuit Court. The complaint shall be supported by the affidavit of at least ten reputable citizens, and shall be filed within ten days of the certification complained of, if the complaint is against the certification in one county, and within twenty days if against the certification in more than one county. The complaint shall be answered within ten days.”

The office of prosecuting attorney is a State office. Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380; Speer v. Wood, 128 Ark. 186, 193 S. W. 785; Dobbs v. Holland, 140 Ark. 405, 215 S. W. 709, 742. See also Cotham v. Coffman, 111 Ark. 108, 163 S. W. 1183. But the prosecuting attorney is not a State officer within the meaning of § 3772, Crawford & Moses’ Digest, supra. The prosecuting attorney is a State officer whose functions are performed in a subdivision of the State, whereas the State officer to which the statute quoted refers is one elected by the people of the entire State, and not in some political subdivision thereof.

The case of Lanier v. Norfleet, 156 Ark. 216, 245 S. W. 498, involved a contest over the nomination for State senator, a State officer elected by a particular subdivision of the State. We there entertained jurisdiction of a contest for the nomination for this office in a county other than Pulaski.

We are of the opinion also that the supporting affidavit made by citizens of Johnson County alone suffices to meet the requirements of § 3772, Crawford & Moses’ Digest. These affiants are citizens of the judicial circuit within which the election was held, and the statute does not require residence in the ward, or city, or county the vote of which is challenged.

We are of the opinion also that the Pulaski Circuit Court had no jurisdiction over this contest, but that the suit was one which could have been brought in any county within that circuit, and was properly brought in Johnson County, one of the counties comprising the Fifth Judicial Circuit.

We are of the opinion therefore that the motion to dismiss was properly overruled.

After the motion to dismiss had been overruled, s demurrer to the complaint was filed and sustained, and, the contestant declining to plead further, the cause was dismissed, and this appeal is from that order.

The demurrer raised the two questions first stated, and these we proceed to discuss.

The first is, whether persons whose poll taxes were not paid prior to the first Monday in July, but which were paid on or before the third Monday of that month, had paid within the time required by law to become eligible to vote in the ensuing August primary election.

Section 3741, Crawford & Moses’ Digest, provides that “The ‘time for collecting taxes,’ as this term is employed in the Constitution in connection with the payment of poll taxes, is hereby defined to be the period between the first Monday in January and the Saturday next preceding the first Monday in July, on which last-named date the collector is required by law to make his final settlement with the county court. ’ ’

Another section of Crawford & Moses’ Digest — ■§ 3740 — provides that on the first Monday in July of each year the collector shall file with the county clerk a list of the names of all persons who had paid poll taxes. In other words, poll taxes might be paid up to and on the Saturday preceding the first Monday in July, and on the first Monday the collector was required to file a list of the persons who had so paid, thns imposing- a very difficult, if not impossible, task.

Under this state of the law, the General Assembly, at its 1931 session, passed act 152, Acts 1931, page 406, which was entitled: “An act to amend § 3740 of Crawford & Moses ’ Digest, extending the time from the 1st to the 3d Monday in July, in which time the collector shall file with the county clerk a list of names of persons paying poll tax,, and the time from the 1st day of July to the 1st day of August for the county clerk to- record same. ’ ’

The title to this act indicates an intention to extend the time, not for paying taxes, hut for certifying the list of those who had paid. But the body of the act does not conform to that expression of the legislative intent. This act reads in part as follows: “Section 3740. On the third Monday in July of each year the collector shall file with the county clerk a list containing the correct names, alphabetically arranged (according to political or voting townships, and according to color) of all persons who have up to and including that date paid the poll tax assessed against them respectively. * * *”

The law is that the title of an act is not controlling-in its construction, although the title may be considered in determining its meaning when the meaning is otherwise in doubt. The language of the act of 1931, above quoted, is too plain to require reference to its title as an aid to its interpretation. Westbrook v. McDonald, 184 Ark. 746, 43 S. W. (2d) 356, 44 S. W. (2d) 331.

The language of the act of 1931, above quoted, says so plainly — that we cannot hold otherwise — that the collector’s certificate shall include the names of all persons “who have up to and including that date paid the poll tax assessed against them respectively.” The date referred to is, of course, the third Monday in July, this being the only date to which reference is made.

This construction of the act, which we think its unambiguous language requires, renders it in conflict with the portion of § 3741, Crawford & Moses’ Digest, herein-above quoted, and possibly also of certain other sections of the ■statute, but, even so, we must give effect to the last expression of the legislative will, and the prior laws must he conformed to harmonize with that expression. This rule of statutory construction is so well settled that no citation of authority is necessary.

It may he said, in this connection, that act 152 of the Acts of 1931 contains no reference to the time within which persons may assess for taxes, so the law in that respect remains unchanged. It was held in the case of Cain v. CarlLee, 168 Ark. 64, 269 S. W. 57, that a poll tax receipt did not qualify one to vote who had not been assessed as required hy law.

Section 3738, Crawford & Moses’ Digest, makes provision for the assessment of omitted names, hut one must he assessed in the manner required by law before the collector is authorized to issue him a poll tax receipt which entitles the taxpayer to vote. The collector could not therefore issue a poll tax receipt which would qualify one to vote who had not been assessed prior to the Saturday preceding the first Monday in July, as no provision was made for extending the time for assessing, the only provision being for the payment of taxes by persons already assessed.

The court was correct therefore in holding that the allegation in the complaint, that a voter had not paid his poll tax prior to the third Monday in July, did not state a fact rendering the taxpayer ineligible to vote, and was therefore demurrable on that count.

The court was also correct in its holding in regard to the allegation as to the failure of the collector to file an authenticated list of the voters in both Conway and Pope counties, as required by § 3740, Crawford & Moses’ Digest.

The official returns of the election are prima facie correct, and the burden of showing that they are not correct rests upon the person who alleges that fact. Tucker v. Meroney, 182 Ark. 681, 32 S. W. (2d) 631.

The official list of voters, which § 3740, Crawford & Moses ’ Digest, as amended by the act of 1931, supra, requires the collector and county clerk to prepare, is not evidence of an elector’s right to vote unless the list has been authenticated by the affidavit of the collector in person. The list of voters which the county clerk is required by § 3740, Crawford & Moses’ Digest, to have printed can be made only from a list verified by the affidavit of the collector and thereafter filed with the county clerk. But it must be first authenticated by the affidavit of the collector, and the county clerk has no authority to copy the printed list unless and until it is so authenticated. Cain v. McGregor, 182 Ark. 633, 32 S. W. (2d) 319.

Therefore, any list of voters, not based upon an authenticated list filed with the county clerk by the collector, furnishes no evidence of the.possession of a poll tax receipt, although the list has been certified by the clerk. Brown v. Nisler, 179 Ark. 178, 15 S. W. (2d) 314.

Recognizing the power of a careless or corrupt collector to cause great confusion and to disfranchise electors in cases of contests, it was said, in the case of Cain v. CarlLee, supra, that “The whole proceeding is statutory, and the statute must be substantially followed in all proceedings, even to the trial of the contest provided by the statute. There is a presumption that the election was conducted according to law, and that the candidate legally entitled thereto received a certificate of election, and the presumption cannot be overcome by mere charges of fraud or illegalities in the conduct of the election. If the Legislature thinks that the collectors are not performing the duties required of them by statute in the premises in addition to the remedy by mandamus which uow exists, it might by appropriate penalties amend the statute so as to punish the offender, even to the extent of removing him from office if he failed to comply with the statute. ’ ’

But we have never held, on the one hand, that an election was illegal and void where the collector had not filed with the county clerk an authenticated list of the names of the persons who had paid their poll tax. Nor have we held, on the other hand, that there could he no contest of an election where the authenticated list had not been filed by the collector. We held to the contrary in the case of Darmer v. White, 182 Ark. 638, 32 S. W. (2d) 625.

Section 3777, Crawford & Moses’ Digest, makes provision whereby qualified electors may vote, although their names do not appear on the list of voters prepared and published pursuant to § 3740, Crawford & Moses’ Digest.

In the case of Tucker v. Meroney, supra, the facts were that the collector had not filed with the county clerk a list of poll taxpayers duly authenticated by his affidavit as required by § 3740, Crawford & Moses’ Digest. The record in that case also showed that 36 votes were casi in the manner provided by § 3777, Crawford & Moses’ Digest, of which number the contestant had received 26. Upon this state of the record, the contestant contended that he was entitled to be certified as the nominee, but, in overruling that contention, it was there said: “These returns may be impeached by any competent evidence showing that they are not true. In Brown v. Nisler, 179 Ark. 178, 15 S. W. (2d) 314, it was held that the requirement of § 3777 of Crawford & Moses’ Digest that no person offering to vote-in a primary election shall be allowed to vote unless his name appears in the printed list of poll tax payers, required by § 3740, or unless he exhibits a poll tax receipt, or establishes that he has attained his majority since the last assessing time, is mandatory, and that its provisions must be substantially complied with. Bearing in mind that the official returns are quasi records and stand with all the force of presumptive regularity as held in the cases cited above until overcome by competent evidence, it will be readily seen that the contestant has not made out his case. All the ballots cast by the voters and returned by the proper officers are presumptively legal, and their verity is not impeached by showing that contestant received a majority of the votes cast by persons who had become of age since the last assessing time. In order to succeed, lie must prove that he received a majority of all the legal ballots cast at the election. ’ ’

The complaint does not therefore state facts sufficient, even when considered upon demurrer, to throw the entire vote of Pope and Conway counties into the discard. Electors may have been eligible whose names were not included in the list provided for by § 3740, Crawford & Moses’ Digest.

We therefore conclude that the complaint did not state a cause of action, and the demurrer was therefore properly sustained, and the judgment of the court below is affirmed.


author: Kjrby, J.,

text:
    Connelley v. Vester.
    4-2857
    Opinion delivered October 31, 1932.

      Rhyne & Shaw and Cochran & Arnett, for appellant.

      W. L. Kincannon, B. F. Donathan and Q. Ll Grant, for appellee.
   Kjrby, J.,

(after stating the facts). Appellants insist that they appeal only from the judgment of the circuit court overruling their demurrers, and denying their motions to dismiss the complaints because of the lack of jurisdiction of the court to hear and determine the contests, since it was shown no legal list of the qualified electors had been furnished the officials for use in holding the primary election as the law required, nor had any special list of the voters been made by the judges and clerks of those voting whose names did not appear upon a legal list of voters.

The court erroneously held that the printed list furnished the officials holding the primary election was a substantial compliance with the law relating thereto, but, if no official list had been furnished, or even if no list had been furnished at all for use by the officials in the conduct of the election, it would not have invalidated such election, otherwise regularly held, nor destroyed the jurisdiction of the court to hear and determine contests arising out of such election. Morrow v. Strait, ante p. 384.

The court’s latest pronouncement on the subject appears in Morrow v. Strait, supra, wherein it is held that the official returns of the election are prima facie correct, are quasi records standing with all the force of presumptive regularity until overcome by competent evidence, and the burden of showing that they are not correct rests upon the person who alleges that fact, as was held in Tucker v. Meroney, 182 Ark. 681, 32 S. W. (2d) 631.

In Morrow v. Strait, supra, it was further said:

“The official list of voters, which § 3740, Crawford & Moses’ Digest, as amended by the act of 1921, supra, requires the collector and county clerk to prepare, is not evidence of an elector’s right to vote unless the list has been authenticated by the affidavit of the collector in person. The list of voters which the county clerk is required by § 3740, Crawford & Moses ’ Digest, to have printed can be made only from a list verified by the affidavit of the collector and thereafter filed with the county clerk. But it must be first authenticated by the affidavit of the collector, and the county clerk has no authority to copy the printed list unless and until it is so authenticated. Cain v. McGregor, 182 Ark. 633, 32 S. W. (2d) 319.

“Therefore any list of voters, not based upon an authenticated list filed with the county clerk by the collector, furnishes no evidence of the possession of a poll tax receipt, although the list has been certified by the clerk. ’ ’

The court did not err in overruling the motion to dismiss the complaint, and, since the official returns of the election are quasi records and stand with all the force of presumptive regularity until overcome by competent evidence, all the ballots cast by the voters and returned by the proper officials are presumptively regular, in order to succeed, the contestant must prove that he received a majority of all the legal ballots cast at the election, and the court’s action in declaring the appellee regularly noruinated is not here for review, not being appealed from.

The judgment is accordingly affirméd.


author: Humphreys, J.

text:
    McMahen v. Missouri Pacific Railroad Company.
    4-2698
    Opinion delivered October 31, 1932.

      Crumpton <& Crumpton and Jones & Jones, for appellant.

      R. E. Wiley and Henry Bonham, for appellee.
   Humphreys, J.

The sole question presented on this appeal is whether the trial court erred in instructing a verdict for appellee upon the ground that appellant had not established by any substantial testimony that he was engaged in interstate commerce at the time he claimed he was injured. By so instructing the jury, the trial court eliminated all issues joined on liability, assumed risk, contributory negligence, etc., holding that the Miller County Circuit Court had no jurisdiction to try and determine the cause under the Federal Employers’ Liability Act, upon which act appellant sought to recover.

The testimony, viewed in its most favorable light to appellant, showed that he received the injury complained of while engaged in inspecting and repairing a switch engine, numbered 516, constantly theretofore used, and was thereafter to be used, indiscriminately in making and breaking up trains and in placing cars employed in interstate and intrastate commerce in the yard owned by ap-pellee; that said engine was removed into the roundhouse situated in the yard for the federal monthly routine inspection, and for such repairs as the inspection might disclose to he necessary under order of the United States Government: that the engine needed only the removal of the main throttle and draw-bar for inspection and the tightening of nuts, binders, etc., and the packing of valves, which would require about a day to do after beginning the inspection; that the engine was in the roundhouse three days altogether, and was returned to the switch yard for its accustomed use after being inspected and repaired; that a report of the inspection and repairs made was mailed to the Interstate Commerce Commission; that the injury complained of was received while the engine was being inspected and repaired.

We do not think driving the engine out of the yard into the roundhouse for its federal monthly routine inspection and for necessary repairs disclosed by said inspection, which were of a minor nature, under order of the United States Government, changed its character as an interstate instrumentality, especially in the light of the fact that it was to be and was returned to its accustomed use as soon as inspected and repaired.

It was not a road engine removed from an interstate haul indefinitely or for any considerable length of time for repairs, nor was it a disabled, broken-down engine which was to all intents and purposes out of commission.

The facts stated above differentiate the instant case from the cases of Minneapolis & St. Louis Railroad Company v. Winters, 242 U. S. 253, 37 S. Ct. 170, and Hines, Director General, v. Industrial Accident Commission, 184 Cal. 1, 192 Pac. 859, 14 A. L. R. 720, relied upon by ap-pellee for an affirmance of the judgment.

The judgment of dismissal is reversed, and the cause is remanded for a new trial of the case upon its merits under the Federal Employers’ Liability Act.


author: Mehaffy, J.

text:
    Missouri Pacific Railroad Company v. Davis.
    4-2664
    Opinion delivered October 31, 1932.

      R. E. Wiley and Henry Bonham, for appellant.

      J. H. Lookadoo, for appellee.
   Mehaffy, J.

This action was begun by appellees who alleged in their complaint that they were the owners of a home, consisting of two lots with residence thereon, in G-urdon, Arkansas, and that they were occupying this as their home. The property is near the railroad tracks, switch yards and roundhouse of appellant. In 1927-1928 appellant constructed and equipped a coal chute, it being so constructed that it could serve four different engines at the same time. It was equipped with a carrier to carry coal about 80 feet in height and in operating it made great noise and carrying the coal to such height causéd a continuous sifting of coal dust in the air which settled upon appellee’s property and other adjacent property. It was alleged that the coal dust damaged appellees’ property, including their furniture and other parts of their home. That said coal chute constituted a continuous nuisance to the peace, comfort and enjoyment of the occupants of said property; that the peace and comfort of appellees ’ family was continuously disturbed and interfered with by employees of appellant carelessly and negligently operating appellant’s trains in the switch yard and roundhouse, causing loud, continuous and prolonged whistling and noises which were not proper or necessary to the operation of the trains; that the operation and handling of the coal chute constituted a continuous nuisance and appellees asked that it be abated. They also asked judgment against the appellant for the sum of $3,000 damages to their property. The complaint was -filed on July 30, 1931.

Appellant filed answer denying all the material allegations. of plaintiffs’ complaint, and alleging that the coal chute was completed and in operation more than three years before the suit was filed; that, if appellees’ property was damaged by the erection and operation of the coal chute, the damage was an original damage inflicted upon the property by the erection of the coal chute; that the coal chute is a permanent structure and had been in continuous operation since completed; that it was a necessary instrumentality for the use of appel-' lant in the operation of its business as a common carrier; that, if any cause of action accrued for damages to the property occupied by appellees, it accrued more than three years before the suit was filed, and that the cause of action is barred by the statute of limitations. It was further alleged in the answer that appellees acquired the property on March 30, 1931, several years after the coal chute had been constructed and completed and placed in operation; that the damage, if any, occurred long before appellees acquired the property.

The evidence showed that the property was located about two hundred feet from the coal chute; that it had been damaged by the operation of the coal chute since appellees purchased the property; that when the coal is dumped, it caused a great deal of dust to rise, and, if the wind is blowing in the direction of the property, most of it goes on the property. The coal is elevated about 80 feet by an electric motor. When the engines are run under the coal chute, they drop the coal down through a space of several feet and when it hits the tender the engine can hardly he seen and the coal dust drifts over and settles in the house and on the furniture. Appel-lees’ evidence further showed that the engines made unnecessary noise; they would stand there and pop off and make loud blasts; they were always bumping cars around; the bumping can be heard a half mile. Some nights occupants of the house do not get an hour’s rest. Appellee testified that when he bought the property it appeared to be all right. Appellee did not know about the cinders and dust at the time he bought the property. Appellee estimated the difference between the value of his property before it was damaged and afterwards at between $2,500 and $3,000. The undisputed evidence shows that the coal chute was completed and the first test made May 29, 1928, and that it has been in constant use since that date. It therefore appears from the evidence that the suit was not brought within three years after the completion of the coal chute. The jury returned a verdict against the appellant for $750, and the case is here on appeal.

The appellees did not allege in their complaint that there was any negligence either in the construction or operation of the coal chute. If it had been negligently constructed or negligently operated and such negligence caused injury to appellees’ property, they would be entitled to recover, no matter when the coal chute was erected, but the structure is such that damage would necessarily result and also the certainty, nature and extent of the damage could be reasonably estimated and ascertained, and the damage was therefore original. In such cases there can be but a single recovery, and the statute of limitations against such cause of action is set in motion upon the completion of the obstruction.

We said in a recent case, speaking of a permanent structure: “If it is of such a construction as that damage must necessarily result, and the certainty, nature and extent of this damage may be reasonably established and ascertained at tbe time of its construction, then the damage is original, and there can be but a single recovery, and the statute of limitations against such cause of action is set in motion upon the completion of the obstruction. If it is known merely that damage is probable, or that, even though some damage is certain, the nature and extent of that damage cannot be reasonably known and fairly estimated, but would be only speculative and 'conjectural, then the statute of limitations is not set in motion until the injury occurs, and there may be as many successive recoveries as there are injuries.” Brown v. Ark. Central Power Co., 174 Ark. 177, 294 S. W. 709. C. R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S. W. 127.

There can be no question but that the construction of this coal chute was a permanent structure and that it was apparent as soon as it began to be operated that the damage appellee complained of would occur.

Appellee, however, testified that, soon after he bought the property, he talked with the claim agent of appellant about the damage to his property, and the claim agent told him that he would get a settlement without suit; that the claim agent asked him not to file suit, and that he would get a settlement without it, and that was the reason he did not file suit sooner. Even if the statement alleged to have been made by the claim agent could be said to amount to a promise to pay and that this was the reason of the delay in bringing the suit, it is not shown by appellees that it was made before the action was barred.

“A debtor has frequently been held to be estopped from relying on the statute as a defense where, by acts of a fraudulent character, he has misled the creditor and induced him to refrain from bringing suit within the statutory period. And if a defendant intentionally or negligently misleads a plaintiff by his misrepresentations and canses Mm to delay suing until the statutory bar has fallen, the defendant will be estopped from pleading the statute of limitations. And the prevailing view seems to be that the doctrine of estoppel applied where the creditor before the debt is barred is lulled into security by the oral promises of the debtor that he will not avail himself of the statute of limitations, and suit is delayed by reason thereof.” Baker-Matthews Mfg. Co. v. Grayling Lbr. Co., 134 Ark. 351, 203 S. W. 1021; Goldsmith v. First National Bank of Ashdown, 169 Ark. 1162, 278 S. W. 22; 17 R. C. L. 884.

It appears therefore that the promise by the debtor must be made before the action is barred by the statute of limitations. When a debtor is misled by the creditor before the claim is barred, and the creditor relies on the promises of the debtor, and because of said promises does not bring suit until the claim is barred by the statute, then the debtor is estopped from pleading the statute. The facts however in the present case do not show that the promises and statements of the claim agent were made before the action was barred. In fact, it is pretty clear from the evidence that it was made afterwards. The claim would have been barred in three years after May 29, 1928, and two or three other persons claiming damages because of the construction and operation of the coal chute made statements as to their claims. These statements were all made on June 8,1931. This of course was after the cause of action was barred. If the claim agent saw appellee at the same time he saw the other persons who had claims, it was after his cause of action was barred. As the appellees did not allege negligence either in the construction or operation of the coal chute, their cause of action was barred when suit was begun.

It is contended by appellant that appellees could not maintain an action having purchased the property after the erection of the coal chute. They could not recover for any damage which occurred prior to the time they purchased it, but, if they' had brought their suit within the'time allowed by statute, they would have been entitled to recover for the damage done after they purchased it.

Appellant calls attention to several authorities to sustain its contention, but all these authorities hold that the purchaser cannot recover damages for injuries occurring prior- to his purchase, but he can recover for injuries which occurred after his purchase. 29 Cyc. 1258; 48 C. J. 737.

The appellees did allege in their complaint that the appellant negligently and carelessly operated its engines, and that they were disturbed and damaged thereby. We do not think the evidence is sufficient to show liability against the appellant in this respect. Of course, if the appellant operated its coal chute negligently or in any other way negligently caused damage to appellees, it would be liable. The appellees offered some evidence that the appellant should have used a spray, but there was no allegation of negligence in the complaint.

Having reached the conclusion that appellees’ cause of action is barred by the statute of limitations, the judgment is reversed, and the cause dismissed.

McHaNey and Butler, JJ., concur.


author: Meecaeey, J.

text:
    Gregory v. Consolidated Utilities, Inc.
    4-2710
    Opinion delivered October 31, 1932.

      Baker & Gautney, for appellant.

      Wilson, Kyser, Armstrong & Allen and Coleman & Riddick, for appellee.
   Meecaeey, J.

The appellant, H. M. Gregory, owned or controlled all of the shares of the capital stock of the Gregory Bns Lines, a Tennessee corporation. The bus line at the time of the contract between Gregory and others owed debts amounting approximately to $150,000. On May 1, 1928, O. P. Garnett asked Gregory if he would sell all the stock of the Gregory Bus Lines and at what price. Gregory agreed to sell for $400,000, and thereafter wrote the following letter:

“Memphis, Tennessee, May 8, 1928.

“Mr. O. P. Garnett, Memphis, Tennessee.

“Dear Sir:

“Confirming our conversation of today:

“I will undertake to procure and deliver to you"all the stock of the Gregory Bus Line for the sum of $300,000.

“I will guarantee the debts of the company not to exceed $100,000.

“This sale is to be consummated on the following basis:

“It is understood that I am to have as my own property cash on hand, notes receivable, and accounts receivable, as of date of transfer.

“If you organize a company to take over the Gregory Bus Lines, with a bond issue, preferred stock, or Class A stock issue, not to exceed $500,000 with a guaranteed dividend of 6 per cent., I will invest of this purchase money the sum of $100,000 in such stock; or if you should desire to increase that stock so as to have sufficient funds to purchase the Smith Bus Lines, Oliver Brothers Bus Company and the Schofield Bus Company, I will still be willing to invest $100,000 provided the bond issue of preferred stock issue should not exceed $800,000.

“Of the purchase price, there shall be paid $35,000 in cash; and the balance at any time within ninety days, provided that the debts of the company be liquidated by you as they become due.

“This proposition holds good until noon, May 14, 1928. “Yours truly,

“H. M. Gregory.”

After receiving this letter, Garnett undertook to raise the $35,000, which was to be paid cash and secured the subscription of $32,275. Wils Davis thereafter agreed to subscribe $6,000, making a total subscription of $38,-275. Checks for the subscription were delivered to Gar-nett. There was thereafter some correspondence between Garnett and Gregory, and Garnett and his associates organized in Arkansas a corporation, the Consolidated Utilities, Inc. Thereafter, on May 19, 1928, the parties prepared and executed a contract which is as follows:

“This contract, made this 19th day of May, 1928, by H. M. Gregory for himself and as trustee for the use and benefit of himself and all other stockholders of the Gregory Bus Lines, a corporation, hereinafter called the seller, and Consolidated Utilities, Inc., a corporation organized and existing under the laws of the State of Arkansas, hereinafter called the buyer, witnesseth as follows: '

“1. H. M. Gregory agrees to sell and transfer to the Consolidated Utilities, Inc., all the stock of the Gregory Bus Lines for $300,000.

“2. The stock was to be placed in the hands of W. W. Hughes, trust officer of the Union & Planters ’ Bank & Trust Company of Memphis, to be held by him as security for the payment of the purchase price.

“3. Gregory guaranteed that the debts of the Gregory Bus Lines did not exceed $100,000.

“4. The Consolidated Utilities, Inc., agrees to pay the debts of the Gregory Bns Lines np to $100,000.

“5. The consideration for the stock was to be paid as follows: $35,000 in cash; $165,000 on November 19, 1928, to be evidenced by a note of the Consolidated Utilities, Inc., to Gregory for that amount; and the remainder, $100,000, was to be paid in the capital stock of the Consolidated Utilities, 7,500 shares of Class A and 3,750 shares of Class B stock.

“6. Until the note for $165,000 was paid, no funds of the Gregory Bus Lines were to be applied other than to pay operating expenses — the remainder to go in liquidation of the note.

“7. The Consolidated was to take over the assets and operation of the Bus Line at 11:59 p. m., May 19, 1928. All division of receipts, cost of operation and closing of the corporation by Gregory, and the beginning of operation by the Consolidated, to be figured as of that date and hour.

“8. Gregory was to retain as his own property all cash on hand, and notes and accounts receivable, as of the date and hour mentioned above.

“9. In witness whereof, the seller has hereunto affixed his signature, and the buyer has caused its corporate name to be signed hereto, and its seal affixed, by its duly authorized officers on this the 19th day of May, 1928.

“H. M. Gregory, Seller,

“Consolidated Utilities, Incorporated,

“By W. B. Bayless, President,

“J. T. Morgan, Secretary.”

On July 12, another contract was entered into, and then on November 19, 1928, still another contract. The parties then on February 1, 3929, entered into another contract. It is not important to set out all contracts here. The supplemental contracts entered into by the parties made provision for the payments and management, operation and control of the bus lines, and it was agreed that the Consolidated Utilities, Inc,, should pay Gregory $200,000, $85,000 to he paid cash and $165,000 to he paid later, and the Consolidated Company was to pay $100,000 of the indebtedness of the Gregory Bus Lines, and Gregory was to pay the balance. The remaining $100,000 was to be paid in the capital stock of the Consolidated Utilities. There are numerous other provisions in the contract, but it would serve no useful purpose to set them out here.

A proceeding was instituted in the United States District Court at Memphis by the Seiberling Tire Company against the Gregory Bus Lines and a receiver was appointed, who took charge of the property and sold same for $205,000. There was also a suit tried in the State chancery court in Tennessee.

The appellant then began this suit in the Crittenden Chancery Court against the Consolidated Utilities, Inc., and numerous individuals. His complaint consists of eighteen typewritten pages, and it is entirely too lengthy to set out in full. However he alleged in his complaint the indebtedness due to him from the Consolidated Utilities, Inc., and the individuals named as defendants, and alleged fraud and deceit on the part of the individuals in inducing him to make the contract and that they fraudulently violated the terms of the ¡contract. The appel-lees filed answer denying the material allegations of the complaint. The chancery court heard the evidence and entered a decree in favor of the appellant against the Consolidated Utilities, Inc., for $88,000, and found in favor of the individual defendants. The Consolidated Utilities, Inc., did not appeal, but H. M. Gregory has appealed to this court and seeks a reversal of the chancellor’s finding in favor of the individuals. The chancellor considered all the ¿vidence including the records in the two suits in Memphis, Tennessee, the testimony of the numerous witnesses and documentary evidence. It would make this opinion entirely too long to set out the evidence. The evidence was conflicting*, and there was substantial evidence to support appellant’s claim and also substantial evidence contradicting the evidence of appellant’s witnesses. Counsel on both sides have filed extensive briefs citing many authorities on the question of fraud and deceit, but it would be impossible to review them all here.

It is well established that fraud and deceit and fraudulent representations and promises made by a party and relied on by another who is injured or damaged thereby, give rise to a cause of action by the party injured, and one who deprives another of any . right by such practices is liable therefor. Any false representations and deceit by promoters of a corporation which induce another to purchase stock, or to enter into any sort of contract to his disadvantage, make the promoters liable to the party deceived. There must however be a false statement, and it must be relied on by the other party.

“Fraud involves the idea of intentional deception, and exists where there is a misrepresentation made with intent to deceive, or with actual knowledge of its falsity. But, while a fraudulent intent is an essential ingredient of actual fraud, and hence must be generally shown in order to maintain an action of deceit, an actual wrongful or fraudulent purpose or intent is not always essential. Moreover, the law affords remedies for the consequence of innocent misrepresentations. Where an act is originally tainted with a fraudulent intent the subsequent abandonment of the intent is ineffectual as. against an innocent person who is injured by the act. Actual fraud is the foundation, or, as it is often said,-the gist or gravamen of the action of deceit. Proof of a mere naked falsehood or representation is not enough even though the complaining party relied on it and sustained damages, but, in addition thereto, the false statement must have been knowingly or intentionally made. Moreover, the misrepresentation must have been made with the intention of deceiving the complaining party.” 12 R. C. L. 323-324.

Therefore, if the individual appellees by false and fraudulent representations or deceit, made to Gregory and relied on by him, caused him to enter into the contract or injured or damaged him in any way, they were liable to him for the injury thus done. Whether or not there has been a fraud in any case is usually a question of fact. Fraud is a question of law only when the facts are undisputed, and but one reasonable conclusion can be reached from the evidence or where there is an entire failure to sustain the issue. 12 R. C. L. p. 444.

One who alleges fraud must prove it by a preponderance of the evidence. Of course, it may be established by circumstantial evidence as well as direct. In fact, it is generally difficult to prove fraud by direct evidence, but, whether the evidence is direct or circumstantial, the burden is upon the party alleging fraud to prove it by a preponderance of the evidence. 27 C. J. pp. 52 and 62.

The evidence in this case is entirely too lengthy to set it forth in this opinion. We have already said that it was in conflict, and that there was substantial evidence offered by both parties. The chancellor found against the Consolidated Utilities, Inc., and in favor of the individuals. We have carefully considered the entire evidence and have reached the conclusion that the findings of the chancellor are not against the preponderance of the evidence, and this court will not reverse the chancery court unless we can say that the findings of fact by the chancellor are against the preponderance of the evidence. Kelly Trust Co. v. Paving Imp. Dist., 185 Ark. 397, 47 S. W. (2d) 569; Greer v. Stilwell, 184 Ark. 1102, 44 S. W. (2d) 1082; Smith-Arkansas Traveler Co. v. General Tire & Rubber Co., 182 Ark. 818, 33 S. W. (2d) 712; Mente & Co., Inc., v. Westbrook, 181 Ark. 96, 24 S. W. (2d) 976; Love v. Couch, 181 Ark. 994, 28 S. W. (2d) 1067.

We find no error, and the decree is affirmed. '


author: McIIaNey, J.

text:
    Bennett v. Miller.
    4-2711
    Opinion delivered October 31, 1932.

      Lamb .& Adams, for appellant.
   McIIaNey, J.

At the annual school election in Tru-mann Consolidated School District No. '2, Poinsett County, Arkansas, held Maj{ 16, 1931, no person qualified as a candidate for school director, and no names appeared on the ballot sent out ifor use in the election by the board of education. Tlife ballots sent out to :i^e used in the election were provided with blank spaces ior the insertion of the names cóf the persons fir whoun an elector wished to vote for directors. Appellants anid ap-pellees were candidates at'\ said election for directors. Appellants prepared or cauised to be prepared sticfkers or pasters with their names ^printed thereon which ithey caused to.be distributed to voders at the polls on election day and 700 of the electors f took said stickers, pastees] them on the official ballot and úbnrnby voted for the ap- ' pellants. Appellants received a majority of the votes polled at the election, their vote ranging from 614 for McMahan to 757 for Sullens; whereas the votes for ap-pellees ranged from 81 for Smith to 326 for Miller. The judges of election certified that appellants had therefore been elected. Thereafter appellees filed a petition with the county board of education as provided by § 30 of act 169 of 1931, seeking to have thrown out all ballots on which stickers appeared as illegal, and that the county board recount the legal ballots and the result declared by the county board. The county board, on its own motion, dismissed the petition! for contest, and the appel-lees appealed to the circuit; court. There the case was tried on a stipulation substantially as above set out, where the cause was dismissed as to appellees Miller, Watkins and Smith on thejir motion. The court held that all ballots on which stickers were pasted were void, should not be counted, and, [after casting them out ap-pellees Pennington, Houston and Clark were elected.

There is no allegation of fraud in this election. The electors were neither misled oír coerced into.voting for any particular candidates. On the contrary they freely expressed their choice of candidates. Mr. Miller, originally a contestant, was one of the judges of election. He made no complaint as to the. form of ballot or that stickers were used by some of tho electors in voting. We think it makes no difference hov^ the electors placed the names of the persons they desiired to vote for on the ballots, in the absence of frauck'. They might have been writte^i with pen and ink, ■ pencil, typewritten, or by sticker's and the result would £ be the same, as in either case t.t expressed the wish of the individual elector. We find -ho directions in the statutes regulating school elections prescribing exactly hdw the elector shall put on the [ballot the lame of the [person for whom he wishes to jTOte. Sectioi 3803, Crawford & Moses’ Digest, relating to elections generally, -.provides that the elector shall /scratch off the nimes of fill candidates except those for whom he wishes to vt/ce, “and write the name of any person for whom he may wish to vote whose name is not printed * * é on the ballot at all.” We do not think the word “write” is there used in a technical sense, but that such name might be placed on the ballot in any convenient way, such as the use of a rubber stamp or a sticker as was done in this case. As said by this court in Ashby v. Patrick, 181 Ark. 859, 28 S. W. (2d) 55: “If the ballot voted on was such as not to mislead the electors but to give them an opportunity to express their will, it was sufficient.” So here the ballot did not have the names of any persons who were candidates for directors. It was left to the electors to vote for whom they pleased by “writing” their names on the ballots. If they chose 'to use stickers with the names of the persons they desired to vote for printed thereon we can see no valid objection thereto, and there is no provision of statute violated. ■

The judgment will he reversed, and the contest dismissed. It is so ordered,


text:
    Wilson v. Wilson.
    4-2715
    Opinion delivered November 7, 1932.

      B. L. Derryherry and J. Loyd Shouse, for appellant.

      Shinn >& Henley, for'appellee.
   Smith, J.

On June 14,1929, appellant, B. 0. Wilson, was granted a divorce from appellee. The decree recited that the parties had agreed upon the alimony to be paid and upon the division of their property. Pursuant to this settlement of the property rights made by the parties, it was decreed that- the wife, the defendant, be given the household goods, and that she he paid “the sum of $60 per month, the same to he paid the first day of each and every month until further orders of the chancery court * * and that she ££is to release and relinquish all her right, title and interest in and to any property, both personal and real, that the plaintiff has or holds.” The $60 was to he paid appellee for the support of herself .and her two minor children, a son and a daughter. The daughter is now 19 years old, and is married. The son, who .is younger, is in school.

Appellant paid the $60 each month until and including the month of August, 1930. Appellee made demand for the September payment on August 27,1930, at which time appellant called her attention to the changed condition of affairs, and suggested that he pay her only $40 per month from that date, on account of the marriage of their daughter. Appellee objected to the reduction, but appellant told her he would pay $40 or nothing, and would apply to the court to reduce the payments to that amount. Appellee then accepted the $40 and gave appellant a receipt for that amount as payment in full of the alimony due for September, and similar payments were made for the next succeeding eight or nine months. During all this time appellee protested to appellant against the reduction, and consulted an attorney, who advised her to wait awhile, as appellant might later pay the balance to avoid litigation. When appellant definitely declined to pay the $60, appellee caused a writ of garnishment to be issued, which tied up appellant’s wages. Appellant thereupon filed a motion to dismiss the garnishment, and for the modification of the decree awarding alimony. After hearing testimony, the court declined to quash the garnishment or to modify the decree, and this appeal is from that action.

Counsel for appellant contend that there was an accord and satisfaction, which bars appellee from claiming more than the $40 paid her, and cite cases holding that, where a check was tendered in full payment of a disputed claim, and was accepted by the payee with knowledge thereof, it becomes an accord and satisfaction. But we are of opinion that this principle does not control here. There was no disputed claim. The parties Lad agreed upon tLe sum to be paid monthly, and that agreement Lad been made a part of the decree of divorce, and this decree was then, and is even yet, in full force and effect. Appellant Lad the right to ask the court to modify the decree, and this he did, but to no effect. The decree imposed, and still imposes, the continuing duty on appellant to pay $60 each month. The court had the power to find, as it did find, that this order had not been, and should not be, modified, but was at all times, and is yet, in full force and effect. There was therefore no accord and satisfaction of the decree.

We affirm also the action of the court in refusing to reduce the amount of future payments. The testimony does show that appellant’s salary has been reduced, and that he has less income than he had when the divorce decree was rendered, and that the daughter, the oldest child, is married, as is also appellant himself; indeed, appellant married ten days after obtaining his divorce.

The chancellor had the power to modify the decree as to the amount of alimony to be paid; but we cannot say that his finding as to the reasonableness of the alimony is contrary to a clear preponderance of the evidence. Holmes v. Holmes, ante p. 251.

The oldest child is married, and appellee resides with her and pays half of the housekeeping expenses, as her son also resides with his sister. This son is still in school with an increased expense for his support as he has grown older, and appellee appears to be having as much {rouble living on her alimony as appellant and his present wife have living on his income, less the alimony.

The decree from which is this appeal appears to accord with principles of equity, and it is therefore affirmed.


text:
    Joseph v. Riffel.
    4-2716
    Opinion delivered November 7, 1932.

      Longstreth i& Longstreth, for appellant.

      Rose, Hemmgway, Cantrell & Loughborough, for appellee.
   Humphreys, J.

Appellant instituted suit against appellee in the circuit court of Pulaski County, Third Division, to recover damages for an injury received in falling from the first floor of the cold storage plant owned by appellee, to the sub-basement floor through an open elevator shaft, on account of the alleged negligence of appellee in leaving the shaft open, unguarded, unlighted, and in darkness, and without danger sign; and by using the elevator platform as part of the floor of an unguarded and commonly used walkway; and by not informing appellant that the elevator would be used at the time the injury occurred by others than himself.

Appellee filed an answer, denying the material allegations of the complaint, and interposing the additional defenses of contributory negligence and assumed risk by appellant.

The cause was submitted upon the issues joined and the testimony adduced by the parties, at the conclusion of which the court instructed a verdict against appellant, and, in keeping with the verdict, rendered a .judgment dismissing appellant’s complaint, from which is this appeal.

The facts are undisputed and are, in substance, as follows:

Appellant was, and is one, of the owners and the manager of the Mallard Provision Company. It leased space from appellee in the cold storage plant owned by appellee to store its products on the fourth floor and a room on the top or eighth floor to manufacture specialties and sausage. One of the elevators in the building was six by eight feet, and ran from the' bottom to the top of the building through openings that fit it, and was operated by any of the employees of appellee or its tenants, or their employees, indiscriminately. A stairway also led from floor to floor of the building. The main entrance doors of the building opened at seven o’clock a. m. and closed at six o ’clock p. m., but there was a side entrance for the admission of tenants and their employees at an earlier hour. The floor openings, or wells, through which this, as well as other elevators in the building, was operated had no railings, guards, lights or danger signs on or about them. "When the elevators were not being pulled up and down by some one authorized to use them, they were at a standstill or on a level with the corridor floor, and were used as a part of the walkway for the time being. The construction of the building and conveniences therein were the same on the date appellant’s company leased the space in the building as when he received his injury. It was provided in the lease that appel-lee should furnish “gas, water, light and power for the use of appellant” and to “furnish elevator service to cooler and sausage-making room and all facilities * * * to be available at all times. ’ ’ Appellant’s company leased the space on October 31, 1930, and entered into possession thereof January 12, 1931. On February 11, 1931, appellant, together with his employees, entered the building through the side entrance at an early hour, and, after assigning his employees to their duties in the storage and sausage departments, he entered an elevator on the fourth floor and let himself down to the first floor, where he left the elevator in place and walked out to the platform on the outside of the building for a few moments. During his absence, some one moved the elevator to the fifth floor. Upon his return, thinking that the elevator was where he left it, he stepped into the opening’ or elevator well without looking, and fell down the shaft twenty-four feet onto the concrete floor of the sub-basement and injured himself. The accident occurred at 6:40 o’clock a. m., just about daylight. There were no lights in the corridor, and appellant made no effort to turn the lights on in the elevator when letting himself down a few moments before the injury.

As between a landlord and tenant, the general rule is that, “in the absence of statute or agreement, the landlord is under no legal obligation to light common passageways for the benefit of tenants. ’ ’ 36 C. J., § 891, p. 214. In § 893 of the same work, it is stated: “On the analogy of a lack of duty on the part of the landlord to light common passageways, it has been held that a landlord is not liable for injury received by tenant through the failure of the landlord to supply rails or guards when the condition was the same at the time of letting. ’ ’

There is no law requiring that elevator openings in a commercial cold storage plant, constructed for the use of its officers and employees and its tenants and their employees, or to carry commodities from one floor to another, must have rails or guards around them or danger signals upon them, or that the corridors in cold storage plants must have lights in them; and there is nothing in the written lease so requiring’. The record is silent as to the necessity for any of these things in the construction or operation of cold storage plants. We cannot indulge the presumption that the shafts or wells in which the elevators were lifted and lowered from floor to floor were improperly constructed because they had no railings around them or guards or signals upon them, considering the uses for which they were intended, nor can we presume that it constituted negligence to use the elevators as a part of the walkway when on a level with the corridor floors, nor can we presume a necessity for lights in the corridors. Neither the law nor the provisions of the contract made such requirements. Since negligence was not shown on the part of appellee, it is unnecessary to allude to the defenses of contributory negligence or the assumption of the risk by appellant.

The judgment is affirmed.


text:
    Capital City Casket Company v. Szurgot.
    4-2645
    Opinion delivered October 3, 1932.

      Buzbee, Pugh >& Harrison, for appellant.

      Sam T. >& Tom Poe, for appellee.
   Humphreys, J.

This suit was brought by appellee against appellant in the circuit court of Pulaski County, Second Division, to recover damages for an injury received in the discharge of her duties as a seamstress through the alleged negligence of appellant in furnishing her an improperly constructed folding chair to occupy in operating a sewing machine.

Appellant filed an answer denying the allegation of negligence and, by way of affirmative defense, alleging the assumption of the risk in the use of the chair by appellee.

The trial of the cause resulted in a verdict and judgment against appellant, from which is this appeal.

At the conclusion of the introduction of the testimony, appellant requested the court to instruct a verdict in its favor, and the refusal of the court to do so is the sole ground urged by appellant for a reversal of the judgment.

The record reflects that appellant manufactures coffins, and in connection therewith maintains a sewing room to make inside finishings for them; that the sewing room was equipped with three sewing machines and three folding chairs; that on the day appellee was injured the forewoman and herself were the only two employees at work in the room; that appellee had been in appellant’s employment for about six weeks; that she was directed by the forewoman to change the thread on one of the ordinary machines, and in doing so the chair she sat in slipped from under her, causing her to fall to the floor and permanently disabling her.

The record reflects a dispute in the testimony as to whether a defect in the construction of the chair or the manner in which she sat down in it caused it to slip and result in appellee’s fall and injury. Mrs. Hogan testified, in substance, that the chair occupied by appellee and which slipped from under her was unequally balanced on account of the front legs being straight up and down or constructed at a more acute angle than the front legs of the other two chairs in the room. The chairs, themselves, were introduced for examination by the jury in order that they might determine whether the particular chair in question was defectively constructed. Appellee testified, in substance, that she. sat down in the chair in the ordinary way, and that when she moved forward the chair slipped from under her, causing her to fall and injure herself; that the manner in which she sat down in the chair did not cause it to slip out from under her.

It is argued that a folding chair is a simple instrument or tool like a hoe or spade, and that an employer or master is relieved under the law from an inspection thereof to ascertain whether there are any observable defects in its construction before placing same in the hands of employees for use. We do not think that the folding chair is so simple in its construction that the principles applicable to simple tools should govern the instant case. The testimony detailed above tended to show that there was a discoverable structural defect in the chair, which caused it to slip and result in an injury to appellee, which brings the case within the general rule announced in the cases of St. Louis Stave & Lumber Company v. Sawyer, 90 Ark. 473, 119 S. W. 830, and International Harvester Company of America v. Hawkins, 180 Ark. 1056, 24 S. W. (2d) 340, to the effect that a duty rests upon the master or employer to use ordinary care to furnish an employee with reasonably suitable and safe instruments with which to perform his or her duties.

The testimony also tends to show that the defect in the chair was observable by inspection. It is only defects that are patent of which employees must take notice, and the risk of which they assume in the course of their employment. The duty of inspection for structural defects in the chair did not rest upon appellee; hence she did not assume the risk of using same.

No error appearing, the judgment is affirmed.