author: . Hart, O. J.

text:
    Arkansas State Highway Commission v. Otis & Company.
    Opinion delivered September 29, 1930.

      Pace & Davis and R. W. Robins, for appellant.

      Robinson, House $ Moses, W. H. Cooper, Owens <& Ehrman, Buzbee, Pugh db Harrison, Maddox & Greer, Tom W. Campbell, CockriU <§ Armistead, Garner Fraser, Horace Sloan, Rose, Hemingway, Cantrell & Lough-borough, Charles D. Frierson, Colemcm & Riddick, A. B. Shafer and Frauenlhal, Sherrill é Johnson, for appel-. lees.

      Rice <db Dickson, amici curiae.

   . Hart, O. J.

This is an appeal by the Arkansas State Highway Commission from a judgment of the circuit court awarding a writ of mandamus to twenty-six different claimants to compel it to issue vouchers to them in payment of their respective claims against various road improvement districts in the State of Arkansas, pursuant to the provisions of act 153 passed by the Legislature of 1929 in aid of road districts in this State. Acts of 1929, vol. I, p. 785.

It is first contended that the act of 1929 just referred to in aid of road1 districts in this State is in conflict with article 5, § 23, of the Constitution which provides that no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only. It is contended that the act violates this section of the Constitution by amending or extending the provisions of act 18 enacted ¡by the Legislature of 1929 for the purpose of making appropriations for the operation of the Highway Department and of act 11 of the Acts of 1927 in which the State’s highway policy was declared and provision made for the payment of certain outstanding road improvement distirct bonds. See Acts of 1929, vol. I, p. 24, and Acts of 1927, p. 17.

The grounds upon which the constitutionality of the act is here attacked are the same as those which were considered and determined by the court in the case of Grable v. Blackwood, 180 Ark. 311, 22 S. W. (2d) 41. We see no good reason for reviewing the conclusions there reached and treat the matter as settled by that case. In addition, it may be said that textwriters and courts generally say that the constitutional requirement does not apply to supplemental acts not in any way modifying or altering the original act, nor to those merely adding new sections to an existing act. Cooley on Constitutional Limitations, (8th ed.) vol. I, pp. 316-317; 26 Am. & Eng. Enc. of Law (2d ed.) p. 707; 36 Cyc., p. 1061; and 25 Ii. C. L., § 119, pp. 874-875.

The constitutional provision applies where the act is strictly amendatory or revisionary in its character. Its prohibition was intended to prevent the amendment or revision of an act by additions or other alterations which, without the presence of the original act, are confusing or unintelligible.

Act 153 of the Acts of 1929 under consideration is complete in itself, intelligible and original in form. It does not in any sense purport to add any additional section to the statutes referred to in it or to engraft into their provisions anything which would affect them. Their provisions remain intact, and are not in any wise affected by the act under consideration. The purposes of the present act might have been accomplished by an act strictly in form amendatory by incorporating the whole of the original acts into the present one, but such course would have been cumbersome and not more intelligible than the present act.

A full, clear and comprehensive statement of the principles of laiw relating to such provisions of a constitution was made in People v. Banks, 67 N. Y. 568. In an elaborate opinion prepared by Mr. Justice Allen, it was said:

‘ ‘ It is not necessary, in order to avoid a conflict with this article of the 'Constituton, to re-enact general laws whenever it is necessary to resort to them to carry into effect a special statute. 'Such cases are not within the letter or spirit of the Constitution, or the mischief intended to be remedied. By such a reference the general statute is not incorporated into or made a part of the special statute. The right is given, the duty declared, or burden imposed by the special statute, but the enforcement of the right or duty and the final imposition of the burden are directed to be in the form and by the procedure given by the other and general laws of the State. Eeference is made to such laws, not to affect or qualify the substance of the legislation or vary the terms of the act, but merely for the formal execution of the law. The evil in view in adopting this provision of the Constitution was the incorporating into acts of the Legislature by reference to other statutes of clauses and provisions of which the legislators might be ignorant, and by which, affecting public or private interests in a manner and to an extent not disclosed upon the face of the act, a bill might become a law which would not receive the sanction of the Legislature if fully understood.”
“There is no evil of this or of any nature to be apprehended by the mere reference to other acts and statutes for the forms of process and procedure, for giving effect to a statute otherwise perfect and complete. It would be a serious evil to compel the engrafting upon and embodying in every act of the Legislature all the forms and the details of practice which may be necessarily resorted to to carry any one statute into effect, when the same proceedings are provided for by the general statutes off the State, and are applicable to hundreds of other eases, and with which the Legislators may be supposed to be reasonably familiar.”

In concluding this branch of the case, it may be said that the act of 1929 under consideration in aid of road districts provides for the payment of certain outstanding debts other than road bonds out of the appropriation which had already been made by the same Legislature for the operation of the Highway Department in all its departments, including- the retirement of road district bonds and the interest assumed by the State pursuant to the provisions of the act of the Legislature of 1927 in which the State’s highway policy was declared. In the G-rable case, we held that the provision of the act under consideration was constitutional, and was a valid appropriation act, and was not an appropriation by reference, which is prohibited by the section of the constitution above referred to. We cited former decisions of this court to sustain our holding in the construction of acts containing similar provisions with regard to appropriations, and we now adhere to the views there expressed.

It is next contended that the claims against the various highway improvement districts involved in this action cannot be paid by tbe Arkansas State Highway Commission without destroying the parity system provided for by what is commonly called the Martineau Road Law and the allotment system made thereunder by the Arkansas State Highway Commission. In the consideration of this question, we deem it necessary to set out and refer to a part of the provisions of all three of the acts above mentioned.

In § 1 of the Martineau Road Larw, it was declared to be the policy of the State to take over the construction, repair, maintenance, and control of all the public roads in the State comprising'the State highway as defined herein. Section 3 provides that the commission shall, as soon as possible, ascertain the amount of valid outstanding' road bonds issued by the road improvement districts in this State, and for the payment of the same by the commission by the Auditor of the State issuing vouchers for the amounts due on the State highway fund. Section 4 provides for the construction and completion of the State highways and reads as follows:

‘ ‘ It shall be the duty of the commission to construct the roads in the State highway system which are not now constructed, the work of construction to be pushed as rapidly as funds are available for that purpose. The commission shall begin the work of construction in those counties in which the roads embraced in the State high- - way system have not been constructed by improvement districts, or in which only a small portion of such roads have been so constructed, and shall continue construction work in such counties until the completed roads in each county in the State have been brought to a parity, after which ' construction work shall be distributed throughout the counties so as to maintain the parity as far as practical. ’ ’

Section 5 provides for new road. construction, and 110 provides for appropriations to pay all these matters. Acts of 1927, p. 17.

The Legislature of 1929 first passed act 18 for the purpose of making appropriations for the operation of the highway department and for aid to county highway funds. Acts of 1929, Yol. 1, p. 26.

'Subsequently, the same Legislature passed an act in aid of the road districts in the State. Acts of 1929, Yol. 1, p. 785. The preamble and § 1 of the act read as follows:

“Whereas, it has been determined that there is an extensive amount of indebtedness against sundry road improvement districts in the 'State of Arkansas, and
“Whereas, no provision was made for the payment of these road improvement district obligations in § 3 of act No. 11 of the Acts of the Forty-sixth General Assembly, approved February 4, 1927, therefore,
“Be it enacted by the General Assembly of the State of Arkansas:
“Section 1. That the Highway Commission shall as soon as possible ascertain the amount of any valid outstanding indebtedness incurred prior to January 1,1927, against any road district in the State of Arkansas organized prior to the passage of act No. 11 of the Acts of the General Assembly of the State of Arkansas for the year 1927 which was approved February 4, 1927, and shall draw vouchers to be paid out of the appropriation already provided for in act No. 17 of the Forty-seventh General Assembly for the payment of road district bonds and interest obligations ? such voucher shall be delivered to the person authorized to receive the same on proper satisfaction of such indebtedness, provided that such payments so made shall be charged against the allotment to the respective counties (in which the road was located) as made by the Highway Commission, and if in two or more counties it shall be prorated in accordance with the mileage of the road in each county. ’ ’

The record shows that the Arkansas State Highway Commission, after the passage of the Martineau Road Law in 1927, prepared a table showing the allotments that .should be made to the various counties in the State under the act. In preparing this table, the size, population, and revenue provided for in the act for the various counties were taken into consideration. The record also shows that the amount of outstanding bonds under the act in some counties was greater than the amount of the allotment under the table just referred to, but these outstanding bonds were paid by the commission and the overplus charged to the county so that no more road construction should be had in that county by the commission until a sufficient amount of new road construction had been done in other counties which would equalize this with the counties where the overpayment of the bonded indebtedness according to the allotment by the highway commission had been made. In short, the overpayment of the bonded indebtedness in certain counties was treated as in the nature of an advancement to' them, and the plan was to equalize the allotments of all the counties according to the table prepared by the commission, and in this way it was deemed that the parity plan referred to in § 4 of the Martineau Road Latw copied above would be carried out.

On the part of appellees, it is contended that the same plan should be adopted in the payment of outstanding debts other than bonds provided for by act 153, passed by the Legislature of 1929. They point to the fact that the preamble to the act recites that there was an extensive amount of indebtedness against sundry road improvement districts in the State and that no provision had been made for the payment of these obligations in the act No. 11 passed by the Legislature of 1927. Therefore, it is insisted that, under the provisions of § 1 of this act, the Highway Commission must ascertain the amount of the outstanding indebtedness referred to in the act, and that if the indebtedness thus discharged shall overpay the allotment of the county according to the table prepared by the Highway Commission after the passage of the Act of 1927, that the overplus should be charged to the county,' and no new construction work done until the overplus was absorbed by new road construction in other counties under the allotment prepared by. the Highway Commission.

On the other hand, it is contended by the Highway Commission that such holding will violate the provisions of the Martineau Road Law and the parity plan adopted under it and followed by the commission in making its table of allotments to the various counties. We do not agree with the Highway Commission in its construction of the act under consideration. Parity means equality, and, as used in § 4 of the Martineau Act, means that all, the counties in the State shall be brought in the same condition and treated equally with regard to aid in road building. It is a fact worthy of notice that this was the construction placed upon the act of 1927 by the Highway Commission. They first prepared the amounts which would, be due the respective counties by making equal allotments to them of the road fund when their size, wealth, and the amount of revenue collected under the act should be considered. It was found that the allotments made to certain counties were not sufficient to pay the outstanding road indebtedness against them. The Highway Commission properly conceived that, under the provisions of the statute, it was mandatory upon it to pay all the outstanding bonds provided for in the statute. They did this and then properly charged the overpayment in certain counties against these counties in new road construction work.

The commission should have placed the same construction upon the present act. There is nothing whatever in it which tends to disturb the allotments made or the plan of the commission in paying the outstanding ■bonds as provided for in the Act of 1927. That act remains on the statute book unimpaired, and no attempt whatever is made to alter or modify it or to engraft any of the provisions of the present act into it. The present act is complete in itself and relates to a different kind of obligation of the road improvement districts, which had not been provided for by the act passed in 19-27. The parity plan as adopted by the commission and carried out by it is not in any way disturbed. In fact, it will remain as the allotments due the respective counties as prepared and adopted by the Highway Commission. It is the mandatory duty of the Highway Commission to pay the obligations provided for in the act under consideration and change the amount thereof against the allotments to the respective counties as made by the Highway Commission, and that the overcharge shall remain against such counties until such an amount of new road construction work shall be done in other counties as will absorb1 it.

To illustrate', suppose the State was possessed of lands which had valuable mineral and oil rights and should receive a sum as royalties for their lease. The Legislature alone could declare the public policy of the State as to the public purpose for which these royalties should be devoted. It might pass an act to allot them to the various counties to be used in constructing and improving the public roads of the State, and, if it saw fit, might pay the outstanding road indebtedness of any of such counties and charge the overpayment oif the indebtedness to the amount which they were entitled to receive under the allotment. The reasonable construction of such an act is that the annual allotments to them would not be paid to them "but would be paid to the holders of the indebtedness against such counties as indicated by the Legislature; and the overpayment charged to them in the nature of an advancement.

Hence a majority of the court is of the opinion that it was obligatory upon the Highway. 'Commission to ascertain the amount of the valid outstanding road indebtedness as provided in the act, and to pay the same out of the allotments which were due or which would have become due to- the respective counties in the future and charge the amount thereof against such counties. The language of the act is mandatory in this respect and leaves n,o discretion on the part of the commission in paying the same after the amount of the indebtedness has been ascertained by it in conformity with the provisions of the act. In this connection, it may be stated that there is on hand a sufficient amount of the appropriation made under the provisions of act 11 of the Acts of 1929 to pay the claimants herein. The majority holding this view of the matter is Mr. Justice Humphreys, Mr. Justice Mehappy, Mr. Justice MoHaney and myself. Mr. Justice Smith, Mr. Justice Kirby and Mr. Justice Butler dissent on this branch of the case.

It is next contended that the circuit court erred in awarding a writ of mandamus against the Arkansas State Highway Commission and in adjudging that it should pay the amount of their claims to the respective claimants. Mandamus is an extraordinary remedy which is awarded not as a matter of right hut in the exercise of a sound judicial discretion. It is resorted to for the purpose of securing .judicial or giiasi-judicial action, and not for determining in advance what that action shall be. A party to be entitled to the right must show that he has a clear, legal right to the subject-matter and that he has no other adequate remedy. Merritt v. School District, 54 Ark. 468, 16 S. W. 287 ; Rolfe v. Spybnch Drainage Dist. No. 1, 101 Ark. 29, 140 S. W. 988 ; Patterson v. Collinson, 135 Ark. 105, 204 S. W. 753 ; Snapp v. Coffman, 145 Ark. 1, 223 S. W. 360 ; Duncan Townsite Co. v. Lane, 245 U. S. 308, 38 S. Ct. 99 ; and Ex parte Wagner, 249 U. S. 465, 39 S. Ct. 317.

Section 1 of act 153 of the Acts of 1929 provides that, as soon as possible, the commission shall ascertain the amount of the valid outstanding indebtedness provided for in the act. To ascertain means to find out or to determine the amount of such indebtedness. In the discharge of the mandate of the statute, it became the duty of the commission to determine the amount and validity of the claims presented.

The facts upon which the plaintiffs ask the writ to be issued may be summarized as follows: There were twenty-six claimants, and, in all cases except two, the claimants had judgment against the road district. In each instance, the claim was presented to the Highway Commission before the action was 'commenced. A certified, copy of the .judgment in each case was presented to the auditor of the Highway Department, and proof was offered that nothing- had been paid or delivered to the satisfaction of it except the credits shown. In the two cases where judgment had not been obtained, proof was made of 'the amount and ldnd of services involved under which the claim was made. The statutory attorney of the Highway Department made an investigation of the claims, and found that they were correct as to amount and the balance due upon them. The attorney also reported this fact to the Highway Commission. The Highway Commission claims that under the construction it placed upon said act 153, it could not legally pay the claims. It was not claimed by the Highway Commission that the judgments had been procured by fraud or without notice or that there was any legal or valid reason for setting the judgments aside. Proof was introduced by one of the members of the Highway Commission to the effect that no investigation of the claims had ever been made by the Arkansas State Highway Commission itself, and that it now desired to make such investigation in order to ascertain the amount and the validity of the claims. A demurrer was first interposed and overruled to the petition of each claimant, and the oases were consolidated for the purpose of trial. In each case an answer has been filed by the Highway Commission in which it denied that it had any information as to the construction of the road improvement district or that the road constructed by it had become a part of the State Highway System. It denied that it had ascertained the amount of the indebtedness due and averred that it was of the opinion from such information as it had that the indebtedness mentioned by the claimants was invalid. It admitted that it had refused to ascertain the amount of such indebtedness, but submitted as a reason for doing so that it did not think it was a valid obligation under the terms of the act. During the progress of the trial, an opportunity was given the commission to ascertain the amount and validity of each claim which it refused to do.

A majority of the court is of the opinion that there was an abuse of discretion on the part of the circuit court in awarding the writ of mandamus under these circumstances. It was pointed out that it would have been a vain and useless thing for the commission to have gone to the trouble and expense of investigating and ascertaining the amount oif these claims when it believed that it had no authority to do so. Hence a majority of the court, consisting of Mr. Justice Smith, Mr. Justice Humphreys, Mr. Justice Kirby and Mr. Justice Butler think that the court abused its discretion in awarding the writ of mandamus, and for that reason the judgment of the circuit court must be reversed and the cause remanded for further proceedings according to law.

Mr. Justice Mehaeey, Mr. Justice McHaney and myself are of the opinion that there was no abuse of discretion in awarding the writ. We think that it would conserve no rule of practice or principle of justice to reverse the judgment. Under the facts declared by the record, the Highway Oommission became advised of the existence, af the claims, and in each instance the facts as to the amount and validity of the claim are undisputed, and no suggestion is made that any other or additional proof would disclose a state of facts different from that established in the circuit court.

It results, however, from the views of the majority of the court that the circuit court erred in awarding the writ of mandamus in the consolidated case, and for that error the .judgment must 'be reversed in each case, and the cause will be remanded for other proceedings in accordance with the principles of law announced in this opinion. It is so ordered.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Swaney v. State.
    Opinion delivered September 29, 1930.

      J. W. Nanc.e and J. V. Walker, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Smith, J.

Appellant was tried under an indictment charging him with the crime of murder in the second degree, and was convicted of involuntary manslaughter and given a sentence of one year in the penitentiary, and this appeal is from that judgment.

Two errors are assigned and argued for the reversal of the judgment: First, that certain testimony was erroneously excluded; and, second, that error was committed in giving an instruction numbered 14.

Appellant, who is a man fifty-seven years old, testified that deceased, who was a boy sixteen years old, was employed at the Phipps Lumber Company plant in Fayetteville, of which he was foreman, and that after reproving the boy for smoking around the plant he later discharged him because he persisted in that practice, and that the boy came to the plant on several occasions to be reinstated, but he declined to re-employ him. Appellant further testified that just as work had suspended at noon on the day of the killing the boy came to the -plant where the employees had been at work, and walked up to appellant, and, after catching him by the arm, began to call him vile names. He ordered the boy away, and the boy answered by striking him, whereupon he slapped the boy, who stumbled from the blow but came up with a rock, which he. threw at appellant. As the boy did this he called appellant a vile name and said he would kill him, and appellant again slapped the boy. This blow knocked the boy down and apparently broke his neck and death ensued in about fifteen or twenty minutes. Appellant testified that he “just wanted to give him enough to keep him off of me, ’ ’ and that he had no thought of killing the boy or doing him great bodily harm, and that he actually believed, at the time he slapped the boy the second time, that the boy was going to strike him with a rock, and that to prevent this he slapped him.

The testimony on the part of the State was to the effect that appellant and deceased were walking up an aisle in the lumber shed, when the boy cursed appellant, who struck the boy, who, as one witness testified, “staggered back, or run, or something,” when appellant, advancing rapidly, struck the boy a second blow, which rendered him unconscious.

Upon the issues thus joined the court gave an instruction numbered 14, reading as follows: “I charge you that the danger, real or apparent, to the defendant must have been so urgent and pressing as to cause the defendant to honestly believe that the killing of the deceased was necessary in order to save his own life or prevent him from receiving great bodily harm at the hands of Homer Stout, and the defendant, to justify the killing, must have acted under the influence of such fears and not in a spirit of revenge. ’ ’

■ The record does not reflect what specific objections were made to this instruction at the trial, but it is now insisted that the instruction assumes that the defendant honestly believed the killing of the deceased was necessary in order to save his own life or to prevent the in fliction of great bodily harm, whereas, appellant testified, and at all times insisted, that he not only did not regard the hilling as necessary, but that he had no intention of killing the boy.

It is not argued that the instruction is not correct as an abstract declaration of the law; in fact, similar instructions have been many times approved by this court. The insistence is that the instruction does not present appellant’s defense, and that it is therefore abstract and misleading.

This is an objection which should have been specifically made, but the record does not reflect that this was done. However, it does not appear that the instruction was altogether abstract. Appellant admits that he did intend to strike the blow which killed the boy, although he had no intention of killing him, and that he struck the blow because he believed the boy was about to hit him with a rock. Moreover, appellant was not convicted of murder, but of involuntary manslaughter, which imports a finding, under the instructions defining the offense, that there was no intent to kill, but that the killing was done in the commission of an unlawful act, without malice and without means calculated to produce death. It appears therefore that the instruction was neither erroneous nor prejudicial.

The other assignments of error relating to exclusion of testimony arose as follows: Mrs. Alice Sturdy, called as a witness by appellant, testified, that, at a time — about which she could not be exact — she was at the home of the deceased’s mother, and heard a conversation between deceased and his mother, when some trouble which had occurred between appellant and deceased over some tools was discussed, and the witness was then asked what the mother of deceased said to her son. An objection to this testimony was sustained, whereupon appellant offered to prove that deceased’s mother “told him that she wanted him to go and whip that damned old grey-headed Sam Swaney (appellant), and she wanted to be present and see it done.”

We think no error was committed in excluding this testimony, for the reason that it does not tend to prove any threat against appellant by deceased. There was no offer to show that deceased made any response to the suggestion of his mother, or to show what his reaction to the suggestion was, or that the threat had been communicated to appellant. Moreover, the testimony, if admitted, would have been competent only as bearing upon the question as to who had probably been the aggressor in the difficulty, a matter about which there appears to be no conflict as the undisputed testimony shows the trouble commenced when deceased cursed appellant, and was brought on by his doing so.

There is no error in the record, and the judgment must be affirmed. It is so ordered.


author: Humphreys, J.

text:
    Beavers v. Yeatman-Gray-Adams Grocer Company.
    Opinion delivered September 29, 1930.

      8. W. Woods, for appellant.

      H. J. Denton and J. H. Blade, for appellee.
   Humphreys, J.

Appellant brought this suit against appellees in the circuit court of Marion County to recover the value of one black mare mule, one Springfield wagon and one set of double harness, which were seized and sold by the sheriff and his deputy, two of the appellees herein, under a writ of attachment issued out of the court of H. F. Wood, a justice of the peace in said county, in an attachment proceeding in which Yeatman-Gray-Adams Grocery 'Company, one of the appellees herein, was plaintiff, and E. E. Beavers, the father of appellant, was defendant, alleging as ground for recovery that the property seized and sold was his and not Ms father’s.

Appellees filed an answer denying’ appellant’s ownership of the property, and the issue thus joined was submitted to a jury, under correct instructions, resulting in a verdict for appellees and a consequent judgment dismissing appellant’s complaint, from which is this appeal.

Appellant contends for a reversal of the judgment upon the ground that, the undisputed proof disclosed that he was the owner of the property. This conclusion is reached by appellant because he and his father testified that he bought the property in question, or the major part thereof, from his father and paid him cash therefor. It is true both testified that in 1926 he bought the major portion of the property from his father with money which he procured from the sale of a cotton crop and cattle which he raised while living with his father. There are circumstances, however, in the record showing- that the property belonged to his father, and that the sale was merely a pretended one to defeat his father’s creditors, some of which will now be referred to. Prior to the attachment proceeding, both appellant and his father had gone to Oklahoma, appellant leaving first. When appellant’s father left, he turned the property in question over to a third party in whose care it was at the time it was attached. After the property was levied upon, appellant and his father returned, but neither informed the sheriff that the property belonged to appellant. Appellant’s father filed an answer in the attachment proceeding, but made no claim therein that the property belonged to his son. Appellant did not intervene in the attachment proceeding and claim the property, nor did he replevy same from the sheriff or forbid the sale thereof, although it was retained by the sheriff after seizure for fifty days before it was sold. Appellant and Ms father testified in the attachment proceeding that the property belonged to appellant, and this was the extent of any effort made by him to regain the property. Appellant did not even bring this «nit for damages until more than a year after the sheriff sold the property under the attachment proceeding. The jury had a right to consider this conduct on Ms part in weighing the testimony of his father and himself relative to the ownership thereof. It is true appellant had a right under the law to bring the suit for the value of the property instead of intervening in the attachment suit or instead of bringing an action in replevin before the sale thereof, but, notwithstanding this right, the course he pursued was out of the ordinary, and, we think, a very strong circumstance tending to show that the sale of the property by his father to appellant was not a bona fide sale.

We are unable to say after a very careful reading of the testimony that the verdict and judgment are unsupported by any substantial evidence.

No error appearing, the judgment is affirmed.


author: Kirby, J.

text:
    Button v. Illinois Bankers' Life Association.
    Opinion delivered September 29, 1930.

      Oliver <& Oliver, for appellant.

      Hunter $ Himter, for appellee.
   Kirby, J.

Appellants, the beneficiary in the life insurance policy and the bank to which it had been assigned as collateral, brought this suit to recover the amount of the policy upon the death of the insured and, from a judgment on a directed verdict against them, prosecute this appeal.

The undisputed testimony shows that the policy, dated December 9, 1916, was issued on the life of the insured, the first payment of premium $20.50 covering a period of more than a quarter or until April 1, 1917. The policy was issued in consideration of the application, the payment in advance of said $20.50 as a first payment paying until April 1, 1917, with a grace period as provided “and the payment of all payments and calls required under the contract at or before the time when due and payable and during continuance of this contract.” It further provides: “The premiums due under this policy shall be due and payable annually, semiannually, or quarterly, at the option of the insured, and failure to pay same at maturity shall render the policy absolutely null and void and the same shall be forfeited without further notice of the action of the directors of this association, unless reinstated as provided herein. Payments shall be due January 1, April 1, July 1, and October 1, and until further action of the directors shall be at the following rates, etc.”

Premiums were paid on the policy to and including March 31, 1929, but no premiums were paid after that date. The insured died on September 14, 1929. Proof of death being made and liability on the policy being denied, the suit was brought.

Appellants contend that the court erred in holding that the insurance policy lapsed because of nonpayment of the premium due on April 1, and any premium thereafter, and in directing a verdict against them, insisting that the premium was not required to be paid quarterly in advance, and that the policy did not lapse until the end of the annual premium period.

It is undisputed that no premium was paid or offered to be paid or at all after the premium due on April 1, which was not paid, and that the insured died on September 14, 1929, after the expiration of the grace period for the payment of the April premium.

The policy expressly provides that payment shall be due January 1, April 1, July 1 and October 1, and the failure to pay same at maturity shall render the policy absolutely null and void and the same shall be forfeited without further notice, unless reinstated as provided, and expressly requires the payment of all payments and calls required under the contract “at or before the time when due and payable.” No provision is included in the contract about paid-up or extended insurance, and no contention is made that the insured attempted to exercise the option to pay premiums otherwise than quarterly. The failure to pay the quarterly premium due at maturity on April 1, or within the period of grace allowed therefor, rendered the policy void under its express terms without any further notice or action upon the part of the insurance company, and it is not contended that there was any reinstatement of it. It is also undisputed that the death of the insured occurred long after the expiration of the grace period allowed for payment of the quarterly premium at maturity due on April 1, and the policy having lapsed and become void because of such default, the court properly directed the verdict in favor of the insurance company.

We find no error in the record, and the judgment is affirmed.


author: Humphreys, J. iMcHaney, J.

text:
    St. Louis-San Francisco Railway Company v. Greig.
    Opinion delivered September 29, 1930.

      E. T, Miller and Warner <é Warner, for appellant.

      D. H. Howell, for appellee.
   Humphreys, J.

This suit was brought by appellees against appellant in the circuit court of Crawford County to recover damages in the sum of $742.42 on account of deterioration in the condition of a car of strawberries shipped from Bogers, Arkansas, to Kansas City and diverted to Minneapolis through the alleged negligence of appellant or its connecting' common carrier, in failing to promptly transport to its destination a carload of strawberries with due care or within a reasonable time after receiving instructions to divert the berries in question from Kansas City to the Yeager Produce Company, Minneapolis.

An answer was filed denying the material allegations of the complaint, and the cause proceeded to a trial upon the pleadings, testimony and instructions of the court, which resulted in a verdict and consequent judgment against appellant for $537, from which is this appeal.

It appears from the pleadings in the case that appellees founded or based their action upon the negligent delay of appellant in transporting the car of berries in question resulting in a deterioration thereof, and not upon the common law liability of appellant, the carrier, as an insurer. Notwithstanding the specific allegation of negligence, delay in transportation, upon which appellees sought to recover, tlie trial court sent the case to the jury upon the theory that appellees might recover from appellant on its common law liability as an insurer. In doing this the court committed reversible error, for the rule is that where specific acts of negligence are alleged as a basis for the recovery of damages by a shipper against a carrier, he must rely thereon and make proof thereof ixi order to recover, and will not be permitted to recover under the general doctrine that a carrier must account for the deteriorated condition of commodities received by it in good condition. Kansas City Ry. Co. v. Morrison, 103 Ark. 522, 146 S. W. 853 ; K. C. So. Ry. Co. v. Mabry, 112 Ark. 110, 165 S. W. 279.

The trial court also committed reversible error in giving instruction No. 6 as to the measure of damages and in admitting evidence showing the wholesale market value of prime or first-class berries in Minneapolis on May 19th to the 21st, 1927, inclusive. The testimony reflects that appellees contracted such berries to their consignee for $4.10 per crate, and that on account of the deteriorated condition of same had been compelled to accept an average of $3 per crate. The measure of damages, if any, was the difference between the contract price aird the price received.

Appellants make the further contention for a reversal of the judgment axid the dismissal of the cause upon the ground that the undisputed testimony reflects that after receiving the diversion order the car of berries was transported in the first available train from Kansas City and with the best dispatch to Minneapolis, and that said ear was properly refrigerated and handled in transit to its destination. A majority of the court agree with appellant’s contention to the effect that the record, as it stands, does not reflect any negligence on the part of appellant in the transportation of the car of berries from Kansas City to Minneapolis, in which Chief Justice Hart, Justice Mehaffy and the writer do not concur, but are not willing to dismiss the ease after a reversal of the judgment, upon the ground that the evidence upon these points was fully developed. It appears that the diversion order was received by appellant at 5:30 p. m., May 17, 1927. Appellant’s connecting carrier, Chicago, Great Western Railway Company, had a train, number 60, suitable for the transportation of the berries, scheduled to leave, and which did leave, Kansas City for Minneapolis at 6:50 p. m. that would have arrived on schedule time at Minneapolis ait 12:35 p. m. on May 19, 1927. The berries were not forwarded on this train, but were forwarded in train number 90, scheduled to leave Kansas City at 8:35 p. m., but did not leave Kansas City until three hours later and which arrived in Minneapolis at 5:35 a. m. May 20th thereafter. The car of berries was in appellant’s yard in Kansas City at 5:35 p. m. when the diverting order was received and filed, about three-quarters of a mile from the yard of the connecting carrier’s yard, where it was necessary to move the car in order for it to be picked up' by train number 60. About an hour and a half intervened in which the car might have been moved from appellant’s yard to the other yard, but it was not affirmatively shown that facilities were at hand to transfer the car from one yard to the other or that appellant was negligent in failing to furnish facilities to do so. The law does not require railroads to keep engines at all times to move freight from one yard to another, only requiring that reasonable care and diligence be exercised in furnishing such facilities. St. Louis-San Francisco Ry. Co. v. Vaughan, 84 Ark. 311, 105 S. W. 573. The main contention of appellees in support of its judgment is that appellant was negligent in failing to transfer the car of berries from one yard to the other during the intervening hour and a half after receiving the diverting order and in time to place the car of berries in train Number 60 that left Kansas City for Minneapolis at 6:30 p. m. The majority do not think that the lapse of time alone constituted unreasonable delay, and that the burden rested upon appellees to go further and show that the car of berries could have been moved from one yard to the other with the facilities available,'or that should have been' available as an incident to prompt transportation. The minority are of the opinion that the time elapsing made a prima facie case of delay unless explained away by appellant.

On account of the errors indicated, the judgment will be reversed, and the cause remanded for a new trial.

iMcHaney, J.

I concur in the judgment of reversal but go further and say that the case has been fully developed, and, should be dismissed. Mr. Justice Butler agrees with me.


author: Mehaeey, J.

text:
    Baker v. Puckett.
    Opinion delivered September 29, 1930.

      John Mayes and Karl Greenhaw, for appellant.

      John B. Duty, for appellee.
   Mehaeey, J.

The appellants, who are residents of Washington County, Arkansas, filed suit against the appellee as administrator of the estate of John Puckett, deceased, to recover damag'es for personal injuries sustained by them in an automobile collision which occurred in Washington County on July 6, 1929. Appellee is a resident of Benton County. The appellants were in a car with Harvey Beachey at the time of the accident. Beachey was killed and appellants injured when the ear they were in collided with the car driven by John Puckett, John Puckett was also killed in the collision. Complaint was filed in the "Washington Circuit Court, summons issued thereon to the sheriff of Benton County and was served on appellee in Benton County. No service was ever had in Washington County. After the death of John Puckett, his father, J. W. Puckett, appellee herein, was appointed, by the Washington County Probate Court, administrator of the estate of John Puckett, deceased.

Appellants allege that the collision was caused by the negligence and carelessness of John Puckett. Appellee filed a motion to quash the service of summons on the grounds that plaintiffs are residents of Washington County; that defendant is a resident of Benton County, and was at the time of filing the suit and had been at all times since; that the suit was filed in the Washington Circuit Court and summons issued and directed to the sheriff of Benton. County and served on the defendant in Beñtón County; that the defendant has not ¡been served with process in Washington County, and therefore the court was without jurisdiction.

The circuit court held that the suit was brought in the proper forum, but on account of the service in Benton County upon defendant as administrator, the same should be quashed and entered judgment quashing- the service of summons. This appeal is prosecuted to reverse said judgment.

The only question for us to decide is whether an executor or administrator can be sued in a county other than the one in which he was appointed. If an executor or administrator can only be sued in the county in which he was appointed, then the service in this case in Benton County is a proper service. If, however, the action is transitory, so that suit may be brought in any county in which the defendant resides or is summoned, the service of summons in this case in Benton ¡County was improper, and the judgment of the court quashing same is correct.

This court has many times held that actions for personal injuries, caused by negligence, are transitory. St. L. I. M. & So. Ry. Co. v. Haist, 71 Ark. 258, 72 S. W. 893 ; St. L.-S. F. Ry. Co. v. Pearson, 170 Ark. 842, 281 S. W. 910 ; Stewart v. B. & O. R. R. Co., 168 U. S. 445, 18 S. Ct. 105.

This action, being transitory, could be brought in any county where defendant resides or is summoned, unless this action falls within the operation of some statutory provision making it local. Appellant contends that this is in reality a suit against the estate of John Puckett, and that the administrator is only a-nominal party; that § 1176 of Crawford & Moses’ Digest was intended to protect the real defendant and not a mere nominal defendant like an administrator. Appellant calls attention to and relies on 24 C. J., p. 768. The portion of-the paragraph relied on reads as follows: “As a general rule, an executor or administrator cannot sue or be sued in any jurisdiction other than the one .in which he was appointed.” Several cases are cited as sustaining the text. All these cases show that this has reference to the State and not the county.

The first case cited is Vaughan v. Northrop, 15 Pet. (U. S.), p. 1. The court in that case said: “On the other hand, the administrator is exclusively bound to account' for all the assets which he receives under and in virtue of his administration to the proper tribunals of the government from which he derives his authority; and the tribunal of the other States have no right to interfere with or to control the application of those assets, according to the lex loci. Hence it has become an established doctrine that an administrator appointed in one State, cannot, in his official capacity, sue for any debts due to his intestate in the courts of another State; and that he is not liable to be sued in that capacity in the courts of the latter, by any creditor, for any debts due there by his intestate. ’ ’

Another case cited is Bryan v. Curtis, 30 App. (D. C.) 234, and the same principle is announced. Johns v. Herbert, 2 App. (D. C.) 485 ; Plumb v. Bateman, 2 App. (D. C.) 156, are to the same effect. The statute, § 1070, expressly provides that actions for wrongs done to the person may be brought after the death of the wrongdoer against his executor or administrator. We have no statute requiring actions of this kind shall be brought in any particular county. ¡Such actions may therefore be brought in any county in which the defendant resides or is summoned. Section 1176, C. & M. Digest.

“The executors are in a sense trustees, but not of the testatrix, who was no longer trustee or representative, but for the beneficiaries under the will and the heirs and creditors. No rule of law with which I am acquainted gives countenance to the idea that there is an official residence for an executor. In some States the venue of actions is specially declared to be where it would have been necessary to sue the deceased. We have no such law. At common law the executor was sued in transitory actions, where he resided.” Thompson v. Wood, 115 Cal. 301, 47 Pac. Rep. 50 ; McLeod, Ex., v. Shelton & Minor, 42 Miss. 517 ; Osborn v. Lidy, 51 Ohio St. Rep. 90, 37 N. E. 434 ; Harris v. Blatt, Ex., 28 Penn. Dist. Rep. 11 ; Forsee’s Admr. v. Forsee, 144 Ky. 169, 137 S. W. 836.

Under our statute, a person may be sued in any county in which he resides or is summoned. There is no exception made as to administrators, and, since we have no statute requiring- an administrator to be sued in the county where the administration is pending, the general statute applies.

“There is no provision of the statute in this State 'fixing the official residence of administrators and executors, further than that the statute provides that a nonresident shall not be appointed either as an administrator or executor, and the sections of the revenue act to which reference has been made; they have no official residence. * * * If it were the law that an executor may not be sued out of the county issuing letters, an executor residing- in another county might, by remaining out of such county, prevent the allowance of claims not presented until after claim day, as the administration act does not authorize the issuance of summons for the executor on claims presented against the estate after claim day to any other county than the one in which letters were issued. We are not aware of any provision of the statute in Illinois changing the rule at common law in suits against executors.” People’s Bank v. Wood, 193 111. App. 442.

In discussing the question of venue, in suits against administrators, the Georgia Supreme Court said: “The suit does not fall within any of the excepted cases, and is against a sole defendant who does not reside 'in the county where the suit was brought in another county. The venue of such a suit is the county of defendant’s residence. It makes no difference that he is sued as administrator, or that he was appointed administrator by the court of ordinary of the county where the suit is brought. The suit is against the defendant, though he is sought to be made liable only as administrator.” Long v. Stanford, 135 Ga. 823, 70 S. E. 645.

This suit is against the defendant, and, although he is sought to be made liable only as administrator, he is nevertheless defendant, and, there being no special statute requiring suit to be brought in any particular county, the general statute controls, and he may be sued in tbe county of his residence or any county where he may be summoned. Suit in the instant case could have been brought in any county in the State where service of summons could have been had on defendant. It is not required to be brought in the county where the administrator was appointed. This is not a suit to settle the estate of a deceased person, and is not within the provisions of any special statute prescribing where suit must be brought.

In the American Law of Administration, by Woerner, vol. 2, p. 1267, it is said: “The venue or place where an action may be brought against the personal representative is mostly determined or influenced by the statutes of the respective States, but it is thought as a rule the representative has no official residence and may be sued in the county 'where he resides or the administration is pending, or where he is accessible to service.”

We know of no statute or decision in this State contrary to the doctrine announced in the cases cited. Since this suit was brought in Washington County, it was necessary to serve the summons in Washington County., The suit, however, might be brought in any county where service could be had on the defendant.

The judgment of the circuit court is affirmed.


author: Mehaffy, J.

text:
    Alexander v. Johnson.
    Opinion delivered September 29, 1930.

      John W. Goolsby, for appellant.

      Robert A. Rowe, Harrell Harper and A. F. Smith, for appellee.
   Mehaffy, J.

The appellee, Fonzo Johnson, filed suit in the Sebastian Circuit Court against appellant, and alleged that appellant was a physician and had been employed by appellee to treat Rosie Johnson, wife of appellee. It was alleged that Johnson and his wife had two small children, that they lived happily together as husband and wife from the time of their marriage until about June 21, 1928. Rosie Johnson had been suffering from pellagra and appellee took her to Hartford and placed her under the treatment of appellant. It is alleged that she became infatuated with Alexander and her affections alienated from the appellee. That on the 21st day of June, 1928, the said Alexander, by persuasion and undue influence, induced Rosie Johnson to go with him to Howe, Oklahoma, in the night time and that he registered at the Bennett Hotel in Howe as R. S. Alexander and wife, and that they occupied room 10' in said hotel, and that, on account of the wrongful influence exercised by appellant brought to bear upon Rosie Johnson, it so alienated her affections that it caused a separation between appellee and his wife. After the alleged conduct between Alexander and Rosie Johnson, Johnson and his wife separated, and it is alleged that, because of Alexander’s conduct he lost the companionship, comforts, society, love and trust of his wife and was deprived of her help in raising their children.

The evidence introduced by appellee tended to show that on the evening of June 21 Alexander and Mrs. Johnson left Hartford and drove to Howe, Oklahoma, registered at the hotel as man and wife 'and stayed together that night. That next morning they «trove back to Hartford, Arkansas, from Howe, Oklahoma, together. The evidence introduced on the part of appellant tends to show that they did not go together to Howe, and did not stay together at the hotel. In other words, there is a sharp conflict in the evidence as to the conduct of Alexander and Mrs. Johnson. It would serve no useful purpose to set out the testimony in full. The jury returned a verdict for $5,000, judgment was entered for that amount, motion for a new trial was filed and overruled, and the case is here on appeal.

Appellant earnestly contends that there is a total want of evidence to show that the wife stayed at the Bennett Hotel at Howe at the time alleged or any other time.

■C. W. Luten, manager of the Bennett Hotel at Howe, Oklahoma, testified positively that on the 21st day of June, 1928, along about 10 or 10:15 or 10:30 p. m., Dr. Alexander and a woman he treated as his wife, registered at his hotel and spent the night there. They came in the hotel and asked for a room and registered, and witness took them to a room, and they stayed all night, and there was but one bed in the room. Witness talked to Dr. Alexander about five minutes before he went to bed. He' said he had had oar trouble and asked about a garage and said he and his wife would stay all night and have the car repaired next morning. Next morning he went up town, and when he got his car fixed, came back and left. He testified that he recognized the defendant as the man who registered. He also testified that the woman looked to be about 25 years old. He had never seen her before and has never seen her since. The woman who stayed all night with Dr. Alexander did not come out of the depot next morning. He did not pick up a woman there that witness knew of. The only woman witness saw him with was the one he stayed with all night. The evidence also shows that the page of the hotel register containing the names of Dr. Alexander and wife was torn out. There was also evidence*that the signature of Dr. Alexander on checks and notes which he admitted was genuine was the same as the handwriting on the hotel register.

Miss May Denton, a niece of Mr. Luten, who lived at the Bennett Hotel on June 21, 1928, testified that Dr. Alexander stayed at the hotel. That this Mr. Alexander and a young lady came down in the office and the young lady asked for a comb, which witness furnished. This witness did not know Mrs. Johnson, but she testified that it was a woman about 25 or 26 years old. She identified Dr. Alexander as the person who stayed at the hotel.

Minnie Lou Gentry, a cousin of Rosa Johnson, wife of appellee, testified that Rosa Johnson came to her residence at Heavener, Oklahoma, on June 22, 1928, about 9 o ’clock in the morning in a car with Dr. Alexander. They came to get the baby. Witness was keeping a baby for Mrs. Johnson. They did not take it away she testified, because it cried for her, and Dr. Alexander told Rosa to leave it and they would come back and get it.

Mr. C. W. Luten was recalled and described the woman who spent the night with Dr. Alexander, and the description given by him was a fair description of Rosa Johnson.

The appellee, being recalled, testified to the description of Rosa Johnson, and said she was 26 years old.

Dr. Alexander testified very positively that he was not at Howe and did not register there at any time and did not spend the night there with any woman, but he also testified that on the night of June 21 he had two cases for treatment at Heavener, and that Mrs. Johnson asked him to allow her to go with him. He told her she could go along and she did go. We therefore have the appellant’s statement that they left Hartford together, going, as he said, to Heavener, Oklahoma. Dr. Alexander also testified that on the next day he and Mrs. Johnson came back to Hartford in the car; he says he went to Heavener and saw her at the depot, just standing there, and that she got in the car with him and went on down to her uncle’s, where the conversation was had about the baby. The positive testimony that Dr. Alexander registered with a woman 25 or 26 years old at the hotel and spent the night with her, together with the evidence indicating that the description of this woman suited the description of Mrs. Johnson, the fact that they left Hartford together going towards Howe, Oklahoma, and the evidence that they came to her uncle’s together next morning and back to Hartford together on the 22d, was sufficient evidence to justify the jury in reaching the conclusion that Dr. Alexander and Mrs. Johnson spent the night together at the hotel in Howe. This evidence is contradicted by Dr. Alexander and his witnesses, but when there is substantial evidence to sustain the finding of facts by a jury, the verdict of the jury is conclusive here. In other words, if the evidence is conflicting, it is the province of the jury, and not this court to pass on the weight of the evidence. We therefore think that the evidence was sufficient on the question of Dr. Alexander and Mrs. Johnson spending the night at the hotel together.

It is next contended by appellant that there is no evidence of any enticement or ¡inducement. We think the evidence to the effect that the wife of Johnson, who was a mother of two little children, went with appellant in his car from Hartford to Howe, Oklahoma, and spent the night with him is ample evidence to support the allegation of inducement.

We said in a very recent case that an instruction is erroneous which simply requires that the appellant by her conduct won the attention and affections of plaintiff’s husband without imposing the requirement that it be found that there was a conscious wrongdoing on the part of appellant. Bevers v. Bradstreet, 170 Ark. 650, 280 S. W. 667. But what stronger proof could there possibly be of conscious wrongdoing on the part of appellant than the proof that he took appellee’s wife from Hartford, Arkansas, to Howe, Oklahoma, and spent the night with her in a hotel 1 This court also said in the case last mentioned: “The thing forbidden and made actionable is the entry of a home by a wrongdoer and. the consequent loss of consortium by the injured spouse; it does not matter whether this entry is by physical violence or subtle influence ; but it is essential that there should be a conscious purpose to do a wrongful act. One who does this has acted willfully and wrongfully, and in bad faith to the injured spouse, and is liable to respond in damages therefor. ’ ’ The jury must have found that there was a deliberate. conscious purpose to do a wrongful act.

“Malice, as the term is used in this class of actions, does not necessarily mean that which must proceed from a spiteful, malignant or revengeful disposition; and it has been well said that it would seem on principle to be rare indeed if the motive of a stranger in breaking up a family could be a good one. Hence it has been held that if a strang-er interferes between a husband and wife and by advice or inducement causes her to leave him or takes her away with or without her consent and encourages her to remain from him or harbors or protects her while away, he does so at his peril and must assume the burden of proving good cause and good faith for his conduct. Where the alienation of husband’s affections is by means of adultery, malice in law is inferred from such wrongful conduct.” 13 E. C. L. 1466.

Of course the motive in breaking up the home where adultery was shown could not be a good one. Wherever adultery is shown, there is no question about the bad motive and no other proof is necesary.

Appellant next argues that the court erred in giving certain instructions. It is not necessary to set out the instructions in full, because, while arguing that the instructions are abstract, his only other argument is to the statement in the instructions with reference to wrongful acts and submitting questions to the jury that he contends there was no evidence to support.

As to the contention that the instructions were abstract and submitted questions to the jury which are not supported by the evidence, it is sufficient to say that the evidence of adultery justified the giving of the instructions. Again, there was no specific objection made to any instruction. The objections were general, and we have many times held that, unless instructions are inherently wrong, a general objection is insufficient. In this case the instructions given by the trial court properly submitted the questions to the jury and the instructions correctly stated the law. If the appellant had thought they were improperly worded, as he now argues, he should have made specific objection. A general objection is insufficient. Norton v. Bennett, 181 Ark. 1132, 29 S. W. (2d) 683 ; Graves v. Jewel Tea Co., 180 Ark. 980, 23 S. W. (2d) 972; Lankford v. Cain, 179 Ark. 461, 16 S. W. (2d) 463. The instructions must be considered as a whole, and, when so considered, they correctly stated the law.

If the evidence introduced on the part of plaintiff is true, the jury was justified in returning a verdict for the appellee. Where the evidence is conflicting, it is a question for the jury. The jury passes upon the weight of the evidence and the credibility of witnesses. In this case, the evidence shows that Johnson and his wife were living happily together, they had two small children, and this evidence is undisputed. The evidence on the part of appellee shows that the appellant took appellee’s wife from Hartford to Howe, stayed all night with her in the hotel there, registered as man and wife, and, if this is. true, it not only justified the jury in finding for appellee but the verdict was not excessive. The jury found in favor of appellee on conflicting evidence under proper instructions, and the verdict is conclusive here.

The judgment is therefore affirmed.


author: McHaney, J.

text:
    Hempstead County v. Huddleston.
    Opinion delivered September 29, 1930.

      L. F. Monroe, Wm. S. Athins and U. A. Gentry, for appellant.

      O. A. Graves, for appellee.
   McHaney, J.

On September 18, 1929, appellee filed bis claim in the county court of Hempstead County for damages to land, crops, timber and fences by reason of the relocation and construction as relocated of Highway No. 27 through his lands, the total damage claimed being $625. The county court disallowed the claim, and an appeal was taken to the circuit court where, on a trial de novo, there was a verdict and judgment for $400 in his favor.

Two grounds are now urged by appellant for reversal of the case. The first is that the court erred in refusing to give instruction No. 1 requested by it. This instruction is exactly the same as requested instruction No. 4 in case No. 1703, Hempstead County v. Gilbert, post p. 280, in which an opinion is this day filed, holding that appellant’s contention in this regard is not well taken. This case on this point is therefore ruled by that.

The second ground for reversal is that the court erred in giving instruction No. A on its own motion, which is as follows: “You are instructed that the burden of proof rests upon the plaintiff to establish his claim for damages to his land arising from the construction of the public road through said land, and, if you find from a preponderance of the evidence that he has been damaged by reason of the manner in which said road runs through his land, and in the manner of its construction and by reason of the shape and 'condition in which the land is left, then you will find for the plaintiff in such sum as you may find will compensate him for said damages less the benefits which he has received by the enhancement of the value of said lands by the construction of said road, if any. In determining the amount of plaintiff’s damage, if any, you may taire into consideration the market value of said lands, if it has been shown, prior to the building of the road, and the market value thereof if it has been shown, subsequent to the building of the road, and if you find that the market value of said land before and after the building of the road was affected only by the building of the road and the condition in which the land was left, then you are instructed that the measure of plaintiff’s recovery will be the difference between the said market value before the road was built and after it was built. The plaintiff is also entitled to receive compensation for damage to his crops and fencing, if damage has been shown by a preponderance of the evidence.”

A specific objection was interposed to this instruction on the ground that it permitted the jury to consider as an element of damages the relocation of the road so as to leave the main residence of the appellee off the road, the contention being that every one must take notice of the right of the county or State to change the location of a road, so that it would not pass immediately by the residence, and that there can be no recovery on account of such a change. Appellee answers this contention by stating that he does not think the instruction open to this objection, since no mention is made in the instruction of appellee’s residence, and cites Donaghey v. Lincoln, 171 Ark. 1042, 287 S. W. 407, and Gate v. Crawford County, 176 Ark. 873, 4 S. W. (2d) 516, to sustain the instruction. The two oases referred to do not relate to the question now before the court, and, as we view them, have no bearing on it. We think the instruction is open to the objection made against it, especially when taken in connection. with the evidence. Appellee was permitted to testify over appellant’s objections to the measure of his damages, which included the fact that the old road ran by his residence and that the new road did not. He was asked this question, “Now, I want to know the difference between the reasonable market value of your land as the old road was laid out and was there in front of your residence premises, just what it was before this road was constructed, and what it was afterwards, taking in consideration all damages done and any benefits in it.” He answered that he had been damaged $1,000. Other witnesses for the appellee testified to the damages done appellant, taking into consideration the damage by reason of the relocation of the road, so that it did not run immediately in front of appellee’s residence. We are of the opinion that this was not a proper element of damage to' be considered by the jury, and that the court erred in permitting the witnesses to testify thereto and in giving instruction No. A, which is clearly open to the objection made, and permitted the .jury to assess the damages on such basis. No person has a vested right in the maintenance of a public highway in any particular place, as the power is in the State to relocate the road at any time in the public interest. Therefore, the change in the road so as to leave appellee’s residence off the new road did not constitute an element of damage in this case. The proper measure of damages was the fair market value of the land talien, plus the damage, if any, to the land not taken, less the benefits to the land, if any, by reason of the construction of the new highway, including damages to crops, etc. If the benefits equaled or exceeded the damages, there can be no recovery.

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


author: Butler, J.

text:
    Hempstead County v. Gilbert.
    Opinion delivered September 29, 1930.

      L. F. Mon-roe, Wm. 8. Atkins and U. A. Gentry, for appellant.
   Butler, J.

Action in tbe circuit court of Hempstead County by appellee, J. Gilbert, against tbe appellant, Hempstead County, for damages occasioned by construction of highway across a parcel of land owned by appellee. Trial before a jury and verdict and judgment for $600. Appeal prosecuted by Hempstead County to this court.

The testimony reg*arding* the damag*es to the property involved is sufficient to sustain the verdict and judgment, and about which there is but little conflict. The appellant, however, contends for a reversal of the case because of the court’s failure and refusal to grant prayers for instructions numbered 1, 2, 3, 4.and 5 requested by it. These instructions, except instruction No. 5, are based on the theory that there was evidence to show that the property damaged had been acquired by the appellee Gilbert after its appropriation as a right-of-way by the highway commission and after notice of such appropriation had been brought home to him, and that he was barred from prosecuting his claim for damages because of his failure to file a claim for such within twelve months after notice of the condemnation proceeding.

The appellee, Gilbert, purchased the land in controvery about the first of September, 1928, from Ben Edmiaston and wife and W. B. Hederick and wife, the deed being executed about the 10th of that month, and filed his claim for damages May 31,1929. At the time of his purchase there were certain markers placed across the land which, he was informed by one of his grantors, were placed by surveyors as the proposed route for a highway which was to be built across the property. The contention of the appellant county is that this was notice to Gilbert that an appropriation of this right-of-way had been made, and that the order of the county court appropriating and condemning the right-of-way had been made on March 17,1928, prior to the time of Gilbert’s purchase, and that his claim for damages was not filed within twelve months after the making of such order, and that, therefore, his claim was barred under that provision of our statutes, (C. & M. Dig., § 5249) as construed in the case of Greene County v. Hayden, 175 Ark. 1067, 1 S. W. (2d) 803, providing that claims for damages must be filed with the county court within twelve months from the time of the making of the order by the county court and after notice of same to the landowner. The only evidence tending to establish the time at ivhich the order of condemnation was made was the testimony of the county clerk and the records of the county court which were introduced in evidence by him. The order of condemnation, in its opening paragraph contains the following recital: “On this the 17th day of May, 1928, is presented to this court the petition of the State highway commissioner of the State of Arkansas et cetera.” The petition, however, upon which the order aforesaid was based was not filed with the clerk of the court until September 28, 1928, and the clerk testified that it did not come into his hands or into his office before that date. March 17,1928, was a day of a regular term of the county court, and the records and testimony of the clerk are to the effect that there was no docket entry or any other record in that court disclosing that any order regarding the highway in question or any other highway was made or entered at that term. The original petition hearing the file mark, “September 28, 1928,” was introduced in evidence, and upon it was indorsed this notation: “April 15, 1929, Granted — John L. Wilson, Judge.” Upon that date the order first mentioned was entered of record.

From all of this we conclude that the appellant errs in its contention that the order was made on March 17, 1928, for all of the evidence, as we see it, refutes that position and clearly indicates that the petition and order were prepared contemporaneously — perhaps, on March 17, 1928 — but, for some reason undisclosed, the petition was not filed until the .September following, and then not acted upon or the order made until the date that it was entered on the record of the court, namely, April 15, 1929, and the date appearing in the order merely occurred from ' entering the order as first written without changing the date of its recital to the true date when the prayer of the petition was granted and the order made. These being the facts in the case, the whole fabric of appellant’s contention falls, for from this it is certain that appellee Gilbert had purchased and was the owner of the land in controversy before the date of the order condemning the right-of-way, and that his claim for damages was filed within twelve months from the date of such order and within the time prescribed by law. The court therefore correctly refused instructions Nos. 1, 2, 3 and 4 requested by the appellant.

During* the progress of the trial the appellant maintains that it offered to introduce in evidence, as tending to establish as a circumstance to be considered by the jury in arriving at the value of the property, the assessed valuation of the land for the year 1928, which testimony was overruled by the court. This action of the court is assigned as error. If, indeed, the rule laid down by this court in the case of Texas & St. Louis Ry. Co. v. Eddy, 42 Ark. 527, and followed in a number of our decisions that a tax assessment of land is not admissible as evidence of its value in assessing damages for right-of-way has been changed by act No. 205 of the Acts of the General Assembly of 1929, as contended by appellant (a question which we deem it now unnecessary to decide), the trial court committed no error, because as a matter of fact no testimony showing the assessed valuation of the land herein involved was offered. The clerk of the county court was called and brought with him the real estate tax book for the year 1928 showing the last assessment of land made in the county. He was asked to turn to § 8, township 9 south, range 26, and stated in answer to a question, that he found no assessment at all against either W. B. Hederick or J. Gilbert; that he did find an assessment of a parcel of land in that section in .the name of Kendrick and Edminson, the description of the land assessed ‘being “Part of SE SE, 1 acre.” He was then asked to state the value as shown by the assessment, to which objection was made on the ground that there was no showing that the assessment was made by the plaintiff in the case or that he owned the land at the time. The objection was sustained.

Without passing on the question of the correctness of the ruling for the reasons given by the learned trial judge, we think the ruling proper because the land involved in this case mentioned in the claim for damages, as shown by deed to Gilbert which was introduced in evidence, was a parcel of land described by metes and bounds and lying in the northeast of southeast of section 8, township 9 south, range 26 west, an entirely different forty to that of the parcel, the assessed value of which was offered to be proved. Por, as we have seen, that parcel lay in the southeast of the southeast of section 8. For this reason also instruction No. 5 asked by the appellant was properly refused, it seeking to submit for the jury’s consideration in determining the market value of the property the assessed value of the land.

The case was submitted to the jury in the afternoon and the jury, after being out for about an hour, returned into court and announced that it had failed to agree. The jury was allowed to separate with directions to report at 8:15 the following morning. At 8:20 on the following morning, the court being open and the jury present, the court admonished the jury as follows: “Now, gentlemen, I will state to you it is quite important, it seems to me, that this case ought to be settled. It would take time and expense to try it again, and I would like for you gentlemen to agree, if you can get together conscientiously, and return a verdict in the case.” The judge then proceeded to instruct the jury that a verdict might be returned upon the agreement of nine jurors, stating to them in effect that he did not usually inform the jury that nine might return a verdict except where it appeared that twelve could not get together, and continuing, he said: “It is always, of course, advisable that every juror participate in the deliberations, and that all agree if they can, but if they find they cannot get together, why nine can return a valid and legal verdict. So, I am telling you that, gentlemen, so that if you don’t all get together unanimously, if nine of you get together upon a verdict, you can act accordingly,” and in response to a question by a juror, instructed the jury that where a verdict is made by nine, each should sign his name to it.

The trial judge apparently was not aware that any attorneys were present, for he concluded by saying, “I am doing this in the absence of attorneys on either side, but I am taldng the responsibility and making a record of it here in court. The question in regard to this matter occurred at 8:20 this morning. I dismissed this jury and asked them to return at 8:15. So it was at a time when the jury were expected to be here and counsel were put on notice yesterday.” The judge was mistaken regarding the absence of the attorneys, for it is disclosed by the record that one representing the appellant excepted to the instruction of the court given with reference to the right of the jury to return a verdict upon the agreement of nine, “first, for the reason that the language of the court stating to the jury that it is important that they reach a decision in this case, and that a second trial would be expensive, is not proper and tends to influence the jury to arrive at a verdict against their judgment; sec-, ond, * * * for the reason that the case had been closed, argument of counsel had been made and the instructions of the court given, and the jury retired to consider their verdict, and later in open court announced that they were hung, and the defense contends that the instruction should not have been given after the case had been submitted to the jury and it was determined that they had failed to arrive at a verdict.”

As is said in St. L. I. M. & S. R. Co. v. Carter, 111 Ark. 284,164 S. W. 715: “The rule is well settled in this State that the trial court may detail to the jury the ills attendant on a disagreement and the importance of coming to an agreement. The trial judge should not, by threat or entreaty, attempt to influence the jury to reach a verdict. He should not, by word or act, intimate that they should arrive at a verdict which is not the result of their free and voluntary opinion, and which is not consistent with their conscience. He may, however, warn them not to be stubborn and to lay aside all pride of opinion and to consul c with each other and give due regard and weight to the opinion of their fellow-jurors.” We do not think that the language of the trial judge in his admonition to the jury violated this rule, and that, while calling attention to the importance of reaching a verdict and the time and expense a disagreement might entail, there was no element of threat or entreaty by which the jury or any one of its members might have been influenced to reach a verdict not the result of their voluntary and untrammeled opinion or which would be inconsistent with their conscience. Since the adoption of the amendment to the 'Constitution by which a verdict in civil eases may be reached upon the agreement of nine of the jury, it might be well in each case, at the time of its submission, in instructing the jury on the form of their verdict, to inform them that such verdict might be rendered upon the agreement of nine of the jurors. But we are unable to see how a litigant could be prejudiced by a failure to do this at the submission of the case and later on and during the time of the jury’s deliberation to so instruct and inform, them. However, we think the better practice would be to give the proper instruction as to the form of the verdict and how it might be returned when the case is first submitted to the jury.

The evidence being sufficient to warrant the amount of damage fixed, and, no error appearing on the face of the record, the judgment of the lower court is correct, and it is therefore affirmed.


text:
    Butts v. Crumb.
    Opinion delivered September 29, 1930.

      McConnell $ Jackson, for appellant.

      J. 8. Butt, for appellee.
   McHaney, J.

On June 16, 1924, appellants executed and delivered to the Guthrie Mortgage Company a promissory note in the sum of $3,000, due ten years after date, with interest from date at 6 per cent, per annum, secured by a deed of trust on 155 acres of land owned by the appellants in Howard County, Arkansas. Four days later, on June 20,1924, the above mentioned note and deed of trust were duly assigned to the appellee and a memorandum thereof noted on the record of the deed of trust. On the 17th day of September, 1924, the Guthrie Mortgage Company settled with appellants for the amount of the loan by paying off a prior mortgage in the sum of $1,800 and retaining $1,200 as a commission for procuring the loan, and which amounted to 4 per cent, per annum of the face value thereof for ten years. In 1927 the land covered by the deed of trust was forfeited for the nonpayment of taxes for the year 1926 and sold to a third party. The period of redemption expired without a redemption being effected, and sometime thereafter the appellee secured a conveyance of said lands from the purchaser at the tax sale and paid therefor the sum of $488, a sum largely in excess of the taxes, penalty and costs required to be paid in order to redeem. Appellee thereafter, in September, 1929, instituted an action to foreclose his deed of trust, some of the interest payments being delinquent and there being an acceleration clause in the deed of trust providing that, on default in payment of interest, taxes, etc., the whole amount might be declared due and payable. Summons was served upon the appellants and in a short time thereafter appellant, E. M. Butts, and his son-in-law, Floyd Tollison, called upon counsel for appellee and asked for additional time in which to raise sufficient money to pay up his indebtedness. Mr. Butts and his son-indaw testified that they understood the counsel for appellee agreed to take no further steps in the matter until about the first of January, at which time they thought they could raise the money to pay off the accrued indebtedness. Counsel for appellee testified that he told them he would give them until the first of January to pay up, but that he would go ahead and take a formal decree of foreclosure at the November term of court, but would not advertise the land for sale until after January 1, 1930; that they asked him if any additional costs would accrue, and he advised them that whatever additional costs accrued by the taking of the decree would be paid by him. , A decree was taken in November, but the property was not advertised for sale until after January 1, no payments having been made by appellants, and was sold by the commissioner on January 31, 1930. Thereafter the sale was duly reported to the court, and on February 14, appellants filed their exceptions to the report of sale and moved the court to set aside the judgment, permit them to answer, and to interpose the plea of usury to the note and mortgage and the excessiveness of the judgment. They alleged that they had been deceived by counsel for appellee and led to believe that the case would not be heard until after the first of January, 1930, instead of November, 1929. They also alleged that the judgment was excessive in that the sum. of $488 paid for a conveyance of the tax title was excessive, for the reason that the taxes only amounted to about $35. As to the usury, it was alleged that the contract for the loan with the mortgagor was void for the reason that it was tainted with usury on account of the $1,200 retained by the mortgage company as commission and the 6 per cent, to be paid in the note and deed of trust.

The court overruled appellant’s exceptions to the report of sale, decreed a confirmation thereof, and this appeal followed.

The evidence is in dispute as to what happened about the continuance of the case after service was had upon appellants, but we think the preponderance of the evidence is with the appellee that there was no agreement to take no further steps in the case until after January 1,1930. Appellants ’ evidence was to the effect that they so understood the agreement with appellee’s counsel, but, on the other hand, appellee’s testimony was positive and direct that he only agreed to postpone advertising the property until after January 1, 1930.

We find it unnecessary to decide whether the contract between appellants and the mortgage company was usurious and whether appellee was affected with notice thereof, if it were usurious. When appellant Butts and his son-in-law went to counsel for appellee, their only request was for time in which to raise money with which to pay off the accrued indebtedness. There was no mention of a defense to the action, or a request for time in which to make a defense to the action. Their only purpose was to secure a delay in order that they might raise the money necessary to pay the accrued indebtedness. Usury is a defense which must be pleaded, and appellants had ample opportunity to make the plea before the decree was rendered and before the land was sold. They neglected to do this. They waited for a period of approximately ninety days after the decree of foreclosure was taken, * * * after the land had been sold and report of sale made, and was pending before the court for confirmation before offering* to make any defense to the action whatever. It therefore rested in the sound discretion of the court as to whether it would undo and set aside everything that had been done in the case up to that time and permit them to file an answer. It exercised this discretion after hearing the evidence and declined to set the proceeding’s aside. We cannot say therefore that the court abused its discretion in this regard. They had notice of the pendency of the suit by actual service. They had been advised that if they would pay the accrued indebtedness by January 1, the controversy might be settled. They knew that they did not pay the accrued indebtedness by January 1, or any other time. They made no pretension to counsel for appellee that they desired to make any defense to the action. We are therefore of the opinion that the court did not abuse its discretion and that the judgment must be affirmed. It is so ordered.


author: Habt, :C. J.,

text:
    Bond v. Stanton.
    Opinion delivered October 6, 1930.

      J. F. O’Melia and Daily S Woods, for appellant.

      Hill, Brizzolara <& FitzTmgh, for appellee.
   Habt, :C. J.,

(after stating the facts). The doctrine that the owner of one lot may acquire an easement over the lot of another by the open, notorious, and adverse use thereof under a claim or right for a period of seven years is well settled in this State. Such adverse user is sufficient to vest the claimant with an easement therein. Clay v. Penzel, 79 Ark. 5, 94 S. W. 765 ; Scott v. Dishough, 83 Ark. 369, 103 S. W. 1153 ; Medlock v. Owen, 105 Ark. 460, 151 S. W. 995 ; and McGill v. Miller, 172 Ark. 390, 288 S. W. 932.

The evidence in this case shows that buildings have been erected upon the lots owned by Stanton and Morrow for between forty and forty-eight- years, and that these buildings have been occupied for business purposes during all that time. When erected and for many years thereafter, they belonged to other persons than to Louise Bond. The lots were 100 feet deep, but the business houses were only ninety feet deep, leaving ten feet for an alley or passageway for the convenience and necessity of loading and unloading merchandise in the business houses. The owner of the property north of them in the same block erected a business house on his property, and he left ten feet for a passageway or private alley. This left an alley twenty feet in width between the houses fronting on Garrison Avenue and those on lot 10' on the north of the same block. This alley was subsequently paved, and was continually used by the different owners of the property as a passageway for the purpose of unloading or loading merchandise from their respective business houses for a period of more than seven years before the defendant purchased the property.

Thus, it will be seen that the various owners of the property acquired an easement therein before the defendant purchased the lots in 1902 and 1903. When the defendant purchased the lots, the tenants of the various buildings continued to use the private passage or private alley for loading.and unloading goods just as it had been used before. In addition, an agent of the defendant erected a warehouse on lot 10 and reserved ten feet on the south side of the building for a passageway just as it had been before she purchased the lots. Now this indicates that the defendant, through her agent, recognized the existence of the easement at the time she purchased the property, and continued to so recognize it until she conveyed a part of the property to Stanton and Morrow. In fact, Stanton testified that Kelley, the agent of the owner, told him when he purchased the property, that there was a permanent passageway to' the public alley in the rear of the building which could never be taken away. While Kelley denied this, he does not deny that he told Stanton that there was a private alley there. As stated in Ward v. Warren, 82 N. Y. 265, what an agent knows about the use of an easement in premises committed to his charge will be attributed to his principal.

The fact that, when the buildings were erected, ten feet were reserved in the rear of them for use as a passageway for wagons in delivering and receiving goods from the respective premises, indicates that it was intended for permanent use as a passageway for the owners and tenants of the various buildings, and that this was continued for the period of more than seven years at a time when the various lots were owned by different persons. Thus, under the principles of law above decided and referred to, an easement in favor of the various owners of the lots was acquired before the defendant purchased them. After she purchased the lots now owned by the plaintiffs, she rented out the buildings for business purposes; and all the attendant circumstances tend to show that she, through her agent and tenants, continued to recognize the existence of the easement. Such an easement was both convenient and necessary for a proper use of the buildings purchased 'by Morrow and Stanton.

Mrs. Chauncey never at any time owned the property on the west side of lot 11 on which the proposed structure is to be erected. 'This lot was purchased by the defendant from another person in 1920. It lies next to the public alley, and the passageway over it was used by Mrs. Chauncey during all the time she owned the property now owned by Stanton and Morrow. She and her tenants continually used it for the purpose of delivering goods to' her two stores, and such use was both convenient and necessary as above stated. In this view of the matter, it cannot be said that the easement became merged in her ownership of the fee when she purchased the two lots now owned by Stanton and Morrow.

We think that the easement existed at the time Morrow and Stanton purchased the lots. Therefore, they were entitled to the injunctive relief prayed for, and the decree will be affirmed.


author: Hart, C. J.,

text:
    Williamson v. Mitchell Auto Company.
    Opinion delivered October 6, 1930.

      Jack Machen, for appellant.

      McKay & Smith, for appellee.
   Hart, C. J.,

(after stating the facts). In the absence of a bill of exceptions and since the recitation in the judgment is that the difference between the value of the automobile at the date of the commencement of the suit and at the date of the trial is $125, the presumption is that the evidence adduced at the trial sustained the finding of the circuit court and warranted the judgment rendered if within the issues raised by the pleadings. Strode v. Holland, 150 Ark. 122, 233 S. W. 1073 ; McKinney v. First National Bank of Batesville, 152 Ark. 403, 238 S. W. 629 ; Coblentz & Logsden v. L. D. Powell Company, 148 Ark. 151, 229 S. W. 25 ; Commercial Credit Co. v. Stanley, 164 Ark. 473, 262 S. W. 318 ; and Abrams v. Hoff, 174 Ark. 144, 294 S. W. 389.

In the application olf this well settled rule, it cannot be said that there is any error apparent from the face of the record. • The complaint filed by the plaintiff shows that it sought to recover possession of a Chevrolet truck of the value of $93.35 and damages for its detention in the sum of $93.35. There was a judgment in favor of the plaintiff in the circuit court for the sum of $147.16, and it must be presumed that there was evidence sufficient to sustain the judgment.

The record also recites that there was a judgment in favor of the plaintiff against G. T. Williamson in the sum of $125. The record shows that G. T. Williamson, at the commencement of the suit, signed a bond for the defendant in which they covenanted to perform the judgment of the court in the action. The judgment rendered against Williamson expressly recites that there was evidence tending to show that the automobile was of the value of $125 at the time of the bringing of the suit and the execution of the bond for the retention of the automobile, and that it was of no value at the time of the trial. As we have already seen the judgment -of the court was for the sum of $147.16, which must be presumed to be for the value of the automobile and the damages for its detention. Williamson, having- signed the delivery bond in which he covenanted to perform the judgment of the court, must be held liable for the value of the automobile to the extent that it was necessary to perform the judgment- of the court because his action in signing the bond enabled the defendant to keep- the automobile and use it until it became worthless. The condition of the bond was that the signers thereof would perform the judgment of the court, which was for the value of the car at the time of the commencement of the suit and the damages for the detention of it. The defendant could not retain the oar and use it and then return it in its worthless condition in satisfaction of the judgment. It cannot be said that the value of the purchase price of the car was all the amount for which the surety would be held liable because the suit was for the possession of the car and damages for its. detention. Indulging the presumption that the evidence was sufficient to sustain the judgment of the court in favor of the plaintiff against the defendant, it must be presumed that the $125 was the value of the car at the time of the commencement of the suit for which judgment was rendered against Williamson, was for the value of the car and the damages for its detention. See Commercial Investment Trust v. Forman, 178 Ark. 695, 10 S. W. (2d) 897 ; Love v. Hoff, 179 Ark. 381, 16 S. W. (2d) 12 ; Commercial Investment Co. v. Miles, 181 Ark. 1177, 25 .S. W. (2d) 3.

Therefore, the judgment will be affirmed.