author: Humphreys, J.

text:
    McDougall v. Hachmeister.
    Opinion delivered June 29, 1931.

      Joseph Morrison, for appellant.

      Trimble, Trimble & McCrary, for appellee.
   Humphreys, J.

This suit was brought by appellees against appellants to obtain a judgment upon an additional interest note for $1,472.72 and accrued interest after maturity, of date May 23, 1921, and to foreclose a second deed of trust of even date executed to secure same covering certain real estate in Arkansas County.

Appellant filed an answer admitting the execution of the instruments and pleading as a defense thereto that they were parts of an usurious transaction which was void as to interest if construed according to the usury laws of Illinois and void as to both interest and principal if construed according to the laws of Arkansas.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a .judgment against appellants for $4,913.98 and a decree of foreclosure and order of sale of said real estate to satisfy same, from which is this appeal.

The record reflects the following facts: On May 23, 1921, Gilbert H. McDougall and wife and Chas. W. Mc-Dougall and wife executed 28 first mortgage bonds in the amount of $500 each, due December 1, 1931, bearing interest at the rate -of 7 per cent, per annum; and, to secure same, executed a deed of trust to Charles Foreman, trustee for George M. Foreman & Company on said real estate. On the same date and as a part of the same transaction, said appellants executed an. installment note-for additional interest on the main note of $14,000 to George M. Foreman '& Company for $1,472.72, the first installment of $72.72 being due December 1, 1921, and the balance in installments of $70 each due respectively on June 1 and December 1 and including December 1, 1931, and, to secure same, executed a second deed of trust on said real estate to Herman Hachmeister, trustee for Charles Foreman, but for the benefit of George M. Foreman & Company, who advanced the funds on all the bonds and note. At the time the instruments were executed, Gilbert H. McDougall resided in the State of Illinois, Chas. W. McDougall in the State of Arkansas, and Herman Hachmeister, Chas. Foreman and George M. Foreman & Company in the State of Illinois. Each deed of trust contained the following clause:

“The deed of trust, and the notes hereby secured, shall be construed according" to the laws of the State of Arkansas.”

Charles W. McDougall executed all the instruments in the State of Arkansas and Gilbert H. McDougall in the State of Illinois. The bonds and note were made payable at the office of George M. Foreman & Company in the city of Chicago, Illinois. After the delivery of the bonds and note and the deeds of trust to George M. Foreman in the State of Illinois, the said George M. Foreman & Company issued its checks to appellants and to H. B. Allen Sickle as follows:

On June 3, 1921, $2,000’ to Chas. W. McDougall.
On July 1, 1921, $1,000 to Gilbert H. McDougall, Chas. W. McDougall and H. B. Allen Sickle.
On July 1, 1921, $9,600 to Gilbert H. McDougall, Chas. W. McDougall and H. B. Sickle.

This made a total of $12,600. From the total loan of $14,000, $1,400 was deducted by George M. Foreman & Company as a cash commission, and out of the checks that were issued, H. B. Allen Sickle collected $700 as a commission. The McDougalls indorsed the checks out of which H. B. Allen Sickle received $700 as an additional commission, but testified that they did sn because it was the only way to get the money. H. B. Allen Sickle was instrumental in obtaining the loan and wrote a number of letters to George M. Foreman & Company in- Chicago in procuring same. In making the application for the loan, the McDougalls stated that H. B. Allen Sickle was their agent and authorized the payment of the loan to him as such. The evidence was conflicting as to whether H. B. Allen Sickle represented the lender or the borrowers.

The first question arising on the appeal is whether the law of Illinois or Arkansas shall govern in determining the issue of usury. This court has decided “that where parties to a mortgage of land reside in different States, they may, in good faith, contract that it shall be construed with reference to the laws of the State where the mortgagor resides and the land is situated.’’ Lanier v. Union Mortgage, Banking & Trust Co., 64 Ark. 39, 40 S. W. 466; Ward v. Blythe, 92 Ark. 210, 122 S. W. 508. There is nothing in this record indicating that said clause was inserted in <tQxe contract in bad faith or for the purpose of avoiding the force of the usury law in Illinois. Louis M. Watson testified that, in making loans on farms, George M. Foreman & Company always agreed therein that the contract should be construed in accordance with the laws of the State in which the real estate was situated. We are convinced from reading the record that the clause was inserted in the best of faith, and, under our rule, is binding upon appellants.

The next question arising on this appeal is whether the contract before us is usurious when construed according to the laws of this State. Under our law, the highest rate of interest that can be charged for the use of money is 10 per cent, per annum, and any charge above that renders a contract void both as to principal and interest. Constitution of 1874, article 19, § 13; Crawford & Moses ’ Digest, §§ 7364, 7365, 7366 and 7367. The test in this State as to whether a contract is usurious is whether the total amount to be paid under its terms by the borrower, in the event of performance, is in excess of the principal received plus 10 per cent, interest per annum for the term thereof. In applying this test to the contract before us, it will be necessary to determine whether the principal shall be treated as received on the date of the contract or on the day same was actually paid to appellants; and whether the amount of $700 received by H. B. Allen Sickle was received by him as the agent of appellants or as the agent of appellees.

(1) There was a delay in paying the money to appellants after the execution of the instruments, but it was caused by a defect in the. abstract of title to the land, which appellants agreed to furnish. The delay after the defects were corrected was not unreasonable, but, on the contrary, the transaction was wound up expeditiously. There is nothing in the record to indicate that the delay was a subterfuge resorted to in order to obtain more than 10 per cent, per annum for the use of the money. This court said in the case of Matthews v. Georgia State Building Loan Assn., 132 Ark. 220, 200 S. W. 130, 21 A. L. R. 789, that “a contract is not usurious when the parties acted in good faith, where 10 per cent, interest is charged, where the agreement was dated May 21, 1915, but was not closed and the money delivered until June 9, 1915.” As the delay was not occasioned by the fault or bad faith on the part of appellees, the principal must be regarded as received by appellants on the date of the contract in determining whether same is usurious.

(2) It was ruled by this court in the case of May v. Flint, 54 Ark. 574, 16 S. W. 575, that “to affect a loan with usury on account of a commission paid to an intermediary, it must appear that he was the agent of the lender and took the commission under authority express or implied from his principal.” According to the record before us, IT. B, Allen Siclde was appointed appellant’s agent in their written application for the loan, and the letters written by him to appellees show that he was acting for appellants in the procurement of the loan. Before the money was paid over to appellants by appellees, they were specifically informed that H. B. Allen Sickle was not their agent, and that, if anything was paid to him as a commission, they would have to pay it on their own account. "

Although forewarned, appellants indorsed the checks and allowed H; B. Allen 'Sickle to appropriate $700 of the money paid to them. H. B. Allen Sickle had never represented appellees in mailing loans and cannot in good conscience he regarded as their general representative by reason of past services or on.account of an intimate relationship. In determining, therefore, whether the contract is usurious, we cannot treat the $700 paid, by appellants to H. B. Allen Sickle out of the money as so much interest paid by them.

Pursuant to the test and rules stated above by which the validity of the contract must be determined, we proceed to a calculation of the cost of the loan under the terms of the contract as compared with the amount of money actually received as of date May 23, 1921, plus interest thereon at the rate of 10 per cent, per annum from said date to December 1, 1931.

CALCULATIONS AS PER TEEMS OR THE CONTRACT.

Principal loan.......................................................................................$14,000.00

Additional interest notes............................................................ 1,472.72

Interest on $14,000.00 at 7% from May 23 1921, until December 1, 1931

$14,000.00 at 7% for 10 years.........$ 9,800.00

$14,000.00 at 7% for 6 months............ 490.00

$14,000.00 at 7% for 7 days.................. 19.04 10,309.04

Total cost of contract.........................................................$25,781.76

CALCULATIONS OE PRINCIPAL RECEIVED BEARING INTEREST AT BATE OE 10 PEE CENT. PER ANNUM EBOM MAT 23, 1921

TO DECEMBER 1, 1931.

Principal received ...........................................................................$12,600.00

$12,600.00 at 10% for 10 years......$12,600.00

$12,600.00 at 10% for 6 months 630.00

$12,600.00 at 10% for 7 days............ 24.50 13,254.50

Total cost of principal and interest at 10% ..........................................................................................$25,854.50

The rate of interest actually charged under the contract on a principal sum of $12,600.00 is 9.945 per cent.

The interest charged being less than 10 per cent, on the principal sum received, the decree of the trial court is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Camden Gas Corporation v. Camden.
    Opinion delivered June 29, 1931.

      Bryan, WilUmns, Cave McPheeters, Crawford, Johnson, Powell, Sinead $ Knox, Robinson, House & Moses and Harry E. Meek, for appellant.

      Ilayme, Parks $ Westfall and Gaughan, Sifford, Godwin & Gaughan, for appellee.
   Humphreys, J.

This suit for an injunction was brought by appellant against appellees in the circuit court of Ouachita County to restrain them from enforcing ordinance No. 303 of the city of Camden of date April 1, 1929, reducing the rate of gas to domestic consumers to 55 cents for each 1,000 cubic feet’and allowing a minimum charge of $1.50 a month against each consumer regardless of the amount of gas consumed by him. It was alleged in the complaint, in substance, that said ordinance is void, being violative of a charter contract awarded by the city of Camden by ordinance No. 215 of date April 24,1923, to H. B. Scofield and "W. J. Colegrove and later duly assigned by their assignee to appellant to furnish the inhabitants of said city gas for domestic purposes at the rate of 75 cents per 1,000 cubic feet; but that, if the passage of ordinance No. 303 was not void because inhibited by article 1, § 10 of the Constitution of the United States and article 2, § 17 of the Constitution of Arkansas prohibiting the impairment of the obligation of contracts, it is void because the rate of 55 cents per 1,000 cubic feet is unreasonable, arbitrary, confiscatory, and, in effect, the taking of its property without compensation in violation of both constitutions.

On application, a temporary restraining order was obtained preventing the enforcement of the reduced rate upon execution of a bond obligating a refund of the difference between the rate paid by the consumer under ordinance No. 215 and the rate fixed in ordinance No¡ 303 in case the reduced rate should be sustained by the court.

Appellant filed an answer denying seriatim the material allegations of the complaint.

The cause was submitted to the court upon the pleadings and testimony introduced by the respective parties, resulting in a dismissal of the complaint, a dissolution of the temporary restraining order, and the rendition of a judgment against appellants for $17,819.17 under the terms of the bond together with all costs incurred by them, from which is this appeal.

The first question arising for determination is whether ordinance No. 303, reducing the rate, is violative of the charter contract awarded appellant’s predecessor. The charter contract was awarded to its predecessor by ordinance No. 215 under the power delegated to municipal corporations of this State by act No. 124 of the Acts of the General Assembly of the State of Arkansas for the year 1921, which not only accords to the municipalities of the State of Arkansas the exclusive right, but makes it tbeir duty “from time to time to make all reasonable rules and regulations with reference to the operation within such municipalities of any such utility and to order the performance of any duty devolving upon such public utility under its franchise or contract, if any, or under this or any other statute or law and from time to time to initiate, fix, promulgate, regulate, modify, amend, adjust, readjust, or otherwise make and determine fair and reasonable rates to be charged by all public utilities for furnishing public service within such municipalities, which rates shall be so determined and fixed by an order or ordinance, after a hearing made, either upon its own initiative or upon'application of any such utility to such council or city commission. ’ ’

This section of the act became a part of the charter contract, as much so as if it had been incorporated verbatim therein, under the rule adopted and announced by this court in the case of Arkadelphia Electric Co. v. Arkadelphia, 99 Ark. 178, 137 S. W. 1093, and Lonoke v. Bransford, 141 Ark. 18, 216 S. W. 38. When this section is read into the contract, the contract itself provides for a reduction of any unreasonable rate theretofore fixed by ordinance. The passage of ordinance No. 303 reducing the rate was within the reservation and right of the original or charter contract, and, on that account, did not impair the obligation of the contract. Even if the charter contract itself had not reserved the right to reduce the rate, under the rule adopted and announced by this court in the cases of Camden v. Ark. Light & Power Co., 145 Ark. 205, 224 S. W. 444, and Clear Creek etc. v. Ft. Smith Spelter Co., 148 Ark. 275, 230 S. W. 897, ordinance No. 303 would not have been void as impairing the obligation of a charter contract. In those cases it was ruled that the right to regulate or alter rates agreed upon between public utilities and municipalities is an inherent attribute of police power or sovereignty existing in the State, which may be exercised at any time through any State agency for the purpose of establishing just, equitable, and reasonable rates, and this attribute of sovereignty cannot be contracted away by .the 'State or its agencies. Snch contracts must be made in full recognition of and subject to the sovereign power, as much so as if such a reservation were written into the body of the contract. Ordinance No. 303 is not therefore void as impairing the obligation of a contract.

The next question arising is whether the reduction of the rate to 55 cents per $1,000 cubic feet in ordinance No. 303 is confiscatory in the sense of depriving appellant of a fair return upon its investment. Many elements enter into a determination of such a question. Testimony was introduced pro and con touching the original cost of the improvement, the cost of additions after the original installation of the plant, the reproduction value of the property, the depreciation thereof, the working capital, the going value, etc. The value at which the property was assessed was also shown. If we should attempt to set out the testimony of each lay and expert witness relative to the various elements entering into the reasonableness or unreasonableness of the reduced rate, and especially with reference to the reproduction value of the property, it would extend this .opinion to great length without serving any useful purpose as a precedent. Suffice it to say that, after a very careful reading of all the evidence, we are of the opinion that the weight thereof sustains the following finding of the trial court, to-wit: /‘The provisions of ordinance No. 303, enacted on April 1, 1929, are reasonable, fair, equitable, and in all things just to the plaintiff (appellant) and that the gas rates provided for in said ordinance No. 303 are amply sufficient to give and insure the plaintiff (appellant) a reasonable and adequate return and income on the money and property, both tangible and intangible, owned and invested by it in the city of Camden, Arkansas, and which is being used and to be used by it in furnishing and distributing gas to the gas consumers of the said city of Camden, Arkansas.” Especially are we convinced that the finding of the trial court upon the facts is correct in view' of the rule that the burden rested upon appellant to show that the reduced rate was unreasonable. This court said in the case of Clear Creek Oil & Gas Co. v. Ft. Smith Spelter Co., 161 Ark. 12, 255 S. W. 903, that: “On the question of the reasonableness of rates fixed by the Corporation Commission for the transportation of gas by a pipe line company, there is a prima facie presumption in favor of such rates.” The same presumption exists in favor of rates fixed by an ordinance.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    Cherokee Public Service Company v. Helena.
    Opinion delivered June 29, 1931.

      Bonham •<& Bulk, for appellant.

      Busbee, Pugh <& Harrison, for appellee.
   Kirby, J.,

(after stating the facts). Appellant contends that, under the terms of its franchises, it was only bound to furnish the gas in accordance with its contract, “contingent upon acts of Grod, and other things beyond the contrdl of the grantee herein;” and that it was not liable for failure to perform its contract; being unable to procure a supply of gas for distribution to the cities under its franchises from the pipe line company, a common carrier of gas through the State. It alleged that all the parties to the franchises knew that appellant company had no gas wells or supply of its own, and must procure the gas from the pipe line company in order to perform its contracts for distribution. The franchise for the city of West Helena expressly states it is granted with a full knowledge on the part of the city that the natural gas to be furnished by the grantee under this franchise is not to be secured from wells owned by the grantee, but is to be furnished the grantee by other parties through pipe lines. That, because thereof, the supply of gas available for distribution “may be interrupted or entirely discontinued from causes beyond the control of the grantee,” in which event there shall be no liability against the grantee therefor; the requirements of this franchise being that, so long, during the term of it, as the grantee has a supply of gas available, it shall furnish such gas to said city and the inhabitants thereof in accordance with the conditions and terms of the franchise.

In the franchises granted by the other appellees, the gas was agreed to be furnished in accordance with the ordinance within a year after the passage thereof and its acceptance by appellant, and to insure the supply a bond was required to be posted with the city council within 30 days after the acceptance of the ordinance; “it being understood, of course, that the grantee’s inability to furnish such gas within the period above named shall be contingent upon acts of -God and other things beyond the control of the grantee herein.”

The allegations contained in the complaint that it was beyond the control or power of appellant company to procure a supply of gas for distribution under its franchises to the different cities from the pipe line company, notwithstanding it was ready and willing to contract and pay for such gas and entitled to its delivery from the said company, were not sufficient to relieve appellant from liability for its failure to perform its contracts in accordance with the terms of the franchises. It is not an allegation of facts showing “inability to furnish the gas contingent upon acts -of God and other things beyond the control of the grantee herein.” The failure or inability of appellant to make a contract with the pipe line company for delivery of the supply of gas for distribution under its franchises can in no wise be considered due to an “act of God,” nor can it be construed to come within the meaning of the term “other things beyond the control of the grantee herein.” The meaning of this latter general clause is limited by the expression preceding “acts of God,” and includes, under the doctrine ejusdem generis, only such things as are similar in character, it being an old and settled rule of statutory construction,, which confines the meaning of additional and general descriptive words to the class to which the preceding specific words belong. Hempstead County v. Harkness, 73 Ark. 600, 84 S. W. 799; State v. Ry. Co., 95 Ark. 114, 128 S. W. 555; Eastern Arkansas Hedge Fence Co. v. Tanner, 67 Ark. 156, 53 S. W. 886; Ex parte King, 141 Ark. 213, 217 S. W. 465; Greene County v. Smith, 148 Ark. 33, 228 S. W. 738.

If it was not shown that appellant’s inability to procure the gas for distribution was due to the fact that the fields from which the pipe line carrier was operated had ceased to produce gas, or that the pipe line company, because of the exhaustion of production of gas in the fields from which its supply of gas had been produced and inability to discover other fields of production to supply its needs, had ceased operation, it might have relieved appellant of the obligation of its contract for distribution of gas under its franchises, or rather for damages for breach of it, according to its terms, and been a complete defense to the suits. Or it may be that, if it was shown the public enemy had destroyed the pipe line, or the government or State had taken it over under some necessity for operation, this would have excused the performance of the contract by the appellant.

It certainly cannot be said, within the meaning of the term “and other things beyond the control of the grantee herein,” following the words “acts of God,” that the refusal of the pipe line company, alleged to be a common carrier of gas, to make a contract with appellant company to supply gas for distribution under its franchises, was a thing beyond the appellant’s control, excusing it from the performance of the contract, and the court did not err in sustaining the demurrer.

Appellant contends, in any event, that the court erred in not considering the acceptance bonds, required' by the cities, as providing a penalty or forfeiture, instead of liquidated damages. In Nilson v. Jonesboro, 57 Ark. 168, 20 S. W. 1093, a case where the city brought suit to recover on a bond given it to. guarantee the performance of a contract to complete a line of street railway within a year, the court considered the contract as liquidated damages and gave judgment for the stipulated amount. It was there said:

“The only question to be decided in this case is, whether the sum mentioned in the third clause of the contract should-be treated as a penalty or as liquidated damages. * * * The authorities, however, show that where the intention to liquidate the damages is not obvious, the stipulated sum will usually be given the effect of a penalty if it exceeds the measure of a just compensation and actual damage sustained is capable of proof. But where the contract is of such nature that the damage caused by its breach would be uncertain and difficult of proof, the sum named by the parties is generally held to be liquidated damages, if the form and language of the instrument are not unfavorable to’ that construction and magnitude of the sum does not forbid it. * * *
“In the case at bar the appellee is a municipal corporation and could not in its corporate capacity suffer any injury by a breach of the contract. If an actual loss was contemplated by the stipulation in question, it could only therefore have been such as would result to the public. And, as the parties must have known that it was wholly impracticable to measure this by any rule of damages, it is reasonable to suppose that they intended to fix the terms of the contract the precise sum recoverable for its breach. Clark v. Barnard, 108 U. S. 436, 460, [2 S. Ct. 878.] ”

In Robbins v. Plant, 174 Ark. 639, 297 S. W. 1027, 59 A. L. R. 1128, the court, after a review of the authorities, said:

“These cases hold that, if the contract provides for a definite sum as the liquidated or stipulated amount to be paid upon a breach thereof, then the amount so fixed upon by the parties may be sued for; and it is not necessary for plaintiff to prove any actual loss by reason of the defendant’s breach of the contract. All that is necessary to entitle the plaintiff, in such a case, to recover the stipulated sum, is to show the breach of the contract upon which the payment thereof depends. In other words, the effect of a clause for stipulated damages is to substitute the amount agreed upon as liquidated damages for the actual damages resulting from the breach of the contract, and thereby prevent a controversy between the parties as to the amount of damages.” See also City of Salem v. Anson, 40 Ore. 339, 67 Pac. 190, 56 L. R. A. 169.

In the Blytheville franchise it is expressly stipulated that the damages for breach of this section (the one requiring the giving of the $5,000 bond) will be $5,000, to secure the payment for which the above mentioned bond is given.

The contracts and franchises of the other cities and the bonds for the performance of which appellant was required to give .are all of such nature as to show that the damages caused by the breach thereof would be uncertain and difficult to prove, and the sum named by the parties was correctly held to be liquidated damages, the form and language .of the instruments not being unfavorable to that construction, and since, if any loss was contemplated by the parties for the breach of the contracts, it could only have been such as would have resulted to the public, “and (as said in Nilson v. Jonesboro, supra), as the parties must have known that it was wholly impracticable to measure this by any rule of damages, it is reasonable to suppose that they intended to fix by the terms of the contract the precise sum recoverable for its breach. ’ ’

* It follows from what has been said that no error was committed by the court in sustaining the demurrer to the complaint of appellant company, and to its answer to the cross-complaint of appellee cities; nor in holding the amounts of the bonds to be liquidated damages and recoverable as such, and the decree is in all things affirmed.


text:
    Craig v. Golden Rule Life Insurance Company.
    Opinion delivered June 29, 1931.

      J. A. Watkins, for appellant.

      Verne McMillen, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted for appellants that, October 10th being the day the policy was delivered and received by the insured, it thereafter fixed the 10th day of each succeeding month as the due date of the premium thereon, and the insured being entitled to 20 days’ grace on the payment of premiums, the policy was in force on June 29,1930, when the insured was killed.

The meaning of the contract is clear and unambiguous, and its terms were well understood and recognized by the insured and the insurer. The application made on September 28, 1929, recited that the second premium would be due on November 1, 1929; the policy was dated October 9,1929, the day it was mailed to the insured, and recited that it was granted in consideration of the application and the payment of 85 cents on or1 before the first day of October, 1929, and a like payment on or before the first of each month during the calendar year and monthly payments in advance thereafter, increasing annually on January first of each year in accordance with the Cash Savings Step Eat© Plan.

The policy was mailed to the insured on October 9, 1929, received by him on October 10, 1929, and kept in his possession, apparently, during the entire period, until his death.

There is no contention that he was not thoroughly familiar and conversant with the terms thereof, and it is specifically agreed that the premiums were due on the first day of each calendar month when he made application for reinstatement on January 23, 1930.

The parties both evidently interpreted and construed the contract when the application for reinstatement was made, and their construction is entitled to. great weight in the correct interpretation of it.

In National Equity Life Ins. Co. v. Bourland, 179 Ark. 398, 16 S. W. (2d) 6, where the insured recognized the correctness of the quarterly premium due, of which he was notified frequently by his insurer, his failure to pay a quarterly premium, when due, was held to forfeit his policy; thq court saying: Temple Cotton Oil Co. v. Southern Cotton Oil Co., 176 Ark. 601, 3 S. W. (2d) 673; and Webster v. Telle, 176 Ark. 1149, 6 S. W. (2d) 28.”

'“It is a well-established principle of law that, in the interpretation or construction of the contract, the construction the parties themselves have placed on the contract is entitled to great weight, and will generally be adopted by the courts in giving effect to its provisions. This is especially true in oases of ambiguity in the written contract. Two of our recent cases to this effect are.:

In the instant case the insured recognized the correctness of the date for payment of the monthly premiums, and specifically agreed that the first day of each month was the due date thereof. He was notified each month that the premium would he due on the first day of the month, and paid it prior to the 20th day of each month, while the policy remained in. force with the exception of the month of January. 'He did not pay the January premium until after the 20th, and on the 23rd made application for reinstatement, recognizing the first of the month as the due date and the .necessity for reinstatement of his insurance because of his failure .to pay by the 20th and thereby prevent the lapse of the policy. After his reinstatement, he recognized the first day of the month as the due date and paid the premiums accordingly. He was notified of the date of the premium becoming due, the premium for the nonpayment of which the policy lapsed. He had a second notice of that date, and afterwards was notified that his policy had lapsed because of the failure to pay the premium on the due date, and he made no objection or claim that there was any mistake about the date for the payment of the premium or contention that the policy did not lapse because of the failure to pay then or within the period, of grace allowed therefor.

The parties made their own- contract, which is free from ambiguity and necessarily must be enforced according to its terms. The beneficiaries must stand in the shoes of the insured and will be bound by-the terms of .the policy issued; and the insured acceptéd and retained, without objection, the policy until it was forfeited for nonpayment of premiums upon the date fixed by its terms. Methvin v. Fidelity Mutual Life Association, 129 Cal. 215, 61 Pac. 1112; Wilkinson v. Commonwealth Life Ins. Co. 176 Ky. 833, 197 S. W. 557. See also Tibbits v. Mutual Benefit Life Ins. Co., 159 Ind. 671, 65 N. E. 1033; Jewett v. Northwestern Nat. Life Ins. Co., 149 Mich. 79, 112 N. W. 734; Wilkie v. New York Mutual Life Ins. Co., 146 N. C. 520, 60 S. E. 427; Tigg v. Register Life & Annuity Ins. Co., 152 Iowa 720, 133 N. W. 322; Rose v. Mutual Life Ins. Co., 240 Ill. 45, 88 N. E. 204.

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


text:
    Paragould Motor Company v. McDonald.
    Opinion delivered June 29, 1931.

      Huddleston <& Hughes, for appellant.

      Jeff Bratton, for appellee.
   Kirby, J.,

(after stating the facts). Appellant challenges the validity of the act giving the justice of the peace jurisdiction to enforce statutory liens of the kind claimed herein as unconstitutional; and claims also that the circuit court erred in not making one J. L. Daeus a party to whom it claimed it had sold and delivered the truck before the filing of the lien and suit, a party defendant.

The lien claimed, and for the enforcement of which the suit was brought in the justice court, is one given by statute, act of February 27, 1919 (§ 6866, Crawford & Moses’ Digest); and the jurisdiction to enforce the lien is conferred upon justices of the peace by an amendment to § 8, of said statute (§ 6873, Crawford & Moses’ Digest) by act of February 28,1923, which provides:

“Liens accruing under the foregoing provisions of the act may be enforced at any time within four months after such accounts are filed, by suits in the chancery courts of the county or in the municipal courts of the counties having such courts, or by justices of the peace of the township in which the action would accrue in counties having no municipal courts, and the cause shall proceed to judgment and final disposition as other matters of equitable cognizance and jurisdiction.”

In Shelton v. Little Rock Auto Co., 103 Ark. 142, 146 S. W. 129, in an action to enforce a laborer’s lien for repairing an automobile for an amount in excess of $300, this court only held that the justice court was without jurisdiction, because the amount claimed to be due was greater than $300, the maximum amount of such court’s jurisdiction as limited ¡by the Constitution. It was also held there that the act of April 15, 1903, repealed the act of March 16, 1899, and that the laborer’s common-law lien was superseded by the statutory lien.

•In Lowe Auto Co. v. Winkler, 127 Ark. 433, 191 S. W. 927, the court held that the laborer or mechanic repairing-an automobile or furnishing supplies therefor was without right to recover and hold possession of the repaired automobile upon which he may have had a lien until the amount was paid, as was the case in regard to common-law liens. It was also held that such lien could not be enforced by a counterclaim in the suit for the possession of the car, no lien claim having 'been previously filed with the clerk.

In Corning Motor Co. v. White, 173 Ark. 144, 293 S. W. 46, it was held that the lien of the seller of an automobile for the balance of the unpaid purchase price under a contract retaining the title until the purchase money was paid was superior to that of an automobile repairer as provided in the statute, § 6874, Crawford & Moses Digest.

The undisputed testimony shows that the amount claimed to be due and for which the lien was sought to be enforced is correct, and also that the claim of lien was duly filed with the clerk of the circuit court in accordance with the statute on the day the suit was brought; and that the truck upon which the repairs were made for which the lien is claimed was in the possession and control of the appellant company according to the finding of the jury.

The statute giving justices of the peace jurisdiction to enforce the lien given by statute in cases of this kind was not an attempt to confer equity jurisdiction upon such courts but only an authorization of such courts to enforce such liens, and is not in conflict with the Constitution or beyond the power of the Legislature to provide, so long as the amount sued for is within the limitation placed on such courts by the Constitution.

Appellant cannot complain of any error, if there was such, in determining the cause without J. L. Dacus, to whom it claimed to have sold the truck under' such circumstances as to have made him an innocent purchaser thereof, since it did not ask to have him made a party to the suit at the time of the trial.

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


author: Mehabey, J.

text:
    Gregory v. Rubel.
    Opinion delivered June 29, 1931.

      Madison K. Moran, for appellant.

      Trimble, Trimble <& McCrary, for appellee.
   Mehabey, J.

J. A. Coleman and wife gave to A. Rubel a mortgage on certain lands on the 9th day of July, 1917, to secure the payment of $670.89 due and payable January 1, 1918.

On the 16th of July, 1918, J. A. Coleman deeded the land described in the mortgage to F. A. McDonald, and at the time did not tell McDonald about the mortgage to Rubel.

In January, 1919, McDonald and wife made a deed to J. A. Coleman of all the land described in the mortgage except 40 acres. McDonald paid taxes on the 40 acres since 1918.

On December 1, 1928, F. A. McDonald sold the 40 acres of land to D. C. Jordan, and executed and delivered a deed to Jordan, and on the same day Jordan executed a mortgage to McDonald on the 40 acres involved, and other lands, for the sum of $800.

On December 31, 1928, D. C. Jordan and wife executed and delivered to J. E. Gregory a mortgage on the same 40 acres for the sum of $300.

After the death of A. Rubel, his widow, Sarah J. Rubel, on the 29th of April, 1930, brought suit to foreclose the mortgage and summons was issued and served on J. A. Coleman, D. C. Jordan and Alice Jordan, wife of said D. C. Jordan, and on July 11, 1930, a decree was taken, but not at that time put on record; it was, however, noted on the judge’s docket. Thereafter J. E. Gregory was made a party, and summons was issued and served on him on July 19, 1930.

The attorney for Gregory, some time prior to October 3, 1930, went to the office of the chancery clerk of Lonoke County for a copy of the complaint in the case of Sarah J. Rubel et al. v. J. E. Gregory, and was informed by the clerk that Gregory was made a party in the case of Rubel v. Coleman et al.

Gregory’s attorney secured from the clerk’s office what he thought was a copy of the complaint, but, after reaching home, he discovered that the paper was a copy of the decree. He thereafter received a copy of the complaint from the attorney for the plaintiff.

J. A. Coleman filed separate answer in which he admitted that he and his wife, Effie A; Coleman, executed their promissory note on, July 9, 1917, and gave the mortgage described in plaintiff’s complaint to secure the payment of said note. He neither admitted nor denied the correctness of the credits shown on the note.

J. E. Gregory, on October 3, 1930, filed answer and cross-complaint. In his answer he denied that plaintiff held a mortgage on the 40 acres involved in this suit. His cross-complaint was against D. C. Jordan and Alice Jordan his wife, and he asked for judgment against them for the sum of $300, and that the same be declared a lien, and that said land be sold to satisfy the lien.

Gregory thereafter, on November 12, 1930, filed an amendment to his answer in which he stated that the mortgage given by J. A. Coleman was executed July 9, 1917, due January 1, 1918; that it was barred by the statute of limitations because there had not been any marginal entries made on the record in the recorder’s office in Lonoke County, and that said mortgage was void as to third persons under § 7408 of Crawford & Moses’ Digest, because it had been more than 12 years since the mortgage was due. He alleged that his mortgage was paramount to the mortgage held by plaintiff.

J. E. Gregory also filed a petition for the production of a certain letter alleged to have been written to the judge of the chancery court, and he alleged that the letter was pertinent to the matter in controversy. He also filed a motion to set aside the sale.

F. A. McDonald also filed a warranty deed to the 40 acres and alleged that the mortgage to Rubel was barred by the statute of limitations.

. The court entered a decree in favor of Sarah J. Rubel and for the sale of the lands to satisfy the decree, and adjudged the cost against J. A. Coleman. The decree recited that, if the property sold for more than the amount of indebtedness due the plaintiffs,, the overplus should be held in the registry of the court, and the cause of action in the cross-complaint of J. E. Gregory against J. A. Coleman, D. C. Jordan and Alice Jordan was continued until the nest term of court. This decree was rendered on the 3rd day of October, 1930, and was noted on the judge’s docket, but was not placed on record until the 17th of November.

This appeal is prosecuted to reverse said decree. Letters were introduced and several witnesses testified. There was some conflict in the evidence. While we have carefully considered all the evidence, we do not deem it necessary to set it out here.

Appellant contends first that the court erred in entering a decree against J. E. Gregory until after 20 days from the time notice was given him that the plaintiffs were wanting to take his rights out of 40 acres of land in controversy and that he was a defendant with J. A. Coleman et al.

Summons was served on Gregory on July 19, 1930. The evidence shows that Gregory’s attorney, some time prior to' October 3, asked the chancery clerk about the case of Rubel v. Gregory and was told that Gregory was wanted in the case of Rubel v. Coleman et al.

The attorney for Gregroy stated to the court that he supposed that Gregory had been summoned in the case of Rubel v. Coleman, and he was advised that that was true. Gregory’s attorney then filed answer. He had been there before and got what he thought was a copy of the complaint, but he later found that it was a copy of the decree.

Mr. Moran, Gregory’s attorney, testified that Mr. Trimble, attorney for appellees, announced to the court that he denied that appellees had a mortgage, and thereupon Mr. Walls, who represented Mr. Coleman, said that there was no use to deny it, that Coleman'had given the-mortgage. Moran -testified that the mortgage was not produced and not introduced in evidence.' It -is admitted, however, that a decree of foreclosure was agreed to and the notation made on. the judge’s docket. Thereafter when Trimble mailed Muran a copy of the decree, Moran declined to agree to the decree as written by Trimble. .

After the decree had been agreed to, and after the case had been decided by the court, Moran discovered that there was no memorandum on the mortgage record, and he then contended and now contends that the appellee’s cause of action was barred by the statute of limita-tions. This contention however, comes too late. The court had already decided the case..

It is next contended that the court erred in receiving the papers from Mr. Trimble, who had withdrawn the papers from the file of the clerk without an. order from the court;

Section 1186 of Crawford & Moses’ Digest, provides that original pleadings and papers shall not be taken from the office of the clerk unless by order of the court. The evidence shows that these papers were mailed to the judge of the court. The' judge of the court would have a right to make an order permitting any one interested to take the papers, and there could certainly be no wrong or violation of the statute in sending the papers to the judge himself.

The parties had agreed on a decree when the court was in session, and when the attorney for appellees mail-' ed the precedent fio. the attorney for-the appellant,, the attorney for the appellant declined, to agree to the decree as written, and the attorney for the appellee mailed all-the court papers, together with the correspondence between the attorneys, to the judge, who then prepared a decree according to his findings when court was in session October 3rd, and this decree prepared by the court was placed on record the 17th day of November, when the court was again in session at Lonoke.

The court did not render a decree in vacation. The decree was rendered when court was in session the 3rd day of October and when all parties interested were present.

It is next contended that appellee did not prove her debt by introducing the note and mortgage. The evidence shows that the note and mortgage were both introduced in evidence. The attorney for the appellee testifies that this was done, and the decree recites the fact. The decree was rendered the 3d of October, and there was not another or different decree, but it was the same decree, that was placed on record November 17th.

The appellant contends that the court erred in refusing to enter an order requiring T. C. Trimble, attorney for appellee, to furnish Gregory a copy of the letter written to the court when the papers were mailed to him. The evidence does not show what was in this letter. It was written after the decree was rendered and could not have had any effect on the decision of the court in any way because the decision had already been reached by the court.

It is also contended that the sale should not have been confirmed because the land had not been appraised.

Section 7404 of Crawford & Moses’ Digest, relied on by appellant, refers to foreclosures where the mortgaged property is personal property, and this sale was not made under the power of sale in the mortgage, but was made under the foreclosure decree of the chancery court.

Appellants next contend that the attorney for the plaintiff prepared the decree, and that it should therefore be construed more strongly against him. As we have already said, the decree was agreed to in open court, and it would make no difference who prepared it, it would have to be prepared in accordance with the finding of the court.

There are some other objections to the action of the court and to. the decree and sale, but we do not think it necessary to discuss them, because what we have already said disposes of the questions raised.

The decree is affirmed.


author: Butler, J.

text:
    Missouri Pacific Railroad Company v. Miller.
    Opinion delivered June 29, 1931.

      Thos. B. Pryor, W. L. Curtis and Thomas B. Pryor, Jr., for appellant.

      Partaán <& Agee, for appellee.
   Butler, J.

About six o’clock on the afternoon of April 22, 1930, Cruce Miller was traveling in an automobile on the public highway which crossed the line of the Missouri Pacific Railway about four miles east of Sallisaw, Oklahoma, at approximately right angles. The highway ran in a general north and south direction, and the railroad in an east and west direction, and the crossing which Cruce was approaching at the time of the accident was commonly called the Jack Bradley crossing. As Cruce Miller approached this crossing from the north, one of defendant’s trains, operated by Prank Hedrick, the engineer, was approaching from the east. Both the automobile and the engine of the train reached the crossing at approximately the same time, resulting in a collision which wrecked the car and injured Miller, from which injuries he died within a few hours. The owner of the automobile, Bryan Miller, a brother of Cruce Miller, and W. P. Miller, as administrator of the estate of Cruce Miller and next of kin, brought suits against the defendants, the owner of the car to recover for damages to same, and the other, as administrator and next of kin, for damages for the injury and death of Cruce Miller. This suit was brought in the circuit court of Crawford County against Prank Hedrick, the engineer, a citizen and resident of the State of Arkansas, and the Missouri Pacific Railroad Company, a foreign corporation. In apt time a petition, accompanied by the proper bond, was filed in the circuit court for the removal of the cause to the Federal court. The petition was denied, and the prayer for removal refused, to which action of the court timely and proper objection was made and exceptions reserved.

A trial was had which resulted in a verdict against both defendants in favor of the plaintiff, the owner of the car, for damages in the sum of $200, and in favor of the plaintiff, W. F. Miller, as administrator of the estate of 'Cruce Miller, in the sum of $5,000 and for benefit of next of kin in the sum of $500. Judgment was entered in accordance with the verdict, and within the time.provided by law the defendant, Missouri Pacific Railroad •Company, filed its motion for a new trial, which was overruled. Thereupon the railway company duly .excepted and appealed to this court.

It is first insisted that the trial court erred in denying the petition of the defendant railway company for the removal of the cause of action from the Crawford Circuit Court to the United States District Court. The complaint alleged that the train which, struck the automobile was being operated by Frank Hedrick at the time of the accident as a servant of the' railway company and as the engineer controlling and operating the locomotive, and that he operated such at a careless and reckless rate of speed, to-wit, fifty miles an hour,, while ap-' proaching the crossing and failed and neglected to ring a bell or sound a whistle or to give any other signal or warning of the approach of said train, and neglected to exercise ordinary and reasonable care to keep and maintain a proper lookout for persons and property approaching, or upon, the crossing; that he failed to éxércise ordinary and reasonable care to avoid' striking the automobile driven by plaintiff’s intestate, and injured him by not giving the proper signals and warning or Tdv stopping and slowing the movement of said engine and train.

In the petition for removal the several allegations of negligence were denied, and the plea of contributory: negligence on the part of Cruce Miller was interposed with the further allegation that: ■ ' •

“Your petitioner states that all of the allegations of negligence charging Frank Hedrick jointly with this defendant do not state facts, and the said Frank Hedrick is made a party to this suit for the sole and only purpose of preventing your petitioner herein from removing this cause to the Federal court.”
‘ ‘ That the grounds of negligence alleged in the complaint state no joint liability on the part of defendants. The employee of the railroad company, so far as the cause of action is concerned, is neither a proper or necessary party. The allegations of the complaint, if conceded to be true, would not render this petitioner and the resident employee jointly liable. Your petitioner states that this is true of each and every material allegation of the complaint. That there are separable controversies involved in this suit, and in none of said controversies is the defendant, Prank Hedrick, a necessary or proper party.”

There is no question that the right of a nonresident defendant, sued in a State court, to remove the case to the Federal court cannot bé defeated by the fraudulent joinder of a resident employee as codefendant who was .in no way responsible for plaintiff’s injuries, and that, where an issue of fact is raised upon the petition for removal of a cause to a Federal court, that issue must be tried in the Federal court and not in the State court. St. L. S. W. Ry. Co. v. Adams, 87 Ark. 136, 112 S. W. 186; St. L.-S. F. R. Co. v. Britton, 163 Ark. 255, 259 S. W. 730; Wecker v. National Enameling Co., 204 U. S. 176, 27 S. Ct. 184.

It is clear from the allegations of the complaint that the negligence of Hedrick was the proximate cause of the collision, and therefore he was liable personally for resulting damages, and the defendant railway company was also liable, as it was alleged that Hedrick was in its employ and the engineer who was in control of the locomotive at the time of the collision. Consequently, a .joint ' cause of action was stated against the employee and the employer under the laws of the State of Oklahoma. Kugler v. White, 91 Okla. 130, 216 Pac. 903. It will be observed that in the petition there was a mere denial of the allegations of negligence and the declaration that “Frank Hedrick is made party to this suit for the sole and only purpose of fraudulently preventing your petitioner herein from removing this canse to the Federal court.” However, there is no allegation in the petition of any state of facts from which this conclusion -might be drawn. It is not denied that Hedrick was the engineer or that he was in charge of, and operating, the locomotive at the time of the collision. The allegations in the petition are much the same as those in the case of Chicago, R. I. & P. Ry. Co. v. McKamy, 180 Ark. 1095, 25 S. W. (2d) 5, where it is said: “No facts were set forth therein (the petition for removal) tending- to show that the joinder of appellant and E. G. Medlock in that part of paragraph ‘C’ was a fraudulent device to prevent a removal of the cause. ’ ’

In the case of So. Ry. Co. v. Lloyd, 239 U. S. 496, 36 S. Ct. 210, the court said: “ Allegations in the petition for removal of an alleged separable controversy to the Federal court for diverse citizenship are not sufficient where they amount simply to a traverse of the facts alleged in the plaintiff’s petition and in that way undertake to try the merits of the cause of action, good upon its face.”

In the case of Ches. & Ohio Ry. Co. v. Cockrell, 232 U. S. 146, 34 S. Ct. 278, where the allegation of the complaint and those in the petition for removal are in all essential matters the same as those in the case at bar, in passing upon the question of whether or not the case was removable from the State to the Federal court, the court said:

“Rightly understood and much abbreviated, the plaintiff’s petition, after stating that the train was being operated by the engineer and fireman as employees of the railway company, charged that the injury and death of the intestate were caused by the negligence of the defendants (a) in failing to maintain an adequate lookout ahead of the engine (b) in failing to maintain any lookout upon the left or fireman’s side from which the intestate went upon the track, (c) in failing to give any warning of the approach of the train, and (d) in continuing to run the train forward after it struck the intestate, and wTas pushing her along, until it eventually ran over and fatally injured her, when it easily could have been stopped in time to avoid material injury. * * *
“The railway company’s petition for removal, while not denying that the engineer and fireman were in the employ of the company or that they were operating the train when it struck and injured the intestate, did allege that the charges of negligence (all being specifically repeated) against the defendants were each and all ‘false and untrue, and were known by the plaintiff, or could have been known by the exercise of ordinary diligence to be false and untrue, and were made for the sole and fraudulent purpose of affording a basis, if possible, for the fraudulent joinder’ of the engineer and fireman with the railway company, and of ‘thereby fraudulently depriving’ the latter of its right to have the action removed into the Federal court; and that none of the charges of negligence on the part of the engineer or fireman could be sustained on the trial. # * *
* As in other pleadings, there must be a statement of the facts relied upon, and not otherwise appearing, in order that the court may draw the proper conclusion from all the facts, and that, in the event of a removal, the opposing party may take issue, by a motion to remand, with what is alleged in the petition. * * *
“* * * As they (the engineer and fireman) admittedly were in charge of the movement of the train, and their negligence was apparently the principal matter in dispute, the plaintiff had the same right under the laws of Kentucky, to insist upon their presence as real defendants as upon that of the railway company. We conclude, therefore, that the petition for removal was not such as to require the State court to surrender its jurisdiction.” C. R. I. & P. Ry. Co. v. Schwyhart, 227 U. S. 184, 33 S. Ct. 250; C. R. I. & P. Ry. Co. v. Dowell, 229 U. S. 102, 33 S. Ct. 684; Hay v. May Dept. Stores Co., 271 U. S. 318, 46 S. Ct. 498; New Coronado Coal Co. v. Jasper, 144 Ark. 58, 222 S. W. 22.

It will be seen from a consideration of the decisions above cited that there were no facts alleged by which a conclusion of fraud could be reached. The petition, therefore, was insufficient on its face, and the trial court did not err in denying the same.

The principal reliance for reversal of this case is that the court erred in overruling appellant’s request for a directed verdict. This brings in question the suffi-' ciency of the evidence to sustain the verdict. As the injury occurred in the State of Oklahoma, the rights and liabilities of the parties must be governed by the laws of that State. Mo. Pac. Rd. Co. v. Coca-Cola Bottling Co., 154 Ark. 413, 242 S. W. 813. It is first insisted that, under the undisputed testimony in the case, the injury was the result of the negligence of the deceased in going upon the crossing in front 'of the moving train. This question was submitted to the jury under proper instructions, and, regardless of what we might think the undisputed evidence would disclose; we are concluded by the verdict of the jury under art. 23, § 6 of the Constitution of the State of Oklahoma, which section provides: “The defense of contributory negligence or of assumption of risk shall in all cases whatsoever be a question of fact and shall at all times be left to the .jury. ’ ’ This provision was considered and construed in the case of Dickinson v. Cole, 74 Okla. 79, 177 Pac. 570, where it was held that the constitutional provision, supra, required that the defense of contributory negligence and assumption of risk should be questions of fact in all cases whatsoever to be determined by jury, and that the finding of the jury upon those defenses is conclusive upon the court. The defendant in that case took the position that art. 23, § 6, of the Oklahoma Constitution, as construed by the court, took from him a vested right and was in violation of the 14th Amendment to the Federal Constitution. The Supreme Court of the United States on appeal affirmed the judgment of the State court, holding that the provision of the Oklahoma Constitution did not contravene the 14th Amendment to the Federal Constitution and that the defendant had only such right to the defense of contributory negligence as that Constitution allowed.

This was an extreme case. The Oklahoma court, in disposing of the question said: “The uncontradicted evidence shows that the deceased, without anything to obstruct his view of the approaching train for more than a block away, stepped in front of it and was instantly killed. Were it not for art. 23, § 6 of the State Constitution which provides that ‘the defense of contributory negligence or of assumption of risk shall in'all cases whatsoever be a question of fact and shall at all times be left to the jury,’ it would be necessary to hold as a matter of law that the negligence of plaintiff precludes a recovery. * * * The uncontradicted evidence shows .that the train was running on acquired momentum with steam cut off and was being controlled by the air brakes; that the automatic bell ringer was ringing and the whistle was sounded for the crossing. Both the engineer and fireman were keeping a careful lookout. The engineer, whose view was obstructed by the boiler, could not see the deceased as he was on the opposite side of the track, but he was seen by the fireman. The latter assumed that the deceased would use the care of an ordinarily prudent person and would not attempt to cross the track in front of the train. ’ ’

Therefore, in the case at bar, irrespective of the contributory negligence of the deceased, the action of the court in refusing to direct a verdict for the defendants must be upheld if there was any substantial evidence tending to establish any negligence on the part of the defendants which was the proximate cause of the injury.

On the question of the negligence of the operative of the defendant railway company, the evidence is in conflict. Hedrick, the engineer, testified that he was in charge of the train at the time of the accident and saw the automobile before the collision at a time when it was about a thousand feet away from the track; that there was some underbrush quite a way after leaving- the railroad track oil the highway and that he could see the car through that brush; that there was a little hill before reaching the crossing which necessitated the acceleration of the speed of the train to the top of the hill, and .from there the ground sloped down to the crossing; that he Avhistled at the whistling post in the proper manner and at that time he saw Miller approaching; that the latter slowed down about fifty feet before he got to the track— had practically stopped — and then started up again; that at the time Miller stopped he looked in the direction from which the train was coming, and witness assumed that he would remain in a place of safety, but he started up again; that after he saAV this witness applied his brakes and sounded the whistle, but it was then impossible for him to stop before hitting the deceased; that, as he approached the crossing after having reached the summit of the hill, the train was not making more than 25 to 30 miles an hour.

The testimony of the engineer, both as to the speed and the whistling for the crossing at the proper and designated point, was corroborated by other operatives on the train, but no one of them saw the automobile immediately before the collision except the engineer. This testimony was supported in part by the testimony of other witnesses and was sufficient to establish due care on the part of the engineer, but -for other witnesses who disputed this testimony. 'Several testified that they were in the immediate vicinity and did not hear any whistle or bell until they heard one or two sharp blasts which attracted their attention, and on immediately looking saw the train strike the automobile. The engineer had testified that he immediately applied his brakes in aii endeavor to stop the train when he first became aware 'that a collision was imminent, but there was other testimony to the effect that the train was a freight train of sixty or seventy cars and that when the train was brought to a standstill the engine had passed over the crossing and was approximately a half mile from the crossing.

A fourteen-year-old boy who lived about 75 yards from the «Crossing testified that he was standing on the porch facing the direction from which the train was approaching and saw it before it reached the whistle post; that he had been reading about locomotives and the number of drive-wheels some of them had and he was wondering how many this one had and was looking- at it to see; that the whistle did not sound before it reached the post, or at it, nor was any bell rung, and the train was coming at a very high rate of speed — faster than witness had ever seen a train run; that it did not whistle until it had reached within about two rail lengths of the crossing when witness heard it whistle twice in quick succession, and, learning that there had been an accident, he went down'there. There was some evidence corroborative of this boy’s testimony which disputed the testimony of the engineer and from which the jury might have found that the train was running very fast, and that the required and customary signals to apprize of its approach were not given.

In the case of Oklahoma Ry. Co. v. Houck, 109 Okla. 187, 235 Pac. 499, cited and relied on by the appellant, the following declaration is made: “While it is the well-settled rule in this State that a verdict based upon conflicting testimony will not be disturbed where there is evidence reasonably tending to support such verdict, yet in a case where there is no competent evidence reasonably tending to support a verdict and judgment, it will be reversed. ’ ’

The appellant contends that, although .contributory negligence as a defense is concluded by the verdict of the jury, yet the circumstances tending to establish such negligence may be. examined and considered in determining whether the defendant was negligent. But, assuming that this is true, the plaintiff in the instant case has adduced direct and positive evidence of the omission of the engineer to make the signals required by law and that the train was running much faster than 25 or 30 miles an hour. There is no evidence which precludes the doubt that Miller failed to see the approaching train. The engineer is the only witness as to Miller’s conduct just before the collision, and, while he testified that Miller saw the approaching train, he also testified that he saw Miller put his automobile in motion at a point fifty feet from the track and approach directly toward the track down which the train was swiftly moving. The jury might well have felt that there was a doubt from all the circumstances as to whether or not Miller saw the train or knew that it was approaching, and might have concluded that, had the engineer sounded the whistle for the crossing at the whistle post, such warning would have apprized Miller of the approach of the train.

In St. L., I. M. & S. R. Co. v. Gibson, 48 Okla. 553, 150 Pac. 455, the court said: “If the evidence had left a doubt as to whether or not deceased saw the train or knew that it was approaching, then the failure of the defendant to ring the bell and sound the whistle would have raised a question as to whether that failure was not the cause of his going upon the track and thereby losing his life.” * * *

The appellant contends that there was no testimony tending to support the allegation of the complaint that at the time of the collision and immediately before the train was being operated at a high or reckless rate of speed. The engineer testified that he was operating the train in an ordinarily careful manner and that the rate of progress was not in excess of 25 or 30 miles an hour. The jury had §, right to assume from that testimony that any rate of speed greatly in excess of that at which the engineer testified he was traveling might have, under the circumstances, been negligence. There was testimony from which the jury might well have found that the train was traveling much faster than testified to by the engineer. At a short distance from the crossing the train came through a cut and around a bend and there was a rise between that place and the crossing from the summit of which the ground sloped toward the crossing. The highway was a, public one, and it was reasonable to suppose that travelers might at any time be at, or in, the neighborhood of the crossing. Therefore, in operating the train, care should have been exercised in the rate of speed maintained, and from all the circumstances in the case there would be a question of fact to be determined by the jury as to whether or not the train was running at an excessive speed, and, if so, whether or not that constituted negligence. St. L.-S. F. Ry. Co. v. Rundell, 108 Okla. 132, 235 Pac. 491.

A number of instructions were given to the jury over the objection of the defendants, to the giving of which defendants excepted, and they are assigned as error. Mostuf these instructions were objected to on the ground that there was no competent testimony offered to sustain them on the theory that there was no evidence of primary negligence on the part of the defendants. What we ¡have heretofore said disposes of those questions except as to instruction No. 11. By that instruction the rule for assessing- damages was given in the event the jury should find for the plaintiff, W. P. Miller, as administrator of the estate of Cruce Miller, deceased, and it is urged that this instruction was erroneous for the reason that there was no competent testimony tending to show that plaintiff’s intestate suffered any conscious mental suffering or physical pain. It is argued that the record discloses that immediately following the accident plaintiff’s decedent was unconscious, and some of the witnesses thought he was dead, and there is no testimony other than that of Bryan Miller, his brother, which tends to establish to the contrary. The testimony of all the witnesses was to the effect that plaintiff was breathing when he was extricated from the car and was alive when placed in the ambulance a short time after the accident. Just how long plaintiff lived from that time is not shown, but it is sufficiently certain that he lived for several hours and died in a hospital to which he had been taken. There were no witnesses who testified as to whether or not he was conscious or as to. the extent of his suffering- from the time he was put in the ambulance at the scene of the collision until he died in the hospital except that of Bryan Miller. Just why witnesses were not called to testify as to his condition while being transported in the ambulance or while he was in the hospital before his death is not shown. It is likely that some one besides Bryan Miller saw him and observed him during that time; but, if so, the brother was the only one who testified. From that testimony, however, it is very clear that he was conscious and that he did suffer. The witness testified that “he groaned and took on” and “wanted to roll over, and I had to hold him,” and it was necessary to give him a hypodermic which relieved him to some extent. As before suggested, the evidence on this point is meager, but it is sufficient to warrant the giving of the instruction complained of.

It is our conclusion that there was some substantial evidence tending to establish primary negligence on the part of the defendants, and that there was no prejudicial error committed by the trial court. The .judgment is therefore correct, and must be affirmed. It is so ordered.


author: Hart, O. J.

text:
    Clarke v. John Wanamaker.
    Opinion delivered July 6, 1931.

      Oscar E. Ellis, for appellant.

      I. J. Friedman and Northcutt & Northcutt, for appellee.
   Hart, O. J.

Tlois is an appeal from a judgment by default for the plaintiff in a suit on an account for merchandise in the sum of $4,507.14. An itemized account was duly filed as an exhibit to the complaint, and this was verified by an agent of the corporation.

It is first insisted that the judgment should be reversed because it was by default, and the complaint was not verified. The suit was based upon an account for merchandise which was exhibited with the complaint and duly verified by the affidavit of tfhe plaintiff. If the defendant desired that the complaint also be verified, it should have made a motion to that effect, instead of demurring to the complaint, and, upon the court overruling the demurrer, refused to plead further. Like any other action, the defendant waived its right to have the complaint itself verified by not making a motion to that effect. Payne v. Flournoy, 29 Ark. 509; Randall v. Sanders, 71 Ark. 609, 77 S. W. 56, and Queen of Arkansas Insurance Co. v. Taylor, 100 Ark. 9, 138 S. W. 990.

It is next insisted that the affidavit to the account was not verified as required by § 4200 of Crawford & Moses’ Digest. The agent of the plaintiff corporation who verified the account stated on oath that he was the duly authorized agent of the plaintiff and certified that the account against the defendant, Emma Peters Clarke, in the sum of $3,677.46, principal, and interest to October 1, 1930, in the sum of $829.68, being in the aggregate $4,567.14, was correct and past due after allowing all proper credits and offsets. The affidavit was duly certified and sworn to before a notary public. The effect of § 4200 of Crawford & Moses ’ Digest is to make a verified account, when undenied, prima facie proof of its correctness. The defendant did not deny the correctness of the account by affidavit or by verified answer. She did not offer any testmony whatever, but contented herself, with demurring to the complaint. By virtue of the statute above quoted, the account verified by the affidavit of the agent of the plaintiff was evidence of its correctness, and, not having* been attempted to be contradicted by the defendant, warranted a judgment in favor of the plaintiff. Chicago Crayon Co. v. Choate, 102 Ark. 603, 145 S. W. 197.

The judgment will therefore be affirmed.


author: Hart, C. J.,

text:
    Fidelity & Deposit Company of Maryland v. Cowan.
    Opinion delivered July 6, 1931.

      Sam Costen and Wils Davis, for appellant.

      Nelson Crawford, Roy E. Nelson and Harrison, Smith & Taylor, for appellees.
   Hart, C. J.,

(after stating the facts). Appellant contends that $10,000, the amount which it paid into court as surety for Cowan, is the full amount of its liability, and that the court erred in holding that the $5,000, the proceeds of the Montague bond, was subject to the claims of the various plaintiffs superior to the right of appellant to offset its judgment against Cowan against it. Cowan contends that he should have judgment against appellant, to the extent of Montague’s shortage during the years 1923 and 1924, which is shown by the master’s report to be $3,250.61, and also for the full amount of the shortage of 1925, which exceeds the amount of the bond for which appellant would be liable as surety for Montague.

The record shows that Montague was appointed deputy clerk by Cowan when he first assumed the office ,of clerk in 1923, and continued as such deputy throughout the first term. Appellant signed his bond in the sum of $5,000 to Cowan, conditioned for the faithful performance of the duties of his office, and that he would pay over to his successor the amounts of money collected by him in his official capacity. When Cowan entered on Ms second term in 1925, Montague continued as his deputy, and Cowan paid the premium to appellant of $25, coni inning the former bond in force, conditioned for the faithful performance of Montague’s duties as deputy clerk and for turning over the money collected by him in his official capacity. Montague continued to act as such deputy clerk until some time in the fall of 1925, when an examination of his books showed that he was short in a sum amounting to something over $11,000.

The public moneys in the hands of Cowan as clerk belonged to the various claimants, and the clerk was under a trust or a public duty to pay the same to them. The money collected by him belonged to the public, and he was charged with the duty of delivering it to the proper authorities entitled to receive it. The same rule would apply to the deputy clerk. The public moneys collected and held by him belonged to the county or to the proper authorities entitled to receive the same. The clerk and his deputy were not mere debtors to the county and to the improvement districts whose money was in their hands, but they sustained the relations of trustees. The money collected by them Avas impressed with a trust in favor of the county and improvement district officers.

As surety of Montague on his official bond to Cowan, appellant cannot rise any higher than its principal in right, and must stand in his shoes and take his remedies with all the equities and limitations in the premises. If the money misappropriated by Montague belonged to these improvement districts, they were entitled to receive it and to collect it from him as well as from Cowan. Montague could in no sense escape liability from misappropriation of the money because he had executed a bond to pay it back to Cowan. If the money belonged to the public, those in authority were entitled to recover it into whosever hands it could be traced, provided it could be shown that they had notice that it was public money. Montague collected the funds as deputy clerk, and, of course, had actual knowledge that they belonged to the public. Appellant' signed his bond as surety to Cowan for the faithful performance of his duties, and also conditioned that he should pay back the money to his successor or to those entitled to it. Thus the very terms of the bond signed by appellant show that it was liable for any misappropriation of the money by Montague. As we have already seen, appellant stands in the shoes of Montague and can acquire no greater rights or equities against those entitled to the money than he had. Hence neither appellant nor Cowan would be entitled to any offset against Montague for the funds he misappropriated.

If the moneys could be traced into the hands of any third person who had knowledge that they were public moneys when received by such third person, then appellant, as surety on the official bond of Montague, would be subrogated to any rights and entitled to recover the same from such third person. Boone County v. Byrum, 68 Ark. 71, 56 S. W. 532; and Carroll County Bank v. Rhodes, 69 Ark. 43, 63 S. W. 68.

The principle, as recognized in these cases, is that no right of subrogation would exist until the surety had paid the money into the proper public authorities. Hence Cowan would have no right to set-off against Montague, nor would appellant as surety have any right of subrogation until the money which was due by Montague to the public authorities had been paid by Cowan or by appellant as his surety. In holding the appellant liable as surety on Montague’s bond as deputy clerk, the chancery court only held appellant to the discharge of the obligation of its contract in the premises. It was only required to do and perform the covenant of its bond for executing which it had received a stipulated compensation.

It is insisted also that the court erred in consolidating the cases, and that the state of the pleadings did not warrant the decree entered of record by the chancery court. We do not agree with counsel in this contention. Equity abhors a multiplicity of suits and adjusts the rights of parties without circuity of action, whenever it is feasible to do so.' This principle of equity jurisprudence is so well settled that we need cite only the following cases: State v. Atkins, 53 Ark. 303, 13 S. W. 1097; Bledsoe v. Carpenter, 160 Ark. 349, 254 S. W. 677; Martin v. State, 171 Ark. 576, 286 S. W. 873; and K. C. Sou. Ry. Co. v. Ft. Smith Suburban Ry. Co., 180 Ark. 492, 22 S. W. (2d) 21.

Then, too, the record shows that the parties understood that all their rights were being settled and adjudicated in one suit. Evidence was adduced by each of the parties to establish his contentions; and, under another settled rule of equity jurisprudence, the pleadings will be considered amended to conform to the proof. McConnell v. Bourland, 175 Ark. 253, 299 S. W. 14.

We now come to the cross-appeal of Cowan. On this branch of the case, but little need be said. The court held appellant as surety liable on the bond executed on the 30th day of December, 1924, for the period beginning January 1,1925, and ending December 31,1925. It makes no difference whether this is called a new bond or a continuation certificate. The premium demanded by appellant was paid by Cowan. The instrument itself shows that it was to be subject to all the conditions of the former bond. One of them was that Montague should pay to his successor all moneys received by him as such deputy clerk. The amount of his shortage was considerably more than $5,000. In fact, it was more than $11,000. The continuation certificate or new bond will be considered according to its terms and not according to the label on it. Therefore we think the chancellor correctly held that appellant was liable as surety on it as a new bond.

We are of the opinion, however, that the court erred in not finding appellant liable as surety for Montague’s shortage under the first bond, which was for the years 1923-1924. His shortage for this time is reported by the master to be $3,250.61, and we think the chancellor erred in not holding the appellant liable as surety for this amount to the extent which was necessary to pay the claims of the various claimants and the costs of the fiction.

It follows that the decree on the appeal will be affirmed, and on the cross-appeal it will be reversed with directions to enter a decree in accordance with the views expressed in this opinion relating to the cross-appeal. It is so ordered.


author: Smith, J.

text:
    Delamar & Allison v. Ward.
    Opinion delivered July 6, 1931.

      Frcmenthal, Sherrill $ Johnson, for appellants.

      McRae \& Tompkins, for appellee.
   Smith, J.

State highways numbered 4 and 53 cross each other at right angles in Nevada County, and both of them were being improved by spreading gravel on them. While the work of hauling and spreading the gravel was in progress, John Ward, Jr., who was thirty-one years of age, drove a Ford touring car over the point of intersection of these roads. His car had the back seat cut away and the entire top removed so as to make a light truck which he called a “Hoopi'e.” His car truck had only one seat, and seated thereon with him were his father, John Ward, Sr., who was sixty-four years of age, and Henry Lewis, his father-in-law, who was sixty-eight years old.

Between nine and ten o’clock on Saturday morning, October 11, 1930, Buster Westmoreland drove a truck loaded with gravel across the intersection of these roads and a collision occurred with the car driven by Ward, which resulted in a serious injury to John Ward, Jr., and in the death of his father and father-in-law. Suits were brought by Ward, Jr., and by the administrators of the estates of his father and father-in-law to compensate these injuries. These cases were consolidated and tried together.

There was a verdict and judgment for John Ward, Jr., in the sum of $5,000. There.was a verdict and judgment in the Lewis case for the benefit of the widow in the sum of $2,500, but no verdict was returned in favor of the estate for pain and suffering. In the case of Ward, Sr., there was a verdict in favor of his widow in the suip. of $2,000, and a verdict and judgment for the benefit of his estate in the same amount.

The truck driven by Westmoreland was owned by A. C. and Charles Bratcher, and they were made defendants, but the suit was dismissed as against them before the trial. Delamar & Allison were original defendants, and were sued upon the theory that Westmoreland was their servant at the time of the collision, and that his negligence had caused the collision.

A reversal of these judgments is prayed upon the following grounds: (1) That the relationship of master and servant did not exist between Westmoreland and Delamar & Allison; (2) that no negligence was shown upon the part of Westmoreland; (3) that the injury was caused by the contributory negligence of the occupants of the automobile; (4) that error was committed in making proof that Delamar & Allison carried indemnity insurance; and (5) that error was committed in submitting the issue whether either deceased had suffered conscious pain and suffering, and in permitting the estate of Ward, Sr., to recover on that account.

The most difficult question in the case is the one first stated, that is, whether the relationship' of master and servant existed between Westmoreland and Delamar & Allison.

Upon this question it may first be said that no objection is made to the instructions which submitted this issue to the jury, and it remains therefore only to determine, in the decision of that question, whether the evidence was legally sufficient to support the finding of the jury that the relationship of master and servant existed, and, in the decision of that question, we must, of course, view the testimony in the light most favorable to the plaintiffs.

This testimony may be summarized as follows: The State Highway Department was spreading gravel upon a force account, and was shipping by railroad freight the gravel so used. Delamar & Allison suggested a cheaper gravel might be obtained by hauling it from local gravel pits, and they entered into a contract with the highway department to furnish and deliver the gravel. Their contract required them to deliver it on the roads. Delamar & Allison employed a large number of persons, about 302 in fact, to haul and deliver this gravel, and all of them were paid the same price for this service. No one hauled gravel until their trucks had been employed and put to work by Delamar & Allison.

Allison testified that Bratcher applied to the highway department engineer for employment, but Bratcher denied this. One of these trucks was driven by 'Buster' Westmoreland. The gravel was purchased from. Clifton Graham, who stayed in the pits to keep check' on the amount of gravel hauled, but the undisputed testimony appears to show that Delamar & Allison were in control of the pits, and that the trucks were loaded by their employees.

A number of the truck owners testified that they were paid by Delamar .& Allison, after one. per cent, of the amount due them had been deducted for insurance, at least they were advised that the deduction was made on that account. Delamar & Allison denied that the deduction was made for that reason, but testified that this .one per cent, was deducted on account of the advance payment, and that when the truck owners waited until the regular pay day no deductions were made.

There was testimony to the effect that a number of the laborers who were employed to load the trucks in the gravel pits were discharged for shooting dice, and that this was done with Allison’s approval. There was testimony to the effect that certain of the truck drivers drove off the usual road through the field of a colored man, and that Allison stopped this, and that Allison also directed certain of the drivers where to deliver the gravel, and that he also stopped some of the drivers from driving over loose gravel.

A number of placards were furnished the truck drivers to place on the trucks reading as follows: “No passengers allowed on this truck. Delamar & Allison.’-’ No placards were placed on the Bratcher trucks, but this was because the supply of placards was exhausted. It was testified on behalf of Delamar & Allison that the placards were placed on the trucks under the direction of the supervising engineer of the highway department.

There was a controversy as to whose servant the man was who supervised the dumping of the gravel. The drivers obeyed the directions given by the dumper at the end of the haul. - Unquestionably the dumper was obeying the orders of the engineer of the highway department as to the places where and the mánner in which the gravel should be dumped, but in so doing he was enabling Delamar & Allison to perform the essential part of their contract by dumping the gravel as their contract required them to do. The dumper was therefore engaged in the performance of a necessary part of the contract of Delamar & Allison, and the jury might have found that he was loaned to Delamar & Allison for a particular service and was therefore their servant. Arkansas Natural Gas Co. v. Miller, 105 Ark. 477, 152 S. W. 147; St. L. I. M. & S. R. Co. v. Washington, 114 Ark. 192, 169 S. W. 770; Arkansas Logging Co. v. Martin, 116 Ark. 325, 173 S. W. 184; Dubisson v. McMullin, 163 Ark. 191, 259 S. W. 400.

As a matter of fact, the haulers did not require any considerable control. Their trucks were loaded in the pits by men who were admittedly the servants of Delamar & Allison, and the dumper told the men where and how to dump the gravel.

Delamar & Allison testified that they did not in any case employ the driver of any truck, and that these drivers were employed and paid by, the truck owners, and that they had no control over any of the drivers and were not concerned as to the manner in which they did their work, and were interested only in the result thereof. But this was the principal question of fact in the case, and we think the testimony was sufficient to support the finding that Delamar & Allison employed the trucks, and none were engaged except those employed by them, and the right to discharge necessarily implied, and that they had the right to direct and control the drivers of the trucks and had exercised that authority, although but few directions were required.

We conclude therefore that the testimony warranted the finding that there were not three hundred independent contractors engaged in hauling the gravel, but that all the drivers were employees of Delamar & Allison, and that the relation of master and servant existed between Westmoreland and the other truck drivers and Delamar & Allison. Ellis & Lewis v. Warner, 180 Ark. 53, 20 S. W. (2d) 320; and Ellis & Lewis v. Warner, 182 Ark. 613, 32 S. W. (2d) 167.

Upon the question of the negligence of Westmoreland, and that of the contributory negligence of the occupants of the automobile, but little need be said. Westmoreland was a boy twenty years old, and had hauled only one load, the day before the collision, and was hauling his first load on that day. He was late reporting for work, and a son of one of the Bratchers had taken his place, and the jury might have found that Westmoreland was trying by speed to make up for his lost time. On account of the work in progress at the crossing, the view of the drivers of both the truck and the car was obstructed.

Ward testified that he was driving up grade with his car under control, while Westmoreland drove into the intersection like a cyclone, and it appears to be undisputed that when the truck struck the car it turned completely over the car and covered the occupants thereof with the gravel. Westmoreland admitted that he was driving twenty or twenty-five miles an hour, but he had stated to the sheriff prior to the trial that he did not think he was driving over thirty or thirty-five miles an hour. In other words, the case presents the usual conflict in the testimony which is found in nearly all collision cases as to whose negligence caused the collision. This question was submitted to the jury under instructions which are not questioned as being correct declarations of the law, and the question is concluded by the verdict of the jury.

It is earnestly insisted for the reversal of the judgment that the attention of the jury was repeatedly and unnecessarily called to the fact that Delamar & Allison carried indemnity insurance, although they testified that they carried no insurance covering the collision out of which this litigation arose. On the other hand, it is insisted that a deduction of one per cent, was made to cover such insurance.

In overruling the objection to this testimony when it was first offered the court said: “Gentlemen of the jury, the testimony of the witness, Mr. Pruitt with reference to what Mr. Allison told him in Arkadelphia about the reason for withholding a certain part of his pay may be considered by you gentlemen for one purpose alone, and for no other purpose. One of the questions in this ease, gentlemen, is whether or not Delamar & Allison, the defendants, were exercising any control over the operation of the truck which figured in the accident or injury in this case. This testimony is submitted to you as a circumstance only for you to consider in determining whether or not Delamar & Allison, the defendants, had any control or dominion over the truck which figured in the case that you are now trying, and you will not consider that testimony, gentlemen, for any other purpose, and it would be highly improper, gentlemen, and Avould. not only be improper but would be absolutely unlawful for the jury to be influenced in any manner or degree by any statement with reference to insurance in the case, or what Mr. Pruitt said about it. The only purpose for which that is submitted to you is to assist you, if it does assist you, in arriving at a determination as to Avhether or not Delamar & Allison had any control or dominion over the truck driven by Buster Westmoreland at the time of this collision.” The same admonition was given in the instructions which finally submitted the case to the jury.

We think no error was committed in this respect. The fact that Delamar & Allison Avere insured, if it Avas a fact, against liability for injuries committed or damage done by the truck drivers Avas a circumstance to be considered in determining Avhether the truck drivers Avere their employees or were independent contractors. So also, Avould be the fact, if it was a fact, that Delamar & Allison deducted one per cent, to pay for such insurance, whether they actually carried the insurance or not.

No complaint is made of the amount of the verdict in the case of John Ward, Jr., or that in the Lewis case, but it is earnestly insisted that no verdict should have been returned in the case of Ward, Sr., for the benefit of his estate, for the reason that the undisputed testimony shows that he died without enduring conscious pain or suffering.

Upon this question the testimony is to the following effect: Dr. Hirst, the coroner, viewed the bodies of both men after their death, and testified that “both men were broken up pretty badly, fractured arms and legs, and one was crushed in the chest, and one I remember had a fracture I think about his ear, a place almost large enough to put your fist in. The skull was crushed entirely in.” The positive opinion was expressed that this man, and the coroner was not sure which one he was, had not suffered any conscious pain. He did not examine the other man very closely, although both men were lying on a stretcher in the undertaking' parlor. The coroner also expressed the opinion that one whose skull was fractured by a blunt instrument was much more likely to'be rendered unconscious than was one whose brain had been pierced by a sharp instrument like a knife.'

John Ward, Jr., testified that the collision rendered him unconscious for a few minutes, and that when he regained consciousness his father was breathing’ and struggling and making curious noises, and that he saw him try to raise1 his right arm; that he called to his father and “tried to1 arouse him, but I did not get an answer, just a curious racket.” Ward, Jr., was picked up and carried away about ten minutes after the collision, and his father was still alive, but he died a few minutes later.

The coroner testified that any struggle or movement is some slight evidence that there might have been conscious pain. These questions were asked him and answers given:. “Q. (By plaintiff’s counsel.) Dr. Hirst, there is some proof in here that Mr. Lewis, who was not the man that was injured on the forehead, was seen, nine minutes after the collision, approximately, to try to move up his arm, which was badly broken, but he was seen to try to move up this arm; wouldn’t you say to the jury that was some evidence that the man may have suffered some conscious pain after that time, or that length of time? A. Well, it might and might not be. If that was a co-ordinated movement, if he moved his arm and at the same time tried to move his head to see his arm, I think so. Q. Suppose after nine minutes they were breathing, and the breathing had not grown weaker, would that cut any figure in your opinion? A. Well, it might.”

It will be remembered that there was no recovery for pain and suffering on behalf of the estate of Mr. Lewis.

The undertaker, who appears also to have been a doctor, testified that the heads of both men were badly crushed, and that the injuries to each had penetrated the skull, and that “the skulls were fractured through on both of them,” and they had apparently received a blow on their skulls, which appeared to be crushed and mashed, and that the injuries were not of a character to have been inflicted by a sharp or pointed instrument. This witness answered questions as follows: “Q. Where were those fractures, doctor, as to whether they were at the front of the skull or at the back of the skull? A. Both. Q. They were fractured all the way around? A. Yes. Q. Could you tell from the outside whether there was any damage to the brain on the inside? A. Well, I could. There was a hole in the base; you could see the brain was damaged. Q. Well, how? Just describe that damage to the jury. A. Well, just the head was mashed so that you could just mash against it and feel the bone crush, you know. Q. Well, isn’t that always true with a fracture— can’t you press any fracture and feel a little give? A. I don’t know that that is true with every fracture, no, sir. It might be very small and just be a crack that you couldn’t feel, but these were crushed to where you could feel from the outside and tell. Q. Which one of the men was hurt the worst, or had the greater injury to the skull? A. It seems to me like it was Mr. Ward now. It is kind o’ hard for me to separate the two .just offhand.” And on his redirect examination he further testified as follows: “Q. Which one had the fracture, the crushed skull on his forehead? A. The scalp was cut on his forehead? Q. Yes, sir. A. It seems to me like that was Mr. Ward. Q. And Mr. Lewis’ injury was on the back part of the head? A. Well, principally the back part of his head.”

A Dr. (Buchanan testified as an expert in behalf of the plaintiffs, and stated that not all brain injuries eausing death produced unconsciousness, hut he answered questions as follows: “Q. Now, if a man had received an injury to his skull that penetrated his skull, from some heavy blunt instrument, and after he received the injury he only lived for a few minutes, that the injury ivas of sufficient force and severity to cause his death in just a few minutes, would you say that man was rendered unconscious at the time he received the injury? A. You mean to say all of his trouble was with his head? Q. No, but the worst part of his injury. He might have received minor injuries, maybe a broken arm or hand? A. If his trouble, all of it, was his head, why I would say that he wasn’t conscious. If all of his injury was his head, and he was dead in 15 minutes, I wouldn’t say but what he was.”

We conclude, from this testimony, that there is no substantial basis upon which to sustain the verdict and judgment for conscious pain and suffering in the case of Ward, Sr. The injury to him and to Mr. Lewis appears to have been very similar, and no recovery on this account was had in the Lewis case. The skulls of each appear to have been not only fractured but to have been crushed. The younger Ward was unable to arouse his father or to obtain recognition from him, and there is no testimony that the elder Ward said or did anything indicating consciousness. St. L. I. M. & S. Ry. Co. v. Dawson, 68 Ark. 1, 56 S. W. 46; St. L. I. M. & S. Ry. Co. v. Stamps, 84 Ark. 241, 104 S. W. 1114.

The judgment for pain and suffering must therefore be set aside; in all other respects the judgments are affirmed.