text:
    Border Queen Kitchen Cabinet Company v. Gray.
    4-3621
    Opinion delivered December 3, 1934.

      Daily S Woods, G. W. Knott and J. S. Dailey, for appellant.

      Roy Gean, for appellee.
   Butler, J.

Claude'Gray, the appellee, brought this action to recover damages for an injury which he sustained, alleged to have been occasioned by the negligence of a fellow-servant. The answer specifically denied the allegation of negligence, and, as affirmative defenses, pleaded assumption of risk and contributory negligence. At the conclusion of the testimony, the appellant, defendant in the court below, moved for a directed verdict, which motion was overruled. The case was submitted to the jury on instructions declaring the law as to negligence, assumption of risk and contributory negligence which are conceded to be correct.

The sole ground urged for reversal is based on the contention that there was no substantial testimony tending to establish the negligence of the fellow-servant, but, on the. contrary, that the injury to appellee was the result of one of the ordinary risks of employment which he had assumed.

The argument is made that the. testimony of appellee himself fails to show any negligence on the part of his fellow workman and affirmatively discloses the fact that the injury complained of happened because of the inherent dangers to be expected and those ordinarily incident to the character of work being done. To sustain this argument, certain parts of the appellee’s testimony are quoted which do tend to support the contention. During his examination it is apparent that he became confused, causing him to make some contradictory statements, but these serve only to affect his credibility, and the jury resolved that question in his favor.

There were only two witnesses to the incident out of which the injury grew, Gray, the appellee, and Bob Dean, his fellow-servant. Their testimony is in conflict as to the vital question in the case, that of Dean tending' to show that, if any accident happened to the appellee, it was one which could not have been foreseen or avoided, and that Dean, himself, was at all times acting with due prudence and caution.

It appears that appellee and Dean were working-in the finishing- department of appellant’s manufactory, each operating- a machine used in spraying varnish on the finished products. They worked in a large room containing the equipment used in that particular department in which steel drums containing liquid varnish were stored to be used in that room as needed. These drums were about three or four feet long, made so a spigot could be inserted in one end through which the liquid could be drawn as required. When in use, they were placed on racks about eighteen inches above the floor, high enough to set a five gallon can under the spigot. The drum used by Dean became empty. He asked the appellee to help him move another to, and upon, the rack. A drum filled with varnish was lying about fifteen feet from this place.

When appellee’s testimony is considered as a whole and fairly interpreted, it tends to establish these facts: Appellee took hold of the drum at the spigot end and Dean at the opposite end. They lifted it about twelve or fourteen inches from the floor and moved toward the rack, Dean going- backward. It was intended that the end where the spigot was to be inserted would rest on the rack, and this made it necessary for them to turn. This movement began when they were about three feet from the rack and, when completed, would place appellee.and his end next to the rack so that it could first rest thereon. As they were making this turn, or immediately after it was made, Dean unexpectedly and suddenly elevated his end of. the drum throwing the entire weight upon the appellee, who (as he expressed it) had to hold up the weight of the drum because he had no opportunity to get out of the way. When this occurred, he felt pain in the region of the small of his back, and when they had placed the drum on the rack he told Dean that he had hurt or wrenched his back in some way. At that time he did not appreciate the extent of his injury, and made no complaint to Dean relative to the manner in which the latter had handled his end of the drum. After placing the drum, appellee resumed his ordinary work, which required no great physical exertion, and continued to work for about three days. On the morning of the fourth day he was unable to rise. A doctor was called, and appellee has been unable to perform any labor since that time, that is to say, from the 24th day of October, 1933, down to the date of trial, March 7, 1934.

Dean denied that there was any change in the manner in which they were carrying the drum, but stated that they carried it straight from where it was lying to the rack, and placed it upon it — that there was no sudden uplift by him of the end of the drum he was carrying.

This testimony raised an issue of fact which the jury resolved in favor of the appellee.

The appellee testified that he had helped carry drums many times and helped set them on the racks; that at this time they were proceeding to perform that work in the usual and customary manner. He also stated that it was unnecessary for one carrying an end of the drum to warn the other at the time they were about to lift it and placé it on the rack, and that one of ordinary common sense would know that it was time to lift and that both would then lift upward to place the drum in position. These statements, and other similar statements made by appellee, are the basis for the contention that the risk was assumed by him. This overlooks, however, the sudden and unexpected lifting of the drum so that the greater part of its weight would suddenly and unexpectedly be shifted upon the appellee, as testified by him, and was sufficient to submit to the jury the question as to whether or not Dean, at the time, was acting with due care for his fellow-servant. The jury might doubtless have found that, in carrying a drum of the shape and weight of the one in question, those carrying it would be in a strained and unnatural position, and thus be liable to injury from unexpected and sudden movements, and that due care required that no such movements be made.

It is our conclusion that this evidence warranted the conclusion reached by the jury, and, as the amount of the verdict is not questioned, the judgment of the trial court is affirmed."


source: Caselaw Access Project

author: Mehaffy, J.

license: Public Domain

text:
    Baldwin v. Clark.
    4-3575
    Opinion delivered November 12, 1934.

      Thos. B. Pryor, H. L. Ponder and TIarry Ponder, Jr., for appellants.

      Tom W. Campbell, for appellee.
   Mehaffy, J.

On April 17, 1933, appellee’s intestate, Heber Clark, was struck and killed by a train of the Missouri Pacific Railroad Company at the town of Higginson, White County, Arkansas. The appellee, administratrix of the estate of Heber Clark, deceased, brought suit in the White Circuit Court for damages for the death of said Heber Clark, alleging that he was struck and killed by the negligence of the appellants and their employees.

Some time before eleven o’clock on the morning of April 17, 1933, Heber Clark drove his automobile to a point on the highway near the crossing. The highway at that place ran parallel with the railroad track. There were four tracks, all running in the general direction of north and south. After parking his car on the highway, which was on the west side of the tracks, Clark crossed over the tracks and went over to a side track to inspect a. car of crushed rock which was standing on the side track, this track being the farthest east of the four tracks. The track farthest west was the main line. A Mr. Crawford had parked his car just before Clark arrived, and had gone over to inspect the car of crushed rock. Clark parked his car just behind Crawford’s car, and walked across the tracks to where the car of crushed rock was standing on the side track. Clark and Mr. Crawford had some conversation, Clark inspected the car and then started back across the tracks to his automobile. The car of crushed stone was some distance north of the depot, and some distance north of where Clark’s car was parked, and a short distance north of the car of crushed stone was a berry shed on the east side of the tracks, and just north of the berry shed was a crossing. Clark, in walking back from the car of stone to his automobile, walked diagonally across the tracks facing south or southwest, and a fast freight train came from the north and struck and killed Clark. The track was straight for more than three miles, and there were no obstructions. There was a conflict in the testimony as to whether any warning was given by sounding the whistle or ringing the bell at the crossing.

Appellee’s evidence tended to show that Clark was walking diagonally across the tracks, apparently oblivious to the approach of the train; that the train was running approximately 45 miles an hour and struck Clark, as one witness said, “on the back part of his right shoulder.”

The evidence tended to show that Clark was earning from $3,000 to $4,000 a year. He was 36 years old, and left surviving him his widow and two sons, aged 16 and 12 years.

The evidence offered by appellants tended to show that the track was straight for 3y2 miles; that the train was going 35 or 40 miles per hour; that it was a fast through freight. One of appellants’ witnesses, a section hand, testified that he saw the man walking toward the train with his head down and said: “The man is going to walk into the train.” He said it looked to him like Clark did not see the train and did not know there was one coming; that the brakes had not been applied before the train struck Clark, but they made a good deal of noise after that, and the train stopped pretty quickly.

The engineer operating the train testified in substance that north of the depot at Higginson the Bock Island track crosses the Missouri Pacific tracks, and some distance north of this crossing there is a road crossing the Missouri Pacific tracks. This road crossing is 500 or 600 feet north of the Bock Island crossing. He testified that he sounded the usual alarm for the crossing and started whistling and turned on the air bell, and continued this until the fireman came over and shook him and told him they had hit a man. He testified that there must have been five or ten seconds between the time he finished whistling for the crossing north of town, and the time when he started whistling for the crossing south of the depot; that at the speed they were going it would take approximately 1,000 feet to bring the train to a stop; that he was keeping a proper lookout down the track, and that, if a man had been coming toward the track on his side of the train and had been the same distance from the track that the berry shed was, he could not have stopped the train so as to avoid hitting him. He also testified that by the use of the emergency stop you could stop a train in about 700 feet. He did not see Clark before he was struck, and he testified that it was difficult to tell whether there is any one on the track much more than a half mile ahead. He did not see the man and did not sound any alarm blasts. There was an interval of some 5 or 10 seconds when no whistle was sounded. A train running 40 miles an hour will run about 40 feet in a second.

The fireman testified substantially the same as the engineer as to the signals, and that he was on the left-hand side of the engine, and keeping a lookout down the track. He noticed some cars on the siding but did not see anybody walking on the track. He then got down to look into the firebox, and said he was down there three or four seconds. As he raised up, he noticed two men on the car, and about that time he saw that they had struck some object, but could not tell what it was. He also testified that, if they had discovered Clark on the track as they went over the crossing north of the berry shed, it would not have been possible to stop the train before the point where they struck him at the speed they were going. He saw the object they hit about the time they struck it.

It is earnestly contended by the appellant that the evidence is not sufficient to sustain the verdict. This suit was brought under § 8568 of Crawford & Moses’ Digest, which reads as follows:

“It shall be the duty of all persons running trains in this State upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee or employees in charge of such train of such company could have discovered the peril of the person injured in time to have prevented the injury by the exercise of reasonable care after the discovery of such peril, and the burden of proof shall devolve upon such railroad to establish the fact that this duty to keep such lookout has been performed.”

The above statute was enacted in 1911, and one of the early cases construing the statute was the case of St. L. I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431, 155 S. W. 510, decided by this court first in 1913, and tbe same case was here again in 1914, and this court said in tbe case on tbe last appeal:

“Tbe effect of our holding in the former opinion is that where proof has been introduced by the plaintiff of an injury to a person by the operation of a train under such circumstances as to raise a reasonable inference that the danger might have been discovered and the injury avoided if a lookout had been kept, then the burden is shifted to. the railway company to show that such lookout was kept.” St. L. I. M. & S. Ry. Co. v. Gibson, 113 Ark. 417, 168 S. W. 1129.

The undisputed evidence in this case shows that the track was straight for more than three miles, and level, and there was nothing to obstruct the view, nothing to prevent the engineer and fireman from seeing Clark on the track, if they had kept a lookout. The undisputed evidence also shows that they could see a person on the track for one-half mile if they were keeping an efficient lookout. It is true that the engineer swears that he. was keeping a constant lookout, and that he did not see any one going toward the track. He was on the right side of the engine, and of course it would not be. possible for him to see any one on the other side of the track, after the engine had gotten close enough to the person to ob: struct the view. But certainly, when he was a half mile away and there was nothing to obstruct his view, he could have seen a person on, or approaching’, the track. However, the fireman was on the left side of the engine, and he testified he was keeping’ a lookout, and also testified that he could have seen a person a half mile down the track; and yet each of these witnesses testifies that he did not see Clark. The. fireman testified that he saw the object as they hit it, but did not know then that it was a man. The evidence of the engineer and fireman conclusively shows that the track was straight for more than three miles, and that there was nothing within that three miles that would obstruct the view, and it appears certain, if they had been keeping a proper lookout, they could and would have seen Clark before striking him.

The undisputed proof also shows that by using the emergency brake the train could have been stopped in 700 feet. If they had seen Clark on the track, they would have known from his conduct that he was not aware of the approach of the train, and could have exercised care and stopped the train if necessary. However, if they had seen him as far ahead as the evidence shows they could have seen him, it would probably not have been necessary to stop the train; they could have checked its speed, and could have sounded the alarm blasts to attract his attention. But they did nothing to avoid the injury. They did nothing because they say they did not see him.

The evidence was sufficient to warrant the jury in finding that the engineer and fireman should have discovered the peril of Clark in time, by the exercise of ordinary care, to have avoided the injury. If they had discovered him, they would necessarily have discovered that he was going diagonally across the tracks with his back to the train, with no indication that he knew it was approaching.

Appellant calls attention to the case of St. L.-S. F. Ry. Co. v. Cole, 181 Ark. 780, 27 S. W. (2d) 992, and calls attention to the fact that the court held in that case under § 8562, when injury was caused by the operation of a train, that it made a prima facie case of negligence. There is no contention here that there was a prima facie ease of negligence, or that § 8562 is involved at all. Under that section, railroad companies are made responsible for all damages done or caused by the operation of a train, and this court has held many times that under that section, when the evidence shows that injury was caused by the operation of a train, a prima facie case is made. But we also said in the Cole case, sitpra: “The duty of the railroad to take precautions begins when it discovers, or should have discovered, the peril of the traveler. So here the railroad company should have kept the lookout, and is chargeable with such knowledge as it would have had, had the lookout been kept; but, if the lookout had in fact been kept and appellee’s presence near the track discovered, this would have imposed no duty on the railroad to stop the engine or to take other precautions until the peril of the traveler was discovered. ’ ’

Under § 8562 we have said: “When the evidence shows that the injury was caused by the operation of a train, the presumption is that the company operating the train was guilty of negligence, and the burden is upon such company to prove that it was not guilty of negligence.” St. L. S. W. Ry. Co. v. Vaughan, 180 Ark. 559, 21 S. W. (2d) 971.

In discussing the lookout statute we have recently said: “But now the company is liable if, by proper care and watchfulness, it could have discovered and avoided the dang’er. * * * It was the evident purpose of this act to provide a different rule of liability against a railroad company causing an injury by the operation of its trains, in case of failure to keep a lookout for persons on its track, than was prescribed by the old act, which required the same lookout to be kept, and place the 'burden of proof upon the railroad company in case of an injury, to establish the fact that the duty to keep a lookout had been performed. It was not intended, however, that, upon proof of the killing of a trespasser by the operation of a train, the presumption should arise that the killing was negligent and the plaintiff entitled lo recover damages without showing anything further, and casting the burden of proof upon the company to show that it was not guilty of any negligence, causing the death, as declared in said instruction numbered 1.” Kelly v. DeQueen & Eastern Rd. Co., 174 Ark. 1000, 298 S. W. 347.

It will therefore be seen that we have distinguished § 8562 from § 8568, and that under § 8562, when injury is shown to have been caused by the operation of a train, the railroad company is presumed to be guilty of negligence. Under § 8568, where a trespasser is killed on the track, there is no presumption of negligence on the part of the railroad company, but the plaintiff must show a failure to keep a lookout, and show that if a proper lookout had been kept, the railroad company could, by the exercise of reasonable care, have avoided the injury.

Appellant argues that the uncontradicted proof shows that a lookout was being kept. The uncontradicted proof also shows that, if such lookout was being kept, the engineer and fireman could have seen Clark for tmore than a quarter of a mile.

It is next contended that the appellee was not entitled to recover under the doctrine of discovered peril. The engineer and fireman testify very positively that they did not discover Clark’s peril, and the question of discovered peril is not involved. The question is whether, by keeping an efficient lookout, they could have discovered Clark’s peril in time to have avoided the injury, and there is sufficient evidence on this question to warrant the jury in finding for appellee.

We have carefully examined the instructions, and have reached the conclusion that there was no error in instructing the jury.

It is next contended that the verdict is excessive. There was a verdict for $30,000. The evidence shows that Clark was 36 years of age when killed, and had a life expectancy of 31 years. His wife was 35 years old. He had two sons, aged 16 and 12 years. The evidence shows that he was strong, healthy, active, able-bodied and industrious, and had been earning an average of $3'50 per month. We think there is sufficient evidence to justify the verdict, and the case is therefore affirmed.


author: Humphreys, J.

text:
    Missouri Pacific Transportation Company v. Baxter.
    4-3606
    Opinion delivered November 26, 1934.

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

      Partcdn £ Agee, for appellee.
   Humphreys, J.

This is an appeal from a judgment for $2,000 obtained by appellee against appellant in the circuit court of Crawford County for an injury to his wrist caused by the alleged negligence of fellow servants while engaged in loading the front truck of a bus, consisting of an axle, and spindles, onto a wrecker.

Appellant filed an answer to the complaint denying the allegations of negligence and interposing the affirmative defenses of contributory negligence and that appellee was a volunteer and not an employee of appellant at the time he received his alleged injury.

Appellant contends for a reversal of the judgment on account of a lack of sufficient evidence to support the verdict. The evidence, when viewed in its most favorable light to appellee, is, in substance, as follows:

Appellant, a corporation, was engaged in transporting passengers in buses from Little Bock to Fort Smith. On the........... day of March, 1933, about two o’clock p. m., one of its passenger buses was wrecked in the east part of Van Burén in Crawford County on Highway 64. The passengers were transported in a car belonging to appellee to Fort Smith, and he was employed to remain with the wrecked bus over-night, and was engaged the following morning to assist other employees of appellant in loading the bus onto a wrecker, which came from Little Bock. The wrecker was in charge of a foreman, who directed the employees engaged in the work how to lift and load the injured bus onto the wrecker. The lifting was done by means of two hand booms fastened to the wrecker, which could be lifted up and down and to which cables were attached long enough to take, hold of the object to be lifted and drawn onto the wrecker. The body of the injured bus had been placed on the wrecker, leaving enough room, thereon for the front truck of the bus. Appellee was directed to stand near the wrecker with a pick bar in his hands to guide the front truck of the bus into the space left for it after being lifted up to a sufficient height to swing into the vacant place. Fellow servants were directed to take hold of the truck, which weighed about 400 pounds or more, for the purpose of letting it swing slowly into place, but some or all of them let loose, their hold on same without notice to appellee and allowed it to swing in so rapidly and with such force that, in his effort to guide it into place, appellee’s hand was caught between the truck and wrecker, and his wrist was fractured before he could get his hand out of the way.

The testimony was in conflict as to whether the fellow servants of appellee or some of them released their hold on the truck without notice to him so as to let it swing toward the wrecker with such force as to catch his hand between them and fracture his wrist, and also in conflict as to whether appellee was an employee or volunteer; but, notwithstanding the conflict, there is ample evidence in the record to support the finding of the jury that appellee was an employee of appellant when injured, and that his injury resulted from the negligence of his fellow servants.

Appellant also contends for a reversal of the judgment on the ground that appellee was guilty of contributory negligence resulting in his injury, and on that account could not recover any amount from appellant, even though appellant was guilty of negligence. It requested instructions to that effect, which the court refused to give. We find no evidence in the record tending to show contributory negligence on the part of appellee, but, even if there is, such negligence would not be a complete defense to the alleged cause of action against a corporation not engaged in interstate commerce at the time of the injury. It is provided by §§ 7144 and 7145 of Crawford & Moses ’ Digest that in actions for personal injuries by employees against such corporations, contributory negligence shall not bar a recovery but will have the effect of diminishing the damages in proportion to the amount of negligence of the respective parties. Under the provisions of these statutes, this contention of appellant cannot be sustained, and the requested instructions were properly refused.

Appellant also contends for a reversal of the judgment on the ground that under the law it cannot be held liable in damages to any one injured by a fellow-servant. In support of this contention, it cites the case of Walsh v. Eubanks, 183 Ark. 34, 34 S. W. (2d) 762. In that case the fellow-servant doctrine applied because a recovery was sought against a partnership. In the instant case it does not apply because appellant is a corporation. It is provided by § 7137 of Crawford & Moses’ Digest that corporations of every kind and character shall be liable to respond in damages for injuries or death sustained by an employee resulting from the omission of duty or negligence of any other servant or employee of the employer. Instructions requested by appellant and refused by the court in support of its theory in this respect were properly refused.

It is also suggested by appellant that the judgment should be reversed because the appellee assumed the hazards incident to his employment. Appellee could not have known in advance that his fellow servants would release their hold on the. truck and allow it to come down on him, so he did not assume the risk of their negligence in this respect as one of the hazards incident to his employment.

The court refused to give certain instructions requested by appellant relative to whether appellee was an employee or a volunteer, and whether he assumed the risk. These instructions were properly refused as the court had covered the issues in other instructions. The court was not required to duplicate instructions.

Appellant also contends that the verdict was .excessive and urges the excessiveness thereof as a reason for reversing the judgment. As a result of the injury, appellee’s arm was placed in a plaster cast for 31 days, hut the ends of the bones never healed, and he has never been able to use his hand. If he takes hold of anything, it drops. He is a mechanic, and his work requires the use of both hands, so he is compelled to hire a mechanic to do the work he formerly did in conducting his business at an expense of from $1.50 to $7 a day. He suffered intense pain, so that he was unable to sleep for three or four weeks immediately after the injury and during the time his hand and arm were in the cast. His doctor’s bill was $75. We do not think $2,000 an excessive judgment, considering the nature and extent of the injury, and the pain and suffering he endured.

Ño error appearing, the judgment is affirmed.


text:
    Berryman v. Cudahy Packing Company.
    4-3604
    Opinion delivered November 26, 1934.

      Robert Bailey, for appellants.

      Hays & Smallwood, for appellee.
   Mehaffy, J.

The appellants began this action in the Pope Circuit Court against the Cudahy Packing Company, a corporation, the Cudahy Packing Company of Louisiana, Ltd., and Claude Westerfield. The complaint alleged the injury and death of Robert Ross Berry-man, by the negligence of the appellee through its agent and employee, Claude Westerfield. When the complaint was filed and summons issued against the Cudahy Packing Company, the summons was served on Claude Westerfield, agent. There was a second summons issued and served upon the Secretary of State, and the third summons was served upon the Auditor of State.

The Cudahy Packing Company of Louisiana, Ltd., filed an answer, and the suit was dismissed as to it. The Cudahy Packing Company, without entering its appearance for any other purpose, filed a motion to quash service of each summons.

It is the contention of the appellees that the order of January 11, 1934, is not a final order, and that therefore the question of whether service on Westerfield was valid is not before the court. They cite Hogue v. Hogue, 137 Ark. 485, 208 S. W. 579. It is true the court said in that case that, where the motion to quash the summons was denied, that was not a final order from which an appeal could be prosecuted, but the court also said: “On the other hand, if the trial court quashes the writ, the plaintiff may take an alias summons, and thereby waive objection to the judgment of the court; or he may rest upon the quashal of the writ and appeal from the judgment of the court quashing the summons and permitting defendant to go hence without day, or, what amounts to the same thing, dismissing the plaintiff’s action.”

The court also said in the same case: “The circuit court sustained the motion, and it was adjudged that the writ be quashed and that the defendant recover costs. The judgment was held to be final and appealable. On the question of practice the court said in effect that on the quashing of the writ the plaintiff may take an alias writ or he may rest and appeal. ’ ’

In the instant case when the court made the order quashing the writ served on Westerfield, the appellants appealed. Of course the complaint could not be dismissed because two other summonses had been issued and servéd, and there was a motion to quash the service of each of these, and, until those motions were passed on, the court could not dismiss the complaint. The order of the court was final and appealable. Of course, if appellants had procured an alias summons, this would have been a waiver of their objection to the court’s order, but they did not do this. The other summonses had already been issued, and there was nothing appellants could do except to pray an appeal; but, if this order had not been final, it became final when the complaint was dismissed.

Appellees next call attention to the case of Harlow v. Mason, 117 Ark. 360, 174 S. W. 1163. The court in that case said: “There is a conflict in the authorities as to whether an order of a court quashing a summons is such a final order as that an appeal will lie,'and there is some apparent conflict in the early decisions of this court upon that question.”

The court in this case also said, in discussing other cases: “In both these cases however, as well as in that of the State, use, etc. v. Adams, [9 Ark. 33] it was decided that the legal effect of the judgment quashing the writ was a dismissal of the case. This being the effect of the judgment, the parties are necessarily dismissed from the court, and, unless the decision of the circuit court is reversed or set aside, there is no remedy afforded them. ’ ’

When the court made its order quashing the writ served on Westerfield, appellants objected and prayed an appeal to the Supreme Court. The order made by the court in quashing this summons was all that could be made at that time, and the complaint was in fact thereafter dismissed. But the order quashing the summons put the appellants out of court so far as this summons was concerned.

It is next contended that the service on Claude Westerfield was not sufficient because Westerfield was a mere salesman for appellees. To support this contention they cite W. T. Adams Machine Co. v. Castleberry, 84 Ark. 573, 106 S. W. 940. In that case the court said: “There is no allegation in the complaint as to whether the appellant is a partnership, a foreign or domestic corporation. * * * Tlie summons was served as shown by the return, upon T. W. Barnes, agent. Barnes was only a traveling salesman. He had no control over the business of the corporation, and service upon him was not sufficient.”

Appellees next call attention to the case of Arkansas Construction Co. v. Mullins, 69 Ark. 429, 64 S. W. 225, and the case of Lesser Cotton Co. v. Yates, 69 Ark. 396, 63 S. W. 997. In the first case referred to, the court said:

“The character of the agent nowhere appears in the record, and the simple fact that he was agent (it may be without any representative character from which authority might and ought to be implied on his part to receive service) is not sufficient.” In the Lesser Cotton Company case the contention was made that, unless the foreign corporation appointed an agent, no service could be had except by publication, and the court said: “It is incredible that the Legislature should have, intended to limit its own citizens to such an insufficient remedy, when the corporation is actually doing business in the territory, and is represented there by a manager or local agent.”

The next case referred to is that of L. D. Powell Company v. Rountree, 157 Ark. 121, 247 S. W. 389. In that case, which involved the sale of books, the court said: “The recovery of the books under the McNeill contract amounted to a collection growing out of an interstate transaction. The collection was made in books instead of money, and we think the resale of them, in order to convert them into money, was a continuation of the interstate transaction. ’ ’

Appellees then call attention to the case of Sellin v. Hessig-Ellis Drug Co., 181 Ark. 386, 26 S. W. (2d) 122. The court in that case, among other things, said: “In the first place, it may be said that no effort was made to show that the traveling salesman had any special authority from his principal, and his authority was limited to receiving and transmitting orders.”

Section 1152 of Crawford & Moses’ Digest reads as follows: “Any and all foreign and domestic corporations who keep or maintain in any of the counties of this State a branch office or other place of business shall be subject to suits in any of the courts in any of said counties where said corporation so keeps or maintains such office or place of business, and such service of summons or other process of law from any of the said courts held in said counties upon the agent, servant or employee in charge of said office or place of business shall be deemed good and sufficient service upon said corporations, and shall be sufficient to give jurisdiction to any of the courts of this State, held in the counties where said service of summons or other process of law is had upon said agent, servant or employee of said corporations.”

The evidence shows that Claude Westerfield, upon whom the summons was served, lives in Russellville, and has been traveling for the Cudahy Packing Company for about eight years; he owns his own-car; makes all the principal towns in a number of counties; sells to different merchants; he goes to the place of business of the merchants; takes their order, and he sometimes takes orders over the telephone. If a new- man or concern buys merchandise, Westerfield recommends the party to the credit department, and they usually carry out his recommendations. The merchandise is shipped to the merchants and is delivered generally in a truck, but the truck does not belong to the company. After he has sold merchandise, he then makes another trip over the route and collects for what he sold the previous week, and makes additional sales. If a merchant orders merchandise and refuses it when it arrives, Westerfield sells it to some other merchant; he collects and remits to the company. The company pays him a salary of $3,240, and they take out 60 cents a week for insurance. They also pay Westerfield 4 cents per mile for the use of his car, which he would not operate over the route if he were not working for the company. Westerfield’s headquarters have been at Russellville for the eight years that he has been at work for the company. Westerfield goes wherever the business requires him to go, where he can sell merchandise or make collections. He sells on an average of 80 orders a week, and this runs from $2,000 to $3,000 a week. He recommends the products of the company, and. assists in the business all over' the territory during the whole year. If he gets a new customer he looks over the stock of goods, talks to him, and estimates the merchant’s ability to pay, and then recommends to the company to sell him so much per week. If some one should order 100 pounds of lard and it should come by truck and the Customer would not take it, Westerfield picks it up and resells it. He will take the merchandise in his own car and resell it. He has been doing this all the time. This happens about six or ten times a year. Westerfield also said that he would stop a shipment, keep the merchant from getting it if he thought he would not pay, and the company knew about this. He has an office in Russellville. The, orders are made out at his office. About 10 of the customers out of the 80 remit direct to the company and the others pay him. The company has advised him not to carry any passengers in his car while he is selling their products. He said he is a salesman and a peddler; that he sells and collects. A sale is not complete until he collects for it. He is both a salesman and agent.

We think this evidence is sufficient to show that the appellee is doing business in the State of Arkansas and that the service on Westerfield was valid. He has an office where he takes orders over the telephone; any merchandise that is refused by the person to whom it was sold is taken by him and sold to others, or, as he says, “peddled to others.”

Appellees contend that they were engaged in interstate commerce, and that Westerfield was merely a salesman. This would be true if Westerfield did nothing but receive orders and transmit them to the company in Kansas City, but, as we have said, he did more than this. Besides keeping an office where he received orders, in all cases where a purchaser declined to take the merchandise shipped to him, Westerfield repossessed the merchandise, and sold it just as any merchant in Arkansas would sell merchandise.

Doing business is defined in C. J. as follows: “Any transaction with persons or any transaction concerning any property situated in the State, through any agency whatever acting for it within the State. ” 19 C. J. 384.

Since we hold that the Cudahy Packing Company is doing business'in Arkansas, it is unnecessary to discuss or decide the questions as to the service: of the other summonses.

The judgment is reversed, and the cause remanded with directions'to overrule the motion to quash service.


author: Butler, J.

text:
    Marlin v. Marsh & Marsh.
    4-3607
    Opinion delivered November 26, 1934.

      Graham Moore, for appellant.

      McNalley & Sellers, for appellefes.
   Butler, J.

Appeal from allowance by the chancery court of attorney’s fees in the sum of $5,000, to be taxed as costs in casé of El Dorado Building & Loan Ass’n v. Union Savings Building & Loan Ass’n, ante p. 858, and payable out of funds in the hands of the receiver.

Reference is made to our opinion in the above case, filed October 29, 1934, for an understanding- of the issues there involved.

The appellees, Marsh & Marsh, were employed by Mrs. Lilla McGrraw and later by several other persons, all of whom were investment stockholders in the El Dorado Association, to bring- the action resulting- in the decree which was affirmed by this court in the case supra. The suit was brought for the benefit of all the investment stockholders. The motion for the allowance of the attorney’s fee was resisted by certain of the investment stockholders, and testimony was taken relative to the character and extent of the services performed by the attorneys and the reasonableness of the fee suggested by them, which was $10,000. The testimony as to the amount of fee properly to be charged varied from fifteen hundred to ten thousand dollars.

It is the contention of the protesting stockholders that they were represented by their own counsel; that no necessity existed for the institution of a lawsuit, and no benefit to the investment stockholders resulted therefrom. In developing the first contention, there was testimony tending to establish the fact that certain of the investment stockholders had employed attorneys to represent them, and there is some testimony to the effect that one attorney took some part in the preparation of the case for submission. The other attorney employed admitted that he took no part in the proceedings, and that in his judgment there was no necessity for bringing the suit. There is a conflict in the testimony as to just what action, if any, was taken by attorneys other than the appellees. There is testimony to the effect that appellees were not advised of the employment of other attorneys, and that there were no steps taken by any one except the appellees in the preparation and conduct of the action.

No one is more intimately acquainted with the proceedings, the character of services performed, and the attorneys who took part in the litigation, than the chancellor who tried the case, and during the course of the investigation relating to the propriety of the allowance of an attorneys’ fee he had occasion to, and did, express his opinion regarding the conduct of the attorneys said to have been employed by the protesting stockholders. He said this: “The attorneys have stood idly by in the courtroom, and have not joined in the fight. They accept the fruits of his labors (referring to appellees) knowing the law as to implied contracts.” Again he said: “During all this time, at any time during the prosecution of this case you could have taken it away from Judge Marsh, and could have asked the court to fix the fee up to that time. If you, who are representing a majority of the stockholders, have, found no fault with what Judge Marsh has done in the case, we will pay him for what he has done, and you can go forward from here on with your own clients. The court would have so held at all times during this case. ’ ’

We, ourselves, are acquainted with the record in the case out of which the instant proceeding arises, and it is our conclusion that, taken as a whole, it corroborates the testimony of witnesses for the appellees to the effect that they, and they alone, were the attorneys appearing and engaged in the conduct of the cause, and that the protesting stockholders acquiesced in this. We conclude that the finding of the chancellor in this regard is supported by a preponderance of the testimony.

In support of their contention that no necessity existed for the institution of the suit, the attorneys for appellants argue that the Union Savings Building & Loan Association was ready to concede the invalidity of its contract with the El Dorado Association, and to surrender the assets it had received from said association. Counsel also say that the guaranty stockholders were ready and willing to disgorge the assets they had unjustly received, and that therefore the result of the lawsuit was no more than could have been obtained without it. In answering this contention, it may be said that now, as of old, “actions speak louder than words,” and the facts are that the Union Savings Building & Loan Association, and the guaranty stockholders contested the action, through every step until the case was finally decided against them on appeal to this court.

It is suggested in the argument that the suit was not amicable in that it was an adversary proceeding between the plaintiffs, investment stockholders and defendants, guaranty stockholders. This is true, but the class for whom the suit was brought was the investment stockholders, and as to them the suit was amicable.

From a consideration of the' conclusions reached by the trial court based on, the facts above stated, the appellees are dearly "entitled to a fee on the authority of the cases cited by appellants, properly allowable as costs to be paid from funds in the hands of the receiver. The cases relied on are: Bradshaw & Helm v. Bank of Little Rock, 76 Ark. 501, 89 S. W. 316; Gardner v. McAuley, 105 Ark. 439, 151 S. W. 997; Valley Oil Co. v. Ready, 131 Ark. 531, 199 S. W. 915.

In the first named case the general principle governing the question of the allowance of an attorney’s fee to be paid out of the fund is thus stated: “When many persons have a common interest in a fund, and one of them for the benefit of all brings a suit for its preservation, and retains counsel at his own cost, a court of equity will order a reasonable amount to be paid to him out of the funds in the hands of the receiver in reinabursement of his outlay. ’ ’

As to the excessiveness of the fee allowed counsel for the appellants question the fact that a fund for the benefit of the investment stockholders was obtained as fruits of the litigation, on the theory that the defendants in the original case were willing to concede all the. contentions of the plaintiffs. We have already disposed of that question. They also question the value of the assets recovered. An examination of the opinion filed October 29, 1934, discloses that a substantial benefit has resulted from the litigation. The investment stockholders recovered assets of the face value of $125,000 from the guaranty stockholders, and a judgment for more than $6,000 against an individual, as well as having the contract between the two Building & Loan Associations avoided, the assets to be administered by a receiver of their own choice.

It is suggested. that the fee should be limited to an amount which would be reasonably chargeable against the stockholders who employed the appellees, and that this, under the contract between them, would be a little more than $1,000. For authority for this contention, we are referred to statements made by the court in the above cases and particularly to' the case of Gardner v. McAuley, supra. That case was a suit where lands were partitioned according to the respective interests of the tenants in common as found by the court. This was not an amicable proceeding, but an adversary suit, and for that reason the court found that no attorney’s fee should be allowed. In explaining the effect of the decision, the court said: “We are not to be understood as holding that, where one or more tenants in common brings suit against the other tenants in common for partition, and there is no appearance or resistance, the proceedings resulting in an amicable partition of the property, the fees of the plaintiff’s solicitors should not be. taxed against all the parties. That question does not arise in this case under the facts as before related. But, even in that sort of a case, if the fees are taxable, they can only amount to such sum as the solicitor can appropriately charge his own client, and not the fee he might have charged if employed by all of them. Bradshaw v. Bank of Little Rock, 76 Ark. 501, 89 S. W. 316. ‘The object of the allowance, said this court in the above cited case, ‘is not to give the attorneys a larger fee than they might have recovered from their own clients but to shift the burden of the charge from them, and place it upon the creditors of the bank generally. The inquiry 'then is, what would have been a reasonable charge against their own clients for the services performed?’ ”

In Bradshaw v. Bank of Little Rock, supra, the attorney brought suit for the. benefit of his own client, but it was one for the benefit of all creditors of the bank and prosecuted with their acquiescence.. For that reason the court held that the attorney was entitled to have his fee paid out of the assets in the hands of the receiver. The court further found that no fund had been created, recovered, or preserved, and that therefore, the amount of the fee should be limited to a sum reasonably to be charged against the attorney’s own client for the services performed, remanding the case to the court below to ascertain that amount.

The. general rule stated in Bradshaw v. Bank, the application of which to the facts in that case constrained the court to hold that an attorney’s fee was properly allowable to be paid out of the fund, is not operative except where the services rendered have inured to the benefit of all the creditors; nor is it operative where each of the creditors is represented by a different attorney working independently for a common purpose. 14 C. J., § 3151, “Corporations.” In the Bradshaw case, in discussing what would be considered in fixing the amount of attorney’s fee, the court said: “If their services had resulted in securing or producing a fund for the benefit of the creditors, then the amount of this fund might well be the main element to be considered in fixing” the amount of such fee; but no such fund was produced here.”

It is to be observed that in the judgment of the chancellor no conditions existed to render the principle inoperative, and that there was a fund recovered and preserved by means of the suit which inured to the benefit of all the parties in the class of plaintiffs. Therefore the limitation of the fee to an amount properly chargeable against the appellees’ own clients, as held in the cases cited, is not applicable. The inquiry then is, what would be a proper fee to be chargeable against the fund which had been recovered and preserved? In considering this question, the amount of such fund is important, and it was upon this theory that the witnesses for appellees based their judgment as to a reasonable fee, as did also the court in reaching its conclusion, taking into consideration the ability of counsel for the appellees, the nature and extent of the services rendered and the result obtained.

In questioning the judgment of the trial court, counsel for appellants refer to the amount allowed by this court as a reasonable attorney’s fee in the case of Valley Oil Co. v. Ready, supra. In that case no fund was recovered, and the case was amicable only in its initial stages. The fee was allowed for attorney’s services only during the period in which the proceedings were amicable, and was fixed at a sum which the court found to be reasonable for such services. In the instant case, however, it will be seen that an entirely different state of facts exist from those in that case, and we are of the opinion that, taking all these facts into consideration, the judgment of the chancellor should not be disturbed.

We therefore affirm the decree.


author: Baker, J.

text:
    U-Drive-Em Corporation v. Wiseman.
    4-3638
    Opinion delivered November 26, 1934.

      Akers & Thurman and E. B. Parham, for appellants.

      Walter L. Pope, Attorney General, Pat Mehaffy, Assistant, Earl B. Wiseman and Louis Tarlowski, for appellee.
   Baker, J.

This is a suit brought by the U-Drive-Em Corporation et al., against Earl ft. Wiseman, as Commissioner of Eevenues, alleging the invalidity of § 31 of act No. 11, approved February 12, 1934.

A rather lengthy complaint was filed in which the plaintiffs alleged that various' taxes and licenses have grown heavier and heavier' and greater and greater until the passage of act No. 11, including the said § 31, which has imposed a burden upon the plaintiffs, and which, added to the other burdens already carried by taxicab operators, means that they cannot exist or continue to do business; that § 31 discriminates grossly between taxicab operators and in favor of buses using streets of cities and towns, and buses using State highways, and the ordinary automobiles used for business and commercial purposes. It is also urged that the State at one time surrendered its right to impose the collections now insisted upon, and that cities and towns have been permitted, under the laws of the State, to impose taxes or assessments by way of regulatory ordinances, and that, if the present alleged discriminatory taxes are insisted upon, as said § 31-is construed by the defendant Commissioner of Eevenues, that part of § 31, imposing 'taxes so insisted upon, is void as being in contravention of Amendment No. 14 of the Constitution of the United States and § 21 of article No. 2 of the Constitution of the State, of Arkansas, and therefore void; that the enforcement of the tax insisted upon by the Commissioner of Eevenues would deprive the plaintiffs of equal protection of the laws, contrary to Amendment No. 14 of the said Constitution and § 18 of article 2 of the State Constitution.

It is unnecessary to set out more fully the effect of the complaint, demurrer and answer, as set forth in the pleadings. Proof was taken and exhibits, were made, to the testimony of witnesses, the effect of which proof is to show that several of the plaintiffs, according to statements filed, were not only not making any money or profits in the operation of their taxicabs, but that they were taking losses as they carried ■ on their several businesses.

This proof will not he set forth except as it becomes pertinent in the discussion of the questions argued as necessary to conclusions reached in this opinion.

This is a class suit affecting- all taxicab operators in the State. A history of the legislation affecting the highways in the State is not necessary. It is sufficient to say that at the time of the enactment of act No. 11, approved February 12, 1934, the State had defaulted in its bond payments and the interest thereon, and it became necesr sary to refund the bond issues, and at the same time to provide a method to meet accruing liabilities. It must be conceded at this time that the bonded indebtedness was excessive as compared-with the State’s ability, to pay, and. the necessary effect of such conditions was to impose somewhat onerous burdens upon those subject to taxation to save the State from future and further defaults in its indebtedness. It was necessary .that, in addition to the tax on gasoline or motor fuel, there should be a tax on motors or automobiles, trucks, buses, etc.

Section 31 classified motor vehicles-and imposed a tax upon these classes to be collected by the Commissioner of Revenues. One of the classifications, that being the one about which appellants are complaining, provided that automobiles equipped with pnuematic tires used for the transportation of persons f-or hire shall be charged a fee of 45 cents per horsepower generated or developed by the motor propelling such vehicle, and in addition there shall be charged a’ fee, based upon the-gross weight of.the vehicle of $1.50 per hundred pounds or fraction thereof. ’ ’ The tax so imposed is substantially ■ higher than the tax imposed upon the same automobile or same type of motor vehicle when not so used to transport persons for hire. ■

It is strongly urged by appellants that the classification made by the State is unfair and unequal. For the purposes of argument, that proposition might be conceded, and, even if that were true, it. would not be a real reason for declaring § .31, or any part of it invalid. It is a principle very generally recognized by all of the courts that almost any system of taxation results in many inequalities and perhaps unfairness to particular classes, and very frequently seriously affecting individuals composing a particular class. This arises more often, not out of the law itself, but out of the peculiar conditions under which classes, or individuals, may find themselves in their manner of doing business or location, rather than out of the classification.

This is illustrated in the brief filed for appellants in this case. They argue the fact rather seriously that they confine their operations to the streets of cities and towns, as distinguished from the system of State highways. It should be observed, however, that classification in itself does not confine them to the municipalities. They urge also that they are subject to licenses or taxes in the respective cities and towns in which they operate, and that these taxes or licenses are burdens; that they pay other taxes to the cities, municipalities, schools, etc., and that argument suggests, when considered, the fact that the burdens imposed by said § 31 are seemingly oppressive only by reason of the fact that there are other exactions, no one in itself which, as distinguished from the others, might be considered excessive.

Appellants recognize in their brief that the State has power to tax, but they ask us to construe § 31 aforesaid so as to grant relief from what they urge is an over-burdensome rate of taxation.

There is no ambiguity in said § 31. The. language used, when given its ordinary meaning, is clear and understandable, and there is nothing to invite construction or interpretation. To attempt to read into this section any meaning, other than that which is clearly set forth upon its face, would be an invasion by the court of the legislative field, a course of action we feel unauthorized and unwilling to pursue. Our province can go no further than try to determine, the legislative intent and to give effect to it, but in no instance shall we attempt to defeat the legislative intent so clearly expressed, and when it is not in violation of public policy as defined by the Constitution.

But it is urged that the act as written, if enforced by the Commissioner of Revenues, will be violative of the Fourteenth Amendment of the Constitution of the. United States and of § 21 of article 2 of the Constitution of the State of Arkansas.

Section 31 is not in conflict with either the State or United States Constitution. We call attention to a most recent case, decided by the United States Supreme Court, A. Magnano Co. v. Hamilton, 292 U. S. 40, 54 S. C. R. 599. The Supreme Court of the United States had under consideration the statute passed and enforced in the State of Washington, which levied an excise tax of fifteen cents per pound on butter substitutes sold in the State. That statute expressly exempted from taxation butter substitutes when sold for exportation to any other State of the nation, and more particularly the doing of any act which would constitute an unlawful burden on the sale or distribution of butter substitutes in violation of the interstate commerce act. The act was such that it did not impose any burden upon interstate commerce. Plaintiff in that case was selling a preparation called “Nucoa, ” which was a form of Oleomargarine, from the sale of which it derived a large net profit in the State of Washington. The plaintiff urged that the tax was prohibitive; that plaintiff could not, after the passage of that act, except in violation of it, make any intrastate sales; that the imposition of the tax had the effect of depriving the complainant of its property without due process of law, and of denying to it the equal protection of the laws, in violation of the Fourteenth Amendment; that the tax was not levied for a public purpose, but for the sole purpose of burdening or prohibiting the manufacture, importation and sale of Oleomargarine, in aid of the dairy industry.' The court held (1) that, in respect of the equal protection clause, the differences between butter and Oleomargarine were sufficient to justify their separate classification for purposes of taxation, and (2) that the tax was for a public purpose, and this was disclosed by the use. which was to be made of the revenue derived from the tax, and that there was no ulterior motive or purpose which may have influenced the Legislature in passing the act. That court said in the case: “The point may be conceded that the tax is so excessive that it may or will result in destroying the intrastate business of the appellant; but that is precisely the point which was made in the attack upon the validity of the 10 per cent, tax imposed upon the. notes of State banks involved in Veazie Bank v. Fenno, 8 Wall. 533, 548, 19 L. ed. 482, This court there disposed of it by saying that the. courts-are without authority to prescribe limitations upon the exercise of the. acknowledged powers of the legislative departments. ‘The power to tax may be exercised oppressively upon persons, but the responsibility of the. Legislature is not to the courts, but to the people by whom its members are elected. ’ Again in the McCray case, su,pra, answering a like contention, this court said (page 59 of 195 U. S., 24 S. Ct. 7-69,'778) that the argument rested upon the proposition ‘that, although the tax be within the power, as enforcing it will destroy or restrict the manufacture of artificially colored Oleo-, margarine, therefore the power to levy the tax did not obtain. This however is but to say that the question of power depends, not upon the authority conferred by the Constitution, but upon what may be the consequence arising from the exercise of the lawful authority.’ And it was held that if a tax be within the lawful power of the Legislature, the exertion of the-power may not be restrained because of the results to arise from its exercise. ’ ’

• This court in the case of Fort Smith v. Scruggs, 70 Ark. 549, 550, 69 S. W. 679, upheld an ordinance of the city of Fort Smith imposing a privilege, tax, such as we have under consideration, upon buggies and wagons, making a distinction or classification of the same. The tax for a one-horse buggy or phaeton carrying not more than two persons was $2 per annum'and for a one-horse delivery wagon $4 per annum. The power to impose such a tax and making such classifications' was upheld, though the case was reversed for other reasons.

This court said, in the case of Standard Oil Co. v. Brodie, 153 Ark. 114, 239 S. W. 753: “It is not essential to the validity of a tax, either upon property or upon privilege, that it be absolutely free from inequalities or discrimination. The lawmakers have some discretion, even in legislating with reference to the power of taxation as restricted by the terms of the Constitution, and they may determine the scope and extent of the exercise of the taxing power, and a mere incidental inequality or discrimination does not affect the validity of the statute. ’ ’

It is unnecessary to pursue this argument further than to call attention to the case of Fitzgerald v. Gates, 182 Ark. 655, 32 S. W. (2d) 634, in which case practically every question raised by the complaint in the instant case was settled by this court. In effect the last cited case decided the validity of the classifications and the imposition of a privilege tax upon those who operate motor vehicles for hire. This court said in that case: “Whether a license tax is prohibitory is primarily a legislative question. ‘All presumptions and intendments are in favor of the validity of the tax; in other words, the mere amount of the tax does not prove its invalidity. ’ The reasonableness of an occupation tax does not depend on whether or not a hardship results in an isolated case, but instead upon the general operation of the tax in the class to which it applies. The amount of the. tax is not to be measured by the profits of the business taxed, and the mere fact that the particular person taxed conducted his business at a loss does not of itself make a tax unreasonable.” Cooley, Taxation, (4th ed.) 3433. See also Wright v. Hirsch, 153 Ga. 229, 116 S. E. 795; Western Union Tel. Co. v. Decatur, 16 Ala. App. 679, 81 So. 199; N., C. & St. L. v. Attala, 118 Ala. 364, 24 So. 450; N., C. & St. L. v. Ala. City, 134 Ala. 414, 32 So. 731; Veazie Bank v. Fenno, 8 Wall. 553, 19 L. ed. 482; Merchants’ Transfer & Warehouse Co. v. Gates, supra.”

It necessarily follows that the decision of the chancery court is correct. It will therefore be affirmed.


author: Ross, P. J.

text:
    Eagle Savings & Loan Assn., Appellee, v. Hucke et al., Appellees; The Penker, Realty Co., Appellant.

      (No. 6296
    Decided June 1, 1943.)

      Mr. W. Ray Skirvin and Mr. Stewart S. Cooper, for appellee, Sophia Hucke

      Messrs. Freiberg & Simmonds and Mr. Jerome Goldman, for The Penker Realty Company.

      Mr. Louis Weiland, for appellees, Edward L Raisbeck, Clarence Raisbeck and others.
   Ross, P. J.

This matter is'presented to this court upon a motion to dismiss the appeal upon questions of law and fact.

The docket and journal entries pertinent to the question presented are:

“12/30/40 — Cause heard and submitted.

“2/9/43 — Request of The Penker Realty Company for separate findings of fact and conclusions of law filed.

“3/2/43 — Min. 1027 — Findings of fact and conclusions of law.

“3/8/43 — Exceptions to the findings of fact and conclusions of law filed.

“3/9/43 — Min. 1104 — Judgment entry in favor of Sophia Hucke.

“3/11/43 — Motion for new trial filed.

“3/30/43 — Min. 1324 — Entry overruling mohon for new trial.

“4/7/43 — Execution No. 54739 issued against The Penker Realty Company in favor of Sophia Hucke.

“4/7/43 — -Application to fix bond on appeal filed.

“4/7/43 — Notice of appeal on questions of law and fact on behalf of The Penker Realty Company filed.

“4/7/43 — Praecipe for transcript filed.

“4/7/43 — Min. 36 — Entry fixing bond on appeal at $200.

“4/7/43 — Appeal bond — 154 in Book 28 in sum of $200 given.

“4/12/43 — Entry fixing bond on appeal in the sum of $4,500.

“4/12/43 — Application to fix bond on appeal by The Penker Realty Company filed.

“4/12/43 — Supersedeas bond 66 Book 14 in the sum of $4,500 given.

“4/12/43 — Notice of appeal on questions of law and fact on behalf of The Penker Realty Company filed.

“4/12/43 — Praecipe for transcript filed.”

The original action was brought by the holder of a first mortgage “against the mortgagor, a second mortgagee and several successive grantees of the mortgaged premises to foreclose the mortgage and to recover a personal judgment against the mortgagor upon the note secured by the mortgage and against the grantees upon provisions in their respective deeds, whereby they assumed and agreed to pay the mortgage debt.

“The first mortgage has been foreclosed, the property sold, and the debt due plaintiff paid and satisfied. The plaintiff has no interest in the result of this appeal. The issue is between go defendants.”

The foregoing is a quotation from the opinion of Matthews, P. J., at a former hearing of this cause No. 6181 on the docket of this court, which opinion is reported in 71 Ohio App., 485, 50 N. E. (2d), 352.

. For a more extended statement of the proceedings in the case reference is made to that opinion.

Sophia Hucke, a defendant in the original action, is the holder of a second mortgage executed by Max OrtTr.an, who conveyed to Edward L. and J. Clarence Raisbeck. J. Clarence Raisbeck and wife conveyed an undivided one-half interest to Edward L. Raisbeck, who conveyed to The Penker Realty Company, the appellant.

Sophia Hucke received nothing out of the proceeds of sale of the mortgaged premises under the foreclosure of the first mortgage.

Sophia Hucke, by a cross-petition, seeks to recover money only from her codefendants, The Penker Realty Company and other grantees.

The Penker Realty Company has filed a cross-petition against Sophia Hucke, seeking reformation of a contract relied upon by Sophia Hucke to fix liability on The Penker Realty Company for the assumption of the original second mortgage debt.

The trial court sustained the claims of Sophia Hucke and rendered judgment for money only against her codefendants, including the appellant. On its cross-petition for reformation, the trial court found against the appellant.

Now it is clear that the cross-petition of Sophia Hucke stated a simple cause of action at law for money only against the appellant and it is equally clear that the cross-petition of the appellant, The Penker Realty Company contained the statement of a cause of action in chancery, that is, for reformation of a written instrument.

In the case of Lust v. Farmers’ Bank & Savings Co., 114 Ohio St., 312, 151 N. E., 189, the syllabus is:

“Where, in an action for the recovery of the possession of real estate, an answer is filed which-contains a general denial, putting in issue all the claims of the plaintiff, and by a second and third defense the defendant averring ownership and possession seeks affirmative relief by setting up cross-demands, ‘constituting a cause of action in itself on which a separate action might have been maintained,’ to wit, quieting title of the disputed tract, such answer is not to be construed merely as defensive to the allegations of the petition; and, such cross-demands relating to a subject-matter over which chancery has jurisdiction, the issues tendered by such cross-demands and the reply of the plaintiff thereto make a cause of action that is appealable.”

And, on page 319 of the opinion it is stated:

“As was said by Bradbury, J., in Gill v. Pelkey, 54 Ohio St., 348, 360, 43 N. E., 991, 993:

“ ‘It may be quite true that an equitable defense merely, that is, one which sets forth some equitable considerations for the sole purpose of resisting the plaintiff’s demands, without asking any affirmative action of the court whatever, will not affect the mode of trial, although it would have done so if the party had invoked some affirmative relief. The difference between them being that the first is simply a defense to the cause of action stated in the petition, while the other is a cross-demand constituting a cause of action in itself, on which a separate action might have been maintained. The former being merely a defense, cannot draw to itself a mode of trial different from that prescribed for the cause of action to which it relates. The latter being a distinct cause of action, is of equal dignity with the one set forth in the petition, and therefore equally entitled to its appropriate method of trial. * * *

“ ‘In view of these cases it may be regarded as the settled law of this state, that while an equitable defense merely will not affect the mode of trial or right of appeal, yet an equitable cross-demand set forth by a defendant in a cross-petition upon which he asks affirmative relief, will draw to itself the mode of trial appropriate to such cause of action, and give the same right of appeal as it would do if set forth in a petition by the plaintiff in an action.’ ”

In Kiriakis v. Fountas, 109 Ohio St., 553, 143 N. E., 129, at page 558 of the opinion it is stated:

“However, the cross-petition filed by the defendant, in which he alleges the existence of a partnership, asks in substance for an accounting, and prays for reformation of the bill of sale on the ground of mutual mistake.

“This cross-petition is clearly equitable, and establishes equitable jurisdiction. Where a court of equity obtains jurisdiction of an action, it will retain it and administer full relief, both legal and equitable, so far as it pertains to the same transactions or subject-matter. Frank v. Davis, 135 N. Y., 275, 31 N. E., 1100, 17 L. R. A., 306. Under such circumstances a court of equity may go on to complete adjudication, even establishing legal rights and granting legal remedies which would otherwise be beyond the scope of its authority. Johnston & Grommett Bros. v. Bunn & Monteiro, 108 Va., 490, 62 S. E., 341, 19 L. R. A. (N. S.), 1064. The same rule is laid down in Ohio. Gantz v. Gease. Gdn., 82 Ohio St., 34, 91 N. E., 872.”

See, also, Deaconess Hospital of Cincinnati v. Leutz, 12 Ohio Law Abs., 270; 2 Ohio Jurisprudence, 177, 178, 179.

The cross-petition of the appellant praying for affirmative relief based upon allegations of fact showring the existence of a cause of action cognizable in chancery controlled the character of the trial and appeal and the appellant had the right to appeal on questions of law and fact.

The question presented by the motion to dismiss is whether the appellant has effected an appeal.

The appellant claims that its notice of appeal is in time, since it was filed within twenty days after the overruling of a motion for a new trial. This is, of course, dependent upon whether such notice was “duly” filed — that is, filed, among other things, in time.

In Cullen v. Schmit, 137 Ohio St., 479, 30 N. E. (2d), 994, the first, second, third and fourth paragraphs of .the syllabus are:

“1. As defined by Section 11575, General Code, a new trial is a re-examination in the same court of an issue of fact after a verdict by a jury, a report of a referee or master, or a decision by a court.

“2. Under the provisions of Section 12223-7, General Code, a motion for a new trial must not .only be filed within three days after a verdict or decision, but it must be ‘duly’ filed; and in this respect these provisions recognize no distinction between an action at law and a suit in chancery.

“3. A motion for a new trial is duly filed only when, if granted, it would result in a re-examination of the issues of fact presented by the pleadings.

“4. When a motion for a new trial is duly filed by either party within three days after the verdict or decision in an action at law or a suit in chancery then the time for perfecting' the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for a new trial.”

Section 12223-7, General Code, provides:

“The period of time after the entry of the order, judgment, decree, or other matter for review within which the appeal shall be perfected, unless otherwise provided by law, is as follows:

“1. In appeals to the supreme court, to courts of appeals, or from municipal courts to courts of common pleas, within twenty (20) days.

“Provided, that, when a motion for new trial is duly filed by either party within three days after the verdiet or decision then the time of perfecting the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for new trial.

“2. In all other appeals, within ten (10) days.

“3. In case of insanity or death of a party after judgment, the court shall have the power to extend the time for filing the appeal, an additional twenty (20) days.”

At page 483 of the opinion in Cullen v. Schmit, supra, it is stated:

“With these premises in mind what distinction does this section recognize between an action at law and a suit in chancery with reference to the perfecting of an appeal? More exactly, what is meant by the wording ‘verdict or decision?’ Is the use of the word ‘decision’ restricted to actions at law? A close study of this and cognate sections discloses nothing to indicate that the term is employed in other than its broad, generic sense of a final determination of the rights of the parties in an action. Therefore, to hold that the word ‘decision’ excludes either a judgment in an action at law or a decree in a suit in” chancery would require not only judicial legislation but also the revival of a technical and confusing distinction that could serve no useful purpose.”

Let us now turn to the case of In re Estate of Lowry, 140 Ohio St., 223, 42 N. E. (2d), 987, bearing in mind the conclusion of the Supreme Court that the Legislature intends no distinction between actions at law and suits in chancery as far as the matters under consideration are concerned. Paragraph one of the syllabus in the case of In re Estate of Lowry, supra, reads :

“Where an action at law is submitted to the court, trial by jury being waived by the parties, the finding of the court is the equivalent of a verdict of a jury and is to be governed by all statutes relating to verdicts. (Boedker v. Warren E. Richards Co., 124 Ohio St., 12, approved and followed; Industrial Commission v. Musselli, 102 Ohio St., 10, modified.)”

On page 225 of the opinion it is stated:

“Whether the motion for a new trial in this case was premature depends upon the meaning of the word ‘decision.’ If it means ‘judgment,’ then the motion was premature, for the court had not yet announced or rendered a judgment. If it means the announced finding of the court in lieu of a verdict of a jury, a jury having been waived, the motion was not premature.

“The holding of this court in the case of Boedker v. Warren E. Richards Co., 124 Ohio St., 12, 176 N. E., 660, is applicable and pertinent. It was announced in the syllabus of that case:

“ ‘Where an action at law is submitted to the court, trial by jury being waived by the parties, the finding of the court is the equivalent of a verdict of a jury and is to be governed by all statutes relating to verdicts.’ ”

And, again, on page 227 of the opinion:

“It must be conceded that some confusion has arisen in Ohio by reason of the announcement of this court in the case of Industrial Commission v. Musselli, 102 Ohio St., 10, 130 N. E., 32, wherein it is stated that the term ‘decision’ is used in the sense of judgment. Subsequent decisions by this court, and particularly that in the Boedker case, supra, have had the effect of modifying the statement made in the Musselli case above referred to.

“It is well established in Ohio that a court speaks only through its journal and that no judgment is rendered until the entry is prepared, approved by the court and filed with the clerk. State, ex rel. Industrial Commission, v. Day, Judge, 136 Ohio St., 477, 26 N. E. (2d), 1014. However, as clearly indicated in the cases above cited, neither the verdict of a jury nor the decision of a court where a jury has been waived constitutes a judgment. It is expressly provided by Section 11599, General Code, that ‘When a motion for a new trial is filed, then such judgment shall be entered only when the court has sustained such verdict by overruling the motion. Upon such overruling it shall immediately be entered.’

“It follows that in a case where trial by jury has been waived and the trial judge, after hearing upon the issues, renders a decision on the issues made, a motion for a new trial is properly filed within three days after the decision and before judgment in conformitv therewith has been entered.”

From these decisions it seems apparent that an appellant may not ignore the “decision” of the court even in a chancery case, permit the three days or the term to pass and then extend his period for filing a notice of appeal as provided in Section 12223-7, General Code, by filing a motion for a new trial after the decree of the court has been entered. If the appellant decides to appeal on questions of law and fact he may await the final decree and then file his notice of appeal within twenty days from the date of its entry.

If no finding or decision is made by-the chancellor and the court merely enters a decree containing its finding, decision and judgment, the appellant of course then may file a motion for a new trial, for this is his first opportunity to request the chancellor to review his conclusions on the evidence. In such case, the time for the notice of appeal will run from the overruling of the motion for a new trial.

If the claim of the appellant is correct, it could file two motions for new trial — -one, addressed to the “decision” of the court properly journalized, and, another, to the judgment. Such cannot be the reasonable interpretation of our statutes on appellate procedure.

All of the decisions of the Supreme Court noted herein had been pronounced before the appellant saw fit to pass the “decision” for motion and address same to the decree. The rules as noted herein seem to be a plain caveat against such procedure.

The procedure herein indicated is reasonable, fair, and logical. The appellant may see fit to attack the conclusion of the court in a chancery case upon questions of law only.

To raise a consideration of the evidence in the reviewing court, however, he must have a ruling upon a motion for a new trial. Obviously, the seasonable, time to “duly” file such motion is at the first opportunity, when the chancellor has journalized his findings upon the facts and law — that is, when he has announced his decision thereon. Is it unfair to say when the dissatisfied litigant in chancery passes the “decision” upon the facts without attack that he has waived the right to attack, especially when he has the right to file a notice of appeal within twenty days after the decree, and raise questions of law other than those involving the evidence on questions of law and fact, upon a trial de novo, based upon an appeal on questions of law and fact? The answer seems clear that the appellant is not entitled to disregard the “decision” as it did in this case.

For the reasons given, therefore, it is apparent that the appeal on questions of law and fact must be dismissed.

Has the appellant an appeal upon questions of law remaining after the dismissal of the chancery appeal? The answer is no, for the reasoning and authorities apply equally to an appeal on questions of law. No notice of appeal was filed within twenty days of the final judgment or decree.

The appeal will be dismissed in toto.

Appeal dismissed.

Hildebrant and Matthews, JJ., concur.


author: Hildebrant, J.

text:
    Village of New Miami, Appellant, v. White, Appellee. (Two cases.)
    (Nos. 859 and 860
    Decided July 2, 1943.)

      Messrs. Wonnell £ Brown, for appellant.

      Messrs. Neilan £ ConnaugMon, for appellee.
   Hildebrant, J.

Defendant, appellee herein, was convicted in the mayor’s court of the village of New Miami in two cases for violations of Ordinances Nos. 13 and 214, respectively, both of which provided imprisonment as part of the penalty.

On arraignment,'after a reading of the charges, de-, fendant offered the following motion which was overruled in each instance and the mayor proceeded to try the defendant without a jury.

“Now comes the defendant, Charles White, Jr., by his counsel, and moves the court for an order dismissing the affidavits preferred against him in these cases for the. reason that the same charge offenses punishable by imprisonment and for the reason that the mayor of the village of NeAv Miami is without jurisdiction to try said matters.”

Defendant offered no evidence, but at the close of the cases for the village renewed his motions- and demurred to the evidence and the affidavits.

The Common Pleas Court of Butler county reversed the judgments of conviction and remanded the causes for proceedings according to law. Whereupon, the village appeals to this court on questions of law, contending defendant failed and neglected to demand a jury, and, therefore, under Section 13424-1, General Code, had Avaived that right, and the mayor had jurisdiction to proceed with the trials in the manner in which he did.

Defendant contends Section 4535 et seq., General Code, apply and that his motions were equivalent to asking a jury trial, or that the mayor proceed under those sections, and hence he had no jurisdiction to try the cases as he did.

The Ohio Constitutions of 1802 (Section 8, Article VIII) and 1851 [Section 5, Article I) declare the right of trial by jury shall be inviolate, recognizing tbe preexisting common-law right. Section 10, Article I of the Ohio Constitution of 1851 further provides:

“In any trial, in any court, the party accused shall be allowed * * * to have * * * a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.”

These constitutional provisions have been construed to mean the right of trial by jury exists where imprisonment is part of the penalty. Work v. State, 2 Ohio St., 296, 59 Am. Dec., 671; Inwood v. State, 42 Ohio St., 186; State, ex rel., v. Smith, 69 Ohio St., 196, 68 N. E., 1044; State v. Borham, 72 Ohio St., 358, 74 N. E., 220; Hoffrichter v. State, 102 Ohio St., 65, 130 N. E., 157; Stiess v. State, 103 Ohio St., 33, 132 N. E., 85; Cochran v. State, 105 Ohio St., 541, 138 N E., 54.

The right to trial by jury where imprisonment is part of the penalty is, therefore, a constitutional right as. distinguished from the right granted by statute, where, for example, the fine exceeds a certain amount. Section 4535 et seq-, G-eneral Code,.occur in Title XII of the Code, which is devoted to Municipal Corporations, and under the heading “Villages” appear as follows:

“Sec. 4535. In villages, the mayor shall have final jurisdiction to hear and determine any prosecution for the violation of an ordinance of the corporation unless imprisonment is prescribed as part of the punishment, and in keeping his dockets and files, he shall be governed by the laws pertaining to justices of the peace.” .

. “Sec. 4537. He shall have the jurisdiction in the cases mentioned in the last two sections, notwithstanding the right to a jury, if before the commencement of the trial, a waiver in writing, subscribed by the accused, is'filed in the case.”

“Sec. 4538. He may summon a jury, and try the accused, in any prosecution for the violation of an ordinance, where imprisonment is a part of the prescribed punishment, and the accused does not waive a jury, and in such case, judgment shall be rendered in accordance with the verdict, unless a new trial, for sufficient cause, is granted.”

‘ ‘ Sec. 4539. He may decline to permit the trial, mentioned in the last section, if in his opinion the public interest will be thereby promoted, and having entered' that fact on his docket, proceed to inquire into the complaint, and discharge the accused, recognize him to the court of common pleas, or commit him in default of bail, and in such case the court of common pleas shall have jurisdiction of the offense.”

No waiver in writing appears of record. We, therefore, conclude the duty of the mayor under these sections to have been to either summon a jury or function as a magistrate only under Section 4539, General Code.

Section 13422-1 et seq., General Code, relied upon by the village, occurs in the title of the Code dealing with criminal procedure generally and defines the word magistrate for the purposes of the title to include mayors of municipal corporations, with Section 13424-1, General Code, reading:

“In prosecutions before a magistrate, when imprisonment is a part of - the punishment, if a trial by jury is demanded, the magistrate, not less than three days nor more than five days before the time fixed for trial, shall certify to the clerk of the court of common pleas of the county that such prosecution is pending before him. Failure to demand a jury as in this section provided, shall be deemed a waiver of the same.”

Even if the contention of the village that no jury demand were made be correct, it appears to the court that the specific sections of long standing, relating to village mayors and village ordinances, prevail over the general section passed at a much later date Again, the motions of defendant, the court feels, were sufficient to notify the mayor that defendant was standing on all his legal rights, and although a jury was not demanded in so many words, defendant’s action was the equivalent thereof and the mayor should have summoned a jury or inquired into the complaints as a magistrate. Section 13422-1 et seq., General Code, were passed to modernize and synchronize an archaic procedure with the modern complexities of society, wherein many new crimes and misdemeanors malum prohibita are noticed, and are applied to village mayors in state cases only.

The judgment is affirmed and the cause remanded for further proceedings in accordance with the judgment of the Court of Common Pleas.

Judgment affirmed.

Ross, P. J., and Matthews, J., concur.


author: Geiger, J.

text:
    In re Goodfleisch: Goodfleisch, Appellant, v. Goodfleisch et al., Appellees.
    (No. 3665
    Decided October 1, 1943.)

      Mr. Abraham Gertner and Messrs. Wardlaw, Gertner <& Armstrong, for appellant.

      Mr. August W. Weber, for appellees.
   Geiger, J.

This matter is before this court on appeal from the judgment of the Probate Court of Franklin county, Ohio, in favor of the appellees who seek the adoption of George Robert Goodfleisch, a child four years of age, the son of Augustine Margaret Goodfleisch and her former divorced husband, Robert Goodfleisch, who is now in the armed services of the United States and who is the son of the parties seeking the adoption.

The court after hearing the evidence found that the facts stated in the petition were true; that the petitioners, the grandparents of the child, were of reputable standing in the community with the ability to properly maintain and educate the child; that the best interests of the child would be promoted by the adoption ; that the mother, Augustine Margaret Goodfleisch, had failed to support the child for two consecutive years and was not a proper person to have the care and custody of the child; that the father of the child had consented to the adoption; and that the child had lived with the grandparents since birth, with the exception of a few months. It ordered and decreed that the adoption be made; that the name of such child remain George Robert Goodfleisch; and that the child should for all purposes provided by statute be the child of its grandparents. The mother of the child excepted

The bill of exceptions and the exhibits disclose the fact that the father and mother were divorced in April, 1942. During the period prior to the dissolution of the marriage the obligation of support was on the father. This has not been changed by the decree. The duty still rests with the father to support. The father in recognition of this obligation sent-to the petitioners a certain sum per month, which they did not expend for the support of the child, although it was ample for that purpose. They chose rather to put it in the bank for future use by the child.

The adoption section, Section 10512-11, General Code, as amended provides that in any adoption proceedings written consent must be given to such adoption as follows:

(2) “By each of the living parents * * * (a) By one of the parents when it shall appear from affidavit and the evidence during the trial .of the cause that the other parent has failed or refused to support the child for two consecutive years.”

The subsequent subdivisions relate to the permission to be given by a court or under certain circumstances not present in this case.

The court below found that “the mother of said child has failed to support said child for two consecutive years and is not a proper person to have the care and custody of said child.’’The Court of Domestic Relations, in the decree of divorce, ordered: “It is further ordered and decreed by the court that the custody of the child, George Robert, aged three years, be granted to the parents of the defendant herein, Mr. and Mrs. George Goodfleisch, until further order of this court,” The divorce was granted on the ground that the defendant, the father, had been guilty of gross neglect of duty toward the plaintiff.

It is apparent that the mother has not consented to this adoption as provided in the second subdivision of the section. We must then examine the record to ascertain whether the mother, the parent not consenting to the adoption, and indeed resisting it, has been shown by the evidence to have failed or refused to snpjjort the child for two consecutive years. The mother was not engaged in any gainful occupation after the divorce and while the child was under the order of the court in the custody of the grandparents, and had no ability to support the child until after she secured employment in war work. Even then she was not under legal obligation to support the child as sufficient was furnished by the soldier father for that purpose, and the grandparents made it plain to her that they did not wish any contribution from her for that purpose, they asserting that they were well able to care for the child.

Under Section 7997, General Code, it' becomes the duty, if the husband is unable to support the child, for the wife to assist him so far as she is able. The conditions did not impose the obligation upon her either to support the child or to contribute to the support, and even so, the grandparents made it plain to her that they did not wish any support from her.

We examine the petition of the appellees. It contains the allegation: “that the mother of said child is Augustine Margaret Groodfleisch * * * who has not supported said child for two consecutive years ’ ’ The requirement of the statute is that the adoption may be made on consent of one of the parents “when it shall appear from affidavit and the evidence during the trial of. the cause that the other parent has failed or refused to support the child for two consecutive years.”

The petition, in stating that the mother ‘ ‘ has not supported said child,” does not allege the statutory requirement that she “has failed or refused to support the child, ’ ’ and it has not been so proved.

The first assignment of error is that the court erred in rendering the decree of adoption without the consent of the mother. This, we believe, was prejudicial error. The second assignment of error is that the trial court erred in allowing the decree to stain the character of the mother. The court found that the mother was not a proper person to have the care and custody of the child, which language was repeated in the finding. We do not believe that the court was justified in finding that the mother was not a proper person to have the custody of the child. He had ruled that her reputation was not in issue and that testimony on the subject was incompetent. The evidence touching her moral qualifications was very limited and not such as to justify the finding that she was not a proper person. It is asserted by counsel for the appellant that the trial judge should have sustained the mother’s motion to dismiss the proceedings for five separate reasons enumerated in such motion. We believe that each of these asserted reasons is well founded and that the court should have dismissed the application for adoption.

No legal obligation is imposed upon the mother to support the child for a number of reasons, among which may be enumerated:

(1) Because it is the duty of the father, which he was discharging by having an allotment of $25 per month made to his parents, which, if required, could be used for that purpose.

(2) The petitioners themselves have waived the right to have the mother support the child.

(3) There is no showing of failure of the father or mother to support.

(4) No showing of ability upon the part of the mother to support is made.

(5) There is no showing of the violation of either Section 7997 or Section 13008, General Code.

While no doubt the grandparents would be suitable persons for the care and support of the child, yet a child may not under the statute be taken from its parents without a compliance with the statute.

The judgment of the court below is reversed. The petition is dismissed.

Judgment reversed.

Barnes, P. J., and Hornbeck, J., concur.