author: Mehaefy, J.

text:
    McLain v. Miller County.
    Opinion delivered January 13, 1930.

      Shaver, Shaver <& Williams, for appellant.

      Will Steel, for appellee.
   Mehaefy, J.

J. H. McLain was county judge of Miller County for four years, and during that time as such county judge and ex-officio road commissioner he had the care, custody and control of the mules and other stock belonging to said county. Immediately after he went into office, January, 1925, he took charge of the stock, and, as county judge rented 80 acres of land from his sisters for the purpose of pasturing and keeping said stock, and it was so used by him during said four-year period. The rental was fixed at $240 a year. J. H. McLain, as county judge, executed one note for $240 as follows:

“Rent note, $240, Texarkana, Arkansas, January 2, 1928, December 31, 1928, I as county judge of Miller County, Arkansas, promise to pay to Mrs. W. J. Timber-lake, and others, or order, at Texarkana, Miller County, Arkansas, $240 for the use of 80 acres of land about two miles east of Texarkana, and situated on the north side of old Rando road; said lands are to be used for pasturing the county’s teams. J. H. McLain, County Judge, Miller County, Arkansas.”

The notes were not paid for quite a while, and, finally, while J. H. McLain was still county judge, he filed a claim in his own name for three of the notes. The claim filed is as follows:

“To J. H. McLain, Dr., Road District No. 5.
“To rent of corral and pasture lands for county’s team for the year 1925.....................................................*...........$240
“'To the same for the year 1926................................................... 240
“To the same for the year 1927...................................................... 240'
“$720”

There was also a claim filed by Hal Green for $96.50, $80 of it being for 160 bales of hay, and $16.50 for alfalfa. This claim was filed in the name of Hal Green. The claims were all properly verified, and were all allowed by the county court, and warrants were issued; one warrant for $80 to Hal Green, a warrant in the sum of $720 to J. H. McLain, and a warrant for $240! to Mrs. J. W. Timberlake. All >of the warrants were paid.

An appeal was taken from the order and judgment of the county court to the circuit court by a taxpayer, and, when the case reached the circuit court, McLain filed a motion to dismiss, and Hal Green also filed a motion to dismiss the appeal. The circuit court overruled the motions to dismiss, and affirmed the judgment of the county court as to the claim allowed Mrs. Timberlake for $240, and affirmed the judgment in favor of Hal Green in> the sum of $80, but disallowed the sum of $16.50 in the Hal Green claim. This appeal is prosecuted to reverse the judgment of the circuit court.

The circuit court disallowed the claim of J. H. McLain for $720, and reversed the judgment of the county court on the ground that McLain had no personal interest in the subject-matter of the claim, and that the allowance of the claim by the county court was void, and should be set aside without prejudice to the claim- being made in behalf of the parties who were entitled to assert the same for rent of pasture for some amount, if any rent should be due, but affirmed the judgment of the county court and allowed the claim of $240 in favor of Mrs. Timber-lake, whose claim was filed in the county court in her own name.

J. H. McLain contends that the motion to dismiss the appeal in the 'circuit court should have been sustained, because it was allowed and paid by the county court to the persons who were entitled to receive the same, and that there was nothing left for the circuit court to try.

It is contended that, because the warrants were issued after the judgment in the county court and paid to the parties to whom they belonged, and because it is contended that there ceased to be an issue, facts having intervened; that is, the judgment of the county court having been paid, rendered the decision of no practical application to the controversy between the litigants.

We do not agree with the appellants in this contention. The law provides that appeals may be granted, as matter of right, from all final judgments of the county court at any time within six months after the rendition of same. Section 2287, 'Crawford & Moses’ Digest. And the statute provides that the circuit court shall proceed to try such appeal cases. Section 2292.

This court said, in a case appealed from the county court to the circuit court: “The judgment of the circuit court disallowing the claim rendered invalid the warrants previously issued under the judgment of the county court; and when they were presented to the county court for" reissuance, that court properly rejected them.” Murphy v. Garland County, 99 Ark. 173, 137 S. W. 813.

The court also said in the above case: “The appeal from the county court was prosecuted by a citizen and taxpayer, who had the right to so prosecute from a judgment allowing a claim against the county.”

The taxpayer had a right to prosecute the appeal from the county court; the circuit court had jurisdiction to try the case, and the fact that a warrant had been issued, before it was tried in the circuit court, was immaterial. When one has a claim allowed in his favor by a county court, he is bound to know that a taxpayer may prosecute an appeal to the circuit court within six months from the judgment allowing the claim. And whether he is paid in the meantime or not, the circuit court has jurisdiction to try the case, and a judgment of the circuit court disallowing the claim operates as a reversal of the order of the county court, and makes void the warrant issued thereunder unless reversed by the Supreme Court.

As we have already said, McLain’s claim was filed in his own name in the county court, and, he had, according to his own testimony, no interest in the claim. He said that he represented his sisters, as their agent. If he did this, he had no right to make a contract with himself as county judge, representing both the county and the owners of the land. A public officer cannot make a legal ¡contract with himself as agent of some other person, whether the contracts are made in good faith or not.

“As the efficiency of the public service is a matter of vital concern to the public, it is not surprising that agreements tending to injure such service should be regarded as being contrary to public policy. It is not necessary that actual fraud should be shown, for a contract which tends to the injury of the public service is void, although the parties entered into it honestly, and proceeded under it in good faith. The courts do not inquire into the motives of the parties in the particular case, fa> ascertain whether they were corrupt or not, but stop when it is ascertained that the contract is one which is opposed to public policy. Nor is it necessary to- show that any evil was, in fact, done by or through the contract. The purpose of the rule is to- prevent persons from assuming a position -where selfish motives may impel them to sacrifice the public good to private benefit. ” 6 R. C. L. 730.

If J. H. McLain, as an individual, represented the land owners in making the contract, he could not represent the county. In acting as county judge, he could not represent the other parties. In other words, he could n'ot contract with himself.

“It is, of course, clear that a co'ntra-ct which induces a public officer, to violate his duties to the public is against public policy. It is not necessary that there should be an express agreement to that effect. The acceptance of private employment, which conflicts with his public duties, may be sufficient. An officer’s duty is to give to the public service the full benefit of a disinterested judgment, and the utmost fidelity. Any agreement or understanding by which his judgment or duty conflicts with his private interest is corrupting in its tendency. * * * The law will not permit public servants to place themselves in a situation where they may be tempted to do wrong, and this it accomplishes hy holding all such employment, whether made directly or indirectly, utterly void.” 6 R. C. L. 739.

“The rule prohibiting public officers from being interested in public contracts is embodied in the statutes of some States. The rule is, however, not dependent on statute. According to the weight of authority, a contract by a board or public body, with a member thereof, or in which a member thereof is interested, is unenforceable, even in the absence of a statutory prohibition, although from some of the decisions it is not clear whether such contracts are to be regarded as void or voidable.” 6 R. C. L. 74(1

The county had the right, not only to the faithful service, but to the best judgment, of the county judge in making all contracts, and he could not lawfully make a contract either with himself, or with himself as agent for others. But in this case the claim filed in the county court was filed in the named of McLain himself. It was claimed that the county owed him $720. It is the contention of the appellant that McLain had a right to file this claim under § 1092, Crawford & Moses’ Digest, which provides that, “an executor, administrator, guardian, trustee of an express trust, or a person with whom, or in whose name a contract is made for the benefit of another, may bring an action without joining with him the person, for whose benefit it is prosecuted.” This section has no application. McLain did not make this in his own name for the benefit of his sisters who owned the land, but it was made to them in their name with him as county judge. It was ¡allowed, and the warrant issued to him, and it is wholly immaterial whether he paid the money to persons entitled to it, because, in the first place, he had no. interest in it according to his own contention, and therefore had no right to file the claim or collect the judgment. And, in the next place, he had no right to file a claim against the county in his own name and try the case himself. ¡Section 20, article 7, Constitution of Arkansas.

No effort was made to amend in the county court; no suggestion was made in the county court that the claim belonged to somebody else, but J. H. McLain, as county judge holding county court, allowed the claim in his own name. An appeal was then prosecuted to the circuit court, and then it was sought to substitute other parties who claimed an interest for McLain, who had no. interest. This would be equivalent to bringing a new suit in the circuit court, and the circuit court would have no jurisdiction to try the claim.

“The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship. of minors, the disbursement of money for county purposes, and in every other case that may be necessary to. the internal improvement ¡and local concerns of the respective counties. The county court shall be held by one judge, except in cases otherwise herein provided.” Section 28, article 7, Constitution of Arkansas.

In the very nature of .things there could not have been any trial. You could hardly imagine a person filing a claim for himself, swearing to. its correctness, and then disallowing it.

We have recently held that an amendment cannot be made by the substitution of another person for the plaintiff in the case.

“The code is very liberal, but it is the well established rule that courts will not allow amendments to be made which change the parties to the action, unless there is something in the record to authorize the amendment.” Fencing Dist. No. 6 of Woodruff County v. Mo. Pac. Rd. Co., ante p. 488.

“Under a statutory provision permitting the adding or correction of the name of a party, an entire change in the parties plaintiff or defendant cannot be permitted. A statute permitting amendments as to judgment will not permit an amendment making new parties plaintiff in order to sustain an action that was originally brought without authority.” 31 Cyc. 475.

This court, in construing this provision of the code, said: “This (provision • of 'the Code assumes that the plaintiff has a cause of action, and does not authorize the court in any case, where the plaintiff has failed to show any cause of action, to amend by adding the name of a party in whose favor a cause of action is shown by the complaint to exist, because such a proceeding would be practically instituting* a new action, and forcing a party, at the instance of one who has no right to demand it, to commence an action when he does not wish to do so. Broad and liberal as the provisions of the statute of amendments are, we see no authority in them for such a proceeding.” State use Oliver v. Rottaken, 34 Ark. 144; Fencing District No. 6 of Woodruff County v. Mo. Pac. Rd. Co., ante p. 488.

An additional reason why the amendment could not be made in this case is that the circuit court had no original jurisdiction of a claim .against the county. ’ The county court had exclusive original jurisdiction. The circuit court can try a case of this kind; has jurisdiction to do so only when it is appealed from the county court. To permit an amendment substituting a party in the circuit court in this case, would be permitting- the circuit court to exercise original jurisdiction, and this it cannot do.

It becomes 'unnecessary to discuss whether the contract could have been ratified. The circuit court had no original jurisdiction to try this claim, and properly dismissed it. The allowance of the claim for $240 in favor of Mrs. Timberlake was proper. As to the claim filed by Green, it may he said that he did not claim the $16.50, hut that belonged to another party, and this party did not file any claim.

The judgment of the circuit court is correct, and is therefore affirmed.

Mr. Justice Kirby dissents.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    McWilliams v. Kinney.
    Opinion delivered January 13, 1930.

      Jesse Reynolds, and Jacoioay, Miles, Donham <& Fulk, for appellant.

      Hays, Priddy & Rorex, for appellee.
   McHaney, J.

Appellant was formerly the wife of appellee. In June, 1926, on her complaint, which was uncontested, she was, by the Johnson Chancery Court, granted a divorce from appellee, and in August following was married to her present husband, Frank McWilliams. Thereafter, in October, 1926, appellee sued Frank McWilliams for damages for alienation of his wife’s affections. This suit resulted in a. verdict and judgment against McWilliams in the sum of $2,500. On appeal to this court, said judgment was affirmed on December 3, 1928. McWilliams v. Kinney, 178 Ark. 513, 11 S. W. (2d) 1. This judgment became final after the lapse of fifteen judicial days from said date, and on December '29, 1928, appellant brought this suit in the same chancery court to recover the sum of $810, which she claimed she had expended since said divorce decree, for the support and education of their thirteen-year-old son, who had been in her care and custody ever since said decree, and for an order for a monthly allowance for support of said child in the future. At the same time, she caused a writ of garnishment before judgment to be served on Frank McWilliams, her then husband.

After hearing the evidence, including the testimony in the case of Kinney v. McWilliams, which was made a part of the record in this case by agreement, the court entered a decree dismissing appellant’s complaint for want of equity, and she has appealed.

The complaint in the divorce case made no mention of a child, and the decree was therefore silent as to its custody. When appellant married McWilliams in August, 1926, this child was taken into the McWilliams family as a member thereof, and has ever since been supported, maintained and educated by the funds furnished by Frank McWilliams. Appellant admits that she had no money when she married the second time, has earned none since, and that the money she spent on her child was furnished by her husband. She brought this suit in her- own name to recover an amount expended, in fact, by her husband, and caused him to be garnished just about the time he would be required to settle the judgment in the alienation suit. But for that .judgment, it appears doubtful that this suit would have been brought.

The dissolution of the bonds of matrimony creates a new relationship between the parties. Whereas, they were husband and wife, with all the privileges, immunities and burdens imposed by law because of this relation-' ship, they are now strangers in law, third parties, as it were, with m> legal obligations, each to the other, except those preserved by decree or contract. When a child is born, both become parents, and, although the ties of matrimony may be broken by decree of court, none can be made that severs the relation of parent and child. It is the rule in this State, and, generally elsewhere, that the father is bound, primarily, in case of divorce, to support his infant children, and this, too, where the decree of divorce awards the custody of the child to the mother, with no' provision -being made regarding support. One of our leading cases on the subject is Holt v. Holt, 43 Ark. 495. In that case, the husband divorced the wife for desertion, but she was given the custody of their two infant children for a period. No provision was made in the decree as to who should pay their expenses. More than two years later, she sued the father for the expenses of their board, clothing and medical bills she had incurred, alleging his ability to pay. The lower court sustained a demurrer to the petition, but this court reversed the case, holding the lower court had jurisdiction, and further stated: “The 'dissolution of the marriage; tie and decreeing the custody of the children, either permanently or temporarily to the mother, do not relieve the father of his obligation to support them. If they are too young to- earn their own livelihood, the father must continue to furnish them a maintenance out of his estate, regard being had to his means and condition in life.” See also Shue v. Shue, 162 Ark. 216, 258 S. W. 128 and Longinotti v. Longinotti, 169 Ark. 1001, 277 S. W. 41. The case of Holt v. Holt, supra, was again cited with approval in tlie case of Daily v. Daily, 175 Ark. 161, 298 Sr W. 1012. There the parties were divorced on January 6, 1926, the decree being silent as to the custody, support and education of their minor daughter. She later brought suit against him to recover for money paid by her for the support and education of the daughter, and for an order for a monthly sum for her future support and education. iShe testified that it was ag’reed between them that she should have the custody of their daughter, and that she should support her until school should be out in May following, and that thereafter he was to contribute towards the support and education of the daughter, but had failed to do so. There was a decree for $100 for past support and $20 monthly for future support. This court modified this decree by disallowing the $100, and permitting the $20 monthly support to stand, taking into consideration the condition of his health and ability to pay. The effect of that holding is that a divorced wife may maintain an action against the former husband for. the future support and education of their minor child, even where the decree is silent as to the custody and maintenance of said child.

These eases announce correct principles of law, and we do not intend to impair them in the least by the decision we now make in this casé. As we view the case in hand, it is entirely different from them, and is not controlled by them. Here the wife obtained a divorce, apparently, for the purpose of marrying the man who had stolen away her affections. She obtained it on a complaint that did not disclose to the court the existence of a child, and under a decree that was silent as to its custody or support, and without any agreement with her husband touching its custody or support. After marriage, the child was taken into the McWilliams home as a member of the family, and was supported and schooled with money furnished by the step-father, for about two and one-half years, without any claim being made, and then only when payday had come on the alienation judgment. We think the chancery court was amply justified .in holding them mere volunteers, and in denying a recovery for support money prior to the suit. Nor do we think any error was committed in denying a recovery for future support, so long as the same conditions prevail. Nelson v. Nelson, 146 Ark. 362, 225 S. W. 619.

Considering all the facts and circumstances in this case, we have reached the conclusion that the decree is correct, and should be affirmed. It is SO' ordered.

Hart, C. J., Smith and Butler, J. J., dissent.


text:
    Consolidated School District No. 1 v. Fitzgerald.
    Opinion delivered January 13, 1930.

      M. P. Huddleston and Dudley & Dudley, for appel-lant.

      Jeff Bratton, for appellee.
   McHaney, J.

Appellee brought this suit against appellant to recover $650, which he claimed to 'be due him by reason of a written contract with appellant district to teach school for it for nine months, at $100' per month.. He alleged that appellant breached the contract, after he had tanght two and a half months, for which he was paid, and refused, without cause, to permit him to teach the remaining six and a half months covered by his contract. Appellant admitted the execution of the contract with appellee, that it had discharged him at the end of two and a half months, but denied that it had breached the contract, in that appellee was guilty of insubordination by failing and refusing to obey the reasonable rules and regulations of the superintendent of the school, and by refusing to work in harmony with the superintendent and the board, and by other conduct making him unsuitable as a teacher in said district. The case was tried to a jury, which resulted in a verdict and judgment for appellee for $203, with interest.

For a reversal of the case, appellant first says that the directors were without power to make a contract with appellee for a term longer than three months, because the record fails to show affirmatively that the electors in appellant district, at the annual school election in May, 1928, determined that a school for a longer term than three months should be taught, as required by § 8052, C. & M. Digest, which provides that, “the electors of every school district shall, when lawfully assembled in annual school meeting with not less than five electors present, have the power, by a majority of the votes cast at such meeting, * * * sixth, to determine the length of time during which a school shall be taught more than three months in a year.” Appellant also- relies upon the decision of this court in Brassfield v. Jones, 125 Ark. 415, 188 S. W. 1181, construing said statute, and holding that, “affirmative action on the part of the voters at the annual school meeting is required to enable the board to make a valid contract for a school of more than three months.” First syllabus. Appellant is in error, however, in its contention, as said statute is not applicable to this case. Appellant is, as shown by its name, a consolidated school district, whereas the above statute applies only to common school districts. The above section was taken from § 56 of act 46 of the Acts of 1875, page 54, entitled, “An act to maintain a system of free common schools for the State of Arkansas,” and the sixth power of the electors enumerated in § 56 of said act has never been changed, although the section has been amended in other particulars by subsequent acts. While this section says that the electors of “every school district” shall have the powers therein enumerated, the title of the act, and the whole context thereof, shows that it has to do with common school'districts only, and that the words, “every school district,” refers only to every common school district. Therefore appellant’s contention in regard to this statute cannot be sustained, and the decision of this court in Brassfield v. Jones, supra, as well as the other cases cited on this point, have no application.

It is next said that the directors of appellant dis.trict were without authority to contract with appellee to teach a school in said district for any term, whatever, during the period covered by the contract, because appellant did not have sufficient money to its credit to pay the expenses necessary to operate said school, and that therefore the contract was in violation to § 9030, C. & M. Digest. This section is as follows: “It shall be unlawful for any director, or board of directors, in any school 'district in this State, to employ a teacher to teach a school in any district in this State, unless said district has money to its credit, in treasury of the county in which said district is located, to pay said teacher for such work; provided, that if the amount of taxes to be paid in by the collector of any county shall be sufficient to have a school taught in any district in which such taxes are to be paid, then the directors shall have the power to employ teachers to teach a school in .such district; provided further, that a majority of the patrons of any school district in this State shall, at all times, have the right to petition said board of directors to employ a teacher, and'cause a school to be taught in any district, whenever they so desire; provided, further, that said directors do not pay more for services of said teacher than would be necessary to pay said teacher for said service if said money were in treasury. Any board of directors violating this law shall be fined in any sum not less than ten nor more than one hundred dollars.”

It will be noticed that there are several provisos in this section, and one of them is that, by petition of a majority of the patrons of the district to the directors, they may cause a school to be taught. Appellant failed to set up this defense in its answer, and there was no proof that a majority of the patrons did not so petition the hoard. Whether this would defeat appellant in its contention in this reg'ard, we do not find it necessary to decide, as we find from an examination of the record that the district had ample funds with which to pay the expense of operating the] school throughout the period covered by appellee’s contract. We thinlc it would serve no useful purpose to set out the figures showing* the amount of funds on hand, and those that were to come in, to the credit of the district during* that school year, but suffice it to say that the funds were sufficient, and that appellant must fail in this contention.

It is finally said that appellee was guilty of insubordination, refused to work in harmony with the superintendent' and school board, and otherwise conducted himself so as to .justify his discharge, and that appellant should not- be held liable for any part of the salary he would have earned, had he continued to teach the school. This question was submitted to the jury under proper instructions, about which there is no complaint, and the finding* of the jury is against appellant. It is frankly conceded that, if this court should find the facts to be in dispute in this regard, the verdict should not be disturbed. We have examined the testimony carefully in this regard, and find it to be in dispute' — that of appellant tending to justify appellee’s discharge, and that of appellee tending to show that he had done nothing to justify his discharge. Especially is this true, when the evidence is considered in the light most favorable to appellee, as we must do in order to determine whether there is any substantial evidence to support the jury’s verdict.

We find no error, and the judgment is affirmed.


author: Butler, J.,

text:
    Walloch v. Heiden.
    Opinion delivered January 13, 1930.

      Frank B. Pittard and Jacoway, Miles, Donha/m <H Fulk, for appellee.

      Floyd L. Brown and T. N. Robertson, for appellant.
   Butler, J.,

(after stating' the facts). The appellant complains, first, of the giving of instruction No. 4, as follows: “The court instructs the jury that if you find from the evidence that neither the plaintiff nor defendant was guilty of negligence, as defined in other instructions, but that the injury was the result of accident, then your verdict will be for the defendant. ’ ’

Appellant contends that this instruction presented a question not within the issues raised by the pleadings, and that there was no evidence upon which the instruction might be based, and that it was therefore abstract, and tended to confuse the minds of the .jury, and to divert their minds from the proper consideration of the real issue. The testimony on the part of appellee tended to establish the fact that the swimming pool had been maintained for about two months only before the injury to Wesley Walloch, and within that time he had visited the pool and gone swimming four or five times; that he was an expert swimmer and diver, and was acquainted with the particular part of the pool at which he was later injured, which was brilliantly lighted, and that on the evening in question he had dived several times, at or near the place of the injury. This testimony was given by James Fisher and others, Fisher stating, in answer to question, that he had seen Wesley dive off the landing where he was hurt the night of the injury, but did not see him dive at the time the injury occurred. Therewas also testimony tending to show that at the time of, and immediately before, the injury, the pool was being refilled, but that a considerable part of the bottom of the pool at the shallower end had not yet been covered by water, which was entering the pool from a nearby reservoir and making a loud roaring noise; that, after leaving the smaller pool containing the toboggan slides and entering the larger pool, Wesley disported himself for a time with some young girls, and at that time there were more than a hundred people, in the pool, diving into the deeper water and swimming and wading around near where the injury occurred. There was also testimony to the effect that Wesley Walloch, before then, and on that evening, had dived in that part of the pool where the water was normally ten feet deep; that afterward he proposed doing-some stunts for the instruction and entertainment of the girls, and was warned by his companion, Leonard, that he should not do so, because the water was too shallow.

Miss Helen Mack testified that she and a young lady companion, on the evening- in question, were at the pool engaged in diving into the deep water, and, while so engaged, Wesley Walloch came to where they were-, and began to make fun of the way in which they were diving, and proceeded to demonstrate how to dive and swim. After this, while- witness was still in the deep water, she saw Wesley go out upon the board from which he dived, receiving his injury. Witness described his actions at the time he was in the act of leaving the hoard for the plunge into the water, stating that, “he put his hands upon his hips as though he was going to dive and it looked like he thought better of it — looked like it was between jumping and diving — looked to me like he jumped off and fell off.” In answer to a question as to whether or not he had his hands on his hips, witness answered, “It looked like he was posing.” And she was caused to- notice by his looking and winking at her. On cross-examination witness stated in answer to question as to whether or not she had seen Wesley on the board, and as--to- her' statement that he dived .or fell. off,., that, “It looked like lie didn’t know what to do; he changed his mind — didn’t know whether to dive or .jump. It looked like he did both.”

The testimony of this witness was introduced without objection, and at the conclusion of the testimony the court gave, on its own motion, instructions Nos. 1 and 2, as follows:

“1. 5Tou are instructed in this, case that it was the duty of the defendant, operating a swimming pool and equipment for hire, to exercise ordinary care to maintain the same in a reasonably safe condition for the uses and purposes to which it was to he put. If you find from the testimony in this case that the defendant negligently failed to maintain the pool in its depth of water, so as to be reasonably safe for the users of the equipment and pool by reason thereof, plaintiff, while in the exercise of ordinary care for his own safety, was injured, your verdict will be for the plaintiff.”
“2. If yon find in this case that the equipment as used on this pool, together with the depth of the pool at the time the plaintiff was injured, was dangerous because of the depth of the water, then it was the duty of the defendant to exercise ordinary care to warn the plaintiff of such dangers, if any, in using said pool in its condition, and if you find in this case that the defendant negligently failed to give such warning, and by reason thereof plaintiff was injured while in the exercise of ordinary care for his own safety, provided, if yon further find that he himself was not aware of the danger or depth of the pool, or that it was not apparent to an ordinarily prudent person of his age and experience, then your verdict will he for the plaintiff.”

By these instructions the question of the negligence of the defendant was submitted to the jury, which instructions, it is conceded, were warranted by the testimony in the case. We do not think that instruction No. 4 set out above was in conflict with these instructions, as contended by the appellant. The effect, of instruction No. 4 was merely to tell the jury that if the injury could, not be attributed to the negligence of the defendant, there could be no recovery.

In the case of LaGrande v. Arkansas Oak Flooring Co., 155 Ark. 585, 245 S. W. 38, where the action was for damages for personal injuries, received on account of the alleged negligence of the defendant in failing to furnish plaintiff a safe place to work, and in failing to make proper inspections of the equipment, and where the defense set up was contributory negligence and assumed risk, an instruction similar to the one challenged, supra, was held to be applicable to- the facts, and within the issues. Plaintiff was a workman in the employ of the defendant, and at the time of his injury was engaged in putting boards on the table for the ripsaw. He was injured by the breaking of a belt, some fourteen or fifteen feet away, which belt struck the plaintiff in the eye putting it out. The breaking of the belt was said to have been caused by the negligence of the defendant in using an old belt, without the protection of any safety device by which the belt would have been prevented from flying off, if broken, and that, if such appliance had been provided, the injury would not have occurred. It was contended, further, that there had been no inspection made of the belt, which inspection, if ^ made, would have resulted in the discovery that the belt was old and dangerous. There was testimony on the part of the defendant tending to show that the injury was not due to the breaking of the belt, and that such break was ordinarily incident to the employment of the plaintiff, and was a risk assumed by him.

The issues in that -ease were not essentially different from those in the case at bar. The evidence of the witness, Helen Mack, together with all the circumstances in the case-, might reasonably have led to the inference that when Walloch went out upon the springing board he was acquainted with the shallowness of the water, but that the girls had distracted his attention and caused him to forget for a time the true situation, and that he at first intended to further demonstrate his skill to the girls, and prepared to leap for the dive in the usual manner, when, suddenly remembering that the water was shallow, he attempted to change the manner of his dive so as to make it safe, and in doing so made an awkward movement by which his entry into the water was in a manner undesigned and unexpected by him. For, it resulted in an injury not only to his head but also to his heels, which were shown to have been injured. "Which struck the bottom of the pool first can only be a matter of conjecture.

An “accident” is defined by the lexicographers as the “sudden happening of an undesigned event with unexpected results.” This is one of the definitions which has been approved by the courts. Some have stated an “accident” is “an event happening without the concurrence of the will of the person by whose agency it was caused;” others as “an undesigned contingency — a happening without intentional causation. ’ ’ Walloeh testified that he could dive with safety in water of the depth contained in the pool at the time of his injury, and the jury might have inferred from the evidence that in the act of diving he attempted to change the manner of his dive and, because of this, entered the water in an undesigned and unexpected manner, by reason of which his injury resulted. This, of course, was an accident, and if there was no negligence on the part of the defendant, there could he no recovery.

We do not undertake to say that the giving of the instruction complained of, in view of other instructions given, was necessary for the proper determination of the issues involved, but we cannot see where any prejudice could have resulted to the rights of the appellant. Moreover, as there was no abjection to the testimony of Miss Mack, supra, as we have frequently held in such cases, the pleadings should be treated as amended to conform to the proof.

The next assignment of error is that the court erred in giving instruction No. 6, as follows: “The jury is further instructed that it was the duty of Wesley Walloch to exercise ordinary care for his own safety when diving into said pool, and if the .jury believe from the evidence that the plaintiff, Wesley Walloch, saw or might, by the exercise of ordinary care, have seen the danger, if any, incident to diving into said pool, but that he negligently failed to do so and thereby caused or contributed to his own injury, then your verdict will be for the defendant. ” It is contended that this instruction is inapplicable to the evidence in the case, and in conflict with instructions Nos. 3 and 4 given by the court, as follows:

“3. It was not the duty of the plaintiff, Wesley Walloch, in the exercise of ordinary care for his own safety, to make an inspection of the pool to determine the depth of the water and the danger of diving into- the pool.”
“4. The plaintiff, Wesley Walloch, can only be charged with such knowledge as to the depth of the water, and the danger of diving into the pool as was actually known to him, or that was so open and patent that an ordinarily prudent person of his age, knowledge, .and experience could not have failed to observe. ’’

Instead of instruction No. 6, supra, being in conflict with instructions Nos. 3 and 4, supra, we think these instructions explain and limit the expression “ordinary care,” as contained in instruction No. 6. By instruction No. 3 the jury were told that it whs not the duty of Wesley Walloch, in the exercise of ordinary care, to- make an inspection of the pool, and in instruction No-. 4, that the ordinary care, which he was bound to exercise, was limited only to- such facts as were within his actual knowledge, and to such other facts as were so patent and obvious that a person of his age, knowledge and experience could not have failed to observe. Instruction No. 6 might well have stated that the ordinary care required of Walloch was to take cognizance of facts within his actual knowledge, or which were so apparent that one of his age, knowledge and experience could not have failed to observe; and doubtless, had the court’s attention been called by specific objection to the-instruction, as written, and this limitation suggested, the court would have clarified same in these particulars. But, as we have seen, the instruction, as given, taken in connection with instructions Nos. 3 and 4, fully advised the jury as to what, and what only, were 'Walloch’s duties in the exercise of ordinary care. "We think the testimony was sufficient to warrant the giving of this instruction.

It is next contended that the court erred in giving instruction No. 10, which is as follows: “You are'instructed that, if you (find from the evidence in this case that the depth of the water was visible and apparent to patrons by ordinary prudence, of the age and maturity of the plaintiff, then you are instructed that the defendant was under no obligation to warn plaintiff of the depth of said water, and his failure to do so 'would not constitute neglig-ence on his part.” This instruction merely told the jury that it was not necessary to apprize the appellant of the danger which was so apparent that any one of his age, experience, and prudence would have seen and appreciated such danger at a glance. The court had told the jury that it was the duty of the appellee, if the equipment used and the depth of the pool at the time of appellant’s injury was dangerous because of the condition of the water, to warn appellant of such danger in using the pool, unless the appellant himself was aware of the depth of the pool and the danger incident thereto.

In the case of Johnson v. Hot Springs Land & Improvement Co., 76 Ore. 333, 148 Pac. 1137, L. R. A. 1915F 689, the court said: “One of the objections of the rule requiring the owner of a place of amusement like the one maintained by defendant to warn patrons of danger is to acquaint the patron with the hazard so that he may avoid injury. If the deceased had knowledge of the shallowness of the water, and the danger incident to diving- from the springboard, then he knew all, and no less than he could have known had defendant expressly warned him of the risk. If the defendant had in fact cautioned Johnson against the peril, and, notwithstanding the warning, the latter dived off the springboard, then, on the facts of the instant case, the defendant would not be liable because of the knowledge imparted to Johnson; and so, too, the same result follows if Johnson did in fact know of the danger, even though not told by the defendant. If, with knowledge of the danger, Johnson placed himself in peril, and on account thereof was injured, he was chargeable with contributory negligence. ’ ’

The instruction on the duty of warning given at the reqhest of the appellant, and instruction No. 10, fairly and properly presented the several theories of the appellant and appellee.

It is insisted, also; that error was committed in permitting counsel for the appellee to ask the appellee, while on the witness stand, the following question: “Do you know of any reason why any person could not observe the depth of the water,” and in permitting the witness to answer, “I don’t know of any reason.” The appellee had already narrated the conditions existing at the pool as to the quantity of water, number of people, lights, equipment, etc., at the time of his injury, and his answer to the question propounded by counsel was but a statement of a fact based upon the facts, as previously stated by him, and upon the fact that he was constantly observing the condition of the water and the general situation. While the testimony is negative in its character, this does not render it incompetent, the only requirement being that the witness should have been so situated that he would, in the ordinary course of events, know all of the particular attendant circumstances. Ft. Smith & Western Ry. Co. v. Messeck, 96 Ark. 243, 131 S. W. 686; 1 Wigmore on Evidence, § 664.

It is finally contended that the verdict is clearly against the preponderance of the evidence. This, if true, is not sufficient to warrant this court in setting aside the verdict, for the rule often announced is that, where there is any substantial testimony upon which the verdict might be based, it will not be disturbed. While the testimony in this case is conflicting on many material points, we think there is substantial evidence to sustain the verdict of the jury. Finding no error on the whole ease, the judgment must be affirmed.

Humphreys, Mehaeey and Kirby, JJ., dissenting.


author: Butler, J.

text:
    Ward v. Pipkin.
    Opinion delivered January 13, 1930.

      8. 8. Hargraves, for appellant.

      Otto B. Rolhoage, R. J. Williams and Mann S Harrelson, for appellee.
   Butler, J.

On the 21st day of February, 1921, Fannie Haskins Pipkin, an unmarried woman, made and executed her last will and testament, devising her property to the appellees in this case. After the execution of the will, she was married to the appellant, H. W. Ward, with whom she lived until the 21st day of January, 1928, when she died, leaving no children. The will was filed for probate, and, from the order admitting it to probate, the appellant, as surviving husband of Fannie Haskins Pipkin, filed his affidavit and appeal, and from an adverse decision in the circuit court he has appealed to this court.

The appellant bases his right of action on act No. 149 of the Acts of the G-eneral Assembly of the State of Arkansas of 1925. Section 1 of that act reads as follows: “That, upon the death of a married woman intestate, her husband shall be entitled to one-third of her real property for life, and one-third of her personal property in fee, where she leaves descendants; and to one-half of the real property for life, and to one-half of the personal property in fee, in case she leaves no descendants; bnt the rights of the husband shall be limited to such proportionate share of the estate, after the payment of her debts.”

The only question presented for our determination is whether a will executed by an unmarried woman is revoked by her subsequent marriage. By § 8 of c. 157 of the Revised Statutes of Arkansas, now § 10503 of Crarwford & Moses’ Digest, it is provided: “A will executed by an unmarried woman shall be deemed revoked by her subsequent marriage. ’ ’ It was, and is, a contention of the appellees that this section was impliedly repealed by § 7, article 9, of the Constitution of 1874, which section reads as follows: “The real and personal property of any femme covert in this State, acquired either before or after marriage, whether by gift, grant, inheritance, devise, or otherwise, shall, so long as she may choose, be and remain her separate estate and property, and may be devised, bequeathed, or conveyed by her the same as if she were femme sole, and the same shall not be subject to the debts of her husband. ’ ’

We cannot agree with the appellees in this contention, but think the statute, by reason of § 1 of the schedule of the Constitution of 1874, is still in force, and not in conflict or inconsistent with § 7, article 9, supra. Section 1 of the schedule is as follows: “All laws now in force, which are not in conflict or inconsistent -with this Constitution, shall continue in force until amended or repealed by the General Assembly * * V ’ By reason of this, many of the provisions of our present statutes on wills, which were parts of the Revised Statutes, are still the law, as well as § 10503, C. & M. Digest. That section does not prevent a married woman from reexecuting a will, which she might have made before the marriag’e, and the Legislature, in failing to repeal it, has recognized the fact that her changed social status might have made a mil, perfectly proper when executed, inequitable and unjust by reason of the new ties established by the marriage. The testator in this case must be presumed to have known of the existence of a law by which her marriage worked the revocation of her will, and it must be further presumed that the fact that she did not re-execute it evidenced the intention on her part to assent to the revocation of the will by the force of the staute. As we have seen, the statute in question is not in conflict or inconsistent with a married woman’s right to convey her property iby devise or bequest. We conclude that, by virtue of § 10503, supra, Mrs. Ward died intestate, and therefore the appellant would be, and is, entitled to the benefits conferred by act No. 149, supra.

The judgment of the circuit court is therefore reversed, and the cause is remanded for further proceedings, in accordance with the declarations' of law herein, expressed.


author: Hart, C. J.

text:
    Missouri Pacific Railroad Company v. Chase.
    Opinion delivered January 20, 1930.

      Thomas B. Pryor and Harvey G. Combs, for appellant.

      W. U. McCabe, for appellee.
   Hart, C. J.

Appellant prosecutes this appeal to reverse a judgment of $150 against it in favor of appellee for running over and killing with one of its trains, two hunting dogs owned by him.

The first assignment of error is that the evidence is not legally sufficient to support the verdict. According to the testimony of John Tilley, he lived near Shipp’s Ferry in ¡Baxter County, Arkansas, in November, 1928. He heard a train whistle, and went to his door. He saw what he took to be a couple of yearlings on the railroad track, running ahead of the train. He could see them in the light of the train, and they were running about forty or fifty yards ahead of the train. The train went behind some timber, and he could not see them any more. He went over to the railroad track the next morning’ and found the two hounds, which appeared to have been killed by a running train. One of them was a black and tan hound, and the other was white with red ears. The physical condition o'f the dogs indicated that they had been run over by a‘train. They appeared to have been dragged along the track for some distance after the train struck them. Trained hunting dogs are worth all the way from $75 to $100 each.

According to the testimony of the appellee, Joe Chase, he owned the dogs which had been killed by the train. One of them was a fox hound, and the other was a tree dog. He had refused $75 for each of the dogs. They were trained dogs, and he had owned them for about six months. One of them was two years old, and the other was five.

According to the testimony of W. N. Beeves, the fireman on the train of appellant, on the '28th day of November, 1928, he saw a couple of dogs run square in front of the engine just below Shipp’s Ferry, in Baxter County, Arkansas. They passed in front of the engine, so close that it was impossible to stop the train to avoid striking them. The fireman had been putting coal in the engine, but was up in the cab when the dogs were killed. The engineer had called for a signal, and was looking back to answer the signal when the dogs were killed.

Appellee having shown that the dogs were killed by a train, a presumption .of negligence arises, and the burden of proof was upon the railroad company to show that it was guilty of no negligence. Mo. Pac. Rd. Co. v. Bain, 170 Ark. 594; and Mo. Pac. Rd. Co. v. Sloan, 176 Ark. 179.

This is conceded by counsel for appellant, but they contend that the statutory presumption of negligence was overcome by the testimony of the fireman, which they claim was undisputed. It is true that the fireman testified that the two dogs ran in front of the engine, so close to it that it was impossible to stop the train, but we do not think that his testimony can be said to be undisputed. According to the testimony of Tilley, he saw the dogs running forty or fifty yards ahead of the engine on the track. He said that he heard the whistle of the train, and upon going to his door and looking out, he could see the dogs running ahead of the train by the light of the engine. It was late in the afternoon at the time the dogs were run over and killed by the train. His testimony, if believed by the jury, shows that the dogs were running ahead of the train, instead of going upon the track immediately in front of the engine. If they were running along the track, forty or fifty yards ahead of the engine, the jury might have believed that the train could have been checked enough to have avoided running over the dogs or1, at least, if the whistle had been blown, the dogs would have been scared off the railroad track. Therefore, it cannot be said that the evidence is not legally sufficient to warrant the verdict.

The next assignment of error is that the evidence as to the value of the dogs was not sufficient upon which to base a verdict of $150. John Tilley testified that good hunting dogs were worth from $75 to $100 each. The appellee testified^that they were good hunting dogs, and that a short time before they were killed, he had refused $75 each for them. This was sufficient evidence upon which to base a verdict and judgment for $150. Mo. Pac. Rd. Co. v. Edwards, 178 Ark. 736.

We find no reversible error in the record, and the judgment will therefore be affirmed.


author: Hart, C. J.,

text:
    Seaman Stores Company v. Porter.
    Opinion delivered January 20, 1930.

      A. M. Dobbs, for appellant.

      PartainS Agee, for appellee.
   Hart, C. J.,

(after stating the facts). The first assignment of error is that the court erred in giving instruction No. 2 at the request of the appellant. It reads as follows:

“2. If you find for the plaintiff, you will fix his damages at such a sum as you may find from the evidence will fairly compensate him for damages sustained, if any, as a direct result of the breach of the contract by the defendant, if you find that there was such a breach; in determining the amount of damages, if any, you may take into consideration the present value of the amount of compensation that the plaintiff would have received during the year 1929, if he had been permitted to perform his contract, if you find that he was wrongfully prevented from performing same, less any and all amounts that you may find from the evidence he may have received since his discharge, or that you may find that, by diligent efforts upon his part, he may be able to earn or receive during the remainder of the year 1929. ’ ’

The court erred in giving this instruction. The record shows that the complaint was filed on the 14th day of February, 1929, and a trial was had, and judgment rendered in favor of appellee on the 14th day of March, 1929. There wras a verdict and judgment for $1,200. According to the appellee’s testimony, he was employed by the corporation for the year 1929, at a salary to be paid monthly in the sum of $125. According to the evidence for appellant, appellee was employed by the month. That question was properly submitted to the jury, but the court erred in giving instruction No. '2, copied above, on the measure of damages.

In Van Winkle v. Satterfield, 58 Ark. 617, 25 S. W. 1113, 23 L. R. A. 853, it.was held that an employee, who has been wrongfully discharged before the expiration of his term of employment and brings suit at once for breach of the contract, is entitled to recover compensation for the injury suffered by the loss of wages down to the day of trial.

It was further held that, in estimating the damages for the wrongful discharge of a servant, such sums as he, by reasonable diligence, might'have earned in a similar business, making allowance for the expense of obtaining employment, should be deducted from the wages he might have earned under the broken contract; but, in such case, the burden of proof is on the employer to show that the servant might have obtained similar employment.

Also, it was held that, to entitle an employer to reduce the damages recoverable for wrongful discharge of his servant, by showing that the servant has performed work on his own account, he must prove that the work was incompatible with the performance of the service stipulated to be performed under the violated contract.

The principles of law declared in that ease control here. Appellee, upon his discharge in February, 1929, had a right to bring an action upon the alleged ground that he had been discharged without cause. The instruction complained of was erroneous in entitling him to recover the value of the compensation that he would have received during the year 1929, if he had been permitted to perform his contract. This was not his measure of damages. He might have died long before the time of his services under the contract expired. Under the rule announced in the case above cited, he would only be entitled to recover damages suffered at the date of the trial. As we have already seen, the date of the trial was March 14, 1929, just a month after he was discharged. Therefore, without proof of special damages of some kind, he was not entitled to recover the sum of $1,200, which was the amount of the verdict. The only damages proved by appellee-at the trial was the loss of his salary for a period of time, not longer than one-half of a month.

Inasmuch as the judgment must be reversed for the error indicated, and the cause will be remanded for a new trial, we will lay down the rule governing the elements of damages upon a new trial of the case. The time of service for which appellee was hired has now expired. Under the case above cited, if the employer desires to mitigate the damages by showing that the employee had employment, or could have obtained employment of a similar kind by reasonable diligence, during the whole, or any portion of the contract period, he may do so, but the burden of proof in this respect is upon him.

On the other hand, in' the case cited, it was held that, where the servant sues at once for the breach of the contract of employment upon his discharge, he can recover the damages which he has sustained down to the day of trial, which is limited to <a, compensation of the injury suffered by the breach of the contract. The court said that the loss of wages, which his employer agreed to pay him, constitutes the injury, and that wha,t he has suffered by reason of the loss of wages, as a rule, is the amount of damages he is entitled to recover.

As said in Everson v. Powers, 89 N. Y. 527, 42 Am. Rep. 319, where the cause of action is commenced during the term, but the trial occurs after the expiration of the term of service, we can see no reason why the plaintiff may not be permitted to recover the same damages that he would have been entitled to recover if the action had been commenced after the expiration of the term.

In Wilkinson v. Black, 80 Ala. 329, the court held that, where the suit is brought after the expiration Of the term of service, or such term has expired at the day of trial, the measure of damages, prima facie, would be the wages agreed to be paid, according to the terms of the contract.

In The Mount Hope Cemetery Association v. Weidenmann, 139 Ill. 67, 28 N. E. 834, the court said that a servant, upon notice of his discharge, may immediately bring Ms action for a breach of the contract, or he may wait until the expiration of the term of employment. It was further said that, if the servant sued before the termination of the contract, and the action was not tried until after the period of service stipulated for had expired, the plaintiff would be entitled to recover for the whole time, less payments made, and such sums as he had, or might by reasonable diligence, have earned subsequent to the breach. This is a clear and comprehensive statement as to the measure of damages.

In Howay v. Going-Northrup Co., 24 Wash. 88, 64 Pac. 135, it was held that the immediate bringing of an action by a servant wrongfully discharged, during the term for which he was engaged, will not prevent a recovery for the whole unexpired term, if the trial does not take place until the term has expired.

To the same effect see Roberts v. Rigdon, 81 Ga. 440; 7 S. E. 742; and Roberts v. Crowley, 81 Ga. 429, 7 S. E. 740.

For the error in giving instruction No. 2 on the measure of damages, as copied above, the judgment must be reversed, and the cause will be remanded for a new trial.


author: Smith, J.

text:
    Ward v. Jackson.
    Opinion delivered January 20, 1930.

      W. E. Beloate, for appellant.

      Smith é Blackford, for appellee.
   Smith, J.

This suit was filed by T. W. Jackson on December 10, 1928, to foreclose a mortgage which W. E. Ward had executed on. a forty-acre tract of land owned by him, and a default decree was rendered on January 3, 1929, in which a commissioner was appointed to sell the land, in satisfaction of the debt secured by the mortgage.

The complaint alleged that, the conditions of the mortgage had not been performed, and that the property was insufficient to pay the mortgage debt, and upon these allegations a receiver was appointed, with directions to take charge of the land and rent it for the year 1929, and J. A. MoClusky was appointed receiver.

In September, 1928, Ward rented about twenty-five acres of the land to Joe Wilson for the year 1929. Wilson was then a tenant on the place, and had been for several years. Pursuant to the contract between Ward and Wilson for the cultivation of the land in 1929, Wilson sowed about four acres in oats in September, 1928, and made other preparations and arrangements to cultivate the land in 1929. Wilson was not a party to the foreclosure suit in which the receiver was appointed.

On March 6, 1929, the receiver filed with the court a report, in which he recited that pursuant to his appointment he had entered into a contract with Clarence Jackson as a tenant to cultivate all the land in 1929, and on March 1, 1929, Clarence Jackson gave Wilson notice that he would apply on March 6 to the court for a writ of assistance, under which he might be put in possession of the land. Testimony was taken on the hearing of this application, and the court ordered the writ to issue dispossessing Wilson, and placing Clarence Jackson in possession, and this appeal is from that order. Wilson gave a supersedeas bond, and remained in possession. Before this order directing that Wilson be dispossessed was made, but after the appointment of the receiver, Ward obtained a loan on the security of the land, and the 1929 rent, with which to pay the mortgage debt, and the mortgage was canceled.

The rights of a mortgagee under conditions alleged in the complaint are well-defined, and are fully stated in the following cases: Gailey v. Ricketts, 123 Ark. 18, 184 S. W. 422; Oliver v. Deffenbaugh, 166 Ark. 118, 265 S. W. 970; Osborn v. Lindley, 163 Ark. 260, 259 S. W. 729; Bank of Weiner v. Jonesboro Trust Co., 168 Ark. 859, 271 S. W. 952; Denting Investment Co. v. Bank of Judsonia, 170 Ark. 65, 278 S. W. 634; Wood v. Bigham, 170 Ark. 253, 279 S. W. 779; O’Connell v. St. Louis Joint Stock Land Bank, 170 Ark. 778, 281 S. W. 385.

It is unnecessary to- review these cases, and»it will suffice to say that the appointment of a receiver was not improper, and his right to collect the 1929 rent, under the allegations of the complaint, was clear, if this had been necessary to discharge the mortgage debt. But the instant case- does not involve the right to collect the 1929 rent. There is involved only the question of the right of possession. There would have been no question about the receiver’s right to collect the rent from Wilson for 1929, had this been necessary to pay the mortgage debt. But this is not necessary, the debt had been paid and the mortgage satisfied before Wilson was ever made a party to the proceeding. There was therefore no occasion to continue the receivership. .There may have been 'some question as to costs of suit, but that question is not presented by the record before us.

In the case of Deming Investment Co. v. Bank of Judsonia, supra, it was said: ‘ ‘ In the case at bar there was no mortgage of the rent. Consequently the rents and profits- were not pledged by a mortgage on the land, and they belonged to the mortgagor, or third person claiming under him, subject to the rights of the mortgagee in the premises. In equity a mortgage of lands is only security for the mortgage indebtedness. Hence, the mortgagor has a right to lease, sell, and in every respect to deal with, the mortgaged premises as owner, so long as he is permitted to remain in possession, and so long as it is understood and held that every person taking under him takes subject to all the rights of the mortgagee unimpaired and unaffected.” (Citing authorities).

So, here, in accordance with farming usage, Ward, who had given no mortgage of the rents, was in possession of the land, and, in accordance with custom, rented it in the fall of 1928 for the year 1929, and his tenant Wilson had .sowed his oats. There is no intimation of any collusion between Wilson and Ward, the mortgagor, to impair the security of the mortgage. Wilson was in possession, and of this fact all parties had notice, both constructive and actual. His presence on the land, and his rights there, should have been taken into account, yet he was not made a party to the litigation until after the mortgage debt had been paid. Under these circumstances, it was error to award the writ dispossessing Wilson. McLain v. Smith, 4 Ark. 244; Jett v. Cave, 5 Ark. 254; Fletcher v. Hutchison, 25 Ark. 30; Buckner v. Sessions, 27 Ark. 219; Smith v. Moore, 49 Ark. 100, 4 S. W. 282; Theurer v. Brogan, 41 Ark. 88; Choctaw O. & G. R. Co. v. McConnell, 74 Ark. 54, 84 S. W. 1043; Thompson v. Grace, 91 Ark. 52, 120 S. W. 397; 19 R. C. L., § 336, p. 533.

In 3 Jones on Mortgages (8th ed.), pages 264 and 265, it is said: “A tenant in possession of mortgaged premises under lease from the mortgagor is a proper party to foreclose, in order to control his possession, and he has been held a necessary party, in order to affect his rights.” Our -own case of Buckner v. Sessions, supra, is cited to support this text.

The decree will therefore be reve.rs.ed, and the cause is remanded, with directions to enter a decree conforming to this opinion.


author: Humphreys, J.

text:
    Taylor v. Joiner.
    Opinion delivered January 20, 1930.

      McKay & Smith, for appellant.

      Coulter Coulter, for appellee.
   Humphreys, J.

This appeal involves the question whether appellant is entitled to recover on his cross-complaint against appellee $534.30, with interest from April 3. 1928. The suit, out of which this question arises on appeal, was brought on June 2, 1927, in the circuit court of Columbia County, by J. K. Reed against appellant and appellee for a balance due of $550 and 8 per cent, interest on a promissory note, executed by them to Reed on July 23, 1925. It developed in the testimony that $534.30i was the net amount appellant paid on the note.

Appellant and appellee filed separate answers, admitting their several and joint liability to J. K. Reed upon the note, but joining issue between themselves as to whether appellant was entitled to recover from appellee, on his cross-complaint, the balance due upon the note to Reed. The gist of the cross-complaint was, that said note was executed to J. K. Reed for money with which to pay a judgment obtained by the Turner Hardware Company on July 24, 1923, against G-. A. Dunn, the appellee and others.

Appellee interposed the defense to the cross-complaint of appellant that the money was borrowed from J. K. Reed to pay a judgment of the Turner Hardware Company against Gr. A. Dunn as principal, and himself and others as sureties, which judgment was superseded during the pendency of the appeal to the Supreme Court in that case, by an appeal bond signed by Gr. A. Dunn as principal, appellee, himself, and others as co-sureties.

The pleadings disclosed that appellee had paid about one-half of the face of the note, and interest, to J. K. Reed, so the court required appellant to pay the balance due thereon to the clerk, who paid the same to J. IL Reed; and, on motion of appellee, transferred the cause to the chancery court to try the issue of contribution presented by the pleadings between appellant and appellee. On the trial of that issue in the chancery court, it was found and’ decreed that appellant and appqllee were not co-sureties for the payment of the Turner Hardware Company judgment, and that appellant was not entitled to contribution from appellee for the amount he had paid on the note. Appellant’s cross-complaint was accordingly dismissed, and appellee was permitted to recover on the cross-complaint all his costs.

The following facts are undisputed: The Turner Hardware Company recovered judgment in the chancery court of said county in the sum of $1,000 for the wrongful detention of a building occupied by Gr. A. Dunn against him, J. W. Rushton and appellee on a retaining bond executed by them to hold ■ the possession of the building. An appeal was taken to the Supreme Court, and the judgment superseded by an appeal bond, prepared by appellee and signed by Gr. A. Dunn, as principal, and M. J. Dunn, J. W. Rushton, appellee and appellant as sureties. The judgment of the lower court was affirmed by the Supreme Court, and a judgment rendered in the Supreme Court upon the supersedeas bond against G. A. Dunn, as principal, and the other signers as sureties. Appellant and appellee then executed a bond to stay the judgment for six months, and when it became due they jointly executed the note sued upon herein to procure money from J. K. Reed with which to pay the judgment, interest and costs due the Turner Hardware Company.

The record reflects a conflict in the testimony in practically all other particulars.

Appellant testified that appellee requested him to sign the supersedeas bond. Appellee denied this, and was corroborated by Gr. A. Dunn, who testified that he requested appellant to sign it. The trial court specifically found that appellant signed the bond at Gr. A. Dunn’s request, and it cannot be said that the finding of the trial court, in this respect, was contrary to the clear preponderance or weight of the testimony. It is reasonably inferable, however, as a fact, that the bond had been signed by Gr. A. Dunn and appellee before Dunn took it to appellant, as appellant’s name appears last in the body of the bond as well as in the signatures thereto.

This case presents no question of the liability of Taylor and Joiner to Need, who has been paid his money, and is out of the case. The question is that of the relation of Taylor and Joiner to each other.

It clearly appears that, although Joiner denominated both himself and Taylor as sureties on the appeal bond which they signed, Joiner was, in fact, a principal, in the sense that he was already liable. He became liable originally as a surety, but, at the time of the execution of the supersedeas 'bond, he was then liable, and his liability had been adjudicated, and Taylor ’s connection with the transaction did not begin until after Joiner’s liability had been adjudicated. Joiner was then interested in an appeal to the Supreme Court, while Taylor was not, and Taylor enabled Joiner to have the adjudication of this liability reAdewed on the appeal, and certainly enabled Joiner to delay the enforcement of this adjudged liability in a matter in which Taylor had not previously been concerned. Taylor — and not Joiner — was the surety on the supersedeas 'bond, although they were both denominated as sureties by Joiner in preparing the bond, because Joiner was under a subsisting liability for the debt superseded, while Taylor was not.

It may be true, as the court found, that Dunn, and not Joiner, requested Taylor to sign the supersedeas bond; but Joiner prepared the bond and signed it, and delivered it to Dunn to obtain the signature of some person who was, in fact, á surety only, and Taylor became that person. This was for the benefit of both Dunn and J oiner, and we think Taylor was not a mere volunteer.

Joiner had the same interest in this bond which he later had in the' execution of the note to Reed, who loaned the money with which the judgment in favor of the hardware company was paid. Reed required an indorser on the note, and Taylor became that person, and while, by signing the supersedeas bond, Taylor had become liable for the debt, which was discharged with the proceeds of the note given to Reed, the fact remains that the basis of this liability was Taylor’s suretyship for Joiner.

The doctrine of contribution is founded upon principles of equity, and that relief is granted only when the equities are equal, and we think they are not equal as between Joiner and Taylor, for the reasons stated.

In the chapter on Principal and Surety, 32 Cyc. 277, it is said: Co-sureties are entitled and subject to contribution among themselves. Conversely, the right or liability to contribution does not attach to one who is not a co-surety with a surety. Thus a person who, although appearing to be a surety on an instrument, is in fact the principal, having’ received a part or all of the sum borrowed, or who has subsequently become the principal by assuming the indebtedness, cannot have contribution from a surety for the debt. ”

It is argued, in support of the decree appealed from, that it was decided in the case of Dunn v. Turner Hardware Co., 178 Ark. 486, 12 S. W. (2d) 13, that the situations of appellant and appellee were equal. The equities between those parties were not determined in the case cited. The extent of the ruling was that all were liable upon the supersedeas bond to the Turner Hardware Company.

The writer and Mr. Justice MoHaney do not agree with, or concur in, the opinion of the majority.

On account of the error indicated, the judgment is reversed, and judgment is directed to be entered here in favor of appellant against appellee for $534.30, with interest at the rate of 6 per cent, per annum from. April 3, 1928.


text:
    Robinett v. State.
    Opinion delivered January 20, 1930.

      Earl Blansett, for appellant.

      Eal L. Norwood, Attorney General, and Pat Mehaffy,' Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of Benton County for the crime of manufacturing mash, and, as a punishment therefor, v/as adjudged to serve a term of one year in the State penitentiary, from which judgment an appeal has been duly prosecuted to this court.

Appellant’s first assignment of error for a reversal of the judgment is that there is no substantial evidence to support the verdict and judgment. The testimony introduced by appellee was entirely 'circumstantial and, viewed in its light most favorable to the State, is in substance as follows: At the time of his arrest appellant had resided for two weeks upon a place leased from the owner by his father, Oscar Bobinett. The sheriff, Edgar Fields, learned that a still was being operated thereon by him, and in company with Jack Walker, the constable of the township, and several others, went on to the place and found a distilling outfit complete and several barrels of mash about ready to 'be cooked, in a thicket near a spring about 150 yards from the house in which appellant resided. A cooker with ashes under it was near the mash.' Also two jugs containing a little whiskey. A plain pathway led from the still to the house, and in following it the officers found two other jugs which had contained whiskey, another cooker and holes in the ground where kegs or barrels had apparently been buried. At the house they found a lot of bottles of different sizes and four or five jugs which had contained whiskey. They arrested appellant who neither denied or affirmed that he had any eonnection with, the still.. Although appellant testified that he was not the owner of the still and had no knowledge of its existence and no connection -with its operation, and showed by other witnesses that plain pathways led from the still to the home of appellant’s father about one-half mile distant and to other homes in the neighborhood, the circumstances detailed above are sufficient to support the verdict of the jury and consequent judgment of the court. It cannot be said, as argued, that these facts did not tend to connect appellant with the operation of the still. It is hardly conceivable that a still could have been operated on appellant’s place within a few hundred yards of his house without his knowledge of its existence and without any complicity on his part in the .operation thereof, especially in view of the fact that a well-beaten pathway led from the house, where bottles of various sizes and whiskey .jugs were found, to the still which had been recently operated and where four barrels of mash were ready to be run or cooked. The whole situation strongly tended to connect him with the still and the operation thereof and was sufficient to sustain the jury’s verdict to that effect.

Appellant’s second assignment of error for a reyersal of the judgment was the refusal of the trial court to grant him a. new trial because*, after the trial, it was ascertained by measurement that the still was found to be 380 2/3 yards from appellant’s home instead of 150 to 160 yards as testified to by the State’s witnesses. This assignment of error is untenable for several reasons.

First, the assignment of error Avas set out in the motion for a new trial without being accompanied by an affidavit. It was not a part of the bill of exceptions and could not be incorporated therein by merely including it Avithout proper affidavit in the motion for a new-trial.

Second, no diligence was shoAvn to discover the exact distance of the still from the house before the trial. By proper diligence the measurement could have* been made before the trial began. It is argued that appellant did not know that the distance of the still from the house would become a material issue* until it was made in the course of the trial. This did not excuse him from making- the measurement in reasonable anticipation that the nearness of the still to his house might become an issue.

Appellant’s third and last assignment of error for a reversal of the judgment is that on cross-examination of, Oscar Robinett, the father of appellant, the prosecuting attorney, over appellant’s objection, was allowed to ask him whether he had not made the following statement to Jess Mutrey, a lad who wanted to pick blackberries on the place in question: “My business is my business and your business is your business, and you can only go a certain distance down there. I will get the rest of the berries.” The witness, Oscar Robinett, answered this question in the negative. The prosecuting attorney then introduced Jess Mutrey who' testified that Oscar Robinett made such a statement to him. The prosecuting attorney asked the question and introduced Mutrey to contraSict Robinett for the purpose of testing his credibility as a witness. We think it was admissible for that purpose. Appellant argues, however, that in admitting this testimony the court’s remark in doing so was prejudicial to appellant. The court said, in admitting the evidence, over appellant’s objection, that “You should not consider it against the defendant (appellant) in any shape, form or fashion unless you believe from the proof that his father was mixed up with him in the manufacture of the liquor.” It is argued that the remark was gratuitous, without any evidence upon which to base such a remark and necessarily prejudicial as indicating that the court believed that appellant’s father had perhaps been a party to operating the still in connection with appellant. Learned counsel for appellant is mistaken in his statement that there was no evidence tending to show that Oscar Robinett was connected with the manufacture or making the mash. The still was located on a place which Oscar Robinett had leased from the owner and the proof reflected that a well-defined pathway led from the still to his home, anywhere from one-fourth to one-half mile distant from the still. In view of this testimony we do not think the remark of the court was improper. It was. really a cautionary remark to the jury not to consider the testimony of Osear Bobiiiett at all unles-s they should find that he was associated with appellant in the manufacture of mash, and was favorable to- appellant.

N-o- error appearing, the judgment is affirmed.


author: Mehaffy, J.

text:
    Cotton States Life Insurance Company v. Tanner.
    Opinion delivered January 20, 1930.

      Sheffield d Coates, for appellant.

      W. G. Dinning, for appellee.
   Mehaffy, J.

Appellee filed suit in the circuit court of Phillips County, alleging that an insurance policy had been issued to Saborn D. Pruitt; that Pruitt died, and that he, Tanner, -was. the administrator of the estate of said Pruitt. The policy was for $2,000. He alleged that the policy was in force at the time of Pruitt’s death, and that due notice of his death was given to the appellant.

Appellee alleged that Pruitt had given a note for the first year’s premium of $73.40, and that there had been paid on the said note $28.32; that payment had been demanded of said insurance company, and had been deified. The insurance policy was filed, and appellant filed a demurrer on the gno-und that the complaint alleged that, at the time of the delivery of the said policy the assured executed and delivered to the appellant his note for $73.40 as payment for his first annual premium, and thereafter made payment of the sum of $28.32 to be applied toward the satisfaction of said note, while the policy itself provided that the same should not take effect until the first premium had been paid in cash to the company, and the policy actually delivered to the insured, during his lifetime and in good health.

The court overruled the demurrer, and the appellant filed answer, denying all the material allegations in the complaint. Appellant alleged in its answer that proof of death had not been made, and also that the policy was issued to Pruitt upon the regular monthly plan for a cash premium, and that the policy lapsed for nonpayment of premiums prior to the death of Pruitt.

There was a verdict and judgment in favor of appellee, and appellant filed a motion for a new trial, which, was overruled, and an appeal prosecuted to this court.

The appellant contends that the court erred in permitting witnesses, Tanner and Gatchell, to testily as to statements made by Green in their attempt to show that Green was appellant’s agent. There is no principle better established than the principle that you can neither prove agency, nor the extent of an agent’s authority by his declarations. American So. Trust Co. v. McKee, 173 Ark. 147, 293 S. W. 50; 1 Mechem on Agency, § 285.

This evidence, however, could not have been prejudicial because the appellant introduced the contract of agency. This contract, made on the 8th day of May, 1925, shows that H. C. Green is the district agent of appellant, and that the district of Green embraced several counties. There was therefore no question about his agency, unless the agency contract had been terminated. The appellant contends that the contract had been terminated by giving the agent notice, as required by the contract. The contract is quite lengthy, but it is claimed that it was terminated as provided in paragraph 23. That paragraph reads as follows:

“Unless otherwise terminated, this agreement may be terminated by either party, by a notice in writing, delivered personally, or mailed at the last known address at least thirty days before the date therein fixed for such termination.”

It is contended that notice under the provisions of the above paragraph was given by telegram of September 7, 1928. The telegram, addressed to H. C. Green, Helena, Arkansas, is as follows:

“Write no more business Cotton ¡States Life, as we are withdrawing from that section -of Arkansas. Please instruct -all your agents. We are writing you today. A. II. Hammons, Agency Manager.”

The letter, dated the same day as the telegram, and addressed to II. C. Green, Helena, Arkansas, reads as follows:

“I was instructed at a meeting this morning to write you this letter. We had our actuary with Mr. Mc-Cabo, Dr. Dailey, Mr. Binkley, and myself, and went over the Arkansas business, figuring the drive you had last year, and, figuring the excess mortality, the company has been at a great deal of loss in your section of Arkansas. All of the applications that you all have sent in, in the last ten days, have been carefully examined, and worked over, and we find that it will be impossible for us to issue this business. Please instruct your agents not to write any more business for the Cotton States Life, and I am inclosing all applications to date that were sent in. Please send in your contract and all supplies, as we are going to' withdraw from that section of Arkansas at this time. I am, naturally, very sorry that we have had to take this action, but we feel that now is the best time to withdraw from that part of the State. Experience has shown us that we have constantly lost money in Arkansas. You can mail your supplies and your contract back to us express, C. O. D. Be sure and instruct your agents not to write any more business for the Cotton States Life, as we do not want the medical expense of having them examined, and then return the applications. When do you think you will be able to settle your account, as we have been severely criticised by the way we have handled it?
“With kindest regards, I am, Yours very truly, Agency Manager.”

This letter and telegram purported to be copies found in the files among’ the papers of the appellant. E. O. Binkley, the witness, who testified for appellant, stated that he resided in Louisville, Kentucky, and is connected with the Inter-Southern Life Insurance Company, and, as a part of his duties, handles the records of the Cotton States Life Insurance Company; that he had, in his possession, all of the records pertaining to the policy of Saborn D. Pruitt; that from the 8th day of May, 1925, until September 7, 1926, one H. C. Green was acting as their agent in this territory. Witness then identified the agent’s contract, and it was introduced in evidence. How this witness got possession of the records of 'Cotton .States Life Insurance Company, is not shown. He does not testify as to having any connection with that company, except that a part of his duties with the Inter-Southern Life Insurance Company is that he handles the records of the Cotton States Life Insurance Company.

There is no evidence that either the telegram or the letter was ever mailed, nor is there any evidence that either of them was ever written. The only testimony is that this witness, Binkley, says, he found them in the files. He did not hear either the telegram or letter dictated; he never saw either one, and did not know that they were sent. He could not have known that either of them was sent, because he never saw either one of them, and never saw the letter mailed, or the telegram sent. He testifies that they never heard from Green; he did not respond to either the telegram or the letter, and he does not know that he ever received either.

The contract provides that the notice shall be either delivered in person or mailed, and there is no proof that either was ever done. Therefore, there is no evidence that any notice was ever given to Green terminating the contract. But, if the letter and telegram had both been sent, this would not have terminated the agency contract. The paragraph relied on provides that at least 30 days ’ notice must be given before the date therein fixed for such termination. Necessarily, to give a proper notice under this contract, the notice would have to fix the date for the termination. Even if these had been sent, they would not do that. Moreover, it did not say the contract was terminated, or would be at any particular time, but simply stated to him to not write any more business.

Appellant’s witness testifies that they never heard from Green after the date of the telegram and letter, and, so far as the record shows, they had no communication whatever with him. He does not know whether he sent in his contract and supplies or not.

Appellant introduced the contract, showing the agency of Green, and showing the manner in which it might be terminated, and the total absence of any evidence, tending to show that it was terminated, justifies the conclusion that Green was, at the time, the agent of the appellant.

Appellant contends that the court erred in refusing to instruct the jury to find for the defendant at the close of plaintiff’s testimony. It is true that the contract had not, at this time, been introduced, but the evidence shows that Green occupied an office, and the sign on the office was, “'Cotton States Life Insurance Company”; that he acted as the agent; that he procured applications for insurance, and that 'policies were issued on said applications, and appellant alleges in his answer that the policy delivered to Suborn D. Pruitt had lapsed for nonpayment of premiums due. The application was made to Green, as agent of the company, and the policy'issued. The evidence showed that the policy was issued; that $28.32 had been paid, and, in fact, the policy itself was filed at the request of the appellant. This, together with all the evidence with reference to the payment of premiums, and the death of Pruitt, was sufficient to justify the court in refusing to direct a verdict at the close of plaintiff’s testimony. 'But, when the court refused to do this, the appellant then introduced evidence, and the court did not err in its refusal to direct a verdict for the appellant.

It is also contended that the court erred in refusing to direct a verdict for appellant, because of plaintiffs failure to show that proof of death had been filed, as required by the policy. One answer made by appellee to this contention is that Green, the agent, denied liability, and, liability having been denied, no proof of death was necessary. Green was a district agent, his agency embracing 'several counties. .

This court recently said: “It is first contended that the decree should be reversed, because the proof of loss was not filed within the time prescribed by the policy. The compliance with this provision of the policy was expressly waived by the local agent of the insurance company, who issued the policy and delivered it to -the insured. The local agent had authority to issue fire insurance, write and deliver policies and collect premiums, and to notify the insurance company of loss. Having been clothed with these powers, he had prima facie authority to waive presentation of proof of loss.” London & Lancashire Ins. Co., Ltd., v. Payne, ante p. 638; National Union Fire Ins. Co. v. Wright, 163 Ark. 42, 257 S. W. 753; Globe Ins. Co. v. Payton, 128 Ark. 528, 194 S. W. 503; National Union Fire Ins. Co. v. Crabtree, 151 Ark. 561, 237 S. W. 97; and Citizens’ Fire Ins. Co. v. Lord, 100 Ark. 212, 139 S. W. 1114.

In the instant case, it seems that neither party undertook to show just what authority Green had, and, for that reason, we are unable to say whether he had the right to deny liability or not. Green did not testify. The evidence also shows that notice was sent to the company, but this evidence was insufficient, for the reason that it does not show to what place the letter was addressed, and, in order to show that proof was made by a letter, it would be necessary to show that it was mailed to the company at some place where the company had a place of business. The evidence on these issues does not seem to have been developed, but upon another trial the parties can either present this evidence, or find out that they are unable to do- so.

The evidence in this case fails to show either the date of the note or the amount of it. It may have 'been given when the application for insurance was made, or it may have been given when the second payment was made, if given at all. One witness testifies that Green told him he took a note, and another one testified that he saw the note, but he co-uld not tell the date of the note or the amount of it. If a note was given and never sent to the company, there is probably no witness, except Green, who could testify about it. That is, there is no other witness who would know when it was given, and the amount of it, and the circumstances under which it was made, except Green.

Appellant also contends that the court erred in giving written instruction No. 1 requested by appellee. That instruction, if the case was fully developed, might be proper, but, with the evidence as it was developed at the trial, it was error to give this instruction. The agent himself was entitled to- 7b per cent, of the first premium. And, under this instruction, the jury may have thought that, if the company received the $'28.32, this was more than it was entitled to receive, and therefore that a sufficient sum was paid to pay the amount due. The appellant, however, in its evidence, explains that all the money was sent in, and then in the settlement with Green the company would retain the 25 per cent, of the amount received and remit to Green 75 per cent. We think this instruction was confusing to the jury, and, under the state of proof, should not have been given.

• Appellant also contends that instruction No. 2, given at the request of the appellee, was erroneous. But that instruction simply told the jury that, if he paid by note, which was accepted by the company, it would be their duty to find for the plaintiff. Of course, it ought not to have said that it was the duty to find for the plaintiff, because the entire premium might have been paid in cash, and still plaintiff would not be entitled to a verdict, if proof of death had not been made or waived, and this instruction ignored this requirement of the policy.

The appellant also, complains about the modification of its instruction No. 5. The court added to that instruction, the following: “Unless you further find that the defendant denied liability before the filing of this suit.” Of course, whether that would be proper or not would depend upon whether the agent, Green, had authority to deny liability. If he had, the modification would be proper; otherwise, it would not.

It would serve no useful purpose to set out the testimony in full. The judgment must be reversed for the errors mentioned, and on a new trial whether this modification, and the other instructions given by the court are proper will depend upon the evidence at the trial.

For the errors indicated, the judgment is reversed, and the cause remanded for new trial.