author: "Wood, J.

text:
    Arkansas Central Power Company v. Hildreth.
    Opinion delivered June 27, 1927.
    1. False imprisonment — jury question. — Evidence held to present a question ior the jury whether defendant’s motorman caused the arrest of plaintiff riding as a passenger on defendant’s street car.
    2. False imprisonment — authority to cause arrest — jury question. — Whether a motorman acted within the scope of his authority in causing plaintiff’s arrest while riding on the street car, for the purpose of ejecting her for nonpayment of fare, or to protect other passengers from disorderly conduct, held a question for the jury, under the evidence.
    3. False imprisonment — liability op street railway company.— A street railway company is not liable for the motorman’s act in causing the arrest of a passenger after the passenger’s voluntary departure from the car.
    4. False imprisonment — liability op street railway company for wrongful arrest op passenger. — A street railway company is liable for the wrongful arrest and detention of a passenger while on the street car, caused by the conductor-motorman.
    5. False imprisonment — causing passenger to be arrested. — The act of a motorman in causing a person to be arrested while on street car, and to leave the car in custody of an officer at the point where the passenger intended to debark, is tantamount to ejection from the car.

      6. Appeal and error — conclusiveness op verdict. — A verdict of the jury on conflicting evidence held conclusive on appeal.
    7. ‘ False imprisonment — relevancy of evidence. — Evidence that a passenger, who was arrested for disorderly conduct while on a street car, was acquitted by the municipal court held relevant on the. issue as to whether. the arrest was lawful and as to the measure of damages, in an action against the street railway company.
    8'. False imprisonment — when damages not excessive- — Where a ■ ' passenger was wrongfully arrested while on á street car for dis- - orderly conduct and taken from the car by an oflicer at a busy street comer, held that $600 was not excessive compensation for the humiliation suffered.
    9.. Evidence — judicial notice. — The Supreme Court will take cognizance of the fact that the intersection of the street railway company at Fifth and Main streets is one of the busiest in the city of Little Rock.
    Appeal from Pulaski Circuit Court, Third Division; .Marvin Harris, Judge;
    affirmed. ,

      Hose, Hemingway, Cantrell $ Loughboroi<>gh and Elmer Echo g gen,. for appellant. ■

      Booher & Booher and John A. Hibbler, for appellee.
   "Wood, J.

This action was instituted by Roberta Hil-dreth, plaintrfty against the. Arkansas Central Power Company,, defendant. The plaintiff alleged, in substance, that the defendant is ah Arkansas Corporation engaged as a common carrier in the operation of a street railway transporting passengers in the city of Little Rock, Arkansas; that, on September 28, 1925, plaintiff was a passenger on one of defendant’s cars, known as the South Main car, which was being operated by- one man, the. conductor-motorman; that she paid her fare and took hex-seat in the car; that the conductor-motorman claimed that she had not placed the proper fare in the box; that, he caused the plaintiff to be unlawfully arrested and falsely imprisoned and to suffer other humiliations and indignities, to her damage in the sum of $5,000, for which she prayed judgment. - ■ ■ ■

The defendant denied all the material allegations of the complaint, and alleged that, if the plaintiff was arrested, it was because of her own misconduct, and that, if tlie conductor-motorman caused the plaintiff tó be arrested, such action on liis part was not within the scope of his authority. .

The plaintiff testified, in substance, that she and her little daughter and one Ruby Corley entered one .'of defendant's cars at 23rd and Main streets; that she:paid ■the fare. She had twenty cents in her hand and offered same to the conductor-motorman, who told her to drop it in the,, box, which she did, and then went, to her seat. The conductor-motorman hollered to,her,“You owe me three pennies,” and she replied,'“Well I dropped twenty .cents in the box.” Ruby Corley said, “Instead-of owing him three pennies, he owes us two;” and she asked him for the two pennies. The conductor-motorman said to her “If you don’t sit down, I will put you off the car.” She insisted, and said, “Well,, I want my two pennies— they are mine; they are not .yours,” and he told her-again “If you don’t sit down I will put you off the car.” When the car got to 5th and Main the conduetor-motor-man would not let us off the car. He held us until he called the policeman, and arrested us and, carried us down to headquarters, where we were held until bond was made for ms. Witness went back to court, the jiewt morning.

Over the objection of appellant, witness was-permitted to testify that she and her little girl were arrested, and that they were turned loose...On crossrexami-nation she stated, among other things, that they were going,to. get off at 5th and Main. When, they got off there,', .the officer told them to come with him, and witness,asked the officer why he had arrested her., and stated that she had. not said anything, and the officer told her to tell Judge Lewis that. The officer held them at the. drug store. until he called the patrol. They walked over to the comer, in front of the drugstore. Plaintiff-, testified that the. officer came on the. car at 5th and Main and took them .off the car. The motorman would not open the -door of the car. They were still there at the door, waiting to get off, when the officer came. He made them get off. The policeman stepped off tlie car in front of them and told them to come and go with him. He did not take witness off. iHe told them, before the car door was opened, that they were under arrest for disturbing the peace. ■Witness talked with him after they were off the car on the ground, because she wanted to know why he had arrested witness, for she had not said anything to the motorman.

G-. C. Self testified, in substance, that he boarded the car at the same time plaintiff did. Witness corroborated the testimony of plaintiff as to the payment of the fare. After the plaintiff took her seat, she stated that she was due two cents in change; that was the only word witness heard pass between plaintiff and the motorman. Plaintiff and her companion got off the car at 5th and Main. They were taken off by the policeman, who- was directed to do so by the motorman and another gentleman who was on the car. Witness stated: “When the car stopped at 5th and Main, a gentleman came from the rear of the car and spoke to the motorman. Just in a minute or two they beckoned to the officer, and the officer came forward while the girls were getting off, and took charge. The motorman did not abuse the plaintiff in any way. The officer came to the front of the ear, and the women were pointed out at the rear as they were getting off. As well as witness remembered, the officer went down on the outside of the car. Witness would not be positive about that. The women were fixing to get off. Witness did not remember whether the officer took charge of them before they got off or after they got off. Witness could not say that he heard the policeman say anything to them in the car. He did not hear the policeman say anything, but knew that the policeman arrested them from the fact that they were pointed out to him and he took charge of them. Witness could not say whether the policeman got on the. car of not, but he heard the motorman calf the policeman, and saw him point out the plaintiff and her companion to the officer, and heard the motorman say, “Take charge of them.” Witness didn’t know whether the motonnan held the door until the policeman came. He thought the door did not open before the policeman got there because they had not got off the car at that time. The car stood there two or three minutes. Witness looked hack, and they were getting off the car, and at the* same time the policeman came forward.

Over the objection of defendant the court permitted the plaintiff to prove that she was acquitted by the municipal court on the charge of disturbing the peace.

D. P. Poole, a witness for the defendant, testified that he was an operator in the employ of the defendant, and was operating the car at the time the plaintiff was arrested. When the plaintiff and her companions boarded the car, théy dropped a dime and a slick nickel in the box, and plaintiff said, “I am paying for three.” Plaintiff got about five or six feet back in the car and witness called her and told her she had only put fifteen cents in the box. Witness thought that she had made an honest mistake. They went back in the car and the young yellow negro girl with plaintiff got to cursing and raising quite a disturbance all the way down town. The passengers complained to witness, and when witness got to 5th and Main he called the policeman and told him that this colored girl was raising quite a disturbance, and asked him to go back there and quiet her down or cool her off, or something like that. At that time plaintiff and her companions were going back towards the back end of the car to get off. Witixess let them off of the car. After the officer came and witness talked with him, he went back through the car to where they, were. Witness didn’t hear the officer say anything to them on the car. Witness did not instruct the officer to arrest them. After the officer went back to the back end of the car, the woman got off the- car. The officer got off too. Witness did not curse or abuse the plaintiff in any way. Witness did not hear the plaintiff say anything. Witness told the policeman to go back and “quiet them down or cool them off” — that they were raising a disturbance on the car. They were' still fussing when witness called the policeman and told him to go back- and quiet-them down or cool them off. Witness pointed out the other woman who was doing the fussing. The car witness was operating was one of the old cars, and the doors are slow releasing. As soon as witness got to the proper stopping place, he released the door. Witness let the officer on at the proper stopping place at 5th and Main. Witness thinks he let him on first.- The same policeman that witness talked to took charge of the plaintiff, and asked the witness to appear at the city court the next morning. Witness did not put the plaintiff off the car. The policeman did not put her off the car. She got off voluntarily. Witness did not have anything tó do with them getting off. Witness opened the door when he got to the proper stopping point.

Other witnesses who were passengers on the car at the time corroborated the testimony of the conduetor-motorman to the effect that the other woman companion who got on the car with plaintiff created a disturbance and used profanity — ugly words — for several'blocks on the car. One of the witnesses asked the motorman why he did not call the cop oh the car tó do something about" the disturbance, and he beckoned to the policeman to get on. the car. The policeman- gót' on the car at the front door and went straight through the car. Witness did not hear the officer say anything to’ the plaintiff and her companion while they were on the' car. Oiie of the ‘ witnesses stated that the why he saw'it the plaintiff and her companions were getting off the car without any oiie bothering them. They were'waiting for the back door to open when the policeman got back there. Then they all stepped off and went to the curb and started talking, and the car pulled on. ' Witness did not'hear the plaintiff use any profane language whatever. - She could- not say that ' plaintiff used any language that would ordinarily be a breach of the peace. The officer got on the car at the direction of the motorman..

Gr. W. Witt testified tfiat lie was on the police force of the city of Little Rock, and made the arrest of . the plaintiff and another colored woman at 5th and Main. He was directing traffic • at that point at the time the motorman drove np and whistled to witness to, come over to the car, and told witness that some colored women were raising a little disturbance on the car. Witness got on the car at the front door, and the motorman pointed the women out to witness. The motorman opened the hack door of the car, and they went out. Witness did not take the women off the car. They got off at the back, and witness followed"them and told them to wait a minute. The witness was asked , if the operator told him to arrest the plaintiff, and answered, “Well, I believe he told me they needed cooling off, or something to that effect.” Witness arrested both of the women, and sent them down to police headquarters after he got over on the corner. ' They, were off the car when witness got hold of them. If witness said anything to them on the car, he'did not remember it. They started to walk off, and witness said, “Wait a minute — what’s all the trouble?” Witness had no warrant for their arrest, and there was no violation'of the law in witness’ presence. ' Witness did not know anything about what they had done. The defendant proved that the motorman had no authority to arrest or causé the arrest of passengers for law violation.

The court, over the objection of the defendant, instructed the jury to the effect that, if they found from the evidence that' the conductor'-motorman of the car caused the arrest and imprisonment of the plaintiff and the taking of the plaintiff from defendant’s' car by the policeman, the defendant was liable for the acts of its agent or employee in whatever sum the jury found from the evidence she was entitled to by. reason of the false impr'iáónment.' The court further instructed the jury that, to constitute imprisonment, it was not necessary that there'should be actual confinement in a jail or prison; that any exercise of force by which a person is deprived of liberty and is compelled to remain where she does not wish to remain, or go where she does not wish to go, is an imprisonment. The conrt refused to grant defendant’s prayer for instruction No. 1 for a directed verdict in its favor. The conrt also refused defendant’s prayer for instruction No. 2, which, in effect, told the jury that the authority of the motorman to do the acts complained of could not be inferred from- his employment, and that the burden was on plaintiff to prove that the arrest was authorized by the defendant, and, if she failed to establish that fact, their verdict should be in favor of the defendant.

In its prayer for instruction No. 3 the defendant asked the court to instruct the jury that it was the duty of a passenger to refrain from the use of loud and abusive language which disturbed other passengers on the car, and that, if the plaintiff knowingly and willfully failed to perform her duty in this respect, or aided or abetted another in thus disturbing the other passengers, then the operator in charge of the car was authorized to report her conduct to au officer of the city, or to eject her, if necessary, to protect other passengers on the car, and, if such were the fact, the defendant would not be liable therefor.

In its prayer for instruction No. 4 the defendant asked the court to tell the jury that the street-car operator, who has authority.to preserve order on his car, does not also have authority, by virtue of his employment, to cause the arrest of a passenger for disorderly conduct; that, if the operator of the defendant improperly caused the arrest of the plaintiff, the defendant would not be liable.

In instruction No. 5 the defendant asked the court to tell the jury that, if the plaintiff had voluntarily left or was voluntarily leaving the car at 5th and Main at the time she was arrested, the defendant would not be liable. The court modified this instruction by striking the words “or was voluntarily leaving” and gave the instruction as modified.

Tlic defendant’s prayer for instruction No. 6 is as follows: “You are instructed that a street-car operator who has authority to preserve order on his car does not also have the authority, by virtue of his employment or his duty as such operator, to cause the arrest of a passenger for disorderly, conduct, and thereby render the company liable for damages if the arrest was improper, unless such arrest he used as a mode of ejection of the passenger at the time thereof, and, even though you find from the evidence in this case that the operator of the defendant improperly caused the arrest of the plaintiff, yet such conduct on his part would not make the defendant liable unless such arrest was used by the conductor-motorman as a means of ejecting the plaintiff from the car.” The defendant duly excepted to the ruling of the court on these prayers for instructions:

The court gave defendant’s prayer for instruction No. 7, which told the jury that the defendant in no event would he liable for the arrest of the plaintiff after she had alighted from the car, and, if they found that she was placed under arrest after she had alighted, the verdict should be in favor of the defendant.

The court instructed the jury on its own motion, over the objection of the defendant, that, if the jury found for the plaintiff, they would find for her in such sum as would compensate her for any humiliation she may have suffered by reason of her arrest, and also instructed the jury, on its own motion, that the burden of proof was on the plaintiff to show by preponderance of the evidence her right to recover, and that by preponderance was not meant necessarily the greater number of witnesses, but the greater weight of evidence. The court also instructed the jury that they were the sole judges of the credibility of the witnesses and the weight of the evidence, and that they should take into consideration all the instructions and consider all the evidence in the case.

The jury returned a verdict in favor of the plaintiff in the sum of $600. Judgment was rendered in favor of the plaintiff for that sum, from which is this appeal.

The appellant contends that the court erred in refusing to grant its prayer directing the jury to return a verdict in its favor; that the' evidence wholly- fails to show that the conductor-motorman caused the arrest of the plaintiff. We have set forth the testimony bearing upon this issue, and deem it unnecessary to comment upon it at length. It suffices to say that it was an issue for the jury, under the evidence, as to whether or not the. conductor-motorman caused the arrest of the plaintiff. The testimony-of the plaintiff and of the witness Self, who testified in her behalf, tended to prove that plaintiff was arrested by the policeman, acting under the direction of the motorman, before she got off the car. Indeed, the testimony of the. appellant’s motorman and of the officer who made the arrest tends to proye that the arrest was made at the suggestion, if not the positive direction, of the motorman-conductor. The conduc-. tor himself said that “this colored girl is raising quite a disturbance,” and he asked the officer to go back there and “quiet her down, dr cool her off, or something like that.” The officer, when asked whether- the motorman told him to arrest the plaintiff, replied, “I believe he told me they needed..cooling off, or.something like that.”

The jury were fully warranted from the above testimony, even of the appellant’s witnesses, in'finding that the arrest of the plaintiff was caused at the suggestion of the appellant’s motorman.

The appellant , next contends that, even if the conduct of its motorman caused the arrest, of the plaintiff, such conduct of the motorman was. beyond the scope of his authority. But we are also convinced that it was an issue for the .jury, under the evidence, to determine whether the conductor-motorman was acting within the scope of his authority, if he caused the appellee to be unlawfully arrested and falsely imprisoned, as she alleged and as her testimony tended to prove. One of the witnesses for the appellant testified that, at 5th and Main, witness said something to the motorman about the disturbance on the ear, and said, “Why don’t you call that cop on here and ask him to do something about this V ’ and witness further said that the operator said to the policeman, “I have some colored people back there that I want you to cool off.” ‘ The conductor-motorman himself testified that he told Mr. Witt, the officer, that this colored girl was raising quite a disturbance, and asked the officer to go back there and “quiet her down, cool her off, or something like that. ’ ’ He further testified that the young yellow negro girl got to cursing and raising a disturbance on the way down town. She was raising- such; a disturbance that passengers complained about, it to witness,. and witness, at 5th arid Main, called the officer on duty there and asked him to do as above stated. :

The undisputed testimony shows that the motorman of this car was also its conductor. He was in full.control. of the car. If the appellee, had not paid her fare and thus established her relation as a passenger of the appellant, its motorman-conductor had the right to eject her, and was acting within the scope of. his authority if, in ejecting her, he called an officer and asked him'to arrest her and take her from the car. Or, if the conduct of the appellee, at the time she was arrested, was so obstreperous and disorderly as to be offensive to other passengers and to make it necessary to “quiet her down, or cool her off,” as expressed by the motorman, then the motorman had a right to eject her for that reason, and, if he detained the appellee on the car and called the officer and directed him to take charge of the appellee and-her companions, and this method was adopted by the conductor-motorman as the means of ejecting appellee from the car, in so doing he was acting within the scope of his employment. On the other hand, if the appellee had paid her fare, she had established the relation of passenger and carrier, and was entitled, to the protection as a passenger, and was also under the duty to conduct herself so as not to disturb other passengers by conduct calculated!© cause a breach of the peace. If appellant’s conductor-motorman called the officer and asked him to arrest the appellee because he conceived that she was guilty of a breach of the peace by using language and otherwise conducting herself in a manner to disturb the other passengers, and that the services of an officer under the circumstances were necessary to arrest and thereby eject her in order to quell the disturbance she was creating, then the conductor-motorman was acting within the scope of his employment in causing the arrest of the appellee on the car, because, in so doing, he was acting within the line of his duty and the scope of his employment in preserving order and protecting the other passengers from the conduct of a fellow passenger causing annoyance to them and calculated to produce a breach of the peace. Therefore, if the appellant’s conductor-motorman caused the arrest of the appellee while on the car, for the purpose of ejecting her for the nonpayment of fare, or for protecting the other passengers from her offensive and disorderly conduct, in either case he was acting within the scope of his employment; and, if he employed unlawful and improper methods — more force than was necessary — in the discharge of his duties, the appellant is liable to the appellee for the damages caused thereby. But if the conductor-motorman did not detain the appellee and her companions and keep them from voluntarily debarking at 5th and Main,, after the car stopped, and did not cause appellee’s arrest while she Avas on the car, but did direct the officer to arrest her, and the officer arrested her after she left the car, then such conduct on the part of the conductor-motorman Avas beyond the scope of his authority, and the appellant would not be liable for such conduct. It occurs to us therefore that, under the evidence above set forth, the issue as to Avhether the conductor-motorman Avas acting within the scope of his authority was clearly an issue of fact for the jury.

Mr. 'Booih, on the Lrav of Street Railwrays, lays down the law as follows: “Irrespective of the regulations of the company, the conductor has the right, and it is Ms duty, -witMn the scope of his authority, to put off a passenger, even after his fare is paid, if he becomes disorderly or offensive. It is the duty of the carrier’s servants to preserve order and to protect its passengers against the willful conduct of any of their number which is necessarily offensive. A passenger who enters a car and refuses to pay his fare, and, on being requested to leave the ear, uses profane or indecent language, may be forcibly ejected, but the company will be liable for injuries resulting from excessive or unnecessary force. So a passenger who, at least without great provocation, willfully calls the conductor a liar in the presence and hearing of other passengers, is guilty of disorderly conduct which will forfeit his rights as la passenger. The grossly profane and indecent language of a passenger in a railroad coach where there are ladies has been held to be such breach of decorum, although he may have been provoked to it by the conduct of the conductor, as will work a forfeiture of his right to be carried as a passenger, and authorize the conductor to cause him to be expelled from the car, using no more force than is necessary for the purpose; and the exaction of a trifling sum for fare, which had already been paid, is held not to be a sufficient provocation for such conduct. ’ ’ Section 369, page 597.

And Mr. Nellis, on Street Railways, says: “It is the duty of a street railway company to treat its passengers with courtesy and kindness,; and where one of its employees, while engaged in the business of the company, whether willfully and maliciously, or in consequence of what he considered a duty, ill-treats a passenger, so far as to wrongfully cause his arrest, the company is liable for it. And where the evidence shows that a passenger was arrested without any cause, charged with an offense, and forced to undergo a trial, it has been decided that express malice may be found, and that the company is liable.” 2 Nellis, page 703, § 341.

Numerous cases are cited by these authors in notes to their text. In one of the cases, Stewart v. Brooklyn & Crosstown Ry. Co., 90 N. Y. 588, 591, 43 Am. Rep. 185, the New York Court of Appeals announced the general rule as follows:

“A common carrier is bound, so far as practicable, to protect his passengers, while being conveyed, from violence committed by strangers and co-passengers, and he- undertakes absolutely to protect them against the misconduct of its own servants engaged in executing the contract. ’ ’

But it is unnecessary to look elsewhere for the law applicable to the various phases of the evidence set forth supra. The law applicable to the facts of this record has been thoroughly settled by the decisions of this court. Similar duties of carriers by steam railroads to their passengers is announced in Mayfield v. Railroad, 97 Ark. 24, 133 S. W. 168, 32 L. R A. (N. S.) 525. The crux of the lawsuit involves more a question of fact than of law. If the arrest and imprisonment of the appellee was after she had voluntarily debarked from appellant’s car, then the appellant is not liable in damages to the appellee for such arrest and imprisonment, because in that case, even though it may have been directed and caused by the appellant’s motorman-conductor, such arrest was beyond the scope of his authority. But, if, on the other hand, the arrest and detention of the appellee was .caused by the conductor-motorman while she was yet a passenger on appellant’s car, and such arrest was wrongful, unnecessary, and therefore unlawful, then the appellant would be liable in damages proximately resulting from such arrest, because the conductor-motorman, in such case, would be acting within the scope of his employment.

In Little Rock Traction & Electric Company v. Walker, 65 Ark. 144, 45 S. W. 57, 40 L. R. A. 473, one who claimed to be a passenger was arrested on the street oar at the direction of the conductor, on the ground that the passenger had not paid his fare. The plaintiff was taken to the police station by the officer and the next day was tried on a charge preferred by the policeman for violating a city ordinance which made it a misdemeanor for any person to ride on a street oar ■without paying his fare. Under those facts we held, quoting syllabus: “A street -railway company is not liable for the1 acts of its conductor in maliciously prosecuting a passénger-for violating a city ordinance making it a misdemeanor for any person to ride on a street car without paying fare, in the absence of authority from the company to the-conductor to institute such prosecution.” - ■

And in Little Rock Ry. & Electric Co. v. Dobbins, 76 Ark. 553, 95 S. W. 788, we held that a street railway company is liable for the wrongful acts of its conductor in ordering a policeman to arrest one of its passengers and remove him from the car in which he was riding, but not for such conductor’s subsequent acts in prosecuting the passenger for a breach of peace, such prosecution not being within the scope of the conductor’s authority.

In St. Louis I. M. & S. Ry. Co. v. Waters, 105 Ark. 619, 152 S. W. 137, we held: “A railway company is no't liable for the wrongful acts of its conductor in swearing out a warrant of arrest against a passenger on the next day after he was ejected from its train.”

These, and other Arkansas cases', are cited and quoted from in Dickinson v. Muse, 335 Ark. 76, 204 S. W. 609, where we held:

“The liability of a railroad company on account of an unlawful arrest and imprisoñmeñt by the prócuremént of its conductor is limited to what is said and done by its conductor at the time the passenger is being ejected by him under his authority, or for only', those things said and done that are so closely associated with the act that they may be regarded as a part of the act.”

The last announcement of our court on the subject is in the case of Fort Smith & Van Buren District v. Kidd, 153 Ark. 489, 241 S. W. 374, where we said: ’

“In the Dobbins case, as well as in the later cases which cite and follow it, it is made clear that a carrier is not liable for'the action of its employees in authorizing' arrests and prosecutions of persons who have been ejected or refused passage. But if the passeriger is ejected, by being arrested then the carrier is liable for the action, if the arrest itself is unauthorized.”

We deem it unnecessary to comment at. length upon each of the instructions that were given by the trial court. Suffice it to say the charge of the court as a whole submitted the issues of fact which the testimony tended to prove in conformity with the law as declared above and as announced in former decisions, of this court. In granting appellant’s prayer for instruction No. 5 as modified, and prayer for instruction No. 7 without modification, the court in effect told the jury that, if the appel-lee was arrested by the officer after she had voluntarily alighted from the car, their verdict should be for the appellant. And, in appellee’s instructions 4 and 5, which were modified and given by the court, the jury were told in effect that, if the appellant’s conductor-motorman caused the arrest and imprisonment of the appellee, that is, deprived the appellee of her liberty by causing her arrest on, and talcing her from, the appellant’s car, the appellant would be liable to the appellee in damages. These instructions correctly submitted the crucial issue in the case.

The court did not err in modifying appellant’s prayer for instruction No. 5 by striking therefrom the words “or was voluntarily leaving,” nor in refusing appellant’s prayer for instruction No. 6,-for the reason that, if appellant’s conductor-motorman caused the appellee to be arrested while she was on appellant’s car, after the same had stopped at 5th and Main, where the appellee intended to debark, this was necessarily tantamount to an ejection of the appellee from appellant’s car, because it prevented her from voluntarily leaving the car. If the conductor-motorman caused her to be arrested while on the car and to leave the car, not of her own free will and accord, but in custody of the officer, this was, in legal effect, nothing more nor less than a method adopted by the conductor-motorman in ejecting; appellee from appellant’s car. Therefore it would have tended to confuse and mislead the jury if they had been allowed to deter-mino whether or not the arrest of appellee while ■on-appellant’s car was a method of ejecting her from the car. As already stated, if she was arrested under the orders of the.condnctor-motorman while on the car, after the car had ¡reached the place where she intended to debark, such arrest was necessarily a method of ejecting her from the car.

The jury found that appellant’s eonductor-motor-man caused the appellee to he arrested while on appellant’s ear, that he was acting within the scope :of his authority in making - the arrest,: and that this was -the method employed by the appellant’s conductor-motorman to .eject appellee from appellant’s car, and that.the method thus employed, under-the facts, was unlawful. The verdict of the jury on the controverted issues of fact is conclusive here.

The court did not err in permitting the appellee to show that she was ■ acquitted by the municipal court of the charge on which she was arrested. This was relevant testimony on the issue as to whether or not the arrest was unlawful and' on the measure of .damages necessarily incident to and proximately resulting from the arrest. See Dickinson v. Muse, supra.

The appellant contends that the verdict was excessive. The undisputed testimony shows that the appellee said nothing whatever that was calculated to cause a disturbance or breach of the peace on the car. The appellee’s companion was the one that used the profane and offensive language calculated to produce a breach of the peace. ■ The undisputed testimony likewise shows that neither the Appellant’s conductor-motorman nor the officer who made the arrest used any offensive or abusive language toward the appellee. The conductor-motorman testified that he.pointed to appellee’s companion as the one who was creating the disturbance. The officer who made the arrest testified that the conductor-motorman told him that the colored people Avere raising a disturbance, and that he pointed them out to witness. Therefore, it is uncontroverted that the only damage to the appellee was the humiliation of being. arrested while oil appellant’s ear, and, as a proximate result thereof, being taken before the municipal court, where she was acquitted. The court only authorized the jury, if they found for the appellee, to return a verdict for such sum as would compensate her for the humiliation she may have suffered by reason of her arrest. The jury were not authorized, under the instruction of the court, to return a verdict for exemplary or punitive damages.

In the case of L. R. Ry. & Elec. Co. v. Dobbins, supra, the verdict was fójr $500 compensatory and $250 exemplary damages, and we held, under the facts of that case, that the verdict was not excessive. In that case the conductor caused the plaintiff-to be arrested, and he was carried to the police station, just as the appellee was in the present case. But, in that case, in addition to tlie arrest, the conductor subjected the plaintiff to other humiliations, insults and indignities in the presence of his family and friends. The insults began at the Rock Island depot and were repeated at Main and Markham Streets. In that case we said: ‘‘In view of the duty of street-car companies, to protect their passengers from insults and injuries, especially at the hands of. its servants and employees, the verdict was not excessive.” So we say here, in view of the duty of street-car companies toward their passengers, as outlined by the authorities cited above, the appellee should'be allowed to rec’over very substantial compensatory damages for the humiliation and insult to her. necessarily involved in her arrest on the street car at 5th and Main, which, as a matter of common knowledge, is one of the busiest and most crowded corners in the entire city of Little Rock. The arrest at such a place and transport by police patrol to the municipal court necessarily subjected the appellee to the observation of many people and called their attention to the fact that she was being placed in the attitude of one arrested as a criminal. The jury have found upon sufficient evidence that the proximate cause of this injury and resultant damage to the appellee was the conduct of appellant’s conductor in having appellee arrested while she was a passenger on appellant’s car.

It occurs to us, under all the facts stated, that the, verdict of the jury is not excessive. The judgment is therefore - affirmed.


source: Caselaw Access Project

author: Kirby, J.,

license: Public Domain

text:
    Boston Mutual Life Insurance Company v. Newton.
    Opinion delivered June 27, 1927.
    1. Usury — what law governs. — A loan transaction, in which notes for commission of the lender were alleged to make the loan . usurious, held governed by the laws of Oklahoma, where the application for loan was made to an agent of the Oklahoma corporation in Arkansas, and the notes were dated in Oklahoma, payable to’ an Oklahoma corporation in that State:
    2. Usury-rate op interest. — A loan governed by the laws of Oklahoma is not usurious where the interest plus commissions did not exceed 10 per cent, interest for the term of the loan.
    3. Usury — forfeiture. — The laws of Oklahoma do not declare a usurious contract void, but merely declare that double the amount of the interest charged, reserved or paid shall be forfeited, and that this may be recovered,upon a separate suit, or upon a counterclaim or a set-off for the money loaned.
    4. Usury — innocent purchaser of note. — Under Comp. St. Okla., 1921, § 5100, making the exaction of more than 10 per cent, inter- • est usury, and providing for the forfeiture of double .the amount-of interest charged in such case, the forfeiture .does, not extend to the purchaser of the note or evidence of debt reserving the usurious interest in good faith before maturity.
    5. Bills and notes — innocent purchaser. — The fact that an instrument is based on a transaction prohibited by a statute does not defeat the right of an innocent purchaser to recover on it, unless the statute makes the instrument absolutely void.
    Appeal from Arkansas Chancery Court, Northern District; H. R. Lucas, Chancellor;
    reversed.
    STATEMENT BY THE COURT.
    A. A. Newton and wife applied to an agent at Stuttgart of the DicldnsonJEteed-Randerson Company, an Oklahoma corporation authorized to do business in this State, for a loan of $4,000, and executed a contract' appointing said company their agent to procure the loan for 10 years at 7 per. cent. The loan was made or procured.
    The note for the loan is dated Oklahoma City, Oklahoma, January 25, 1921,-payable on the first day of February, 1931, to the order of the Dickinson-Beed-Bander son Company, Oklahoma City, Oklahoma, in the sum of $4,000, at the Hanover National Bank of New York City, with interest at 7 per cent., payable annually, signed by A. A. Newton and Jefusha Newton, with interest coupons of the same date, each for one year’s interest at 7 per cent., $280. A first mortgage was given to secure the payment of the $4,000 note to said company of Oklahoma City, acknowledged by the Newtons on the 7th day of January, 1921, and recorded February 14, 1921.
    Newton and wife also executed, on the same day, three notes for $400 each, .payable to the order of the said company, at the Farmers’ National Bank of Oklahoma City, due one, two and three years from date, with interest from maturity a't 10 per cent, per annum, and secured same by a second mortgage on the same land, which provided that all of the notes, should become due on the failure to pay either.
    The Dickinson-Beed-Bander son Company, .hereafter called- the brokerage company, brought this suit to enforce payment of the two last $400 commission notes, the first having been paid. ,
    The Newt03is admitted the execution of the notes', alleged the facts relative to the making of the loan, that it was one transaction, which was void, for-usury under the laws of Arkansas, where it alleged the contract was made, and asked the penalty provided by the laAv of Oklahoma, if it should be- held to. be an Oklahoma contract ; alleged further that the Boston Mutual Life Insurance Company, a Massachusetts corporation, held the loan note, with the mortgage -security, and prayed that it be made a party, and its'note and mortgage be canceled as a cloud upoai their title;- that, if the transaction was' held to be governed by the Oklahoma laws, they recover $8,000, double the interest to be paid, and $1,500 attorney’s fees.
    The brokerage company filed a reply to the cross-complaint, denying that the $400 notes were given as interest, and all other allegations of the cross-complaint, and alleged that they were in payment of a commission charged for procuring the $4,000 loan; that it did not and never had lent funds of its own in Arkansas or anywhere else; “that it procured money for those who apply to it therefor from persons and banks having same to loan, and that it receives as its compensation for its services therein a commission from the borrower”; alleged the procuring of the loan, under the appointment of the Newtons, as already set out, and that it assigned the loan note and mortgage to the 'Boston Mutual Life Insurance Company, which company furnished the money loaned, which was paid over by it to the Newtons; that the loan note and mortgage was made direct to the plaintiff, the brokerage company, and by it assigned to the Boston Mutual Life Insurance Company, and for 'its services in procuring said loan it charged the defendant, and they agreed to pay, a commission of $1,200, evidenced by the three notes of $400 each.
    The Boston Mutual Life Insurance Company, hereafter called the insurance company, appellant, replied, denying, on information and belief, that the notes and mortgages were executed under the circumstances alleged by defendants’ cross-complaint, and denied all other allegations therein; denied specifically that its mortgage and note was usurious; denied any knowledge of the execution of the three $400 notes to the brokerage company until the answer and cross-complaint was filed herein; alleged that it paid over the $4,000 without any knowledge of any kind whatever of any defense thereto; that it was a stranger to the transaction between the brokerage company and the Newtons, and that its loan was a separate transaction, and in no wise connected with the commis sion notes.

      , Amendment was filed on June 6, 1923, to the complaint, alleging that A. A. Newton was adjudged incompetent on November 18, 1923, and prayed that his guardians, naming them, he made parties to the suit.
    The guardians answered the amended complaint, adopted the cross-complaint already filed, alleged that Newton was incompetent at and prior to the time he executed the notes and mortgages sued on, and unable to comprehend the transaction.
    . Other amendments to the complaint were filed; alleging the death of A. A. Newton and his wife, intestate, the names of their children and heirs, with prayer that they be made parties, which was done.
    The brokerage company, plaintiff, and the insurance company, replied to the cross-complaint of the guardians, denying all the allegations thereof and that Newton was incompetent, and alleged that he was capable of transacting business at the time of the execution of the notes..
    The undisputed testimony shows that the insurance company had no knowledge or information about the execution of any commission notes to the brokerage company at the time of the execution of the note and mortgage for the loan, which it in fact made, advancing the money upon presentation of the application authorizing the brokerage company to procure the loan with the note and mortgage securing it.
    The chancellor found A. A. Newton, the mortgagor, was of sound mind and competent to contract when the papers were executed; that the notes and mortgages constituted one transaction or contract, governed by the laws of Oklahoma, and that the contract was usurious; that the brokerage' company was not entitled to recover, its suit being based upon interest notes given in pursuance of a usurious contract, and dismissed its complaint. That the defendants should recover from the said brokerage company on the cross-complaint $800, being twice the amount of the one $400 commission note paid to it. Found further that $560 had been paid to the insurance company by defendants, and that they-should recover of the insurance company on the cross-complaint double that amount and double the amount paid the brokerage company, $1,920 in all, which should be deducted from the principal indebtedness, $4,000, and decreed accordingly, foreclosing the mortgage for the payment of the balance of $2,080 held to be due the insurance company, with 6 per cent, interest from the date of the decree, from which this appeal is prosecuted, and a cross-appeal also.

      M. F. Elms and George A. McConnell, for appellant.

      'George C. Lewis, for appellee.
   Kirby, J.,

(after stating the facts). It is urged for reversal on the cross-appeal that the chancellor’s finding that A. A. Newton was of sound mind land competent to contract at the time of the execution .of the application, notes and mortgages, in ‘borrowing the money, is not supported by the testimony, but we find no merit in the contention.' No useful purpose would be served by setting oiit the testimony or arguing at length about it, and it will suffice to say that, after a careful consideration of it all, we cannot say the finding is not supported by the- preponderance of the evidence.

The chancellor also correctly held the transaction an Oklahoma contract governed by the laws of that State, but erred in the construction and application of its laws. Dupree v. Virgil B. Coss Mortgage Co., 167 Ark. 18, 267 S. W. 586, 1119; Virgil R. Coss Mtg. Co. v. Jordan, 167 Ark. 36, 267 S. W. 590, and Smith v. Brokaw, post p. 609.

This case is ruled by the opinion in Smith v. Brokaw of this date. Under the laws of Oklahoma a contract is not usurious where' the whole amount of the interest charged or reserved for the whole term or period of the loan does not exceed the rate of 10 per cent, upon the amount of the loan. The 7 per cent, interest reserved in the principal note for $4,000 amounts to $280 yearly, or $2,800 for the term of the loan, and the three $400 commission notes, amounting to $1,200, which is but 3 per cent, of the amount of the principal note for the term, showing that, although the rate seems excessive computed from the maturity of the commission notes, which is only a part of the time the loan had to run, it is not excessive nor more than 10 per cent., the rate allowed to be charged under the Oklahoma law, when the payments are spread out over the entire time the contract, if performed, had to run.

Moreover, the laws of Oklahoma do not declare a contract void for usury upon the exaction of the payment of more than 10 per cent, interest for a loan of money, but only that double the amount of the interest charged, reserved or paid shall be forfeited and may be recovered upon a separate suit brought, or upon a counter-claim or set-off pleaded in the suit for collection of the money loaned.

Such forfeiture, however, does not extend to a bona fide purchaser before maturity of the note or evidences of debt in which usurious interest is reserved. Section 5100, Okla. Compiled Statutes, 1921; Stockyards State Bank v. Johnston, 152 Pac. 585, 52 Okla. 32; Daniels v. Bunch, 223 Pac. 841, 98 Okla. 47.

In City Nat. Bank v. DeBaum, 166 Ark. 18, 265 S. W. 648, our court said (quoting syllabus): “The right of an innocent purchaser to recover on a negotiable instrument cannot be defeated merely because it is based on an illegal transaction, or one prohibited by law, unless the statute makes such instrument absolutely void.”

It follows that there will be an affirmance on the cross-appeal, but the decree will be reversed for the error in holding the contract usurious; and the cause remanded with directions to enter a decree in favor of the respective parties for the amounts due on the notes and the foreclosure of the mortgages for the payment, with priority payment of the amount due the insurance company out of the proceeds of the sale of the lands, and further proceedings in accordance with the principles of equity and not inconsistent with this opinion. ' It is so ordered.


text:
    South Miller County Highway District v. Dorsey.
    Opinion delivered June 27, 1927.
    1. Highways — jurismctioN to wind up affairs of district.— Where the chancery court assumed jurisdiction in proceedings to wind up the affairs of a highway improvement district before Sp. Acts 1923, p. 126, repealed Acts Ex. Sess. 1920, No. 51, which created the highway district, held that the court had jurisdiction to continue the proceeding to completion, in view of -Crawford & Moses’ Dig., § 9759.
    2. Highways — collection of taxes — liability of collector.— Taxes ordered by the chancery court to be assessed on the landowners of an abandoned highway improvement district, which were collected under such order by the county collector, were collected “by virtue of his office,” within the terms of the bond given to insure faithful performance of the collector’s duties.
    3. Highways — tax collector’s bond — liability of sureties. — Since the county collector and the sureties on his bond were bound to take notice of the decree of the chancery court, authorizing a collection of taxes' in an abandoned highway improvement district, the- sureties were liable on the bond given by the collector to insure faithful performance of his duty for his default in not accounting for such taxes when collected.

      L Highways — action, against tax collector — parties. — The receiver of an abandoned highway improvement district was a proper plaintiff in the suit against sureties on the bond of a tax collector, who defaulted in accounting for taxes collected in such district.
    5. Appeal and error — conclusiveness of court’s finding. — Where the facts in a ease were undisputed, the ¡finding of the circuit court was not ¡binding on appeal, further than it would be' upon a ruling on demurrer; it being a question of láw as to the effect of the testimony and the law applicable thereto.
    Appeal from Miller Circuit Court; James H. MeGol- ■ him. Judge;
    reversed.
    STATEMENT BY THE COURT.
    This suit was brought by T. B. Vance, receiver of the South Miller County Highway District, a road improvement district created by act 51:of the G-eneral Assembly of Arkansas, approved February 4,1920, for the purpose of laying out or improving certain roads described therein in Miller County? Arkansas, against M, J. Dorsey and fifty-eight others, defendants, named in the complaint, all sued as sureties on the bond for the year 1924 of the defaulting tax collector of Miller County, Arkansas, for certain improvement district taxes alleged to have been collected by him, as collector of Miller County, on the lands in said improvement district, and for failure to account for or pay over same as required by law.
    This district was created by said special act of the Legislature, and, after the preliminary survey was made, because of so great objection,-the improvement was abandoned by resolution of the board of commissioners, who had a receiver appointed by the chancery court to wind up the affairs of the district under the terms of the act.
    On November 2, 1922, the court adjudged the district had been abandoned and the amount of preliminary expenses a lien against the lands in the district.
    On February 9, 1923, the Legislature, by special act number 75, repealed act number 51, under which the highway district was created, without making any provisions whatever for winding up its affairs or paying the claims against it.
    On October 31, 1923, the court entered a decree for the payment of the preliminary expenses in a certain sum, fixing it as a lien against the lands, and made a levy of 7% mills upon the assessed valuation of the lands in the district, and ordered it extended against said lands on the taxbooks by the county clerk for the year 1923, and directed the collector of the county to collect the sum when so extended along with the State and county taxes, and to pay such taxes to the receiver of the district at the time the said collector was required to settle, under the law, with the county.
    The collector of the county was named as the collecting officer for the collection of the assessment benefits by the act creating the district, and the complaint alleged that Fincher Eason, now deceased,- was the duly elected and qualified collector of Miller County, Arkansas, under his bond filed and approved January 22,1924, upon which the persons named as defendants in the action became sureties; that' the collector entered upon' his duties, collected the improvement taxes in 1924 so extended by the county clerk against the lands of the district for 1923, by the order of the chancery court, in the sum of $34,497.07, and only paid over to xhe receiver $20,000 of that amount, and had failed and refused to pay the remainder.
    The complaint alleged further that the collector died intestate in Miller County; the appointment and qualification of his administrator; the probation of the claim for $14,497.76 against his estate; the disallowance thereof ; the allowance of same on appeal in the circuit court for the sum of $10,000; the payment of one-half of that •amount by an order of the probate court, the estate only being sufficient to pay 50 per cent, of claims probated, upon the filing of the judgment of the circuit court allowing the claim; and that there remains $5,000 due and unpaid upon the judgment of -allowance of the $10,000 by the circuit court of said funds collected by said collector, for which judgment was prayed against Dorsey and fifty-eight other sureties on the collector’s bond.
    On July 8, 1926, on the hearing of the case upon an agreed statement of facts,- the circuit court, a jury being waived, rendered judgment in favor of the defendants, from which this appeal is prosecuted.

      T. B. Vance, for appellant.

      Shaver, Shaver & Williams, for appellee.
   Kirby, J.,

(after stating the facts). It is contended on the one hand that appellant had no right to bring this suit, the law creating the district having' been repealed, and that appellant had no valid claim in any event, because the money alleged to have been collected and misappropriated by the collector was payable to the judgment creditor, the First National Company, which only had the right to sue; and on the other hand, for the appellant, that the chancery court having assumed jurisdiction by the appointment of a réceivér to ascertain the indebtedness existing against the district and for winding up its-affairs before the repeal of the act creating the district, could proceed therewith, under the provisions of the creating acf, notwithstanding its repeal.

Section 9759, C. & M. Digest, provides: “No action, plea, prosecution or proceeding, civil or criminal, pending at the time any statutory provisions shall be repealed, shall be affected by such repeal, but the same shall proceed in all respects as if such statutory provisions had remained in force.”

Nothing was said in the opinion in Meek v. Christian, 168 Ark. 313, 270 S. W. 614, where this court modified the decree of the chancery court allowing the claim of the engineers for making the preliminary survey of the improvement, about the effect of the repeal of the act creating the improvement district, although the fact of the repeal is recited in the statement of the case.

The creating act provided for the extension of the assessment of benefits against the lands of the district and the collection thereof yearly by the tax collector, along with the revenues due the State and county, and also for the continued operation of the district even after the improvements were made and for the collection of all additional assessments for maintenance, etc.

The chancery court, at the instance of the board of commissioners of the district, appointed the receiver, and was proceeding with the winding up of its affairs, as it had the power to do under the terms of the creating act, at the time of its repeal, and this proceeding, having been begun before such repeal, could be continued to completion thereafter, regardless of it, under the terms of said section of the law relating thereto. ■ Bowman Engineering Co. v. Mo. Highway District, 151 Ark. 53, 235 S. W. 399 ; Tri-County Highway Drainage Dist. v. Vincennes Bridge Co., 170 Ark. 32, 278 S. W. 627.

Section 23 of the c r e a ti n g act provides as follows : “In case, for any reason, the improvement contemplated by this district is not made, the prelim inary expense shall be a first lien upon all the lands in the district, and shall be paid by a levy of tax thereon upon the assessed value for county and State taxation, which levy shall be made -by the chancery court of Miller County, Arkansas, aud shall be collected by a receiver to be appointed by the said court. ”

The chancery court proceeding for this, purpose decreed that the improvement had been abandoned and the preliminary expenses were a first lien upon all the lands within the district, “and shall be paid by a levy of tax thereon upon the assessed value for county and State taxation, which levy shall be made by the chancery court of Miller County, Arkansas, and shall be collected, by a receiver to be appointed by the said court. ’ ’

The decree required all, persons having claims against the district to file the same with the clerk within 90 days, and appointed the receiver and continued the cause.

The court next made an order on October 31, 1923, ascertaining the amount of indebtedness due the First National Company of St. Louis, ascertained the amount of the assessed value of the real property in the district, .and that a tax of 10 per cent, would be required to pay the debts of the district, and ordered it levied upon the real estate in the district and collected with the State and county taxes for the year 1923, fixing the rate of taxation for the purpose at 7^4 mills; ordered its clerk to transmit a certified copy of its decree to the county clerk of Miller County, “and that said county clerk extend against the real estate .in the district the taxes herein levied upon the taxbooks, of Miller and Lafayette counties for the year 1923, and that the collector of said counties collect said taxes along with the State and county taxes for the year 1923, and pay said taxes levied hereunder to the receiver of this court when they settle for the county taxes; and that the receiver apply said taxes pro rata as received upon said. decree in favor of the First National Company and allowances * #

Said levy was thereafter regularly extended against the lands by the county clerk and collected by the tax collector of Miller County, along with the revenues of the county during the period for payment of taxes in 1924, under the collector’s bond approved, with appellee’s sureties thereon, on the 2d day of January, 1924.

The bond is in the sum of $500,000, made to the State for its benefit and the use and benefit of Miller County, conditioned: * * * “Now, if the said Fincher Eason shall faithfully perform the duties of collector of revenue for the county aforesaid for the year 1923, and shall well and truly pay over, within the time prescribed'by law, to the proper officer designated by law to receive the same, all moneys collected by him by virtue of his said office, according to law, then this bond shall be void; otherwise, to be and remain in full force and effect.”

This bond was executed by the sureties, after the order of the chancery court fixing the amount of the levy required to be made against the lands of the district necessary to be paid to discharge the indebtedness thereof, and after same had been duly extended in pursuance thereto by the county clerk on the taxbooks against the lands of the district.

The amount claimed was collected by the tax collector, in his official capacity, of course, and, since none but he could collect the said taxes under the clerk’s warrant upon the taxbooks delivered to the collector by the authority of the said order of the chancery court made under the authority of the provisions of the act creating the district, it was moneys collected by the collector by virtue of his office, according to law, and for the accounting for and payment of which to the person entitled by law to receive same his sureties are liable.

In Moose v. Bartlett, 169 Ark. 963, 277 S. W. 340, this court held the sureties on the collector’s bond liable to the payment of road and bridge taxes collected by him under the terms of the law providing for the creating of such districts, saying * * *: ‘ ‘ This bond was executed after the above statutes were enacted, making it the duty of the collector of the county to collect improvement district assessments or taxes. It was within the province of the Legislature to impose- this duty upon the collector’s office, and the collector and his sureties on his bond were bound to take notice of the law, and must be held to have executed' the bond, fully cognizant that it was the duty of the collector under the law to make collection of improvement district taxes as well as the general revenue.” •

So here, the collector and the sureties on his bond were bound to take notice, not only of the law authorizing the collection of assessments in this district by the collector, but also of the decree of the chancery court, under the law, authorizing the extension of the levy by the clerk and the collection by him of the levy or tax for payment of the preliminary expenses of the district, and the collector and his bondsmen are liable, in the opinion of the majority, for his failure to account for and pay over to the person entitled to receive same, the receiver in this instance, the said amount collected from the levy upon the lands of the improvement district.

Justices Wood, Mehaeey and the writer are-of the opinion that the chancery court could only 'authorize the collector, ¿s its receiver, to collect the taxes, after making bond with sureties who would be liable for his default, which was not attempted to be done, and that the accommodation sureties on his collector’s bond are not liable therefor. Moose v. Bartlett, supra.

The receiver could proceed against the estate of the collector and his sureties for the payment of said collections, since the judgment of the First National Company was but a claim against the district, which it was entitled to have paid out of the funds .provided therefor under the terms of the law, by order of the chancery court. -

The facts are undisputed in this case, and the finding of the circuit court is not binding further than it would" be upon the ruling upon a demurrer, it being a question of law as to the effect of the testimony and of the law applicable thereto.

The judgment is reversed, and, judgment will be entered here for the amount and balance due in accordance with the undisputed testimony. It is so ordered.

Justices Wood, Mehaeey and Kirby dissenting.


author: Humphreys, J.

text:
    Southwestern Venser Company v. Dennison.
    Opinion delivered June 27, 1927.
    1. Venue — residence op dependant for jury when. — The issue whether a defendant, residing- in the county, had a pérsonal intei-est in a suit and therefore was properly a party within Crawford & Moses’ Dig., § 1164, allowing service of summons on defendants in other counties than 'that in which the action was first brought, if, at commencement, any defendant resided in the county, held for jury under conflicting testimony.
    2. Compromise and settlement — consideration. — Settlement of a disputed claim by a compromise agreement is a sufficient consideration to support such agreement, even if the original agreement was without consideration.
    3. Evidence — parol evidence varying written release. — An oral compromise agreement, with a partner as individual, held not necessarily contradictory of a written release signed by partners, where there was testimony that the release affected the partnership only.
    4. Frauds, statute of — part performance — oral contract for the sale of land. — An oral agreement to pay consideration for the release of a contract for the purchase of timber lands, as the timber should be cut, held taken out of the statute of frauds by a partial performance of the payer and complete performance by the parties releasing the contract.
    Appeal -from Monroe Circuit Court;' George W. Clark, Judge;
    affirmed.

      8. 8. Jefferies and Boss Mathis, for appellant.
    . John W. Moncrief, Lee & Moore and Bogle.& Sharp, for appellee.
   Humphreys, J.

This is a suit brought by appellee against appellants in the circuit court of Monroe County to recover an alleged interest amounting to $17,000, in the timber on a 5,300-acre tract of land in Monroe, Phillip's and Arkansas counties, Arkansas, which J. T. Wylie conveyed to S. M. Bush, by deed dated January 15, 1924, acknowledged May 24, 1924, and hied for record July 34, 3924.

The gist of the complaint was that appellee and his two partner's, J. M. Linder and F. M. Linder, released their agreement to purchase said tract of land from J. T. Wylie upon tlie agreement of appellants that they would pay appellee $1 per thousand feet as the timber was cut and removed from the land; that, shortly after said deed was executed, logging operations were commenced upon s'aid land, and that a total of 229,063 feet of logs was cut and removed and settlement made with appellee by said appellants at the rate of $1 per thousand feet, in accordance with said contract; that on or about the first day of September, 1925, there had been cut and removed from said lands by appellant 1,707,114 feet of logs; that, under the terms of said contract, there was due appellee the sum of $1,704, for which amount he requested settlement; that appellants claimed the amount they had agreed to pay appellee was excessive, and persuaded and induced him to accept the sum of fifty cents per thousand for the remainder of the timber, 38,000,000 'feet, in lieu of $1 per thousand, the amount originally agreed upon; that one of the inducements offered was to employ appellee as general superintendent of the logging operations upon said lands at the rate of ten cents per thousand feet; that on said date they settled with appel-lee for the 1,704,114 feet which had been cut at fifty cents per thousand feet; that from the first day of September, 1925, up to the 17th day of January, 1926, 1,794,-975 feet of logs were cut and removed, for which appellants paid appellee fifty cents per thousand feet, under the contract for his interest in the timber, in addition to ten cents per thousand for his personal services as superintendent of logging operations; that at that time appellants terminated said contract, and, by reason of the breach, appellee has been damaged in the sum of $17,000, for which amount judgment was prayed.

S. M. Bush resided in Monroe County, where suit was brought, and he was served with summons. The Southwestern Veneer Company was an ordinary mercantile corporation, domiciled, with all of its offices, in the Southern District of Woodruff County, with no place of business, branch office, agent or officer in Monroe County. Summons was directed to the sheriff of Woodruff County and served upon said company in the Southern District of Woodruff County. -Appellant, the Southwestern Veneer Company, appeared specially and only for the- purpose of objecting to the jurisdiction of the court, and moved that the summons served upon it be quashed upon the alleged ground that S. M. Bush had no interest in the controversy, but was joined in the suit in order that service might be had upon him in Monroe County as a basis for bringing the suit in said county, so as to serve a summons upon it in the Southern District of Woodruff County, under the provisions of § 1106 of Crawford & Moses’ Digest. The court overruled the motion to quash the summons because it would necessitate a hearing of all the evidence in the case in order to determine whether S'. M Bush had a personal interest in the controversy, to which ruling of the court appellants objected and excepted.

Reserving their exceptions to the ruling of-the court in refusing to quash the summons, at every step-during the progress of the trial, appellants first filed an answer denying the material allegations of the complaint, and interposing the additional and further defenses of a release, and the statute of frauds. The cause was submitted, and, when the testimony was completed, appellants moved for an instructed verdict, both upon the ground that the court had no jurisdiction to try the cause and that appellant had failed by competent, substantial evidence to establish any liability against them. The cause was then sent to the jury, over the objection and exception of appellants, on the theory embodied in the following instruction:

“If the preponderance of the evidence shows that, prior to the first of September, 1925, there had been between plaintiff and defendants a controversy as to whether or not defendants had agreed to pay plaintiff a commission of $1 per thousand feet in connection with the purchase of the Wylie timber, aiid if, on or about September first, 1925, defendants or defendant Bush, compromised such dispute or controversy by agreeing to pay plaintiff a commission of fifty cents per thousand feet on said timber in settlement of such controversy, such Oral or verbal ■ agreement would be valid, and your verdict will be for the plaintiff. ” ■

The jury returned a verdict in favor of appellee for $3,086.52, upon which judgment was rendered, from which is this appeal. ■

■ The’ undisputed testimony shqws that J. T. Wylie owned 5,300 acres of heavily timbered land in Monroe, Arkansas and Phillips ¡counties, in the State of Arkansas, with which S. B. Dennison was familiar. Dennison and his two partners, Linder Brothers, were conducting logging operations on White River, near this tract of land. In the summer of 1923 Dennison,- for his partnership, began negotiations for the purchase of the land from J. T. Wylie, who asked him $45 an acre for it. Dennison and his associates did not have the cash to make the first payment, so they fell upon the plan of getting' some manufacturing concern with money to buy the logs from them and advance the necessary cash payment on- the purchase of the land. The Southwestern Veneer Company was operating at Clarendon, and could use the logs. J. W. Welsh was its president and S. M. Bush its manager. Pursuant to this plan, Dennisonproposed to R. S. Easley, the logging superintendent, and S. M. Bush, the .general manager, of the Southwestern Veneer Company, that Linder Brothers and Dennison would purchase the tract from Wylie and log the same if the Southwestern Veneer Company would buy the logs as cut and advance the cash payment required to purchase the land from Wylie. Bush accepted the proposition, and, on the strength of the agreement, a contract was prepared for the sale and purchase of the land by Wylie to Linder Brothers & Dennison, in which it was provided that the cash payment -should be $100,000. In August, 1923, the parties met in Memphis to close up the deal, but failed to consummate it because the cash payment was too large. Dennison and Wylie continued their negotiations, and finally agreed upon terms, the sale and purchase calling for only a $10,000 cash payment, the details of which were incorporated in a tentative deed from Wylie to Linder Brothers & Dennison. On the 23d of March, 1924, they met at the Chisca Hotel in Memphis to close np the deal in accordance with the terms set ont in the tentative deed. Welsh objected to advancing the cash payment on account of the .doubtful financial condition of Linder Brothers, and refused to do so unless they would get out of the deal. H. F. Linder became angry at the accusation that Linder Brothers were insolvent, and withdrew from the conference. Dennison, later in the day, on the 24th of March, 1924, at the suggestion of Bush, obtained the two following letters, one from the Southwestern Veneer Company and one from Wylie:

‘ ‘ Southwestern Veneer Company,
Cotton Plant, Arkansas,
“Gentlemen: We have agreed with Mr. J. T. Wylie of Saginaw, Michigan, for the purchase of certain lands in Monroe, Phillips and Arkansas counties, which we find we cannot handle, and hereby turn over to you to handle.
“Linder Brothers,
“By H. F. Linder,
“S. B. Dennison.”
“Mr. J. T. Wylie,
Saginaw, Michigan.
‘ ‘ Dear sir: We agreed to purchase your timber land under contract, and called you here, but find we cannot make necessary arrangements for the money, so we will have to turn the deal down, releasing you to deal with any one you please, with no obligations to us.
“Linder Brothers,
“By H. F. Linder,
“S. B. Dennison.”

Dennison also obtained the following letter to the Southwestern Veneer Company:

‘ ‘ March 25, 1924.
“Southwestern Veneer Company,
Cotton Plant, Arkansas.
“Gentlemen: We have for the last six months negotiated with Mr. J. T. Wylie, of Saginaw, Michigan, concerning the purchase by us from him of certain-lands owned by him in Monroe, Phillips and Arkansas counties, Arkansas, known as the Bateman and Ezell lands.
“At our request Mr. Wylie came to Memphis this month for the purpose of closing up the trade, but, after he arrived here, we found we could not handle the deal, and we have therefore given Mr. Wylie a written waiver of any rights we had in the matter with him, and have authorized him to sell the property to others without any right, title or claim on our part.
“We understand you are now negotiating with Mr. Wylie for the purchase of these lands, and we hereby write this letter to you for the purpose of informing you that you are at liberty to make any trade you wish with Mr. Wylie, and that we shall not make any claim of any kind or character against you now or in the future in connection with any trade you may make with Mr. Wylie, or due to our failure to consummate trade with him.
“S. B. Dennison, “Linder Brothers,
“J. M. Linder,
“H. F. Linder.”

At this juncture in the history of the ease the record reflects some dispute in the testimony.

Appellee testified that, before he obtained- the first two letters from the partnership, S. M. Bush, on behalf of himself and the Southwestern' Veneer Company, agreed to pay him $1 per thousand on all logs as they were cut and removed from the land. After appellants and Wylie began negotiations for the sale and purchase of the land which terminated in Wylie conveying same to Bush on the 14th day of July, 1924, by deed embracing practically the same terms and conditions contained in the tentative deed which had been prepared for Wylie to execute to Linder Brothers & Dennison; that, on the day after he had delivered Bush the first two letters, he mailed a third letter, directing it to Brinkley, which his attorney had prepared because not satisfied that the first two letters sufficiently released any claim the partnership of Linder Brothers & Dennison had to purchase said lands from Wylie; that, several days after receiving the letter, he had an interview with Bush in Brinkley, at which time he asked Bush whether the release he wanted him to get, dated March 25,1924, would in anywise affect their agreement for $1 a thousand on the logs when cut and removed, and, being informed that he (Bush) intended to have the deed made to him personally, and would see that he received $1 per thousand for the timber when cut and removed, he went to Memphis to prevail upon Linder Brothers to sign the release, and accomplished the purpose ; that it began removing logs from the Wylie tract in December, 1924, and up to and including March 27, 1925, removed 229,063 feet, for which appellants settled with him at the rate of $1 per thousand in accordance with the contract made with him for procuring the release; that from June to September, 1925, they cut and removed about 1,700,000 feet of logs; that on September 21, 1925, witness went to Cotton Plant to see Bush and collect the amount due him under his contract, but Bush objected to settling with him on the basis of $l per thousand, saying that the Wylie tract had over 35,000,000 or 36,000,000 feet more on it, and that $1 a thousand would amount to more than witness should have out of the deal; that they discussed the matter about half a day, at which time Bush proposed to pay him fifty cents a thousand on what had been cut and the remainder to be cut, and refused to pay more; that, not being financially able to litigate with appellants, witness compromised his agreement with them on that basis, and, pursuant to the compromise, received $851 or $852 for the amount cut up to that date; that on that date .appellants also entered into an agreement with witness to conduct their logging operations on said tract of land for ten cents per thousand feet; that it cut and hauled 1,974,000 feet between September 10, 1925, and January 17, 1926, for which settlement was made with him on a basis of sixty cents per thousand; that he continued to work for appellants until January 27, 1926, at which time he received a letter from Bush, discharging him; that thereafter he refused to pay him fifty cents per thousand according to the compromise agreement made on September 1, 1925, to witness ’ damage in the sum of $17,000.

S. M. Bush testified that, when Welsh refused to advance the cash payment, or to go into the deal on account of the doubtful financial condition of Linder Brothers, through witness’ request and the efforts of Dennison, Linder Brothers & Dennison voluntarily released any claim they or either of them might have under their oral contract to purchase from Wylie, in' order that the Southwestern Veneer Company might purchase the land directly from him; that he made no promise, either personally or for the Southwestern Veneer Company, to pay Dennison $1 per thousand feet as the timber was cut and removed, or any other sum, to obtain the release of Linder Brothers and himself; that he regarded Dennison’s activity as a friendly act growing out of past business transactions and in anticipation on his part to secure employment when his company should begin to cut and haul the timber off of said tract of land; witness did not, for himself or his company, pay Dennison $1 a thousand for 229,063 feet of logs cut and removed up to' March 27, 1925, nor .enter into a compromise agreement to pay him fifty cents per thousand for the 1,700,000 feet cut and removed from that date until September, 1925, or promise to pay him fifty cents per thousand on the 35,000,000 or 36,000,000 feet to-be cut in the future on the Wylie tract of land; that on September 1, 1925, he employed appellee, for the Southwestern Veneer Company, to superintend logging opera-: tions upon the Wylie tract, who was to furnish his own ear and gasoline boat, and buy his own gasoline, for sixty cents a thousand as the logs were cut and removed; that on that date about 1,700,000 feet had been cut, and he directed his bookkeeper to allow Dennison $850 for the amount already cut because he, Dennison, had been very nice to them; that Dennison continued in their service until January 27, 1926, at which time he discharged him because he was not devoting his entire time to their logging operations on the Wylie tract of land; that everything he did in relation to the purchase of the Wylie tract of land and in the employment of appellee was for and on behalf of the Southwestern Veneer Company, which he represented in the capacity of manager, and was not on behalf of himself; that the deed from Wylie to the land was made to witness personally in order to avoid a showing on the record of a large indebtedness against his company; that the consideration paid and to be paid was $240,660, only $10,000 being paid in cash, leaving an indebtedness of $230,660, to be paid in large annual installments.

Other testimony appears in the record corroborating the testimony of Dennison and Bush, but it is unnecessary to a determination of the questions involved on this appeal to set out such testimony.

Appellants first contend for a reversal of the judgment because the court entertained jurisdiction of the cause. It is argued that, according to the undisputed testimony, S. M. Bush had no personal interest in the transaction and was-improperly made a party in order that a summons might be served upon his codefendant, the ■Southwestern Veneer Company, in Woodruff County, under the provisions of § 1166 of Crawford & Moses’ Digest, allowing service of summons upon all the defendants in a'cause of action in other counties than that in which the action is brought, if, at its commencement, any of them resided in the county where it was brought. It was alleged in the complaint that S. M. Bush and the Southwestern Veneer Company breached a compromise agreement entered into on September 1, 1925, to pay appellee fifty cents per thousand for the remainder of the timber cut and removed: from the lands known'as the Wylie tract, in lieu of an original contract to pay him $1 per thousand for the timber cut and removed from said lands, growing out of the sale and purchase of said lands by Wylie to appellants.

The evidence of appellee and his corroborating witnesses tended to support the allegations of the complaint, and, when considered in the light-of the fact that S. M. Bush, individually, was the grantee in the deed, we cannot agree with appellants that the undisputed evidence showed that S. M. Bush had no personal interest in the transaction, and that he did not personally undertake to pay appellee fifty cents per thousand for the timber to be cut and removed off of said lands, in compromise of appellee’s claim that he was entitled to an interest in said timber to the extent of $1 per thousand when same was cut and removed. The issue of-whether he had any personal interest in the transaction was submitted to the jury, under disputed testimony, and found against appellants, and they are bound by the verdict. There being sufficient evidence to sustain the finding of the jury in this particular, the suit was properly brought in Monroe County, and appellee was properly summoned in Woodruff County. ' ■ •

Appellant’s next contention for a reversal of tlie judgment is that, according to the undisputed testimony, there was no consideration to support the contract alleged to have been breached. The contract sued upon was an alleged compromise agreement to páy appellee fifty cents per thousand for all logs which had been exit and not paid for, and all logs which were to be cut after September 1, 1925, off of the Wylie tract of land, in lieu of and in settlement of the original contract entered into between appellants and appellee by which appellee was to receive $1 per thousand for his interest in the timber on said tract when removed, which he had acquired ¡n getting the release from the partnership of Linder Brothers & Dennison. ’ We think the settlement of the disputed claim was sufficient consideration to support the compromise agreement sued upon, and that the testimony of appellee and his corroborating witnesses tended to show both an original and a compromise agreement. It is immaterial whether the original agreement was supported by a sufficient consideration if the agreement which was compromised was in good faith and was not prohibited by law. Appellants argue, however, that, if the original and compromise agreements were made, they were oral and in contradiction of the written release, and for that reason not provable. The oral contracts are not in contradiction of the written releases, if appellee’s testimony was true relative to the construction placed upon them by S. M. Bush when he requested appellee to get them. • Appellee testified that Bush told him that the contracts only released the partnership contractual rights of Linder Brothers & Dennison to purchase the lands from Wylie, and would not interfere with their agreement to pay him individually $1 per thousand for logs when they removed them from the lands, which agreement was afterwards modified so as to pay fifty cents per thousand for the logs in lieu of $1 per thousand. We think the testimony admissible, and, if true, was made as an inducement and in consideration of obtaining the partnership release to purchase the timber from Wylie. The record reflects that Wylie was not willing to sell the lands to appellants without such a release. Appellants argue that, if made, the contracts were oral, and for that reason were void under the statute of frauds. The contracts, if made, were taken out of the statute of frauds by partial performance. They had been entirely performed by appellee and partially performed by appellants.

No error appearing, the judgment is affirmed.


author: Humphreys,-J.

text:
    Boyd v. Drace.
    Opinion delivered June 27, 1927.
    Highways — petition for removal of commissioner. — A petition for removal of a highway commissioner, under Acts 1925, p. 320, § 9, amending Road Laws 1919, vol. 1, p. 1130, which provided that any commissioner who had lost the confidence of the landowners should he removed if a petition was presented, signed by 75 per cent, ctf the landowners in his division or the road improvement district, held insufficient, where it did not allege that the commissioner had lost the confidence of 75 per cent, of the resident landowners of his division of the district.
    Appeal from Poinsett Circuit Court; Basil Balter, Special Judge;
    reversed.

      E. L. Westbroohe and G. T. Carpenter, for appellant.

      ■Aaron MoMullin, J. G. Washom and Gautney & Dudley, for appellee.
   Humphreys,-J.

This is an application in the form of petitions to the county court of Poinsett County, under § ,9 of act No. 106 of the Acts of 1925, amending act No. 277 of the Acts of 1919, to remove appellant as a commissioner of the Ozark Trail Road Improvement District of Poinsett County. The amendatory act provided for five commissioners instead of three, two of whom should he resident landowners in the western part of the district and three resident landowners in the eastern part of the district. Appellant was one of the three commissioners named in the amendatory act for the eastern part of the district. Section 9 of the amendatory act, under which proceedings to oust him as commissioner were begun, follows:

' “Any commissioner of this district who has lost the confidence of the landowners of his division of this district as established in § 1 of this act, shall he removed and his successor appointed by the county court, if a petition calling therefor is presented to the court, signed by 75 per cent, of the landowners within his division of this district. Such a petition shall not only call for the removal of the commissioner but must also name his successor, and it is hereby made mandatory on the county judge both to remove and to appoint his successor named in said petition. However, before removing any commissioner on petition, the county judge shall give notice to the commissioner concerned of the petition, who shall have at least ten days in which to examine the petition, after which time the county court shall consider the petition and shall determine that it contains at least the required number of resident landowners of his division of the district. At this hearing the commissioners concerned shall have the right to be present and have counsel. Likewise, the' county judge shall, on a petition signed by 75 per cent, of the landowners, fill any vacancy Avhich may occur on said board. ’

Seven petitions in all were filed, four on September 5 and two on September 9,1925, and one on the 9th day of March, 1926. After the six petitions were filed in September, 1925, the judge issued the notice directed by the statute to appellant, but same was not served upon him and no hearing was had upon them pursuant to such notice. After the petition was filed on the 9th day of March, 1926, the county judge issued a notice to appellant that the court would consider the petitions on the 17'th day of April, 1926. On that day the seven petitions were consolidated, over the objection and exception of appellant. Each petition, omitting the signatures, is as follows:

“We, the undersigned, state that we are resident landowners' of that division of the Ozark Trail Road Improvement District which lies east of the range line separating range six and seven east, and we hereby respectfully petition your Honor, as county judge of Poinsett County, to remove E. B. Boyd as a member of the board of commissioners of said road improvement district and to appoint in his place and stead J. L. Drace of Deckerville as a member of such board of. commissioners.”

■ Appellant then filed the following- demurrer to the several petitions:

“Comes E. B. Bóyd, the commissioner whose removal is sought in various petitions filed in the office of the county clerk, and' demurs to each of the several petitions filed, for the reason that no one of the said petitions allege the statutory cause for the removal of a commissioner, namely, that he has lost the confidence of 75 per cent, of the resident landowners of his division of the - district. ”

In addition to the demurrer a number of defenses were interposed by motion. The cause was heard by the county court upon the consolidated petitions, demurrer and motions, resulting in the overruling of the demurrer and the motions and a judgment removing appellant- as a commissioner and the appointment of J. L. Drace as his successor. An appeal was duly prosecuted to the circuit court from the judgment.

When the cause was called in the circuit court, appellant renewed his demurrer, which was overruled by the court, over his objection and exception. All the defenses interposed in the county court and several additional ones were presented in the circuit court on a trial de novo, with the result that the judgment of the county court was in all things affirmed, from which is this appeal.

In stating the case we have not set out all of the defenses interposed by appellant to the consolidated petitions, as we think the court erred in overruling appellant’s demurrer to them. The petitions failed to state thé statutory cause of action for the removal of' appellant. It was not charged in the petitions that 75 per cent, of the resident landowners in the eastern end of the district had lost confidence in appellant. This was the sole statutory ground upon which appellant could be ousted,- and such charge should have been preferred by the petition. The Legislature named the commissioners, and the intent was that each was to continue to act in the capacity of such commissioner as long as he retained the confidence of over 25 per cent, of the resident owners of real estate in his end of the district.. It was clearly the intent of the Legislature not to allow the commissioners to be removed on the ground of unpopularity merely, or because they advocated some particular character of construction, or for any ground except the loss of confidence in them by at least 75 per cent, of .the landowners residing in that part of the district from which the commissioner was appointed. Although the Legislature recognized the right of the resident landowners in each end of the district to control the tenure of the term of each commissioner, should as many as 75 per cent, of them lose confidence in one of the commissioners, it did not vest them with the power to remove a commissioner at will. In all fairness to the signers of the petitions, as well as a commissioner against whom the petitions were being circulated, the charge should have, been clearly stated. If the petitions had stated that the signers had lost confidence in the commissioner, many of them might not have signed them. The circulation of petitions without, any specific charge in them would allow the. circulators to obtain signatures on any ground they could and.would permit resident landowners to sign the petition just because they did not want him, even though they retained confidence in him. The petitions extended too large a leeway to the signers thereof and-too much latitude to the áctive opponents of the commissioner. We think the petitions should have shown on their face that the signers thereof had lost confidence in appellant in order to state a cause of action for his removal.

Appellee cites the case of Frazier v. Kibler, 145 Ark. 517, 224 S. W. 960, las an authority in point to uphold the sufficiency of the petitions. It is true that the petitions for the removal of the board of commissioners in the case cited did not allege any cause for the removal, but the statute upon which the petitions were based authorized a removal of the commissioners by a majority of the real property owners if they were the owners of a majority of the acreage, or more than 50 per cent, of the lands in the district, upon request. It was not necessary to incorporate any charge in the petitions, because the statute did not require that removal be made for cause. In the instant case the statute did .require that, if a removal were made, it must ibe for la cause specified. In the Kibler case the decision was based upon the fact that the commissioners could be removed without cause, and for that reason it was not necessary to allege any cause. The Kibler case is not parallel with the instant case and does not rule it.

On account of the error indicated the judgment is reversed, and the cause is remanded with directions-to sustain the demurrer to the petitions.and dismiss them.

Justices Wood, Smith and McHaNey concurring.