text:
    Dixie Bauxite Company v. Webb.
    4-3146
    Opinion delivered October 16, 1933.

      John Sherrill, for appellant.

      W. R. Donham, for appellee.
   Mehaffy, J.

This suit was begun by appellee to recover damages for personal injuries alleged to have been caused by the negligence of the appellant.

Oin March 17,1932, while in the employ of the appellant, the appellee, between eleven and twelve o’clock at night, was injured while replacing a belt on the pulleys. He alleged that the belt was old, badly worn, and fastened together with metal belt lacing at the ends; that the belt had been patched in several places by the use of metal belt lacing; that appellee was directed to replace the belt, by an employee who had authority to direct the belt to be replaced, and while he was trying to replace it, the belt suddenly caught on the pulleys, and the thongs of the belt lacing caught appellee’s glove, causing his hand to be caught between the belt and the lower pulley; his hand was drawn around the pulley, and his body was thrown upon the framework of the line-shaft; that he sustained injuries to his left chest, the second to the seventh ribs, inclusive, were broken, the second rib being broken in two places; in healing the ribs overlapped and decreased the size and shape of the left chest; the injuries to the chest wall displaced his heart to the right; the muscles to the left chest have become atrophied; the left knee and bones of the left leg below the knee were injured; the upper end of both bones were fractured, and his nervous system was severely shocked-; his left shoulder was injured, and his left arm somewhat paralyzed; he has difficulty in breathing, and is very nervous.

The appellant answered denying all the material allegations of the complaint, and pleading contributory negligence on the part of the appellee. Appellant also alleged in its answer that it had made a settlement with the appellee, paying him $289.40, and that appellee executed a release, and appellant pleaded the settlement and release as a defense of appellee’s cause of action.

There was a trial by jury, and a verdict and judgment for $15,000. The case is here on appeal.

The appellant contends that the testimony does not show any negligence on its part, and for that reason the court should have directed a verdict in its favor. The appellant is a corporation, and at the time of the injury to appellee was engaged in mining bauxite at Sweet Home, Arkansas. The appellee had been worldng for the appellant since August 29, 1931, and the injury occurred March 17, 1932. He had, however, been at work as fireman, calciner, and drierman since sometime in February.

Appellee testified that a man named Poole, another employee of appellant, told appellee that the belt was off, and to put it on. This belt operated on a pulley near the floor, and another pulley six or eight feet above the lower one. Appellee testified that Poole had charge of this. He went to work on that day about 11 o’clock p. m., and was injured at about 11:30, about thirty minutes after he had gone to work. He testified that he put the belt on the bottom pulley, and straightened up to adjust the belt, and as he did this, something caught the belt and jerked it on, and jerked his left hand into the pulley; that his hand was caught by one of the steel belt laces.

He testified that his hand was caught 'by one of the steel belt laces, a steel lacing that you drive through the belt. On each side of the lacing there are hooks and thongs, or teeth. It was an old six-inch belt, and had several patches in it. In patching a belt, there has to be a piece cut out and another piece put in, and they use these steel belt laces to hold the ends together.

Appellee testified that there were four men working at the time, but none of them were where they could see appellee at the time he was injured. He further testified that the belt was frazzled on both sides, had three or four patches in it, and he did not know how many seams were in the belt. When asked how he knew that caught his hand, he said: “That is the only thing that could catch it.” He did not see it at the time, and there was bound to have been something sticking up to catch his hand.

Appellee testified at great length as to how the injury occurred, but the above testimony tends to show that the belt was old, frazzled, and that the teeth, or thongs, of the belt lacing caught his hand and caused the injury.

While none of the appellant’s witnesses saw the injury, they testified in substance that the belt was in good condition and had only one patch in it, although they testified that it was an old belt. Appellant’s witnesses •also testified that appellee had been using belt dressing, and that this may have caught his hand.

Appellee testified, however, that he had not used belt dressing, and that the thongs of the belt lacing-caught his hand.

As to how the injury occurred, and whether the condition of the belt was the cause of the injury, were questions of fact properly submitted to the jury. The testimony was conflicting, and it was the province of the jury to determine which was true.

Witness for the appellee, Vinas C. Hale, testified that he worked for the appellant some months before the injury to appellee, quitting there sometime in December; that the belt was pretty well worn when he worked there; that the thongs, or teeth, of the lacing stuck out; that he observed the condition of the teeth or thongs, and that at that time they were sticking up.

This court has many times held that it is the province of the jury to reconcile conflicts which exist in the testimony, and if there is sufficient evidence to submit a question to the jury, its finding is conclusive, although we might believe that its finding was against the preponderance of the evidence. Gibson Oil Co. v. Bush, 175 Ark. 944, 1 S. W. (2d) 88; International Harvester Co. of America v. Hawkins, 180 Ark. 1056, 24 S. W. (2d) 340; Chapman & Dewey Lbr. Co. v. Bryan, 183 Ark. 119, 35 S. W. (2d) 80.

The appellant, however, contends that many witnesses testified that the condition of the belt was good. That is true, and it is also true that witnesses other than the appellee testified that the belt had been used a long while, and had been patched several times. There was therefore substantial evidence to support the jury’s verdict on this question.

It was not the duty of the appellee to inspect the belt, pulleys, or machinery, but he had a. right to assume that the master had performed its duty, not only to exercise care in furnishing safe appliances with which to work, but to exercise ordinary care to keep them in safe condition.

Appellant contends that it was the duty of appellee to repair minor defects. No one, however, testified that it was his duty to inspect. Several witnesses testified that he was in charge, although this is contradicted by appellee’s evidence, but if he were in charge of the other three men, the master owed him the duty to exercise care to furnish him with safe appliances with which to work, the sanie as if he had not been in charge. He testified that he was not in charge, but whether he was or not, there is no evidence tending to show that it was his duty to inspect the belt. The appellant had a millwright whose duty it was to look after machinery and appliances and inspect them, and, if appellant’s evidence is correct that appellee was to repair minor defects, that, of course, 'meant defects that were called to his attention, because no one contends that it was his duty to inspect.

“Where there is any substantial evidence justifying an inference that the defect or danger was known or ought to have been known by the defendant, the question whether he took reasonable precaution to guard against the defects or danger, is generally a question for the jury.” 45 C. J. 1325.
“It is the duty of the master to make inspection for all latent or concealed defects beyond the knowledge of the employee. It is the duty of the master to make proper tests and inspections to discover dangers, and the employee has a right to assume that this duty has been performed by the master, and whether in any particular case the employer has discharged his duty with respect to. making proper test and inspections is ordinarily a question for the jury.” Burden v. Hughes, 186 Ark. 707, 55 S. W. (2d) 502.

It is next contended by the appellant that the release was valid and binding. The evidence, in this case as to the extent of appellee’s injuries, is in conflict, but there is no dispute that appellee was severely injured. Witnesses for both parties testified that both bones in his left leg were broken, extending up into his knee; that six ribs were broken, some of them overlapped, and that there was some deformity in the chest, and the heart was pushed over to the right one-half inch or one inch; and that there was also an injury to his left arm.

While appellee was at the hospital, a representative of the insurance company secured a statement, which was introduced in evidence, purporting to have been signed by appellee, and witnessed by the insurance agent and another. The undisputed evidence, however, shows that appellee did not sign the statement, but that the agent signed appellee’s name to the statement, and then signed as a witness.

Appellee testified that before he left the hospital, a short time before the release was signed, he had a talk with the company physician, about the extent of his injuries, and that the physician told him that he would be all right and able to work; that his injuries did not amount to anything, and that he would be able to go back to work, and be as good as he ever was. He believed what the physician told him, relied on it, and, because of this, signed the release. He would not have signed it if he had not believed what the physician told him. This release was signed, at his home shortly after he had been removed from the hospital to his home.

As we have already said, there is no dispute about both bones of his left leg being broken, extending up into the knee; there is no dispute about the condition of his chest; there is no dispute about six ribs being broken, and some of them overlapped; and it is practically undisputed that his left arm is permanently injured.

It is true that two doctors testifying for the appellant said that they thought the condition of his chest was caused by rickets; which is a disease of childhood. It is said that it usually occurs from nine months to two years, and these physicians thought that that was the cause of the condition of his chest.

The physicians introduced by appellee, however, testified positively that in their opinion the condition of the chest was caused by a crushing injury; that the injury that crushed his chest and broke his ribs moved his heart to the right. They testified that his arm was getting worse, and would continue to get worse, and that he would never be able to work again.

The release was signed when he did not know the extent of his injuries, and thought that he would soon be well. The appellant paid him in settlement, when it took the release, the sum of $289.40, that is, what they paid him and his doctor’s bill and hospital bill-amounted to this sum. This court has many times held that a release executed by an injured party, relying upon the opinion of the physician of the party responsible for the injury, that the injury was slight and temporary and not permanent, is not binding upon the party making the release. Sun Oil Co. v. Hedge, 173 Ark. 729, 293 S. W. 9; St. Louis I. M. & S. R. Co. v. Hambright, 87 Ark. 617, 113 S. W. 803; St. Louis I. M. & S. R. Co. v. Reilly, 110 Ark. 182, 161 S. W. 1052; St. Louis I. M. & S. R. Co. v. Morgan, 115 Ark. 529, 171 S. W. 1187.

In the last case, this court said: “There is also testimony sufficient to warrant a finding that the physician or surgeon who treated the plaintiff at the hospital represented to him that he was not permanently injured, and that the settlement was induced by that statement. Under the doctrine of the case of St. Louis I. M. & S. R. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803, that constituted grounds for avoiding the release, whether the statements were made by the physician falsely or under mistake of fact." Griffin v. St. Louis I. M. & S. R. Co., 121 Ark. 433, 181 S. W. 278; Chicago, R. I. & P. Ry. Co. v. Smith, 128 Ark. 233, 193 S. W. 791; Kiech Mfg. Co. v. James, 164 Ark. 137, 261 S. W. 24; Phoenix Utilities Co. v. Smith, 185 Ark. 587, 42 S. W. (2d) 238.

It is next contended by the appellant that the court erred in permitting witness Hale to testify that the belt was pretty well worn when he worked there, and that the thongs or teeth of the lacing stuck out when he was working there, and that he had observed that their condition at that time was that they were sticking up. The only objection made to Hale’s testimony was sustained by the court. This witness had testified about the condition of the belt when he worked there, and the last time he worked there was in the latter part of December; but the evidence shows that it was the same belt that he testified about that was in use when appellee was injured,, and that it had been in use for more than two years.

It is next contended by the appellant that the court erred in permitting appellee’s counsel to examine witness Floyd Brown with reference to the changes made in the plant subsequent to the injury, and to ask if same were not made at the. instance of the insurance company. The appellant, however, did not object to that question, but the witness was. asked: “I mean the Fire Insurance Company,” and he answered: “No, sir, all I know of, we raised it for ventilation.” Certainly there could be no error in this. The witness testified that he made'it for the purpose of ventilation, and not at the instance of the insurance company.

It is next contended that the court erred in excluding the testimony of Sam Diemer. The witness testified that he did not ask appellee anything about whether he was satisfied, but that he said something to his wife about it, and that both Mr. and Mrs. Webb were satisfied with the settlement. The court said that he did not think this evidence was competent, and the attorney for the appellant said: “Save our exceptions.”

In the first place, the record does not show any objection to' the ruling of the court, and in the next place it is wholly immaterial whether Mrs. Webb was satisfied or not; what she said would not be competent evidence. Moreover, it was not a question as to whether she was satisfied or not, but the question was whether the release was signed by appellee because of the statement made by appellant’s physician as above set out, and relied on by appellee. There was no error in the court’s excluding this testimony.

The appellant then contends that the court erred in permitting exhibition of the insurance policy and testimony regarding the same, 'before the jury. In the first place, there was no objection by the appellant to this evidence. There was a suggestion on the part of the attorney for the appellant that the testimony that he had stood an examination for life insurance was improper, and the court sustained this suggestion of appellant. There is no evidence in the record tending to show that the policy was exhibited to the jury. The record shows that the policy was exhibited to the witness, and the witness was asked if it did not show March 4, 1932, and he answered that it did, and there was no objection made to either the question or answer. The record does not show that the policy was exhibited to the jury, and it does not show that any objection was made to exhibiting it to the witness; in fact, the only objection made by the appellant at the time was sustained bv the court.

Appellant, in its brief, says that counsel for appellee unfolded an insurance policy, which was waved before the jury, and presented to the witness, and features of the policy testified about pointed out, etc. There is no evidence in the record that the policy was waved before the jury, and no objection made to exhibiting it to the witness.

It is next contended by the appellant that the court erred in permitting Dr. Hyatt to testify that he examined appellee for insurance, on March 4, 1932, and to exhibit the policy and state the date of examination. .Dr. Hyatt testified that he examined witness shortly before the injury on March 4th. This evidence was introduced in rebuttal of that offered by appellant, tending to show that appellee was in poor health prior to the injury, and the only objection made by appellant was that this evidence was not in rebuttal. All the other evidence of Dr. Hyatt was admitted without objection.

Appellant contends that the court erred in refusing to instruct a verdict for appellant at the time appellee rested his case. We have already shown that there was ample evidence to submit the case to the jury, and there was no merit in this contention.

The appellant argues that the court erred in not granting a new trial on newly-discovered evidence. The affidavits submitted with the motion for new trial on the ground of newly-discovered evidence were all with reference to appellee’s injuries, except the affidavit of Robert Ruffin, and this affidavit shows that in the trial he was called as a witness by appellant, but never called to the stand, although he was around the courthouse all during the trial, and this witness testified that he was offered $50 by some one to testify to certain facts. The other evidence was merely cumulative.

All of the evidence contained in the affidavits was known, or by the exercise of any diligence could have been known, to the appellant at the time of the trial. Miller v. Johnson, 184 Ark. 1070, 45 S. W. (2d) 41; Forsgren v. Massey, 185 Ark. 90, 46 S. W. (2d) 20; State use Calhoun County v. Poole, 185 Ark. 370, 47 S. W. (2d) 590. There was no error in overruling the motion for new trial.

It is next contended that the instructions given at the request of the appellee were erroneous. Attention is called specially to instruction No. 4. That instruction reads as follows: “You are instructed that it was the duty of the defendant company to exercise reasonable care to furnish plaintiff a reasonably safe belt for use by him in work being performed for defendant, and it was the further duty of the defendant to exercise the same degree of care in maintaining said belt in a reasonably safe condition, unless you find' that it was plaintiff’s duty to look after the safety of the belt and to keep it in a reasonably safe condition, and to make, necessary repairs.”

The objection to this instruction is that the preponderance of the evidence shows that it was the duty of the' appellee, himself, to keep and maintain said belt in a reasonably safe condition, and, if same became unsafe, it was appellee’s duty to repair it. We think instruction No. 4 correctly stated the law,-and that there is no merit in the objection. The objection to No. 5 was similar to the objection to No. 4. Objections were also made to Nos. 6, 7 and 8. We do not set them out, but have carefully examined them, and do not think there was any error in giving said instructions.

Appellant next objected to the court’s refusal to give its instruction No. 1, in which the jury were instructed to return a verdict for the appellant. We have already stated that the evidence was sufficient to submit the cause to the jury. We do not deem it necessary to set out the instructions, but we have carefully examined them, and have reached the conclusion that the court did not commit any error in giving or refusing to give instructions; that the instructions given correctly submitted every issue to the jury.

It is finally contended that the verdict is excessive. The verdict was for' $15,000.

Dr. W. F. Smith, the surgeon in charge of the Missouri Pacific Hospital at Little Rock, Arkansas, testified that he had examined appellee with reference to his injuries, and had examined the X-rays made by Dr. Law. The pictures showed a fracture of the upper end of both of the bones of the leg, which extended into the joint, resulting in thickening of the membrane; they also showed the fracture of six ribs, the second to seventh inclusive; that the heart was slightly displaced; a depression of the left side of the chest following the injury; that there was considerable flattening of the left side, caused in his opinion by the fracture of the ribs; there was overlapping of sixth and second ribs. This would cause conversity of the ribs, which prevents lung expansion; it would make him more liable to disease of respiratory tract, such as tuberculosis. In his opinion the appellee cannot perform manual labor, and will never be able to labor again, like he did.

Dr. Parmley testified that he specialized in traumatic surgery; that he examined appellee, and the X-rays, and he testified to substantially the same as Dr. Smith. He also said that on the arm, the forearm, shoulder and left chest there was marked atrophy, at the time there was only slight palsy or jerking; subsequent examination showed it was very bad, and very plain to see that paralysis was increasing. He attributed this to the injury, and it seems to be progressive. From June until the trial, it seems to have increased from a slight tremor to a very marked tremor or palsy; the deflection of the left leg was limited to 30 degrees; that the efficiency of his lung has been reduced to approximately 30 or 35 per cent. In his opinion the appellee will never be able to perform manual labor again.

Dr. Law also testified substantially the same asn Dr; Smith and Dr. Parmley. All of them agree that the conditions were caused by the injury. In addition to that, the evidence shows that he has difficulty in breathing; and his injuries are permanent. These injuries must have caused great pain and suffering. We think the evidence is ample to justify the amount of the verdict.

Finding no errors, the judgment is affirmed.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Parrents v. Bank of Rector.
    4-3131
    Opinion delivered October 16, 1933.

      C. T. Bloodworth, for appellant.

      O. T. Ward, for appellee.
   McHaney, J.

On November 18, 1924, a decree of divorce was entered in Clay Chancery Court wherein Charles Hesket was plaintiff and appellant, M. C. Hesket, was defendant on the ground that appellant had deserted her husband for the statutory period. Prior to the divorce decree, the parties had entered into a property settlement contract which the court incorporated in this decree as follows:

“It is further ordered, adjudged and decreed that the settlement between the parties as to the rights of property heretofore agreed upon be and the same is by the court approved. Said agreement as to the property herein is in words and figures as follows, to-wit: ‘ This agreement of arbitration between Charles Hesket and M. C. Hesket, his wife, is a division of personal property. M. C. Hesket agrees to take one-third of Charles Hesket’s personal property for her dower in said property which has been divided by mutual consent of both parties and one-third of notes and seasons book of jacks for the year 1923.’
“ ‘And further agree to take $50 a year for M. C. Hesket’s dower on the following tract of land described as follows: Section 22, township 20, range 6, acres 40; southeast northwest; north five-eighths northeast southwest, section 22, township 20, range 6 east; southwest 25 acres; north five-eighths northwest southeast, section 22, township 20, range 6, 25 acres.
“ ‘M. C. Hesket is to receive $50 a year on this 90 acres described in this writing, commencing in the year 1924, and so on the succeeding years during her lifetime and further agree to hold no dower in the following tract of land described as follows: Northeast northeast, section 28, township 20, range 6, acres 40. Charles Hesket claims the right to have this recorded by notary public and also M. C. Hesket the same right.’ ”

Thereafter on December 23, 1924, appellant mortgaged the 90 acres above-described, describing it more accurately and correctly in the mortgage, to the Bank of Rector to secure an indebtedness to it. Hesket died without satisfying his indebtedness to the bank, and it brought a suit against his heirs to foreclose said mortgage. In April, 1932, appellant intervened in said foreclosure suit admitting the execution of the note and mortgage as alleged in the foreclosure suit and setting up the divorce proceedings and the contract incorporated in the above decree, and praying that the land be sold subject to her rights of $50 per year during her life. The trial court denied the relief prayed, dismissed her intervention for want of equity, and she has appealed.

The trial court correctly so held. Conceding without deciding that the description of the ninety acres of land set out in the contract between her and her husband was sufficiently definite, we are of the opinion that the divorce decree was insufficient to establish any lien on the land for the $50 a year he had agreed to pay her for her dower interest therein. The divorce cut off the right of dower, and she has to depend upon her contract. While this contract was signed by the parties, it was not acknowledged or placed of record, nor was it subject to record. The divorce decree incorporating it therein failed to render any judgment against Charles Hesket for said sum or to declare a lien upon the land therefor. Under this situation, there was nothing in the record of the chain of title to bring home notice to appellee that appellant had or claimed any interest therein. Appellee was therefore an innocent purchaser, and its title was superior to any claim or equity of appellant therein.

Affirmed.


text:
    Harris v. Mutual Benefit Health & Accident Association.
    4-3145
    Opinion delivered October 16, 1933.

      H. B. Means, for appellant.

      Malcolm W. Gannaway, for appellee.
   McHaney, J.

March. 24, 1932, appellant’s husband, Gust Harris, applied to appellee for a policy of sick and accident insurance in the sum of $2,000 and paid the quarterly premium in advance to July 1, 1932, by giving Ms note to the soliciting agent for $22 which the agent discounted at a bank. He gave said Harris a receipt for said note which, among others, contained this clause: “Should the company decline to issue the insurance policy, I hereby agree to return the above sum to said applicant. ” The application for insurance contained this question: “Do you agree that this application shall not be binding upon the association (appellee) until accepted by the association, nor until policy is accepted by the insured while in good health and free from injury?” The answer was: “Yes.” Thereafter, on April 2, and before any policy was issued by appellee, and, of course, before delivery to Harris, he was accidentally killed. Appellant, his widow and beneficiary, brought this action to recover $2,000 on the theory that appellee’s agent told Harris he was insured from the date of the application. One witness testified he was in Harris ’ place of business shortly before. April 1, and that the insurance agent told Harris when he signed the note he was insured for so much — his insurance was in effect from that time. On this state of facts, the court instructed the jury to return a verdict for appellee, holding that there was no contract of insurance in force in appellee association at the time of Harris’ death.

We agree with the trial court. No attempt was made to show that the soliciting agent had any power or authority to bind his company on an oral contract of insurance. Indeed the contrary appears from the application, and the receipt issued by the agent. In the application Harris agreed that the application should not bind appellee until accepted by it, and until policy is accepted by him in good health and free from injury. The receipt for the premium again notified him that no policy might be issued, in which case premium was to be returned. This was done. Under similar provisions, we have many times held there was no contract, and that the agent was without power to effect a contract of oral insurance. Jenkins v. International Life Ins. Co., 149 Ark. 257, 232 S. W. 3; Pyramid Life Ins. Co. v. Belmont, 177 Ark. 564, 7 S. W. (2d) 32; Interstate Business Men’s Acc. Ass’n v. Nichols, 143 Ark. 369, 220 S. W. 477; American Ins. Co. v. School Dist. 23, 182 Ark. 158, 30 S. W. (2d) 217.

Affirmed.


author: Butler, J.

text:
    Business Men's Assurance Company v. Selvidge.
    4-3132
    Opinion delivered October 16, 1933.

      Solon T. Gilmore and J. Loyd Shouse, for appellant.

      V. D. Willis and Shinn & Henley, for appellee.
   Butler, J.

On the 23d day of July, 1932, the appellee made an application to appellant company for an accident and sickness insurance, policy.' S. T. Phifer was designated in said application as “company salesman,” and the issuance of the policy was recommended by Mm. The indorsements on the application show that the application was accepted by the appellant, and its policy of insurance issued on the 26th day of July, 1932.

The appellee brought suit on the policy to recover for the loss of one eye, the injury to wMch he alleged was sustained on the 12th day of August, 1932. The appellant, in its answer, denied that plaintiff suffered the injury on the date alleged and averred that, if such injury was sustained, it occurred prior to the issuance of the policy; and for further defense it averred that plaintiff failed to comply with the terms of the policy as to the giving of notice.

The trial resulted in a verdict and judgment for the plaintiff in the sum of $750 for the loss of his eye, whereupon the court rendered judgment in his favor against the appellant for that amount, together with the sum of $150, attorney’s fee,' and a 12 per cent, penalty. The appellant company has appealed, and for grounds of reversal contends that the evidence was not sufficient to support the verdict in that it failed to establish the fact that the injury occurred on the date alleged, but insists that it shows the injury to have happened on a date prior to the issuance of the policy; and that the evidence establishes that notice of the happening of the accident was not given within the time provided in the policy, and no evidence was offered tending to show that it was not reasonably possible for the insured to give the notice within the time stated in the policy, or that the notice was given thereafter as soon as was reasonably possible.

On the first contention, it may be said that the evidence introduced by the appellant strongly tends to sustain his theory, but the appellee in round terms testified that the injury which caused the loss of his eye occurred on the date alleged. The jury was the sole judge of the credibility of the witness, and it has resolved the disputed question of fact in favor of the appellee. It was the duty of the trial judg’e, if in his opinion the verdict was not sustained by a preponderance of the evidence, to have set the verdict aside on motion and to have granted a new trial. By his failure to do this he has added the weight of his judgment regarding the sufficiency of the- evidence to that of the jury. Notwithstanding what we may think, on the question of where the preponderance lies, we are not permitted to exercise our judgment in that particular, but must be bound by that of the jury and the trial court.

The pertinent parts of the contract of insurance relating to the next defense interposed in the trial court and pressed on our attention, are as follows:

“4. Written notice of injury or of sickness on which claim may be based must be given to the company within twenty days after the date of the accident causing such injury, or within ten days after the commencement of disability from, such sickness.
‘ ‘ 5. Such notice given by or in behalf of the insured or beneficiary, as the case may be, to the company at Kansas City,. Missouri, or to any authorized agent of the company, with particulars sufficient to identify the insured, shall be deemed to be notice to the company. Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible.
“7. Affirmative proof of loss must be furnished to the company at its said office in case of claim for loss of time from disability within ninety days after the termination of the period for which the company is liable and in case of claim for any loss, within ninety days after the date of such loss.
“8. The company shall have the right and opportunity to examine the person of the insured when and so often as it may reasonably require during the pend-ency of claim hereunder, and also the right and opportunity to make an autopsy in case of death where it is not forbidden by law.
“5. * * * Strict compliance on the part of the insured and the beneficiary with all the provisions of this policy is a condition precedent to recovery hereunder.”

It is admitted by the appellee that the written notice of his injury provided for in the policy was not given within the twenty days and not until the 12th day of November, 1932, following the occurrence. He contends, however, that circumstances existed which rendered it reasonably impossible for him to give the notice within the twenty-day period, and that he gave the same as soon thereafter as was reasonably possible; that there was evidence which warranted this contention, and that the same was properly submitted to the jury for its determination. To excuse his failure to give notice within the twenty-day period, appellee testified that on the 19th day of August, 1932, about seven days after his alleged injury, his wife became suddenly insane; that he was caring for her at their home until the 29th day of August, following, when he carried her to the insane asylum and immediately returned home, that during the first part of September, he was at home looking after its affairs and caring for his two children, and the latter part of the month he was at work in his shop doing first one thing and then another; that within fifteen days after the date of his injury, he told the agent who had written his application of it, and the agent promised to write the company.

The evidence fails to show what appellee was doing during the month of October or what were the cireumstánces surrounding him during that month, nor’is it shown what were Ms circumstances in November prior to the 12th day on which day, he, for the first time, gave written notice to the appellant company of the injury to, and the loss of Ms eye.

It is well settled that stipulations as. to the giving of notice in policies of this character are reasonable and valid, and that where a written notice is required an oral notice is not sufficient. Also that these provisions are for the purpose of giving opportunity for an early investigation of claimant’s injury.

If we construe the stipulation in the policy relative to the giving of notice most liberally in favor of the insured, if any effect is given to it at all, it must bar a recovery, since we are unable to discover any testimony tending to show that the failure to give the notice within the twenty-day period or within a reasonable time thereafter, resulted from anything except the negligence of the insured; and certainly there is nothing to indicate that there was any circumstance which would have prevented him from giving the notice in September. It is clear that appellee’s failure to give the notice was due solely to his own neglect, and not from any circumstance which would reasonably have prevented him from doing so; and it prevented the insurer from making investigation until the wound was thoroughly healed, when, if the notice had been properly given, it might have' determined from an inspection of the wound itself whether it had been received at as late a date as claimed. Appellee testified that he had told the agent about his injury fifteen days after it occurred; the agent testified it was about a month arid a half; but, whenever the agent was told, it is not shown that he ever communicated his information to the appellant company. The inference is clear from the testimony that Phifer, the agent, was clothed with no general authority, but was a mere soliciting agent, and therefore verbal notice to him was not sufficient. Ark. Mut. Fire Ins. Co.v. Clark, 84 Ark. 224-7, 105 S. W. 257.

Courts are reluctant to deprive the insured of the benefit of an honest claim by any narrow or technical construction which prescribes the requisites by which an accrued right is to be made available. But in this case there is a total lack of evidence tending to show that the insured has placed himself within the terms of the policy as most liberally construed in his favor, and for that reason the judgment of the trial court must be reversed, and the cause dismissed. It is so ordered.

Humphreys, J., dissents.


text:
    Bollinger v. Watson.
    4-3285
    Opinion delivered October 16, 1933.

      Evans & Evans, for appellant.

      Earl R. Wiseman, Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Butler, J.

The General Assembly of 1921 passed act No. 606, the first section of which provides: “That all persons, firms or corporations who shall sell gasoline, kerosene, or other' products to be used by the purchaser thereof in the propelling of motor vehicles, using combustible type engines over the highways of the State, shall collect from such purchaser in addition to the usual charge therefor, the sum of one cent per gallon for each gallon so sold.” This section has been retained in all subsequent legislation except as to the amount to be levied on motor fuel, and at the regular session of the Legislature of 1923, act No. 501 was passed, retaining the above section except as to difference in the amount per gallon levied with the following additional' paragraph: “Provided, however, that whenever there are adjoining cities or incorporated towns, which are separated by a State line, the tax on lubricating oils and gasoline, sold by any dealer in such adjoining city, on the Arkansas side of the State line to the owner or owners of a motor vehicle or vehicles for immediate use therein, shall be at the rate as provided by law in such adjoining State, not to exceed the rate herein provided for in this act.”

In that act it was also provided that if the above proviso should be held to be unconstitutional, it was the intention of the Legislature that the act be upheld with the proviso eliminated. These provisions passed through the Legislatures of 1927 and 1929, and finally appear in act No. 63 of the Acts of 1931 as paragraphs “C” and “D” of § 1 thereof, which, together with paragraphs “E” and “F” are challenged by the present appeal as violative of Amendment No. 14, Arkansas Constitution, of the.Fifth Amendment to the Constitution of the United States and of § 8, article 2 of the Constitution of Arkansas, and also, as prohibited by the Fourteenth Amendment to the Federal Constitution and § 18, art. 2 of our Constitution.

The paragraphs challenged read as follows:

“(c) There is hereby levied'a privilege tax of six cents on each gallon of' motor vehicle fuel sold in the State or purchased for sale in the State for the purpose of propelling any motor vehicle on the public roads or highways in the State.
“(d) Where there are adjoining cities or incorporated towns which are separated by a State" line, the tax on motor vehicle fuel sold by any dealer in such adjoining city on the Arkansas side of the State line to the owner or owners of a motor vehicle or vehicles for immediate use therein shall be at the rate as is provided by law in such adjoining State, such rate not to exceed the rate in this act provided. Provided, however, where the State line is the center of the main channel of the Mississippi River this provision does not apply.” ■

The Fifth Amendment to the United States Constitution and § 8, article 2 of the Arkansas Constitution are practically identical, both providing that no one shall be deprived of life, liberty or property without due process of law. Section 18, art. 2 of onr Constitution, provides that “the General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.” The Fourteenth Amendment to the Federal Constitution may be said to be the antithesis of this, providing that “no 'State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The section quoted from the act of 1921 was attacked as in violation of the above constitutional provisions. In the case of Standard Oil Company of La. v. Brodie, 153 Ark. 114, 239 S. W. 753, it was held that the act did not violate any of the constitutional provisions, supra. In the case at bar, in addition to the attack on the constitutional grounds stated, it is contended that the act is a local and special one, and therefore comes within the inhibition of Amendment No. 14 to the Constitution of Arkansas, which prohibits the Legislature from passing any local or special laws. It is argued that the rule pro-. mulgated by the Highway Commission under authority of act No. 63 and putting into effect paragraph (d), supra, excepts from the general provisions of the act as stated in paragraph (c), the towns of Texarkana, Fort Smith, Blue Eye, Mammoth Spring, and St. Francis; that, as the tax in the State of Oklahoma is four cents per gallon, the citizens in the city of Fort Smith are required to pay,only four cents per gallon on motor fuel; as the rate in Missouri is two cents per gallon, the citizens of Blue Eye, Mammoth Spring and St. Francis are required to pay only two cents; and as the rate in Texas is three cents per gallon, the citizens of Texarkana are required to pay only three cents; that the effect of the provision of paragraph (d) renders the act loqal or special.

To support this contention the appellant cites and relies on the cases of Webb v. Adams, 180 Ark. 713, 23 S. W. (2d) 217; Simpson v. Matthews, 184 Ark. 213, 40 S. W. (2d) 991; Street Imp. Dist. v. Hadfield, 184 Ark. 598, 43 S. W. (2d) 62; Leonard v. Luxora-Little River Road Maintenance, ante p. 599. In the first mentioned case the act under consideration provided for optional county unit or a consolidated school system operating equally and uniformly throughout the State, but with a proviso that “the provisions of this act shall in no way apply to, or affect, Grosnell Special 'School District in Mississippi County, Arkansas; provided, also, that the provisions of this bill shall not apply to Faulkner and Sharp counties.”

The act in question in the case of Simpson v. Matthews, supra, provided for the formation of improvement districts for the purpose of constructing dams and reservoirs and for the condemnation of lands within the areas affected, and further, that the act should apply only to counties which now or hereafter may have a population of 75,000 inhabitants according to the last federal census.

In Street Imp. Dist. v. Hadfield, supra, the act under consideration provided that the collector and county treasurer of each county which then had, or which should thereafter contain, 125,000 or more inhabitants, should pay to the city treasurer of each city fifty per cent, of all road taxes and delinquent road taxes collected by them, respectively, on property within the limits of such city; and that improvement districts not wholly within the city limits and those whose bonds were issued prior to February 4, 1927, should not come within the provisions of the act.

In Leonard v. Luxora-Little River Road Maintenance, supra, the act attacked on constitutional grounds provided for the division of certain revenues among all the counties of the State on a certain stated basis, but contained a proviso that the general provisions Of the act should not apply in counties having more than one judicial district and a population of not less than $65,000, and that in those-counties the funds should be divided between the judicial districts on another and different basis.

In holding all of these acts local and special and within the prohibition of the 14th Amendment, a principle applicable to all and before announced in the case of LeMaire v. Henderson, 174 Ark. 936, 298 S. W. 327, is recognized and stated. This principle recognizes the power of the Legislature to enact a valid law which will not be deemed to be a local or special one because it does not operate alike throughout the State, when it does apply to the whole State in its material and important features ; that is to say, that a reasonable classification may be made with respect to the localities or classes of citizens upon which the law may operate, and that it is not the form, but the operation and effect, which determines its constitutionality.

In discussing the effect of the constitutional prohibition against the passage of local or special acts in the case of Simpson v. Matthews, supra, the court said: “We do not think that it was intended to do away with the classification of counties, cities and towns according to population or the topography of the country where such classification rests upon substantial differences in situation and needs. The amendment was intended to prevent arbitrary classification based on no reasonable relation between the subject-matter of the limitation and classification made. In determining whether a law was general or local, the Legislature might still make the classification where it was appropriate and germane to the subject, and was based upon substantial differences which make one situation different from another. The classification of counties and municipalities is legitimate when population or other basis of classification bears a reasonable' relation to the subject of the legislation, and the judgment of the Legislature in the matter should control unless the classification is arbitrary or is manifestly made for the purpose of evading the Constitution.” Applying this principle, the court, in the case of Webb v. Adams, supra, held that the statute made no attempt at classification, and that the exemption of two counties from its application did not constitute any reasonable basis for classification for school purposes.

In Simpson v. Matthews, supra, the court held that the construction of dams and reservoirs was a subject not germane to a classification by population and took judicial knowledge that only one county in the State could come within the provisions of the act, or that any other county would likely do so within any reasonable future time, and that the classification construed with reference to the purposes of the act was a mere subterfuge to escape the provisions of the amendment and to thereby exclude all counties except one from its operation.

In Street Imp. Dist. v. Hadfield, supra, it was found that the subject-matter of the act did not relate to counties at all, and the effect of limiting its benefits to cities of the first class in counties having a population of 125,-000 or more was to localize the legislation, for the classification was not founded on a real or apparent difference in the situation or condition of other cities of a like class, and judicial knowledge was taken that under the provisions of the act it could relate to only one county and could not relate to any other within any reasonable time in the future.

The act involved in the case of Leonard v. Luxora-Little River Road Maintenance, supra, was found by the court to be a subterfuge to evade the provisions of the amendment; that it could apply to but one county in the State, and that in the nature of things it could likely never apply to any other; that the classification by which this county received a distribution from the highway fund on a different basis from that of others was an arbitrary and unreasonable classification.

Having in mind the principles stated in the cases reviewed and recognizing the cardinal canon of construction that a statute will be upheld unless clearly within constitutional inhibition and where that question is doubtful the doubt must be resolved in favor of the constitutionality of the act, we have no difficulty in upholding the act in question when the end sought to be attained by the Legislature is considered. The purpose of the legislation, as stated in the Brodie case, was to impose a tax for the use of the highway to be measured by the extent of the amount of motor fuel consumed in motor-driven vehicles, and the object was to obtain revenue for the building and maintenance of the highway system. All persons who used the roads are benefited by the results made possible from the revenues collected by the gasoline tax, and the more revenue obtained, the greater the benefit. The legislation had in mind that the rate of taxation on motor fuel was much lower in some of the bordering states than in this, made possible because of their greater wealth and population. It took into consideration the well-known human trait of getting as much for as little as possible, and therefore recognized that the inhabitants of the border towns and cities would drive'across the State line and purchase fuel in the adjoining State, thereby depriving this State of all revenue from the operation of cars. To meet that situation by virtue of paragraph “D,” those border towns were placed in a separate classification, and, while under the operation of the general act, it did not operate upon them in the same degree as upon citizens residing elsewhere. This classification was not arbitrary, but made necessary by the situation and bore a reasonable relation to the purpose and object sought to be accomplished by the act.

We are of the opinion that there is no ground for the contention that the act violates the due process clause of the Federal and State Constitutions, or that it comes within the inhibition of the 14th Amendment to the Federal Constitution or § 18, art. 2, of the State Constitution, above set out. It is not to be doubted that the right to acquire and possess property is one of the privileges and immunities of a citizen which the State may not infringe or abridge, or so legislate as to make the same unequal. These, however, are subject to such restraints and classifications as government may justly prescribe for the general good of the whole. It is not to be presumed that the State has any favors to bestow, or that it designs to inflict any arbitrary deprivation of any right. Discriminations between certain persons or classes is obnoxious to the genius of our government, and it is always to be presumed that no discrimination or abridgment of any fundamental right is contemplated or designed by a Legislature, and a law should not be held unconstitutional because of discrimination or because of some arbitrary deprivation of a right unless there is no rational doubt that it improperly discriminates or arbitrarily destroys some right.

As is said in Magoun v. Ill. Trust & Savings Bank, 170 U. S. 283, 18 S. Ct. 394: “This court has repeatedly laid down the doctrine that diversity of taxation, both with respect to the amount imposed and the various species of property selected either for bearing its burdens or from being exempt from them, is not inconsistent with a perfect uniformity and equality of taxation in the proper sense.of those terms; and that a system which imposes the same tax upon every species of property, irrespective of its nature or condition or class, will be destructive of the principles of uniformity and equality in taxation and of a just adaptation of property to its burdens. * * * There is therefore, no precise application of the rule of reasonableness of classification, and the rule of equality permits many practical inequalities. And necessarily so. In a classification for governmental purposes there cannot be' an exact exclusion or inclusion of persons and things.” As has been aptly said: “Government is not a simple thing. It encounters and must deal with the problems which come from persons in an infinite variety of relations. Classification is the recognition of those relations, and in making it a Legislature must be allowed a wide’ latitude of discretion and judgment. This has been decided many times against contentions based on a variety of facts.” In the application of these principles many laws have been approved as not in violation of the constitutional provisions under discussion. Notably among them, is that approved in the case of Cumming v. Board of Education, 175 U. S. 528, 20 S. Ct. 197, upholding a law of the State of Georgia which provided for -the support of certain schools for white children out of the tax raised for public school purposes, and which ignored the negro schools when it had before maintained out of such funds a school of like class for negro children. This act was passed for economic reasons, and, in affirming the holding of the State court, the Supreme Court of the United States held that under the circumstances disclosed it could not he said that there was a discrimination between citizens because of their class on account of race.

There are many cases illustrating the wide latitude to be given Legislatures in enacting legislation and upholding their acts where there is some discrimination on the ground that it frequently is impossible to impose the same burden upon every species of property without regard to its nature, condition or class. Among these cases are Clark v. Kansas City, 176 U. S. 114, 20 S. Ct. 284; Gundling v. Chicago, 177 U. S. 183, 20 S. Ct. 633; Petit v. Minn., 177 U. S. 164, 20 S. Ct. 666; Williams v. Fears, 179 U. S. 270, 21 S. Ct. 128; American S. R. Co. v. La., 179 U. S. 89, 21 S. Ct. 43.

It is no discrimination where the burdens of legislation rest unequally, where-the subjects are of different classes, provided the classification rests on substantial difference, and, where the statute is founded upon a reasonable basis, it is sufficient if it operates uniformly upon the class to which it applies. Willis v. Ft. Smith, 121 Ark. 606, 182 S. W. 275.

The legislation here involved affects equally all of those residing in the border towns according to the tax prescribed by the State upon which they border. These constitute one class, and the act operates uniformly in all other sections of the State, and this constitutes another and different class.

It is argued that the act deprives the appellants of substantial property rights; that they had established their places of business without the limits of the border towns and within adjacent territory, and the practical working, of the law prevented them from selling motor fuel as they must sell it with a six-cent. per gallon tax while the motorists, by driving a few miles more, could purchase it at a lower rate. The answer to this is that they could do this without the provisions of paragraph “D” for they would only have to drive across the State line into the adjoining State, and therefore there would be no practical difference in their condition with or without the law.

It is our opinion that the decree of the court below upholding the validity of the act is correct, and it is therefore affirmed.


author: Johnson, C. J.

text:
    Ozark Hardware Company v. Covington.
    4-3151
    Opinion delivered October 23, 1933.

      W. L. Franklin, for appellant.
   Johnson, C. J.

Seeking judgment on an account for $36.05, appellant instituted this suit in a justice of the peace court of Madison County against appellee, wherein it recovered judgement for said sum. Appellee prosecuted an appeal to the circuit court wherein she was successful in defeating a recovery. Appellant prosecutes this appeal to reverse this adverse judgment.

Rule IX of the Supreme Court provides, in part:

“In all civil cases, the appellant shall file with the clerk of this court, when his case is subject to call for submission, an abstract or abridgment of the transcript setting forth the material parts of the pleadings, proceedings, facts and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of all questions presented to this court for decision. The abstract shall contain full references to the pages of the transcript.”

Rule XII is to the following effect:

“When no abstract and brief have been filed by the appellant, in accordance with Rules IX and X, when the ease is called for trial, the appellee may have the writ of error or appeal dismissed, or the judgment affirmed as of course.”

Appellant has made no effort to file an abstract of the pleadings and testimony introduced upon the trial of this case in the circuit court. The rules of the Supreme Court are promulgated for the purpose of expediting the business before the court. At least some effort should be made by counsel to comply with the rules of the court. In the instant ease Rule IX was completely ignored by counsel for appellant, for which reason, under Rule XII, this case must be affirmed.

The judgment of the trial court is in all things affirmed.


author: Johnson, C. J.,

text:
    Watson v. Dodge.
    4-3175.
    Opinion delivered October 23, 1933

      Hal L. Norwood, Attorney General, Roy D. Campbell and Walter L. Pope, for petitioner.

      Lee Miles, for respondent.
   Johnson, C. J.,

(after stating the facts). On the threshold of this controversy we are met with the contention that the suit pending in the Pulaski County Chancery Court is one, in effect, against the State, and cannot be maintained.

On behalf of respondent, it is insisted, first, that the suit is not one against the State, and, secondly, that, if so, it may be maintained, the State having expressly consented thereto by legislative enactment.

Adverting to the first contention, is this a suit against the State? In Pitcock v. State, 91 Ark. 527, 121 S. W. 742, this court held that a suit against the penitentiary board to restrain a breach of contract was, in effect, a suit against the State and could not be maintained.

Again, in the case of Jobe v. Urquhart, 98 Ark. 525, 136 S. W. 663, this court held that a suit against the penitentiary board to reform a contract made in behalf of the State was, in effect, a suit against the State and could not be maintained.

Again, in the case of Allen Engineering Company v. Kays, 106 Ark. 174, 152 S. W. 992, this court held that a replevin suit against the board of trustees of a State school could not be maintained, because., in effect, it was a suit against the State.

From the authority cited, it is perfectly evident that any suit, whether in law or equity, which has the purpose and effect, directly or indirectly, of coercing the State is one against the State. Our holding in this regard is in full accord with the views of the Supreme Court of the United States. In Haygood v. Southern, 117 U. S. 52, 6 S. Ct. 608, that court held:

‘ ‘ Though not nominally a party to the record, it (the State) is the real and only party in interest, the nominal defendants being the officers and agents of the State, having no personal interest in the subject-matter of the suit, and defending only as representing the State. And the things required by the decrees to be done and performed by them are the very things which, when done and performed, constitute a performance of the alleged contract by the State. The State is not only the real party to the controversy, but the real party against which relief is sought by the suit.”

The rule announced in the Haygood case, just cited, was approved by the Supreme Court of the United States in the later case of Murray v. Wilson Distilling Company, 213 U. S. 151, 29 S. Ct. 458.

Based upon reason and authority, we have no hesitancy in holding that the suit pending in the Pulaski Chancery Court against Fred Watson, Revenue Commissioner, is one, in effect, against the State as certainly and effectively as if the State were named and designated as the defendant.

This brings us to the question, can the State be sued in her own courts? Section 20 of art. 5 of the Constitution of 1874 provides: “The State of Arkansas shall never be made defendant in any of her courts.”

This provision of the Constitution was before this court in the Pitcock, Jobe and Allen Engineering cases, cited supra, and in each of these cases it was specifically held that the State could not be sued in her courts.

In addition to the authorities just cited, this court held in Caldwell v. Donaghey, 108 Ark. 60, 156 S. W. 839, that the State could not be sued in her courts for specific performance of a contract made in her behalf.

In the more recent case of Linwood & Auburn Levee District v. State, 121 Ark. 489, 181 S. W. 892, this court held that the State could not be made a party defendant in her courts in a condemnation proceeding to condemn lands belonging to the State.

Without going into further details, it may be said that up to the case of Grable v. Blackwood, 180 Ark. 311, 22 S. W. (2d) 41, there had been a uniform holding of this court that the State could not be made a party defendant in her courts, and therefore could not be sued in the State courts. It would be presumptuous for us to elucidate upon the wisdom of this rule. It suffices to say that the Eleventh Amendment to the Constitution of the United States was promulgated in furtherance of this wholesome protection. The effect is that the State courts will not entertain jurisdiction of such suits because of State constitutional prohibition, and the federal courts will not entertain such jurisdiction, because of the prohibition found in the Eleventh Amendment, thereby protecting the sovereignty of the State from assaults of all individuals and corporations.

The motives impelling the adoption of the Eleventh Amendment to the Federal Constitution were aptly stated by Chief Justice Marshall in Cohen v. Virginia, 6 Wheat. 264, as follows:

“It is a part of our history that, at the adoption of the Constitution, all the States were greatly indebted; and the apprehension that these debts might be prosecuted in the federal courts formed a very serious objection to that instrument. Suits were instituted, and the court maintained its jurisdiction. The alarm was general, and, to quiet the apprehensions that were so extensively entertained, this amendment was proposed in Congress, and adopted by the State legislatures.

The same court, in Hans v. Louisiana, 134 U. S. 1, 10 S. Ct. 504, said: “It is not necessary that we should enter upon an examination of the. reason or expediency of the rule which exempts a'sovereign State from prosecution in a court of justice at the suit of individuals. This is fully discussed by writers on public law. It is enough for us to declare its existence. The legislative department of a State represents its policy and its will; and is called upon by the highest demands of natural and political law to preserve justice and judgment, and to hold inviolate the public obligations. Any departure from this rule, except for reasons most cogent (of which the. Legislature, and not the courts, is the judge), never fails in the end to incur the odium of the world, and to bring lasting injury upon the State itself. ’ ’

The same motives which impelled the adoption of amendment No. 11 to the Federal Constitution actuated the prohibition contained in § 20 of art. 5 of the Constitution of 1874. It will be observed that, under the Constitution of 1868, no such prohibition is found. Section 45 of art. 5 of the Constitution of 1868 reads as follows:

“The General Assembly shall direct by law in what manner and in what courts suits may be brought by and against the State.”

It is evident that the Legislature, under the Constitution of 1868, had full power and authority to grant permission to individuals and corporations to institute and prosecute suits in the State courts against the State.

In comparing the language used in the respective drafts of the Constitutions, as aforesaid, it is perfectly evident that it was the purpose of the framers of the Constitution of 1874 to withdraw all power and authority theretofore existing in the Legislature to grant permission for the State to be sued by individuals or corporations in her courts.

It is next contended on behalf of respondents that the State, through its legislative branch, has given to individuals and corporations permission and authority to institute and maintain suits against herself in her courts. Our attention has been directed to the recent cases of Grable v. Blackwood, 180 Ark. 311, 22 S. W. (2d) 41; Arkansas State Highway Commission v. Dodge, 181 Ark. 539, 26 S. W. (2d) 879; Arkansas State Highway Commission v. Dodge, 186 Ark. 640, 55 S. W. (2d) 71; and Campbell v. State Highway Commission, 183 Ark. 780, 38 S. W. (2d) 753.

The exemption of the State from suits at the instance of individuals and corporations, as declared in Linwood Levee District v. State, and other cases, supra, has not been departed from in any subsequent case.

The first case cited by respondents as sustaining the contrary view is that of Grable v. Blackwood, supra. But such is not its effect. That case deals with the validity of a donation to road improvement districts by the State, and the validity of the appropriation act making the donation effective. We there said that the plaintiffs “in the case at bar did not have any kind of a claim against the State.”

The first case that deals specifically with the nature of the suits which had been authorized against the State Highway Commission, in connection with the State’s road-building program, was that of Arkansas Highway Commission v. Dodge, 181 Ark. 539, 26 S. W. (2d) 879. Conflicting views were, entertained by the members of the court, but it plainly appears that only two judges were of the opinion that the State had given, or could give, its consent to being sued in connection with its highway program. It was the view of the other five members of the court that such consent had not been and could not be given. It was expressly stated that: “In the proceedings there provided for a judgment might be rendered fixing a liability against the highway commission, but a judgment so rendered would not be. a judgment against the State as such, and could not be enforced by the seizure or sale of the property of the State, as a judgment could be enforced against a private litigant. Satisfaction can be had only out of the fund specifically appropriated for the purpose in regard to which the Highway Commission was authorized to contract. ’ ’ .

There was also quoted from the Supreme Court of the United States in the case of Hopkins v. Clemson College, 221 U. S. 636, 31 S. Ct. 654, the following statement of the law: “No suit therefore can be maintained against a public officer which seeks to compel him to exercise the State’s power of taxation; or to pay out its money in his possession on the State’s obligations; or to execute a contract, or to do any affirmative act which affects the State’s political or property rights.”

The effect of this Dodge case was and is that, the State having made appropriations of money to promote its road-building program, and having created an agency' to supervise the expenditure of any money thus appropriated, provision was made for the juridical decision of contentions arising out of contracts made by the Highway Commission in the expenditure of the appropriations.

This opinion in this Dodge case was arrived at through the anomalous situation that a majority of the court did not reach, the decision rendered through the same views. The decision was a composite one, which is always unfortunate, but, in some instances, unavoidable, where conflicting views of the deciding judges cannot be reconciled. But the majority made it clear that the State itself could not be sued, and that such consent had not been given, and could not be given, by the General Assembly.

This conflict in the opinion of the members of the court was explained in the case of Arkansas State Highway Commission v. Dodge, 186 Ark. 640, 55 S. W. (2d) 71, and need not be further discussed. We there said: “It will be seen that, out of the conflicting views of a majority of the several members of the court, a very definite result has been reached, i. e., that in a proper case the highway commission may be sued when authority for the bringing of the suit may be found in the statute. Since this is the effect of the holding in both the Dodge and Baer cases, supra, we think it more important that this question be definitely settled than a too firm insistence be held to our individual views, and we now hold that, in all cases where the statute authorizes a suit, it may be maintained against the Highway Commission, whether it be thought to be a juristic person or whether § 20, art. 5, be merely declaratory of the general doctrine that the State may not be sued in her courts unless she had consented thereto.”

The cases of Bull v. Ziegler, 186 Ark. 477, 54 S. W. (2d) 283; Baer v. State Highway Commission, 185 Ark. 590, 48 S. W. (2d) 842; and Arkansas State Highway Commission v. Keaton, ante p. 306, are to the same effect.

The case of Campbell v. Arkansas State Highway Commission, 183 Ark. 780, 38 S. W. (2d) 753, is cited as conferring authority to sue the State. But such is not its effect. The facts in that case were that the Highway Commission, in constructing a bridge across the White River in Jackson County, had damaged Campbell’s property adjacent thereto. The Highway Commission brought no suit to condemn the property, but was sued by Campbell, the property owner, for the damage caused by building the bridge. We construed this damage as a taking of the property to the extent of the damage, and we held that, while the Statevcould take or damage property in the construction of its road system, pursuant to the right of eminent domain, this, right could be exercised only upon compensation made to the property owner.

We treated the bridge as a part of the State’s highway system and the damage to the plaintiff’s property resulting from its construction as a part of the construction cost, which might be paid out of money borrowed and appropriated by the State for that purpose. The rule announced in the first Dodge case (181 Ark. 539, 26 S. W. (2d) 879), under which contractors were allowed to sue the Commission to enforce their express contracts, was held applicable to the implied contract to pay damages resulting from building the bridge and thereby damaging the plaintiff’s private property. In other words, 'the damage to the plaintiff’s property in the Campbell case, supra, was a construction cost, for which the owner had the right to sue the Highway Commission. It was there pointed out that § 22 of the bill of rights provides that private property shall not be taken, appropriated or damaged for public use without just compensation therefor, and it was held, in effect, as we have just said, that damaging the property was a taking of it for a public use to the extent of the damage.

The same section of the bill of rights protected the owners of the bridge here in litigation. The State was without power to condemn and take possession of the bridge without compensating the owners therefor, and the judgment of condemnation could not have been enforced until the compensation to which it adjudged the owner to be entitled had been paid. In the condemnation proceedings the owners made no demand for cash paid down, but expressly consented and agreed to accept the solemn pledge of the State to assume and pay the outstanding bonds as they matured. It is not to be doubted that the sovereign State will ultimately discharge the obligation. Conditions not at all peculiar to this State, and of which all persons have knowledge, render the discharge of the obligation impossible in the time and manner contemplated when the property was condemned. But, even so, the State acquired, and now has, title to the'property, and the former owners have the obligation of the State to pay, and we must therefore hold, notwithstanding the equities of the case, that these former owners have no right to have a receiver appointed to take possession of property owned by the State.

Respondents expressly and irrevocably consented to the vesting of the title to the bridge and approaches thereto in the 'State of Arkansas. And, in lieu of cash, through their representatives, the trustee in the mortgage, irrevocably accepted the solemn pledge of the State to pay the bonds held by respondents as they matured.

For the reasons aforesaid, a peremptory writ of prohibition is granted against the Pulaski County Chancery Court prohibiting further proceedings in the case of Bennie S. Mayo et al. v. Fred Watson, Revenue Commissioner et al.


author: Smith, J.

text:
    Reeves Furniture Company v. Woldert.
    4-3167.
    Opinion delivered October 23, 1933.

      Shaver & Shaver and King, Mahaffey, Wheeler & Bryson, for appellant.

      James D. Head, for appellee.
   Smith, J.

Appellee leased a three-story brick building in the city of Texarkana, Arkansas, to appellant for a period of three years beginning April 30, 1931, at a rental of $5,000 per year, payable in monthly installments of $416.66 each. Appellant, a corporation, dealt in furniture, and occupied and used the building in connection with, that business until April 9,1932, when a fire occurred which damaged the building to such an extent that extensive and expensive repairs were required to restore the building.

On April 16, 1932, appellee wrote appellant advising that steps were being taken for the immediate repair of the building, and revoking a temporary reduction in rents which had been previously allowed. No reply was received to this letter, and the repairs were made expeditiously and at a total cost of about $10,000. A substantial part of this cost appears to have been incurred in better adapting the building for use as a furniture store, and a representative of appellant appears to have made suggestions in this behalf which were complied with.

On May 19, 1932, the lessor wrote the following letter to the lessee:

“I am pleased to inform you that my building at Third and Olive (Vine) streets, Texarkana, Arkansas, held by you under lease until April 30,1934, will be ready for your use on May 26, 1932, repairs to the damage resulting from the fire of April 9,1932, unless some unforeseen delay develops, will be fully completed prior to that date.
“In view of the fact that you have a credit of $75 on my books, representing that portion of unearned rent paid in advance for the period immediately following the fire, you may reduce your remittance by this amount, for the month beginning on May 26, 1932, making your check for $341.66, instead of $'416.66.
“I am instructing Mr. Thad A. Bryant, Jr., who has been in charge of repairs, to deliver his key to you prior to May 26, 1932, to insure your exclusive access to the building. ’ ’

On May 23,1932, the lessee replied as follows:

“By reason of the recent fire which destroyed or partially destroyed the building, which is described in the lease contract between you and the Reeves Furniture Company, of date the 29th of April, 1930, such building was rendered wholly unfit for occupancy by the Reeves Furniture Company, the lessee in said lease contract above referred to.
“You. are therefore advised that under, paragraph No. 8 of the said lease, that the lease, on account of said fire and its consequential results, as above outlined, was terminated and ceased to be further binding on either-you or the Reeves Furniture Company.
“The said lease contract having been terminated by reason of such fire, the Reeves Furniture Company are no longer'bound by its terms, and it is not the intention of the Reeves Furniture Company to re-occupy the building after the same has been rebuilt by you.”

Paragraph No. 8 of the lease, to which reference was made, reads as follows:

“Eighth: That the lessee shall, in case of fire, give immediate notice to the lessor, who shall thereupon cause the damage to be repaired forthwith; but if the premises be by the lessor deemed so damaged as to be unfit for occupancy, or if the lessor shall decide not to rebuild, the lease herein granted shall cease, and the rent be paid up to the fire.”

The keys were tendered on the 24th or 25th of May, 1932, and, the tender being declined, suit was filed on August 22, 1932, for damages for breach of the contract. An answer was filed on September 21, 1932, denying that appellant was bound under the contract to occupy the building after the fire. This answer was amended on May 23, 1933, the day before the trial, setting up the defense of a surrender of the premises and an acceptance thereof by appellee.

Upon receipt of the lessee’s letter dated May 23, 1932, appellee advertised the property for rent, and found a tenant, who was placed in possession about a month before the trial from which this appeal comes. No communication passed between the parties subsequent to appellant’s letter of May 23d.

Testimony was heard as to the rental value of the property, and the court submitted no other question to the jury. All the instructions requested by appellant were refused, and the only instruction given reads as follows: “You are instructed that, under the evidence, plaintiff is entitled to recover the difference, if any you find from a preponderance of the evidence, between the rent reserved in the lease for the remainder of the term after June 1, 1982, and the reasonable rental value of said building on May 26,1932.”

There was a verdict in favor of appellee for $4,000, and from the judgment thereon is this appeal.

The instruction set out above directs a verdict for the lessor on the merit of the case, and was objected to on that account. We think, however, that it was properly given. It appears, from paragraph No. 8 of the lease contract, set out above, that the exclusive right to continue the lease in effect in case of fire rested with the lessor, and we perceive no reason why effect should not be given to this provision, as was done by the trial court.

Seasonable notice of the exercise of this right was given, and the repairs were made pursuant to the notice, and, when practically complete, an offer was made to deliver to appellant exclusive possession of the property. This offer was unequivocally declined, and the lessor then had the right, as stated in Grayson v. Mixon, 176 Ark. 1128, 5 S. W. (2d) 312, to “treat the lease agreement as at an end and sue for damages for breach of the contract, in which case he could bring his action immediately on the breach and recover the difference between the amount of rent reserved and the reasonable rental value for the remainder of the term, if the rental value be less than the amount reserved in the lease, * * #.”

The instruction given conforms to the law thus declared, and, as the undisputed testimony shows a complete repudiation of a contract which the lessee was under the legal duty to perform, it was properly given. The judgment must therefore be affirmed, and it is so ordered.


text:
    Federal Land Bank of St. Louis v. Vineyard.
    4-3155
    Opinion delivered October 23, 1933.

      W. H. Bengel and Moore, Daggett & Burke, for appellant.
   Smith, J.

Appellees borrowed $10,000 from the Federal Land Bank of St. Louis on May 16, 1918, and as security therefor gave a first mortgage on 280 acres of land in Phillips County. The sum borrowed was payable in installments according to the plan adopted by the Federal Land Banks.

Default having been made in the payments due May, 1930, and in November of the same year, suit was instituted on April 7, 1932, to foreclose the mortgage. No answer having been filed, a decree by default was rendered for $10,062.90, which provided that, if this debt were not paid on or before November 1, 1932, the mortgaged property should be sold by a commissioner named for that purpose. Failing payment, the land was advertised and sold on December 10, 1932, at which sale the mortgagee bank became the purchaser for the sum of $5,500. On December 12, 1932, the commissioner made report of the sale to the court, which was approved and confirmed. A commissioner’s deed was executed and acknowledged in open court and was filed for and placed of record.

Thereafter, on January 12,1933, appellees petitioned the court to set aside the decree of foreclosure and to cancel the commissioner’s deed, and as grounds therefor alleged the following facts: Petitioners had paid $7,475 on the loan, yet the decree is for a sum in excess of the original loan. There were no bidders present at the sale except the representative of the bank, whose bid of only $2,000 left a deficiency judgment for $8,475. The land is worth an amount greatly in excess of the balance due under the mortgage, and “your petitioner is informed that there is now pending in Congress a bill designed to aid such cases as this. Your petitioner would further respectfully call attention to the joint resolution passed by the Arkansas Legislature, urging chancellors to hold up foreclosures on farms for a period of two years, also other bills for the relief of farm lands.” This petition was unverified, and no testimony was taken in support of its allegations. It may be said, however, that the commissioner’s report and the court records show that the sum bid for the land was not $'2,000, as alleged, but was, in fact, $5,500.

The court entered an order vacating and setting aside the sale and canceling the commissioner’s deed on the same day the petition was filed asking that relief. This order required the petitioner to deposit $40, to cover the cost of readvertising the property, and the deposit of this money with the clerk of the court was made on February 18, 1933.

It was ordered that a receiver be appointed “for the purpose of renting the lands for the crop season of 1933, and said receiver is further directed, in the renting of said lands, to give preference to Gr. H. Vineyard and his tenants.” This appeal is from that order and decree.

The question here presented has been frequently and recently decided by this court, one of the most recent cases being that of Federal Land Bank of St. Louis v. Floyd, ante p. 616, 61 S. W. (2d) 449. We there said: “Therefore, it seems that this court is committed to the doctrine that a purchaser at a commissioner’s sale takes a vested interest by reason of the purchase, and confirmation follows as a matter of right, unless it be found that fraud entered into the transaction or else the price bid and offered was so grossly inadequate as to shock one’s sense of justice.”

There is no allegation, nor was there proof, of any fraud or unfairness in the sale, which the court approved and confirmed; nor was the price so grossly inadequate as to shock one’s sense of justice.

The order approving the sale should not therefore have been set aside, and the commissioner’s deed should not have been canceled. The decree so ordering is therefore reversed, and the cause will be reminded, with directions to enter a decree in accordance with this opinion.


author: Humphreys, J.

text:
    Wasson v. Hunter.
    4-3172
    Opinion delivered October 23, 1933.

      Miles, Armstrong & Young, for appellant.

      D. W. Bryan, for appellee.
   Humphreys, J.

This cause comes to us on appeal and cross-appeal from the southern district of the Franklin County Chancery Court and involves the confirmation of the sale of the balance of the assets of the Bank of Branch to Fred Armstrong for $400 and the allowance of $50 a month for 25%. months to Lee G-. 'Sims, special deputy bank commissioner, for liquidating the assets of the defunct bank.

Appellant contends that the trial court erred in refusing to allow the deputy bank commissioner $75 a month for liquidating the assets of the bank, and appellee contends that the trial court erred in approving and confirming the sale of the balance of the assets to Fred Armstrong for $400.

The deputy commissioner administered the affairs of the bank under contract with the 'Bank Commissioner for $75 a month.

The trial court was not bound by the contract for $75 per month agreed upon between the Bank Commissioner and deputy to liquidate the assets of the defunct bank, but, on the contrary, had authority to fix a fair compensation based upon the testimony adduced in the case. We so held in the cases of Taylor v. Moose, 185 Ark. 856, 49 S. W. (2d) 1043; Krumpen v. Taylor, 183 Ark. 1046, 40 S. W. (2d) 775; and Jeffries v. Wasson, ante p. 519. The record reflects that the deputy commissioner was acting as special deputy by appointment in liquidating the American Bank Trust Company of Paris at a monthly salary of $300 and the Bank of Ratliff at a monthly salary of $100 and an additional $2,500 he received from the latter institution as a bonus at the time he was appointed liquidating agent for the bank in question. In liquidating these three banks, which were located only a few miles apart, salaries were paid to assistants out of the assets of the defunct'banks, and that he was not prevented on account .of the liquidation from carrying on his regular employment by the People’s Loan & Investment Company of Ft. Smith, from which he received a salary of $450 per month. The Bank of Branch was a small institution. It owned only $24,000 in notes to be collected and less than $10,000 was collected out of them covering a period of 22% months. The chancery court was generous enough in allowing appellant Sims $50 a month for 25% months for liquidating the bank at Branch, and it was fair compensation for the work actually done by him.

The trial court was also 'correct in approving and confirming the sale of the balance of the assets to Fred Armstrong. All the notes sold, except two small ones, were barred by the statute of limitations, and none of them were collectible at law. One of the depositors testified that he would have bid $600 for the notes, and now (at the time of the trial) he would not give $500 for them. He did not say what he would give for them, making no offer whatever. He failed to attend and bid at the sale, which he had an opportunity to do. The real estate included in the assets and sold was of problematical value only, and no offer was made by appellees for it. The trial court found that, should he set the sale aside, the property would not .bring enough over the $400 bid to benefit the depositors in the least, and, after reading the testimony, we concur in this view. No fraud was shown in conducting the sale, and every one interested had an opportunity to be present and bid.

No error appearing, the decree is affirmed on the direct and cross-appeáls.


author: Kirby, J.,

text:
    Pacific Mutual Life Insurance Company v. Toler.
    4-3267
    Opinion delivered October 23, 1933.

      Owens & Ehrman and John M. Lofton, Jr., for appellant.

      Melbourne M. Martin, for appellee.
   Kirby, J.,

(after stating the facts). The writ of prohibition is the appropriate remedy where the inferior court has no jurisdiction over the person of the petitioner and can acquire none. Caldwell v. Dodge, 179 Ark. 235, 15 S. W. (2d) 391. It is a discretionary writ. Merchants’ & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. (2d) 421; Galloway v. LeCroy, 169 Ark. 838, 277 S. W. 35. It is never granted unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection against the wrong that will be done by such usurpation. Macon v. LeCroy, 174 Ark. 228, 295 S. W. 31; Dist. No. 20, United Iron Workers v. Bourland, 169 Ark. 796, 277 S. W. 546; Metzger v. Mann, 183 Ark. 41, 34 S. W. (2d) 1069.

It is also true that no application for relief need be made to the lower court when such application would be futile, although, as a general rule, a writ of prohibition will not be issued to a lower court unless the attention of the court, whose proceedings it is sought to arrest, has been called to the alleged lack of jurisdiction, the foundation of the rule being the respect and consideration due to the lower court and the expediency of preventing unnecessary litigation. Monette Road Improvement Dist. v. Dudley, 144 Ark. 169, 222 S. W. 59; Detroit Fidelity Ins. Co. v. Priddy, 185 Ark. 9, 45 S. W. (2d) 44.

Petitioner herein did file a motion, however, to dismiss the suit as beyond the jurisdiction of the court, alleging the plaintiff did not live in the county, etc. An affidavit was filed with the complaint stating that the plaintiff was a resident of Saline County; and, upon the motion being overruled, no objections appear to have been made or exceptions saved, the record entries showing: “Cause by consent set for trial September 8.”

Petitioner insists that it had no other adequate remedy to protect its rights than by prohibition, since, had it filed an answer and proceeded to trial of the cause on its merits, it would have waived its right to apply for a writ of prohibition, and especially if it had appealed to this court upon an adverse judgment, it having been held frequently that an appeal in such cases is tantamount to an entry of appearance leaving the cause to stand for trial with the appearance of defendant entered at the next term after the decision of this court on appeal. Order Railway Conductors v. Bandy, 177 Ark. 694, 8 S. W. (2d) 448.

Petitioner had the right, of course, to appear for trial in Saline County, and, whether or not the complaint alleged facts that bring it within the provision of the statute, § 6150, Crawford & Moses’ Digest, (“Venue is no part of a cause of action, and it is not usual, nor does it seem necessary, to aver the fact showing it.” Inter-Ocean Casualty Co. v. Copeland, 184 Ark. 655, 43 S. W. (2d) 225), it could have waived its right to object by taking any substantial step in the defense of the cause, such as filing an answer, etc.; and certainly it could enter its appearance by coming into court and agreeing to the setting down of the cause for trial on a certain day as was done here.

The court did not err in overruling the motion to quash, and the writ of prohibition is denied.