author: Humphreys, J.

text:
    Missouri Pacific Railroad Company v. Angus.
    4-3223
    Opinion delivered December 4, 1933.

      Thos. B. Pryor and Daggett & Daggett, for appellant.

      W. J. Dungan and Torn, W. Campbell, for appellee.
   Humphreys, J.

Appellee brought suit against appellant in the circuit court of Woodruff County to recover damages for injuries inflicted upon him by a mail bag or pouch which had been projected or thrown by a mail clerk from one of appellant’s fast-moving eastbound passenger trains ivliich failed to stop at the flag station at McCrory in response to a stop signal. Appellant filed an answer, denying liability for the injury. The cause was submitted to a jury upon the pleadings and, testimony adduced, which resulted in a verdict and consequent judgment against appellant for $2,200, from which is this appeal.

There is little or no dispute about the facts in the case. Appellant has a flag station at McCrory with a chat platform between the depot and track, which extends eastward along the track about 50 feet. The mail crane is located about 175 feet east of the depot. Appellant, for a number of years, has allowed the mail clerks to throw off the mail bags at any point on the entire length of the chat platform without reference to the location of the mail crane. On the morning of January 31, 1932, about three o ’clock a. m., appellee took two guests, who had been on a bird hunt with him, to MeCrory to board appellant’s eastbound passenger train for Memphis. They saw the train coming and signaled it in the usual way to stop, and, hearing two short blasts of the whistle, concluded they had been seen, and stepped back seven or eight feet on the platform to wait for the train to stop. Instead of stopping, it increased its speed, and, while passing, the mail clerk threw out several mail pouches, among them a sack or pouch containing papers, which struck appellee on his neck and shoulders with great force, and which knocked him some ten feet or more and rendered him unconscious.

The failure to stop the train, the speed with which it passed the station, and throwing the bag of mail onto the platform were alleged as acts of negligence causing the injury.

Appellant introduced no testimony except certain rules and regulations of the United States Postal Service relative to the manner of dispatching mail bags or pouches from moving trains.

The facts in the instant case bring it clearly within the rules of law announced in the case of Huddleston v. St. Louis, I. M. & S. Ry. Co., 90 Ark. 378, 119 S. W. 280. The undisputed facts show that appellee was rightfully upon the platform, and that he flagged the train in the usual manner, and that the agents of appellant ignored the signals given by him by refusing to stop and by increasing the speed of the train; that mail pouches or mail sacks containing papers were thrown onto the platform from the rapidly moving train as it passed the platform without regard to location of passengers who were standing there ready to board same had it stopped in response to the signal; that one of these sacks struck appellee and severely injured him; that the mail sack which struck him was thrown off onto the platform quite a distance from the mail crane.

Under the rules of the case above referred to, a presumption arose that the injury was the result of the negligence of the railroad company, as it owed the duty to appellee to use ordinary care to protect him against injuries by mail sacks which were thrown from the moving train, either by requiring the sacks to be thrown out at a certain place, or by warning against the danger therefrom, or by other means adopted for that purpose. No evidence was introduced by appellant to overcome this presumption of negligence, or to show that it protected or attempted to protect passengers standing upon the platform ready to embark.

Under these rules, as applied to the facts, the court instructed the jury more favorably than it should have done in behalf of appellant; so the instructions complained of which were given, and those requested by appellant and refused, were not prejudicial.

The requested instruction as to contributory negligence was properly refused as there was no evidence to warrant such an instruction.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Kirby, J.,

license: Public Domain

text:
    Missouri Pacific Railroad Company v. Grady.
    4-3224
    Opinion delivered December 4, 1933.

      Thomas B. Pryor and Daggett & Daggett, for appellant.

      S. S. Hargraves, Winstead Johnson and Fred A. Isgrig, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted that the testimony is insufficient to support the verdict or to show any negligence in failing to keep a lookout or that the injury was caused by the operation of the train.

The undisputed testimony shows that the place where the injury occurred was on a straight stretch of track 3' or 4 miles long and unobstructed in any way from the. place where the decedent appeared to have been struck by the train to far beyond where the body was found lying between the rails on the track badly mangled and torn. That both engines and trains that passed by the place where the injury occurred between the time deceased was seen walking on the track and the discovery of the body the next morning were equipped with strong head lights in good condition that cast a beam of light 800 to 1,000 feet ahead, and that either train could have been stopped in 600 feet at the rate of speed that they were going if they had discovered the peril of decedent. The enginemen both testified that, a constant lookout was kept, that they did not discover him or his perilous position without any explanation tending to show why it could not have been done and the fact remains that the man was killed on the railroad track, all of the surrounding circumstances indicating that he was struck while walking on the track, knocked forward and dragged by the train from 50 to 100 yards along the track, blood, ■brains and fragments of flesh and clothing being scattered all along to where the body was found. The top of his head was mashed off, and the body was otherwise mutilated, one leg being gone and his clothing almost all torn off. There was. no considerable amount of blood found anywhere along the right-of-way, except near where the body lay when found although it was splashed all along with brains and fragments of flesh and clothing from the place where, the circumstances indicate he was first struck by the train. There was no effort made by any of the officers to investigate whether the death had been caused by any one else other than, the railroad company, and there was no general belief aroused, so far as the testimony shows, that such was the case.

There is no merit in the contention that the testimony is insufficient to support the verdict nor that the death was caused other than by the operation of the railroad train, and under the circumstances herein the jury was warranted in inferring'that such was the case and because of the failure of appellant’s operatives of the train to keep the lookout as required by the statute and prevent injury to a trespasser even when his perilous position could have been discovered and the injury prevented by the exercise of such ordinary care as the law, § 8568, Crawford & Moses’ Digest, required under such circumstances. St. Louis, I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431, 155 S. W. 510; St. Louis-S. F. Ry. Co. v. Crick, 182 Ark. 312, 32 S. W. (2d) 815; Chicago, R. I. & P. Ry. Co. v. Cook, 187 Ark. 914, 63 S. W. (2d) 341.

The testimony introduced attempting to show that the decedent might have been killed by being stabbed and put on the track of the railroad company where he was struck and run over is not sufficient to raise a doubt about how the death occurred. There was no considerable amount of blood found anywhere to indicate such bleeding as would necessarily have resulted .from the severance, of the arteries except the blood found in the immediate vicinity of the mangled and tom body, which would not have been discovered there so far from where the circumstances showed the train struck decedent, nor at all if he had been killed somewhere else and the body placed on the tracks where it was struck by the train. It is understood that dead bodies do not bleed profusely.

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


text:
    Washington National Insurance Company v. Martin.
    4-3221
    Opinion delivered December 4, 1933.

      George W. Emerson, for appellant.

      Fred A. Isgrig and Harry Robinson, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that, since a purported copy of the application was attached to the policy and delivered to the insured, and retained in his possession from the time of the delivery thereof until the trial of the case, without any complaint being made by him to the company of the incorrectness of the answers in the application, that, by reason of these facts, he is bound by the answers contained therein, as though they had been true, because of his failure to complain within a reasonable time of their incorrectness and untruthfulness, and notify the company thereof, and by accepting the policy, and is precluded from rescinding same or denying that it did not conform to his application ; and cites in support thereof the case of Inter-State Southern Life Ins. Co. v. Holzhouer, 177 Ark. 97, 5 S. W. (2d) 732.

The above case is quite different from the one at bar, the insured there bringing an action to reform the policy, alleging that it did not contain certain clauses and agreements that the agent who had written the policy assured him would be in it, and the suit to reform the policy was brought after the lapse of 4 months after its issuance, to add something to the policy which it did not contain.

In this case, the answers to the questions in the application claimed to constitute false representations and warranties were not written or made by Martin, but by the company’s agent, Cross. Martin had only had the policy in his possession 8 days before he sustained the injury, which is the basis of this action. Cross knew of the injury within a short time after it happened, and accepted Martin’s proof of loss.

In Remmel v. Griffin, 81 Ark. 296, 99 S. W. 84, this court said: “It was his duty to examine the policy in a reasonable time after he received it — that is, in such time as he could have done so — and, if he rejected it, to so inform the insurance company or its agent, and, failing to do so, he is deemed to have accepted it. After such acceptance, he cannot avoid the payment of his note on the ground that he did not read the policy, unless he was induced by the insurance company or its agent not to do so.”

There is no question here of a failure to accept the policy as in the Griffin case, or a failure to accept it within a reasonable time, as the injury occurred within 8 days after the delivery of the policy, and, although the undisputed testimony shows that the answers in the application as appeared on the purported copy attached to the policy were false and may have constituted false representations and warranties that might have voided the policy, it is also true that the undisputed proof shows that this application was not signed by the insured, who testified that he had not made any such representations and warranties, but stated the truth to the agent, who procured the application, and same were falsely written by him without the knowledge or consent of the applicant. It was also shown that insured did not read his policy, was not aware of the false answers inserted therein by the company’s agent, and, of course, was not bound thereby; and the company is estopped to set up such false answers and representations in avoidance of the policy. Providence Life Ins. Co. v. Reutlinger, 58 Ark. 529, 25 S. W. 835; Southern Insurance Co. v. Hastings, 64 Ark. 257, 41 S. W. 1093; Insurance Co. v. Brodie, 52 Ark. 11, 11 S. W. 1016; Kister v. Lebanon Mutual Ins. Co., 128 Pa. 553, 18 Atl. 447, 5 L. R. A. (Pa.) 646; Otte v. Hartford Life Ins. Co., 88 Minn. 423, 93 N. W. 608, 97 Am. St. Rep. 532; Bennett v. Massachusetts Mutual Life Ins. Co., 107 Tenn. 371, 64 S. W. 758.

The insured has done his duty in the premises when he imparts to the agent the requisite truthful information to enable him to write the answers correctly in the application in conformity to the information given him, and the insured had the right to rely upon his performing that duty, and his failure to do so, whether the result of a mistake or a deliberate fraud, cannot operate to prejudice the insured. Fireman’s Fund Ins. Co. v. Norwood, 16 C. C. A. 136, 32 U. S. Appeals 490, 69 Fed. 71; Germania Life Ins. Co. v. Lunkenheimer, 127 Ind. 536, 26 N. E. 1082; Michigan Mutual Life Ins. Co. v. Leon, 138 Ind. 636, 37 N. E. 584; Howe v. Providence Fund Society, 7 Ind. App. 586, 34 N. E. 830; Stone v. Hawkeye Ins. Co., 68 Iowa 737, 28 N. W. 47; Dryer v. Security Fire Ins. Co., 82 N. W. 494; Continental Ins. Co. v. Pearce, 39 Kan. 396, 18 Pac. 291, 7 Am. St. 557; Kansas Mill Owners’ & Mfrs. Mutual Fire Ins. Co. v. Central National Bank, 60 Kan. 630, 57 Pac. 524; Dowling v. Merchants’ Ins. Co., 168 Pa. 234, 31 Atl. 1087; Cottrill v. Krum, 100 Mo. 400, 13 S. W. 753, 18 Am. St. Rep. 549; McCarty v. New York Life Ins. Co., 74 Minn. 530, 77 N. W. 426; Baker v. Ohio Farmers’ Ins. Co., 70 Mich. 199, 38 N. W. 216; State Ins. Co. v. Taylor, 14 Colo. 499, 24 Pac. 333, 20 Am. St. Rep. 281; Welsh v. Fire Association of Philadelphia, 120 Wis. 456, 98 N. W. 227.

The fact that a purported copy of the application was attached to the policy and retained hy the insured upon its delivery does not of itself as a matter of law charge him with knowledge of the misrepresentations wrongfully written therein by the company’s agent, or estop the beneficiary from showing that they were not in fact made by the insured. Busboom v. Capital F. Ins. Co., 11 Neb. 855, 197 N. W. 957; Olsson v. Midland Ins. Co., 138 Minn. 424, 165 N. W. 474; Welch v. Fire Ass’n of Phila., 120 Wis. 456, 98 N. W. 227; Baker v. Ohio F. Ins. Co., 70 Mich. 199, 38 N. W. 216, 14 S. W. Rep. 485; State Ins. Co. v. Taylor, 14 Colo. 499, 24 Pac. 333, 20 Am. St. Rep. 281; and Donnelly v. Cedar Rapids Ins. Co., 70 Iowa 693, 28 N. W. 607.

We do not find that the court erred in the assessment of the penalty and attorney’s fee, nor any other prejudicial error in the record, and the judgment is affirmed.


author: Kirby, J.

text:
    Wilson v. Murray.
    4-3160
    Opinion delivered December 4, 1933.

      W. A. Leach and J. D. Thweatt and Cooper Thweatt, for appellant.

      Emmet Vaughan, for appellee.
   Kirby, J.

This action involves the right to possession of certain lands in Prairie County, Arkansas, to-wit: The southwest quarter (SW¼) of section eleven (11), township four (4) north, range four (4) west, containing one hundred sixty (160) acres.

On the 10th day of June, 1929, at the collector’s sale for delinquent taxes, the tract of land in controversy was sold to the State for taxes, penalty and costs due thereon for the year 1928, the time for redemption having expired, and, said lands remaining unredeemed, the same were struck off to the State and duly certified to the State of Arkansas by the county clerk as forfeited lands.

On the 8th day of August, 1932, the State of Arkansas issued to appellee, Charles Murray, Sr., a donation certificate for said lands. On the 10th of October, 1932, the State Land Commissioner extended to the 5th day of January, 1933, the time for compliance with the donation laws by the donee in said certificate. It is claimed by the donee that, on the 28th day of December, 1932, he took possession of said lands, and he did, after a fashion, come into possession of a tenant house situated thereon. On the 10th day of January, 1933, the donee brought this action in ejectment in the Prairie Circuit Court to recover the possession of said lands, alleging that he had donated the same from the State of Arkansas, and was entitled to the immediate possession thereof, and that appellants were in wrongful possession. The donation certificate was attached to the complaint as evidence of his title and right to possession.

Appellants answered and, after a demurrer to the answer had been overruled, on motion of the appellee, Murray, the cause was transferred to equity. Subsequently, on the 25th day of April, 1933, appellants filed an amended and substituted answer in which it was denied that the appellee, Murray, was entitled to the possession of the lands. It was admitted therein that the land had sold for taxes, and that the appellee, Murray, had donated same, but it was denied that he had acquired any right to possession of the land by his donation for the reason that the tax sale upon which the donation was based was void on account of irregularities in said sale. It was further admitted that appellants were in possession of the lands as tenants of the owner, and no affirmative relief was prayed.

On the 2d day of May, 1933, the State of Arkansas was made a party' plaintiff by amendment, and it was alleged in this amendment that the lands were sold to the State for the taxes for the year 1928, and were subsequently certified to the State as forfeited lands, and that the State was the owner thereof, subject to the rights of the donee, Chas. Murray, Sr. On the same day, a demurrer to the answer was filed, the gist of which was that the answer shows on its face that the title to the lands was in the State subject to the rights of the donee, and that same set up no right or title in the appellants that would entitle them to question the validity of the tax sale, nor the donee’s right to possession.

The chancellor held that the answer was insufficient in that the appellants did not tender to the State her taxes, nor to the donee the expenses of donation nor the value of improvements he might have made. The appellants declined to plead further, and a decree was entered awarding the possession of the lands to the donee, and ihis appeal seeks the reversal thereof.

This is a suit in ejectment, not one to try titles, but only the right to possession of the lands under a donation certificate duly issued by the State. Such an action may be maintained in all cases where the plaintiff is lawfully entitled to possession of the premises. Section 36S6, Crawford & Moses’ Digest. “The action of ejectment is a possessory action and may be maintained in this State in all cases where there is a lawful right of possession against one who wrongfully holds possession from the person having the better right.” Hill v. Plunkett, 41 Ark. 465; Gaither v. Lawson, 31 Ark. 279; Brummett v. Pearl, 36 Ark. 471.

Tlio plaintiff in ejectment must show written evidence of his title or claim, and “the defendant in his answer shall plead in the same manner as above required of the plaintiff.” Section 3691, Crawford & Moses’ Digest.

Appellee exhibited his donation certificate with his complaint and attempted to take possession of the lands within the time provided therein, and did move on the place, in a tent, and found defendants in possession, attempting to hold it without any right whatever. The answer set up no right to possession, except that it stated that the defendants were in possession of the land as tenants of Prouty & Company, the alleged owner, but failed to exhibit the contract or to show any title in Prouty & Company. They also failed to show the date of the alleged contract, and showed no right to possession. Plaintiff demurred to the answer because it did not plead as the statute required by showing written evidence of defendant’s right to possession; and the complaint and answer both showed the title to the lands to be in the State, subject to the plaintiff’s right under his donation certificate. The demurrer challenges the right of defendants, who admitted that the title to the land was in the State, and that same had forfeited for nonpayment of taxes and a donation certificate had been issued to the plaintiff, to claim adversely to the State or its donee, claiming that defendants could not do so without first setting up some right to possession in themselves. The answer was properly held insufficient. Beard v. Wilson, 52 Ark. 290, 12 S. W. 567.

The appellants showed no interest in the property, and did not exhibit any written evidence of title thereto with their answer indicating any interest which it was their duty to protect. After the State’s donation certificate was lawfully issued, the plaintiff had the right to take possession of the lands under its provisions, and this right could not be defeated by any one except the original owner, his gT antees or assigns, none of whom appear in this case.

Under the statute, § 10,112, Crawford & Moses’ Digest, the clerk certifies the forfeited lands sold to the State, “and thereupon the title to all lands embraced in such certificate shall vest in the State.” The State herself claims the right to the possession of these lands for her donee in aid of the certificate issued to him.

The appellants did not exhibit any written evidence of title, nor claim to have been owners or entitled to possession thereof at the time of the forfeiture of the lands, nor did they show any right under the statute to question the appellee’s right of possession to said lands. No error appearing, the decree is affirmed.


author: Mehaffy, J.

text:
    Union Sawmill Company v. Langley.
    4-3225
    Opinion delivered December 4, 1933.

      Gaughan, Sifford, Godwin & Gaughan, for appellant.
    J. V. Spencer and McNalley & Sellers, for appellee.
   Mehaffy, J.

The appellee, G. W. Langley, as guardian of G. W. Langley, Jr., a minor ten years of age, filed in the Ouachita Circuit Court a complaint against the appellant, alleging that on September 21, 1932, the said G. W. Langley, Jr., sustained an injury while riding on a truck belonging to the appellant, and in charge of one of the employees of appellant, by reason of the carelessness and negligence of the driver of said truck; that G. W. Langley, Jr., was a child of tender years, and permitted to ride on said truck by the employee of appellant, and that said G. W. Langley, Jr., was without discretion; that the seat of the truck on which he was permitted to ride was nothing more than a board without any sides or other means of preventing the persons sitting thereon •from falling off of said seat; that the seat was only as wide as the body of the truck, and there were no fenders on the back wheels of said truck; that the truck was unsafe for a child of the age and experience of G. W. Langley, Jr. Other acts of negligence were alleged, and damages were prayed in the sum of $500.

Answer was filed, denying all the allegations of the complaint, some evidence was taken, and it was shown that the parties had agreed on a settlement of $500, and judgment was entered accordingly. The $500 was paid to the guardian, and satisfaction was entered on record.

Thereafter, on April J, 1933, during the same term of court, a motion ivas filed by the appellee to set aside the judgment for $500. The evidence shows that the appellee lives in Union County, and the appellant also is located in Union County, and has no place of business in Ouachita County; that, prior to the time of filing the complaint in the Ouachita Circuit Court, appellee had already, by written contract, employed an attorney in Union County to bring suit for damages against the appellant; that the manager of appellant sought to compromise the claim for damages, and secured an agreement with G. W. Langley to settle the damages for $500. Thereupon, a representative of the appellant took G. W. Langley to the probate court in Union County, where the said G. W. Langley was, by the probate court, appointed guardian for G. W. Langley, Jr., the appellant’s representatives arranging for the bond of Langley as guardian. The appellant’s representatives then took Langley to Camden, in Ouachita County, where the complaint and answer were filed, and judgment had for the $500. The attorneys for appellant prepared the complaint for appellee, and prepared the answer, and told Langley that he would have to be represented by some attorney, and introduced him to Mr. Bower, a practicing lawyer at Camden. The facts with reference to the agreement and settlement were stated to Mr. Bower, and he signed the complaint for the plaintiff. He was in the court room when the evidence was taken, but he took no part in the proceedings, the attorneys for the appellant examining the witnesses, and making the statement to the court.

The undisputed evidence shows that, before the parties went to Camden, and before the appointment of Langley as guardian, Langley told the representatives of the appellant that he had employed an attorney, and the representatives of the appellant told him they would not settle with the attorney, but would settle with him.

Langiey testified that he wanted to see his attorney, and the representatives of the appellant would not agree for him to do this. This is disputed by the appellant’s witnesses. They admit that he told them about his attorney, but testify that they did not prevent him from seeing his attorney.

Among other things, the court, in its judgment setting aside the former judgment, said: “The court, being now well and sufficiently advised, doth find that the judgment heretofore entered herein at this term of the court should be set aside. ’ ’

The court also in its order, after setting aside the judgment, stated that the cause was reinstated upon the docket. The appellants objected and excepted to this. The appellee then moved the court for permission to enter a voluntary nonsuit, and said motion was by the court granted, and the cause was dismissed without prejudice, and the appellant excepted.

We agree with the appellant that there is no law that forbids or prevents any one from settling or compromising with his adversary, without consulting his attorney. However, if the court believed that appellee was prevented from consulting his attorney, or even if the court believed that he was not prevented, but the appellant’s agents simply told him that they would settle with him and not his attorney, this, with the other evidence in the case, might lead the court to believe that the minor had not been properly represented, and, if so, of course he would set aside the judgment formerly entered.

•But we think this is immaterial, because all courts of record have inherent power to vacate or set aside their judgments or orders during the term at which they are rendered. This is a power of daily exercise by courts, and its exercise within proper limitations of time and propriety, cannot be questioned. 15 R. C. L. 688; Democrat P. & L. Co. v. Van Buren County, 184 Ark. 973, 43 S. W. (2d) 1075; Martin v. St. Imp. Dist. No. 349, 178 Ark. 588, 11 S. W. (2d) 469; Ashley v. Hyde, 6 Ark. 92, 42 Am. Dec. 685; Underwood v. Sledge, 27 Ark. 295; Wells-Fargo Co. v. W. B. Baker Lbr. Co., 107 Ark. 414, 155 S. W. 122.

We have repeatedly held that, during the term of court at which a judgment is rendered, the court has the inherent power to set aside the judgment, and it may do so without stating any cause. Appellant refers to the statute and numerous authorities, but they all refer to setting aside judgment after the term of court in which they were rendered. We know of no case, and our attention has been called to none, that prohibits a court from controlling its orders and judgments during the term in which they were entered. It therefore becomes unnecessary to set out the evidence taken on the motion to set aside the judgment. It was proper, of course, for the court to hear evidence, if he wished to do so in order to determine whether the judgment should be set aside.

It is, however, contended by the appellant that the appellee should not have been permitted to take a non-suit without paying back the money that had been paid. We think,-a complete answer to this is that no request was made .by appellant for an order to repay the money until after the nonsuit was taken. It is true that the response filed by appellant shows this request. The response was permitted to be filed by the court, but the bill of exceptions shows that, before it was filed the attorney for the appellee stated: “Plaintiff desires to take a voluntary nonsuit. ’ ’ The attorney for the appellant said: “The court should require the money that has been paid to be returned.” The court thereupon said: “If there is any way to have the money impounded, if you can impound the money, you may do so. I don’t think the court has anything to do with it.” After some further statements by court and counsel, the counsel for the appellant said: “We have not had an opportunity to file our response. I don’t think they should be permitted to take any order until we put our response in, and see what question that is going to raise. I think we are entitled to ask, in our response, that they tender this money back that they have received.” Then the court told him he could file his response, but the motion for a nonsuit had already been granted. The response had not only not been filed, but the attorney himself did not know what it would contain. He stated that he thought they were entitled to ask for a return of the money.

It should be kept in mind that the judgment had been set aside and the cause reinstated, and stood on the docket just as it did before any judgment was ever had. That is, it was a case on the docket to be tried, and the statute provides that the plaintiff may take a nonsuit before the final submission of the case to the jury or the court, where the trial is by the court. Section 1261 of Crawford & Moses’ Digest.

Section 1262 of. Crawford & Moses’ Digest authorizes the plaintiff or his attorney to dismiss any suit pending in any of the courts of this State, except actions of replevin, in vacation in the office of 'the clerk on the payment of all costs that may have accrued therein. We think therefore there is no question but what the appellee had a right to take a nonsuit, and the court had the right to grant appellee’s request.

It appears from appellant’s response that it seeks the recovery of the $500 paid. If that response had been filed before the nonsuit was taken, the taking of the non-suit by appellee, or the dismissal of his cause of action, would not have resulted in the dismissal of the counterclaim or set-off. This has been many times held by this court, and we do not deem it necessary to review the authorities. In all cases where a defendant in a suit has filed a counterclaim or set-off, the dismissal by plaintiff of his suit does not affect the right of the defendant to try his counterclaim.

It appears from the record in this case that no one knew what the response'would be until after the nonsuit was taken. If, however, the response is still pending, it may be tried and determined by the. court whether the $500 should be returned or not.

The record, however, shows that the parties all live in Union County, and that suit has already been filed in that county for damages,, and is now pending there, and in that suit appellant can ask for a return of the $500. It appears that this suit in Union County was instituted by the attorney who had been employed by the appellee, and was filed two days after the original judgment in the Ouachita Circuit Court. When the attorney filed the suit in Union County, he had not been informed of the proceeding in Ouachita County. Whatever course may be taken by appellant, with reference to the $500, does not affect this appeal. If no nonsuit had been taken, the appellant could not' have appealed from the order setting aside the judgment. Democrat P. & L. Co. v. Van Buren County, supra.

This court has many times held that, where settlements were made and releases' given, after the payment of money in settlemént, the injured party could maintain a suit without paying back the money received in the settlement. If the settlement was alleged to have been obtained by fraud, the money would not have to be paid back in order to maintain the suit, but on the trial he would have to show by the evidence facts sufficient to justify the setting aside of the settlement.

It is useless to cite authorities on the proposition that a settlement and release obtained by fraud will not only be set aside by the court, but we have uniformly held that the plaintiff is not required to pay the money back in order to maintain suit. So far as this minor is concerned, this judgment is nothing" more nor less than a release; the only way a release could be had from the minor. A minor has as much right to maintain a suit for personal injuries without paying money back which he has received on settlement as a person of mature years would have.

This is an appeal from a judgment setting aside a judgment obtained at the same term of court. From this order there could be no appeal, because there was no judgment to appeal from. When the judgment was set aside, the court reinstated the cause; it then stood on the docket in the same manner it did before any judgment was entered.

The appellant, however, contends that the court did not find that there was any fraud. It is true he did not use the term “fraud,” but he did use the following language: “Under all the evidence here, I don’t think this minor has had an opportunity to present his cause of action to the court as he should have.”

He also stated that, when the original judgment was rendered, there was no evidence as to the extent of the injury, and very little evidence about how it occurred, and he then says: “Whether that was due to Mr. Langley’s fault, or either party’s fault, or whether or not it may have been due to the haste of the court” is unimportant. “The case was taken up in between the trial of other cases.” The court also said in setting aside the judgment: “I don’t feel like, under all of the evidence of the hearing had that day, this minor has had a full opportunity to have his case heard.”

This was the finding of the trial court after he had heard all the evidence, and, if the conduct of either party or both parties prevented the minor’s cause from being fairly presented, it was a fraud perpetrated against the minor, and it would make no difference whether it was intentional or unintentional. He may or may not have a cause of action, but he has a right to have this question determined without putting any more burdens *on him than we would put on a mature person.

We find no error, and the judgment is affirmed.


text:
    Hudspeth v. State.
    Crim. 3864
    Opinion delivered December 4, 1933.

      Edward H. Coulter, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Mehaffy, J.

The appellant, managing officer of the Citizens’ Bank & Trust Company at Harrison, Arkansas, was indicted by the grand jury on a charge of knowingly accepting deposits in the Citizens’ Bank & Trust Company of Harrison, while said institution was in an insolvent condition. He was also indicted on numerous other charges growing out of the bank failure. His son, also an official in the bank, was indicted, as were several other officers of the banks, both in Boone County and in other counties.

At the July term, 1932, of the Boone Circuit Court, appellant filed his verified petition for a change of venue. The petition was in proper form, and supported by the affidavits of seven persons, each of whom stated that he was a qualified elector; was an actual resident of Boone County; not related to the defendant; that he had read the petition for a change of venue, and was familiar with the facts therein contained, and that he believed the statements to be true.

The petition for a change of venue was overruled without any evidence being taken. Thereafter appellant entered a plea of guilty to the charge of receiving deposits in an insolvent-bank, and the cause was continued until the January, 1933, term. At the July, 1933, term, appellant filed his verified petition for permission to withdraw his plea of guilty theretofore entered, and stated that, after the court had overruled his motion for change of venne, he was approached by the officers of the court for a compromise of all the cases, those against himself, and other officers of the bank at Harrisorr, and the banks elsewhere. He alleged that an agreement was made between the prosecuting attorney, the court, and appellant, to the effect that all the indictments except the one in this cause should be dismissed against all the defendants upon appellant’s payment of costs in each action, including a prosecuting attorney’s fee of $25 in each case; that no further indictments or prosecutions would be instituted in the judicial district; that appellant would enter his plea of guilty in this particular case, which plea was at said time entered; that he should receive a sentence in the penitentiary of this State for a term of one year, and that, prior to the procurement of said sentence, all the above-mentioned eases should be dismissed, and that the appellant might elect to receive his sentence at an adjourned term of court, 1932, or at the January, 1933, term of said court, at appellant’s option; that at the January, 1933, term of the court, it was published in the newspaper at Harrison that the court did not intend to abide by certain portions of the agreement which had been entered into; that the agreements entered into by the officials of the court have not been performed, and the statements of officials indicated that they did not intend to perform said agreement; that appellant desired to withdraw his plea of guilty; that he Avas innocent of the charge, and entered said plea of guilty solely for the purpose of protecting his friends and former business associates; that he was entitled to withdraw said plea of guilty because, first, said plea was conditional; second, because the agreement, on the part of the court officials, had not been performed or kept.

After filing petition to Avithdraw plea of guilty, appellant filed his verified petition to disqualify the trial judge in the hearing on the motion to withdraw the plea of guilty. Testimony was then taken on the motion to disqualify the jndge. The trial judge denied the petition to disqualify, and denied appellant’s petition to withdraAv plea of guilty, and sentenced appellant to three years in the penitentiary.

The court then dismissed the cases against the parties who' had been indicted in connection with the bank failufe in ¿Boone County. Motion for new trial was filed and overruled, and the case is here on appeal.

Appellant urges a reversal, first, because he says the court erred in overruling his motion for change of venue. We agree with appellant that it was error for the court to overrule the motion for change of venue. The application for change of venue was in compliance with §§ 3087 and 3088 of Crawford & Moses’ Digest. Ward v. State, 68 Ark. 466, 60 S. W. 31; Spurgeon v. State, 160 Ark. 112, 254 S. W. 376.

While it was error to overrule the petition for change of venue, this error was waived, and the petition abandoned by entering a plea of guilty. The plea of guilty is wholly inconsistent with motion for change of venue. A plea of guilty waives any defect not jurisdictional, and which may be taken advantage of by motion to quash or by plea in abatement.

The right to a jury is waived also, and with, of course, the constitutional guaranties with respect to the conduct of criminal prosecutions. 16 C. J. 403, 404, § 738; People v. Popescue, 345 Ill. 142, 177 N. E. 739, 77 A. L. R. 1199; People v. Busby, 119 Cal. App. 6 Pac. (2d) 114; State v. Brinkley, 193 N. C. 747, 138 S. E. 138; Kachnic v. United States, 53 Fed. (2d) 312, 79 A. L. R. 1366.

Appellant contends that the plea of guilty was conditional. The law authorizes but three kinds of pleas to an indictment: First, a plea of guilty; second, a plea of. not guilty; and, third, a former conviction or acquittal. Crawford & Moses’ Digest, § 3074.

A conditional plea of guilty is not authorized, and the court could not accept such a plea. Cox v. State, 114 Ark. 236, 169 S. W. 789 Joiner v. State, 94 Ark. 198, 126 S. W. 723; Wolf v. State, 102 Ark. 295, 144 S. W. 208. It is within the discretion of the court to permit a plea of guilty to be withdrawn. The record does not show that the plea was entered conditionally. The evidence is in conflict as to what took place, and we think there was no abuse of discretion in refusing to permit appellant to withdraw his plea of guilty.

It is urged that the judgment should be reversed because the trial court overruled appellant’s petition to disqualify the presiding judge. Attention is called to 15 R. C. L. 526, 530, and 16 R. C. L. 530. We do not think these authorities sustain appellant’s contention.

Considerable testimony was taken on the question of the judge’s disqualification, but practically all of it was to the effect that an agreement had been made, under the' terms of which all the cases against others indicted in connection with the failure of several banks controlled by appellant, some of which were pending in other counties, were to be dismissed. Appellant contended that these eases in other counties were to be dismissed according to the agreement, but the trial judge did not so understand it. The evidence did not show bias or prejudice of the judge in the sense that it disqualified the trial judge.

It is said in 15 R. C. L. 530, § 18, one of the authorities relied on by appellant: “The basis of the disqualification is that personal bias or prejudice renders the judge unable to exercise his functions impartially in the particular case, and therefore it must be shown that he is biased against or entertains ill -will or hostility toward the defendant of such a character as might prevent him from giving the defendant a fair trial; and this must be shown as a matter of fact, and not as a matter of opinion of the defendant or any other person. The words “bias ’’ and “prejudice,” as used in the law of the subject under consideration, refer to the mental attitude or disposition of the judge towards a party to the litigation, and not to any views that he may entertain regarding the subject-matter involved.”

Section 20 of article 7 of the Constitution of the State of Arkansas provides: “No judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity, within such degree as may be prescribed by law; or in which he may have been of counsel or have presided in any inferior court. ’ ’

Section 2107 of Crawford & Moses’ Digest is as follows: “No judge of the circuit court, judge of the court of probate or justice of the peace shall sit on the determination of any cause or proceeding in which he is interested or related to either party within the fourth degree of consanguinity or affinity, or shall have been of counsel, without consent of parties.” Jones v. State, 61 Ark. 88, 32 S. W. 81.

It is next contended that the court erred in overruling the motion of appellant for a jury to assess the punishment. A plea of guilty waives' any defects not jurisdictional, and appellant, by entering his plea of guilty, waives the right to a jury. It is the duty of the judge when a plea of guilty is entered, to pronounce judgment. 16 C. J. 402, § 738.

“While generally no evidence of guilt is required in order to proceed to judgment, for the defendant has himself supplied the necessary proof, yet where the court possesses any discretion as to the extent of the punishment, it is its duty to hear evidence as to aggravation and mitigation of the offense.” 16 C. J. 404, § 738.

It does not appear that any evidence was taken at the time appellant was sentenced, but the evidence does show that, at the time it is alleged an agreement was made, the punishment should be fixed at one year.

After a careful consideration of all the evidence and circumstances, we have reached the conclusion that the punishment should be reduced to one year.

The judgment of the circuit court is therefore modified by reducing the punishment to one year, and, as thus modified, the judgment is affirmed.

Humphreys, J., concurs in opinion, but dissents from reducing punishment.


author: McHaney, J.

text:
    Herndon v. Wasson.
    4-3308
    Opinion delivered December 4, 1933.

      C. M. Walser, for appellant.

      Hal L. Norwood, Attorney General, and Will G. Akers, O. T. Ward, amici curiae, for appellee.
   McHaney, J.

Appellants, Herndon and Cornelius, have organized a voluntary association for the purpose of furnishing burial benefits to those who may become members of such association, and who conform to the by-laws, rules and regulations thereof. They applied to the Securities Division of the State Bank Department for a permit to sell certificates of membership in the association under the authority of § 5 of act '264, Acts of 1933, p. 820. The application for a permit was refused because the department was of the opinion that appellants proposed to engage in the life insurance business, and that they should first comply with the insurance laws and obtain authority from the Commissioner of Insurance, before the bank department would be authorized by law to issue a permit to sell its membership certificates. Appellants then brought mandamus to compel the Commissioner to proceed according to law in respect of said application, alleging that it was not an insurance association, and that the insurance laws have no application. The circuit court denied the writ, and this appeal followed.

We are of the opinion that the circuit court erred in refusing- to award the writ. Section 5 of said act 264 provides that, an association, such as appellants propose to operate, “is hereby declared to be an investment company, and shall be required to submit an application, pay a similar fee, and obtain a permit from the Securities Division of the Bank Commissioner in the manner as now provided by law of other investment companies, and shall be required,” etc. Act 264 deals wholly with investment companies. No mention is made of insurance companies or associations. While no doubt, the Legislature has the power to classify such associations as appellants’ to be insurance companies, neither act 264 nor any other act, with which we are familiar, has done so. It is contended by appellee that appellants come within the purview of act 139 of 1925, relating to assessment,life, health and accident insurance associations, but we cannot agree that such is the fact. Burial associations are not included by name, and a careful-reading of said act shows they were not contemplated. The business of such associations does not come therefore under the jurisdiction of the Insurance Commissioner, especially in view of § 5 of act 264, Acts of 1933. See State ex rel. Reece v. Gooch, 165 Tenn. 97, 52 S. W. (2d) 143. It was there held that such associations do not come under the juris-, diction of the insurance commissioner of Tennessee under insurance laws quite similar to ours.

We do not pass upon the merits or demerits of the plan of the association, whether the plan is good or bad, as that is a matter for the consideration of the Bank Commissioner. We do hold, however, that the Commissioner should consider the application for a permit without regard to the insurance laws of the State. The judgment will be reversed, and the cause remanded with directions to award the writ as prayed.


text:
    Mayo v. Bank of Marvell.
    4-3328
    Opinion delivered December 4, 1933.

      W. M. Mayo and T. K. Riddick, for appellant.

      Moore, Daggett & Burke, for appellee.
   McHaney, J.

Appellant, J. Edwin Mayo, is the administrator in succession of the estate of Walter P. Mayo, and he and the other appellants are the children and sole heirs at law of R. D. Mayo, who was the first administrator of the estate of Walter P. Mayo, with the will annexed. The will, after providing for payment of certain bequests out of life insurance policies to named legatees, made his father, R. D. Mayo, his residuary legatee, and named him as executor of said estate. Walter P. Mayo left a large estate consisting of real and personal properties in Monroe and Phillips counties, Arkansas. R. D. Mayo qualified as executor, and continued to act as such until his death on April 12, 1926. A few days later, appellant, J. Edwin Mayo, was appointed and qualified as administrator in succession of said estate. There was no administration on the estate of R. D. Mayo. The proceeds of the insurance policies bequeathed to various legatees were collected by R. D. Mayo, but neither he nor his son, J. Edwin, paid over the proceeds of such policies to the various legatees, with two exceptions. The estate has never been closed. Walter P. Mayo was the owner of approximately 3,000 acres of land, 1,400 acres of which was in a high state of cultivation, and the remainder consisted of virgin timber lands of a large value. After taking charge of said estate, J. Edwin Mayo and the others heirs of B. D. Mayo, appellants, became indebted to the Bank of Marvell for borrowed money evidenced by notes, in the year" 1926, for a large sum. Failing to pay same, suit was brought against appellants thereon in Phillips Circuit Court and on November 20, 1931, judgment was rendered on these notes in favor of appellee against appellants, heirs of B. D. Mayo, for the sum of $16,809.47 with interest from date until paid at the rate of 8 per cent, per annum. It appears that, a short time after the rendition of this judgment, Judge John I. Moore, attorney for appellee, agreed with the then counsel for appellants, that no execution would' be issued on said judgment without the consent of their counsel. This agreement was made to afford additional time to appellants to sell some of the assets of'the estate to take care of appellee’s debt, which was a debt incurred by them in the operation of said estate. Pursuant to this agreement, no execution was issued on appellee’s .judgment until March 29, 1933, when appellee caused an execution to be issued out of the Phillips Circuit Court, directed to the sheriff of Monroe County, who made a levy upon the interest of appellants in and to the 3,000 acres of land formerly belonging to Walter P. Mayo, deceased. Thereafter, on May 3, appellants filed this action against appellee and the sheriff of Monroe County, and others to enjoin and restrain the sheriff from selling the property upon which the execution had been levied.

The court, on a final hearing, denied the relief prayed, and dismissed the-complaint for want of equity, from which is this appeal.

The court correctly dismissed the complaint for want of equity. There was no equity in it. The undisputed proof shows that no debts were probated against the estate of Walter P. Mayo, deceased, and that there was no administration upon the estate of the father, B. D. Mayo, deceased. Under these circumstances, the lands of the decedent were not an asset in his hands for the payment of debts, because- there were no debts. Appel-' lant, J. Edwin Mayo, as administrator, had no right to-' their possession and control. Section 67, 'Crawford & Moses’ Digest, provides that: “Lands shall be assets in the hands of the executor or administrator, and shall be deemed in their possession, and subject to their control for the payment of debts.” This court has many times held that the administrator has no control of his decedent’s lands, nor the rents thereof, when not needed for the payment of debts. Stewart v. Smiley, 46 Ark. 373; Jones v. Jones, 107 Ark. 402, 155 S. W. 117, and many more recent cases. The legal title to an intestate’s lands, upon his death, descends to and vests in his heirs at law, subject to the widow’s dower, and the payment of debts through his administrator. Culberhouse v. Shirey, 42 Ark. 25; Mobley v. Andrews, 55 Ark. 222, 17 S. W. 805; Burton v. Gorman, 125 Ark. 141, 188 S. W. 561. There being no debts, the administrator in this case had no title or interest in the lands of the testator. It appears, however, that he took possession both as administrator and in his own right, and with the consent of the other heirs, and attempted to conduct the farming business as such administrator.

Appellants contend that the administrator was entitled to the protection of the chancery court from an execution against the heirs, and levied upon lands belonging to the estate of the testator. But the administrator is not entitled to protection from a proceeding in which he, as administrator, has no interest. Having no interest in the lands as administrator, it is difficult to perceive what right he would have to prevent the levy of an execution against the heirs.

It is also contended by appellants that the jurisdiction of the equity court should have been invoked to prevent the violation of the agreement between counsel above mentioned as to the issuance of wan execution under the judgment in favor , of appellee. It is true that there was such an agreement, but it may be said, first, that it was without consideration; and, second, .that such agreement was not to last forever, 'but only for a reasonable time to enable appellants to make disposition of the timber land belonging to the estate-to satisfy the judgment and other debts incurred by appellants. The undisputed proof shows this to be a fact. This agreement was permitted to stand, and no execution was issued from the date of the judgment to March 29,1933, more than a year and four months, and appellants do not contend that this was not a reasonable time.

The rights of legatees are not involved in this appeal, although one of them was a party plaintiff in the action. The legacies were to be paid out of specific funds, the proceeds of certain life insurance policies. Whether by standing by, permitting the executor and administrator in succession to use said funds for other purposes, they may now recover out of the corpus of the residuary estate is another question, and one that is not before us.

The decree of the court is therefore correct, and is accordingly affirmed.


author: Butler, J.

text:
    Missouri & North Arkansas Railroad Company v. Robinson.
    4-3231
    Opinion delivered December 4, 1933.

      J. Sam Rowland and Campbell & Smith, for appellant.

      Fred Isgrig, S. S. Hargraves and Winstead Johnson, for appellee.
   Butler, J.

On June 30, 1931, Ralph Cunningham, an extra brakeman of the appellant company, while engaged in the performance of his part of the duty of switching a box car on appellant’s side track at Cotton Plant, Arkansas, fell from a part of the moving train and the wheels of the engine and tender passed across his legs, severing them, one above and the other below the knee. This injury resulted in his death about two hours later.

In an action to recover for the death of Cunningham, a verdict was returned for the plaintiff in the sum of $5,000 for physical pain and mental anguish for the benefit of the estate, and $10,000 as pecuniary loss to his widow: This verdict and the judgment based thereon is challenged, in the first place, for the refusal of the trial court to grant a continuance on motion of the appellant company. It was alleged and proved at the hearing of the motion that an interval of about twenty-one months had elapsed from the date of the casualty until the filing of the suit; that the investigation by the company was made a short time after the first event, and that, notwithstanding the delay in bringing the suit, its hearing was set, and the case tried, within thirty days after the suit was filed. The general attorney for the company had-been in. bad health for some, time, and on the advice of his physician had not participated in the trial cases since December 10, 1932, as he had not been able to do so. On Monday before the Friday following, the date set for the trial, the general attorney and the presiding judge discussed the physical condition of the former over the telephone, and in the conversation the attorney told the judge of his physical disabilities, and that he would get some one to help him. Oh Wednesday following, the attorney, whose residence is in Harrison, called Mr. Campbell of the law firm of Campbell & Smith of Forrest City, where the case was to be tried, and engaged him to assist at the trial. Mr. Rowland, the general attorney, traveled from Harrison to Forrest City via Little Rock, where he had a tooth extracted. He reached there at an early morning hour on Thursday, and was in such condition that he remained in bed from the time of his arrival until Friday morning. He was present in the court on Friday morning when the motion for continuance was made and remained during the trial, but stated that he was in no condition to do so and should not. . The special agent had been in Forrest City since the day before the trial and had been consulting with Mr. Campbell. All of appellant’s witnesses had arrived on that day, and Mr. Campbell had an opportunity to discover from them what their testimony would be. Mr. Rowland was of the opinion that he would be Avholly unable to conduct the case himself, and this was also the opinion of his physician, Avhose certificate to that effect Avas filed with the motion. Mr. Rowland thought he would be unable to assist Mr. Campbell and had not been able to discuss the case with him. He thought that, in a trial of this magnitude, Campbell & Smith.did not, and could not, have time to make proper investigation of the case; and he did not believe any attorney in the length of time they had could properly prepare the case for trial. The motion for continuance Avas grounded on-the above facts. Mr. Campbell made no statement.

From the facts stated Ave are unable to say that Mr. Campbell was unable to properly acquaint himself Avith the facts or the law or that appellant would have been able to present its case in a more favorable light at a subsequent time. The granting of a continuance ordinarily rests in the sound discretion of the trial court, and we cannot say that there is such an abuse of the discretion shown as would warrant us in disturbing its ruling.

It is next contended that the evidence fails to show any negligence on the part of the appellant’s employees, and the court erred in failing to direct a verdict' in its favor. In this connection we note the error assigned for failure to give appellant’s instruction No. 4 by which the court was requested to withdraw from the consideration of the jury any evidence tending to show negligence of its employees in failing to observe the rules with reference to making a “running switch,” for the reason that there were no such allegations in the complaint.

The negligence alleged as the proximate cause of Cunningham’s injury was that, while he was at his post of duty and engaged in the part assigned-to him in the operation of switching a car from appellant’s main line, “after the car which was being set -out had been kicked into the sidétrack, the defendant’s engineer in charge of said engine, without warning to -Cunningham, abruptly, carelessly, negligently and without proper care and caution reversed said engine and started the same with a sudden jerk and twirl of the motor and threw Cunningham to the ground. * * * That, just as Cunningham was thrown to the ground by a sudden jerk of the engine, the defendant’s engineer in charge of said engine and controlling its operation was signalled to stop, which he failed to do until the engine and tender had passed entirely over the body of the deceased; that the defendant’s engineer in charge of said engine was negligent and careless in the operation of said engine by suddenly starting the same with a jerk so as to throw the said Cunningham to the ground, and that he was negligent and careless in the operation of said engine by not keeping a proper lookout for signals to stop, and, after he had observed them, he then failed to obey same.”

The evidence is undisputed that Cunningham’s' proper place was on the engineer’s side (right) on the running board affixed to, and across the rear end of the tender, to' which was attached the car to be side-tracked and which it was Cunningham’s duty to uncouple at the proper time by drawing a pin which fastened it to the rear of the tender. During the switching operation he was seen by the “swing brakeman,” who had opened the switch, as he was in the act of falling.

It is the theory of the appellant that Cunningham left his place on the right, or engineer’s, side, where he should have remained, and for some unknown reason endeavored to walk along the running board to the left side of the train, and, while thus engaged and the train was in motion, in some way lost his balance and fell while the locomotive was being handled in a careful way and in the manner which was usual and necessary to accomplish the switching operation. But there is no evidence to indicate that he voluntarily left his proper station, and he was last seen just previous to his fall at the place where he should have been on the right, or engineer’s side. There was some testimony given by a section foreman who was at work about three hundred yards away, as to the operation of the locomotive, to the effect that it was handled, in the opinion of the witness, in a manner out of the ordinary and the movement was unusual in that “it stopped too quick and started too quick.” There is no testimony that we are able to discover tending to show a failure of the engineer to keep a proper lookout or to observe and obey the signals given, but whether the evidence is sufficient to submit to the jury the negligence alleged, is unnecessary for us to decide, because there is substantial evidence on other grounds to submit that question to the jury.

The record is sufficient to sustain the inference that a running switch is a highly dangerous operation, and the rules of the company which were introduced prescribe how and when such a switch is justified and the manner in which it should be made. Rule No. 317 is as follows:. “A running switch must not be made when practical to avoid it, but, when made, great care must be taken to prevent accidents.” There was evidence that at Cotton Plant the situation was such that generally a car to be set on the side track could be placed in front of the locomotive and pushed upon it, thus obviating the necessity of making a running switch which would be more dangerous. There was no evidence that any circumstances existed making it necessary to employ the more dangerous operation of making a running switch. The testimony does not describe in detail the manner in which a switch of that sort is made, but there is sufficient testimony to show that it required the slowing down or stopping of the locomotive at a given point and then a sudden movement in reverse, and that this was dangerous to the safety of one who like Cunningham must ride the train and quickly uncouple the ear.

It was a question, then, for the jury to determine whether the operation adopted was negligence and whether it was the proximate cause of the injury to Cunningham. The record discloses that all of this evidence was introduced without any objection being made. This, under settled rules, justified the court in treating the complaint as amended to conform to the proof, and it did not err in refusing to give instruction No. 4, withdrawing this evidence from the .jury.

A witness was called in rebuttal for the purpose of contradicting the statements of appellant’s witnesses. It is insisted that the manner in which this witness was questioned and his responses to these questions were improper, and the court erred in not sustaining appellant’s objections thereto. The appellee’s witnesses were asked on cross-examination if they did not make certain statements in the presence of the rebutting witness at a certain time and place. They denied making these statements. The witness on rebuttal was questioned from notes he had prepared in which the alleged statements were set down. These were read to him just as they were asked the witnesses sought to be impeached, and he was asked if they were made. The questions were such as admitted of the answer, “yes” or “no.” This was the proper manner to impeach the witnesses by proving contradictory statements'. All of the statements alleged to have been made and as contradictory of the evidence given by the witnesses related to the extent of the pain and suffering endured by Cunningham and as to whether it was consciously suffered.

It is finally insisted that the damages awarded are excessive and not sustained 'by the evidence. Damages were awarded on two grounds: One for the estate on account of the pain and suffering endured by the deceased, and the other to the widow for pecuniary loss.

It will be remembered that both of Cunningham’s legs were severed. The proof is clear that after his injury he was conscious, realized his condition, and gave unmistakable evidence of great suffering. It is true that immediately after the injury was sustained he lay as if dead, but he soon recovered from this swoon. It is also true that his drugged brain might not have registered pain acutely at all times, but it required six hypodermic injections of an opiate within the short time he lived, and this is sufficient to show that the pain must have been great indeed. It is difficult to form any just or adequate conception of the pain and suffering or the poignancy of the anguish of mind endured by Cunningham until he died, and we cannot say that the damages on account of this are excessive.

But, as to the damages awarded for the pecuniary loss sustained by the widow, the amount assessed is grossly excessive. The evidence is to the effect that Cunningham at one time had been a conductor on the Rock Island Railway, but at what time, or for how long, he held this position, is not shown; but that he had not been thus employed, however, for a number of years, is clear. What he first did after leaving the service of the railroad is not shown, but for eight years prior to 1927 he was in the cafe business in Brinkley, Arkansas, which, according to the testimony of his widow, was profitable, and he earned from three to four thousand dollars a year in that business. In 1927, however, he sold out this business in Brinkley and went to St. Louis where he. engaged for a short time in a similar business which proved unprofitable. After this, he had no regular employment and when he was killed he was being intermittently employed as a brakeman on appellant’s railway. The testimony relating to Ms earnings from 1927, most favorable to the appellee, is that of the widow, Mrs. Cunningham. Speaking of his employment after his venture in St. Louis, she testified as follows. “His next employment was with the Missouri & North Arkansas Bailroad. His work with the Missouri & North Arkansas Bailroad wasn’t regular. He worked there a few months, and then he was cut off of the board and came back to St. Louis, and spent all summer. Then he went back and had extra work. When he would be cut off of the board, he would come home and stay until he was recalled. He always contributed to my support. When my husband worked for the Bock Island he received standard pay, about $85 every two weeks. I couldn’t say what his earnings were with the Missouri & North Arkansas Bailroad; it all depends upon the time he would get to work. He worked so irregularly. He was on the extra board. He was a man of good habits, an industrious man, kind and considerate to his family. I think he entered the service of the Missouri & North Arkansas Bailroad in the fall of 1928. His employment was intermittent, depending on business conditions. He gave me about $75 or $80 a month, depending on his earnings. * * * When he went to work in 1928, I did not see very much of him. He spent most of the time away from home.”

Appellee calls attention to the testimony of Mrs. Cunningham to the effect that Cunningham made from three to four thousand dollars a year while operating the cafe in Brinkley, but this was in the past. He argues that Cunningham, by working 26 days a month as a 'brakeman, would earn $95.16, and that he worked at least three-fourths of his time as brakeman. We have carefully examined the record and find nothing that would justify this assumption. Appellee ’ also asserts that sooner or later Cunningham-would have become a conductor again, but we think this was hardly to be expected, both on account of the length .of .time he had been out of regular service and because of his advanced age. There is nothing to justify appellee’s argument to the effect that the jury might have ..believed that Cunningham would'reengage in business and make more than lie could either as a brakeman or conductor. The evidence is to the contrary. Before the business conditions which now obtain, when times were prosperous, Cunningham gave up his cafe business in Brinkley and attempted to re-engage in the same line of business in St. Louis and was forced to abandon it and did not attempt to again enter that business elsewhere, although during 1928 and 1929 it is well known that business of all kinds was apparently profitable.

Appellee also contends that at the time of Cunningham’s death, and before, he was giving to Mrs. Cunningham as living expenses from $75 to $100 a month. This contention, too, is not supported by the proof. The most that was said as to this last proposition was the statement made by Mrs. Cunningham, after telling of her husband’s earnings as a Rock Island conductor and the irregularity of his employment since he began to work with the appellant company, that “he g'ave me about $75 or $80 a month, depending on his earnings.” It was also argued that the evidence shows that Cunningham would have continued to contribute from $75 to $100 a month to his wife for the rest of his life out of money “he had previously earned in the restaurant business.” This might be true, but out of whatever estate he left she would be entitled to a part under the law, and not because of the manner of his death and his earning power, and contribution from it could not be measured by the extent of his gifts to her out of what he had already accumulated. So far as we have been able to ascertain from the record before us it is uncertain how frequently Cunningham worked, or for what length of time over any given period. Therefore, any verdict based on this ground must be wholly conjectural and speculative. Ordinary experience and knowledge of human affairs show that, when one has reached the age of the deceased, his opportunities and powers for earning rapidly lessen, and, although Cunningham’s life expectancy was thirteen years, it is wholly irrational to believe that during these years he would have earned a wage equal to that of his vigorous manhood. Then, too, out of his earnings something must have been expended for his own support, for, from Mrs. Cunningham’s testimony, it seems that he-had not resided in the home except for short intervals from 1928 up until the time of his death when he was living in Brinkley and his wife was living in St. Louis. Mrs. Cunningham said: “When he went to work in 1928 I didn’t see very much of him. He spent most of his time away from home.”

We are of the opinion, therefore, that the amount of the verdict, in any view of the evidence, would not be justified for a sum greater than $2,500. Accordingly, the .judgment for the benefit of the widow will be reduced to that sum, and judgment entered here therefor. In all other respects the judgment is correct, and it is affirmed.


text:
    Wasson v. Planters’ Bank & Trust Company.
    4-3358
    Opinion delivered December 4, 1933.

      W. R. Roddy, for appellant.

      M. B. Norfleet and Trieber & Lasley, for appellee.
   Butler, J.

On August 25, 1933, act No. 15 of the Extraordinary Session of the Forty-Ninth General Assembly of the State of Arkansas was approved. The purposes of this act are accurately stated in its title, which is as follows: “An act to qualify State banks for deposit insurance under congressional statute, and to recognize the rights of, and permit, the Bank Commissioner to co-operate and deal with federal deposit insurance corporation in respect to State insured banks and State member banks of the Federal Reserve System, as contemplated by said congressional statute; to authorize and validate the issuance by State banks in certain cases of common and/or one or more classes of preferred non-assessable and single-liability capital stock; and to reaffirm the legal and equitable remedies of creditors and other interested parties against banks under management of the Bank Commissioner.”

Section 1 of the act deals with the first purpose stated in the title of the act and gives to banks and trust companies and the Bank Commissioner the authority to effectuate that purpose.

Section 2 deals with the nature of the capital stock of banks and provides for the issuance by banks or trust companies, organized after the effective date of the act, of nonassessable and single liability preferred or common stock, and provides how and in what event and under what conditions banks and trust companies already existing, whether going concerns or operating on a restricted basis, or undergoing liquidation, or under the management of the Bank Commissioner, may convert stock held in such institutions into nonassessable and single liability stock either common or preferred.

Section 2-A relates to the status of the liability existing against owners of stock in banks existing at the time of the passage of the act.

Section 3 provides for the preservation of all remedies at law or in equity of creditors and other parties in interest against banks, trust companies, or building and loan associations, taken in charge for purposes of management by the Bank Commissioner, except in certain named particulars; and provides that the statute of limitations applicable to any claims against such institutions shall not be suspended or impaired during the management by the Bank Commissioner.

Section 3-A provides for the issuance by the Bank Commissioner of a certificate evidencing the claim of a depositor against any bank or trust company taken over for purpose of management where the right of withdrawal of the deposit is restricted in any way.

Section 4 provides for a repeal of all laws in conflict with the provisions of the act, and that, if any of its provisions should be held invalid for any reason, the remainder of the act should not be affected thereby.

Section 5 is the emergency clause setting forth the nature of the emergency existing and the necessity for the immediate operation of the act.

Section 2, among other things, provides that where the original charter did not provide for the issuance of preferred stock, the bank or trust company seeking to issue the same might so provide by an amendment to the charter, which action must be approved by the Bank Commissioner.

The appellee bank is seeking to partake of the benefits prescribed by the act of Congress, supra, and to accomplish that purpose its stockholders filed with the Bank Commissioner a proposed amendment to the charter of the bank by which authority was given the bank to convert its stock into nonassessable and single liability stock, a certain amount of which was to be preferred stock as provided for by act No. 15. The Bank Commissioner took the position that there was no legal authority for an amendment of the character proposed, and refused to entertain the application or to make any formal ruling on the merits thereof. Thereupon a petition for mandamus was filed in the second division of the Pulaski Circuit Court to compel the Bank Commissioner to exercise his discretion by passing upon the merits of the proposed amendment bearing upon the welfare of the bank, its stockholders and creditors, and to make a ruling either allowing or rejecting the proposed amendment. Prom the judgment of the circuit court granting the prayer of the petition, this appeal is prosecuted.

' The validity of the act is attacked on seven separate grounds. The first point made is that it authorized the conversion of outstanding stock subject to an assessment to the amount of 100 per cent, of its face value into non-assessable and single liability stock whereby the rights of existing creditors are impaired and results in the violation of the obligation of the contract, and depriving them of their property without due process of law within the meaning of the National and State. Constitutions prohibiting legislation of that character. It is contended that an analysis of § 2 shows that it specifically authorizes the conversion of outstanding assessable stock into nonassessable stock and contains no provision safeguarding the rights of creditors who hold obligations of the bank antedating the passage of the act, and thus extinguishes the stockholders’ liability to creditors of the bank then existing, and that there is no language in the act subsequent to § 2 which, properly construed, protects the creditors in their rights against the stockholders, existing prior to the enactment of act No. 15.

Section 2 consists of one long and involved paragraph, but there is no unsurmountable difficulty in arriving at its meaning. It simply provides that any bank or trust company then or thereafter organized, where withdrawal of its demand deposits shall have been restricted or where they may have been taken in charge by the Bank Commissioner, either for liquidation or management under existing laws, and if the corporation shall be reorganized by the removal of all restrictions on the withdrawal of its deposits except such as are expressly agreed to by the depositors, or where the Bank Commissioner’s charge for purposes of liquidation or management shall have been terminated, or where as a successor to it another bank or trust company shall be organized assuming in whole or in part its deposit liabilities, then, in either event, where the action is authorized in the original articles of agreement or so authorized «by amendment to the articles (the amendment to be submitted to and approved by the Bank Commissioner) all or part of the capital stock outstanding may be converted and the issuance of other shares may be authorized, which converted stock and such as is newly issued shall not “subject the owners thereof to any liability either to restore the capital or said respective bank or trust company, or, in addition to the amounts invested therein, for any of its debts, contracts or engagements.” The meaning of the language quoted is obscure, and if, as contended by the appellant, it relieves the stock of the banks existing prior to the passage of the act from assessment for the benefit of then existing creditors, it might be deemed as an impairment of the obligation of the contract existing between the bank and its creditor, and, for that reason, void on constitutional grounds.

It is well settled that a statute ought to he construed so that its validity be upheld, if any reasonable interpretation of its language justifies that action, and, where the language is of doubtful import, the entire act should be looked to. Under these settled canons of construction, when we examine § 2-A in connection with the part of the act challenged and quoted, supra, it is apparent that the Legislature was dealing with the stockholders’ liability with respect to debts of the bank contracted after the passage of the act and was not intended to, and did not, relieve the owners of stock in any existing banking institution from liability with relation to debts which the bank owed at that time, either to depositors or any other class of creditors. We think there can be no mistake as to what the Legislature intended, for by § 2-A it provided that “when bank stock is converted as provided for in § 2, nothing in this act- shall be construed as to relieve in any manner the double liability existing against owners of stock in old banks and/or trust companies in which the stock is being converted.”

The appellee correctly interprets the statute to mean, when §§ 2 and '2-A are read together, that holders of converted stock are not subject to double liability in respect thereof, but that those who were holders of stock subject to a double liability are not relieved therefrom, and continue subject to assessment to 100 per cent, of the par value of the stock outstanding on the date of the act for the satisfaction of the debts of the bank or trust company contracted prior to the conversion, even though such stock may have been converted into nonassessable stock in a new organization. The liability on the stock of a bank or trust company, existing at the time of the passage of the act, would remain and continue, even though the liability had not been fixed by the levy of any assessment against the stock. Therefore, since the act of conversion of stock in an existing bank into stock of a new organization does not in any degree affect any liability for debts then existing, it could not, and does not, deprive any such creditor of any rights, and does not violate the obligation of a contract or deprive the creditor of his property without duo process of law.

The next .point made is that the act violates the' same constitutional provisions because it may lessen the value of the shares of a common stockholder without his consent by reason of the issuance of preferred stock authorized by the act. This is the only objection to the validity of the act about which, in our opinion, there can be any question. It is contended that, where a corporation is created with common stock only, an implied contract exists between the corporators that the net profits of the corporation will be divided among the holders of such common stock in proportion to their ownership of shares; and, if thereafter preferred stock is issued, the result would be that the owners of common stock would not participate in the profits as intended, but their rights would be deferred to the preferred stock, and their profits diminished by the amount of dividends paid the same; and that therefore, unless the charter itself reserved the power of issuing preferred stock, the unanimous consent of the holders of common stock is necessary to validate such issue, and that, as the charter of the appellee bank did not reserve the right to issue preferred stock, the act is invalid because it permits the same to be done by a mere majority of the stockholders.

To sustain this contention, the appellant cites the case of Einstein v. Raritan Woolen Mills, a case from the New Jersey equity courts, reported in 74 N. J. Eq. 624, 70 Atl. 295. In that case there were two questions, one as to the power of the corporation, without the assent of all its shareholders, to increase the amount of its capital stock, and the other, as to the right of the corporation to issue preferred stock and compel its substitution for present outstanding common stock without the consent of all the shareholders. In holding that the corporation could do neither, because it would be an impairment of the obligation of contract, the court cited the case of Chicago City Ry. v. Allerton, 18 Wall. (U. S.) 233, as authority for its conclusion. That case is not authority for the point decided in Einstein v. Raritan, etc., supra, for there the only question was as to the power of the board of directors, acting alone to increase the capital stock" without the matter being submitted to, and approved by, the stockholders, and the only authority claimed was the provision in the charter “that the corporate powers of said corporation shall be vested in, and exercised by, a board of directors,” etc. The court held that this was no authority for the act complained of, since that provision in the charter authorized the performance merely of the. ordinary business transactions of the corporation and did not extend to a reconstruction of the body itself, or to an enlargement of its capital stock. The doctrine of the case of Einstein v. Raritanm, supra, was reaffirmed in the case of Allen v. Francisco Sugar Co., 92 N. J. Eq. 391, 110 Atl. 37.

It appears that at the time of the decision in the Einstein case there was no reservation in the Constitution or statutes of New Jersey for an alteration in the charter of the corporation, and that question was not passed upon. There are other decisions which apparently deny the right of the State to alter the contract of the stockholders as between themselves by statute passed after the formation of the corporation, but, in those States in which the power is reserved to alter or amend charters of corporations, it seems that such legislation is upheld and, in general,. that the charter may be altered so as to impose greater burdens on .the stockholders than were imposed at the time the charter was granted or makes possible a diminution in the value of their shares, where such alteration does not involve a confiscation of the rights of the individuals, deprive them of their property without due process of law, or violate the elementary principles of natural justice. In re College Hill Land Ass’n, etc., 157 Cal. 596, 108 Pac. 681; Peters v. U. S. Mortgage Co., 13 Del. Chy. 11, 114 Atl. 598; Somerville v. St. L. Mining, etc., Co., 46 Mont. 268, 127 Pac. 464, L. R. A. 1915B 811; Hinckley v. Schwarzschild, etc., 95 N. Y. Supp. 357; Winfree v. Riverside Cotton Mill, 113 Va. 717, 75 S. E. 309.

In this State, the right to alter or repeal laws under which corporations may have been formed and to alter, revoke or annul any charter of corporations by legislative act is expressly reserved by § 6, article 12, of the Constitution. Previous to January 1, 1914, stock in banking corporations was nonassessable for debts due by the corporation, but the General Assembly of 1913 passed an act, by the last section of which double liability was imposed on stock for all the debts and engagements of the bank, and which became effective January 1, 1914. This act was attacked in the case of Davis v. Moore, 130 Ark. 128, 197 S. W. 295, on constitutional grounds, and the same was upheld by this court on the power of the Legislature to make any alteration in the articles of incorporation under the reserve power retained in the Constitution, so that no injustice shall be done the incorporators. The court said: “We do not think this statute falls within the terms of the limitation upon the power of the Legislature with respect to confining amendments to those which do no injustice to the corporators.” The constitutionality of that act was also upheld by the Court of Appeals of New York, 134 N. E. 596, on appeal from the appellate division of the Supreme Court in the case of Maxwell, etc., v. Thompson, 186 N. Y. Supp. 208. In the opinion rendered in the last-named court, § 6, art. 12, of our Constitution was quoted, the statute reviewed, and the conclusion reached that it was constitutional, both under the laws of the State of Arkansas on the authority of Davis v. Moore, supra, and of the Constitution and statutes of the State of New York.

In the case of Bank of Blytheville v. State, 148 Ark. 504, 230 S. W. 550, the court had under consideration the statute (§§ 2832-2835 of Crawford & Moses’ Digest) making stockholders of banks liable for public funds deposited therein. Its constitutionality was attacked on the contention, among others, that it impaired existing obligations of contract in violation of art. 1, § 10, of the Federal Constitution, and also that it came within the limitation of the powers of the Legislature contained in § 6, art. 12, of our Constitution. The court, in overruling both contentions, said: ‘ Every objection urged by appellants against the constitutionality of the acts finds an answer in the fact that a corporation accepts its charter powers subject to the reserved right in the State to alter or revoke the charter whenever, in the opinion of the General Assembly, such revocation or alteration is for the protection of the citizens of the State, if done in such a manner that no injustice may be done to the corporators. 'Before an act revoking or changing the charter of a corporation can be declared unconstitutional, it must appear that the effect of the .act is confiscatory of the stock or property of the corporation.”

The right to alter the charter, reserved by the State, necessarily vested the Legislature with power to provide for the issuance of preferred stock, and, since it does not appear that any elementary principle of natural justice would be violated, or that the issuance of preferred stock in the manner provided by the act would work any confiscation of the stockholders’ property in their stock, it is our opinion that no constitutional prohibition is violated, because the rights of all parties, it must be presumed, will be protected by the Bank Commissioner when he passes on the merits of the application for amendment. It may also be said that, since an act of the General Assembly passed at its 1905 session, every corporation organized under the laws of this State by virtue of said act has had the power to issue preferred stock, either where the right was expressed by certificate of incorporation or in an amendment thereof. The provision of the act is § 1703 of Crawford & Moses’ Digest, which is that “Every corporation organized under the laws of the State of Arkansas shall have power to issue preferred stock with such preferences and voting powers and restrictions or qualifications therein as shall be stated and expressed in certificate of incorporation, or in any certificate of amendment thereof.”

The third point raised by the appellant is that the phraseology of the act does not authorize the issuance of nonassessable preferred stock, the argument being that the general provision contained in the last sentence of § 2, authorizing any bank or trust company organized after the passage of the act to issue common or preferred stock, relates to a particular provision providing for the reorganization of restricted banks, those in the hands of the Commissioner for liquidation or management, and that, since the appellees were not proceeding under the prior particular provisions, they were not entitled to any relief. We see no merit in this contention.

The fourth ground of objection is that, because of the ambiguity of the language of §§ 2 and 2-A, there is no authority to issue nonassessable stock. As already noted, we find no ambiguity when the two sections are read together, and we regard the language as sufficiently definite to accomplish the purpose designed.

We find no merit in the 5th objection, that the addition of §§ 2-A and 3-A to the original bill by way of amendment changed the purpose of the measure, and therefore the legislation is void under § 21 of art. 5 of our Constitution. Section 2-A, as we have seen, does nat change the original purpose of the measure, but clarifies and makes certain the provisions of § 2 with respect to the continuing liability of existing stock. Section 3-A merely provides for a, certificate of indebtedness to be issued to the owners of frozen deposits. One of the purposes of the act was to preserve the rights of such depositors as then existed, and § 3-A merely provided for the evidence of the amount of the existing claim. But, if it should be obnoxious as not within the purpose of the act as originally drawn, it could be eliminated without impairing the remainder of the act, and giving effect to the intention of the law-making body as expressed in § 4 of its act, supra; the remainder of the act, if otherwise unobjectionable, will be sustained.

It is contended in the sixth place that the act violates § 23 of art. 5 of our Constitution, which restrains the Legislature from amending or extending provisions of a statute by reference to its title. The particular complaint made is that, under the act, the issuance of non-assessable stock will be ‘ ‘ executed, submitted to, and approved by, the Bank Commissioner, and filed with the county clerk, all in a manner and form as now provided by law.” The answer to this is that the statute is original in form, and by its own language grants powers, confers rights and creates burdens or obligations, and the reference to existing laws is for the' purpose of pointing out the procedure in executing the power, enforcing the right, or discharging the duty. Farris v. Wright, 158 Ark. 519, 250 S. W. 889.

In the last place, it is insisted that the act was not enacted through proper legislative proceedings. We deem it unimportant to set out the errors alleged, since we think a fair construction of the record of the House and Senate do not in any particular sustain the complaint made, or render it uncertain as to the identity of the legislation considered in the bill, which, as amended, finally and properly became the act now under consideration.

It follows, from the views expressed, that the action of the circuit court in awarding the writ prayed was correct, and its judgment is therefore affirmed.