author: Butler, J.

text:
    Special School Dist. No. 50 v. Deason.
    Opinion delivered February 2, 1931.

      Rice Rice, for appellant.
   Butler, J.

This case is here on appeal from a decree of the Benton Chancery'Court denying appellant’s petition for an injunction restraining the county treasurer from transferring funds of Special School District No. 50 to the Gentry Special School District. The appellee has not favored us with a brief, and the record presented by the appellant presents the following state of case:

The county school hoard of Benton County on petition made an order consolidating appellant school district with Gentry Special School District in March, 1929. From that order an appeal was prayed and granted, the affidavit for which was filed with the clerk of the circuit court on the 23d day of March, 1929, but the transcript of the proceedings before the hoard was not filed until the 4th day of November following. It appears that on the 18th day of September the circuit court made an order dismissing the defendant’s petition seeking to consolidate and change the boundary lines of Special School District No. 50 and Gentry Special School District, and afterward, to-wit, on the 21st day of March, 1930, made and entered a judgment dismissing the appeal taken from the order of the county hoard aforesaid. From the recitals of that judgment it appears that a motion to dismiss the appeal taken from the order of said county board was filed, to which the appellant here made answer. The cause was submitted to the court upon the transcript from the county hoard of education filed November 4, 1929, the motion of the petitioners to dismiss the appeal, appellant’s answer to said motion, the petitioner’s reply thereto, together with exhibits to said reply, and the judgment of this court rendered September 18, 19'29, and the court found as follows: ‘ ‘ The court finds that the judgment of the county board of education of Benton County, Arkansas, in this cause was rendered by said board on the 9th day of March, 1929, and that appellants on said date filed their affidavit and prayer for an appeal, and on the 4th day of November, 1929, filed the transcript from said board with the clerk of this court, which was more than six months from the time the appeal was allowed by said board until the transcript was lodged in this court.

“It is, therefore, considered, ordered and adjudged by the court that the appeal herein be and the same is by the court dismissed, and the clerk of this court is ordered to certify this judgment to the county board of education of Benton County, Arkansas.

“Appellants except to the order and judgment of the court, and pray an appeal to the Supreme Court of Arkansas, which appeal is by the court granted.”

The only other order presented by the record here that was made by the said court was the order adjourning until March 22, 1930. On the 8th day of April, 1930, appellant filed its complaint in the chancery court alleging that it was a special rural school district in Benton County, and that the appellee, as treasurer of said county, held funds belonging to plaintiff district, and that he was soon to receive other funds from the collector belonging to said district; that he had unlawfully transferred a part of the funds to the Gentry Special School District and was about to transfer and turn over to said Gentry Special School District the taxes which were in course of collection; that, unless the appellee was restrained from making this transfer, it would suffer an irreparable injury for which it had no adequate remedy at law, and prayed for a restraining order and for an accounting.

The chancellor, upon a hearing, dismissed the appellant’s bill and denied the relief prayed. This order of the court was correct. The judgment of the circuit court made on the 21st day of April, 1930, dismissed the appellant’s appeal from the order of the county board of education, which, until set aside or reversed, left the order of the school ¡board dissolving the appellant district and consolidating it with the Gentry Special School District in full force and effect, and therefore the treasurer was properly proceeding in making the transfer about which complaint is made. Appellant’s remedy was by appeal from the judgment of the circuit court of April 21, 1930, which he could not abandon as was done, and invoke the aid of a court of equity. The injunctive relief of a court of equity cannot be invoked when there is an adequate remedy at law is so well settled that the mere statement of the rule is sufficient.

The decree is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Bell v. Rice.
    Opinion delivered February 9, 1931.

      Huddleston Hughes, for appellant.

      Won. F. Kirsch, for appellee.
   Per Curiam.

This is an appeal from a mortgage foreclosure decree rendered in vacation by agreement of the parties on the 12th day of June, 1930.

On the 8th day of December, 1930, a certified copy of the decree was filed with the clerk of this court, which was four days before the time for appeal expired, and at the same time, a writ of certiorari was issued by the clerk of this court to the clerk of the chancery court to bring- up the remainder of the record. The clerk of the chancery court by affidavit stated that on the 5th day of October, 1930, which was five days after the transcript had been ordered by counsel for appellant, he prepared a complete transcript of all the proceeding’s in the case in the chancery court and tendered the same to the attorney for appellant upon the payment of the legal costs in the sum of $50. Attorney for appellant refused to pay, and a few days before December 8, 1930, asked for a certified copy of the decree in the case, which was made and delivered to him. The record does not show that a summons was asked for or issued when the appeal was taken before the clerk of this court, until the 24th day of January, 1931, which was after appellee had filed a motion to dismiss the appeal and appeared in this court for no other purpose.

If counsel for appellant thoug-ht that the clerk of the chancery court was negligent in the performance of his duty in preparing a transcript of the record in the case, he had an appropriate remedy 'by mandamus in this court. In re Barstow, 54 Ark. 551, 16 S. W. 574.

The case of Reynolds v. Union Bank & Trust Co., 182 Ark. 495, 30 S. W. (2d) 218, has no application. There the court held that, under the terms of the special act under consideration, the stenographer was accountable only to the chancery court which appointed him and had no direct duty whatever to prepare and authenticate the transcript to be filed in this court. There, as here, the clerk of the chancery court was under the statutory duty to prepare and authenticate the transcript on appeal. The stenographer of the chancery court was at all times amenable to the orders of the chancellor just as a stenographer of a circuit court is at all times amenable to its order in transcribing his notes in order that the bill of exceptions may be presented to the court within the time allowed by it. In neither case is the stenographer required by statute to perform any duties for this court.

In the present case, under the facts stated, we are of the opinion that no proper diligence on the part of the appellant has been shown in perfecting the transcript on appeal; and that, under the circumstances shown by the record, the appellee was not summoned within a reasonable time. Birmingham v. Rice, 90 Ark. 306, 118 S. W. 1017, and cases cited; Foreman v. Dickinson, 177 Ark. 121, 6 S. W. (2d) 829. Therefore, the appeal will be dismissed.


author: Hart, C. J. Smith, J.,

text:
    Cannon v. May.
    Opinion delivered February 9, 1931.

      F¡. F. McFadclin, for appellant.

      John P. Vesey, for appellee.
   Hart, C. J.

It is conceded by counsel for the parties that the single question raised by this appeal is the validity of act 150 of the Acts of 1929, placing the county treasurer and county and probate clerk of Hempstead County, Arkansas, on a salary basis. Acts of 1929, vol. 1, p. 764.

That part of § 1 relating to the issue raised by the appeal provides that the county and probate clerk of Hempstead County, Arkansas, shall receive as full compensation for his services as county and probate clerk the sum of $3,600, and the sum of $1,500 for a deputy, said sums to be paid in equal monthly installments. The county court, upheld the act, and allowed Frank May and his deputy the salaries provided in the act. Curtis Cannon, a taxpayer, was allowed to intervene and appeal to the circuit court. There again the validity of the act was upheld, and the claims of the county and probate clerk and his deputy were allowed as provided by statute. The case is here on appeal.

Amendment No. 12 to our Constitution reads as follows: “The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.”

In the construction of this amendment, this court has held that act No. 367 of the Acts of 1929, fixing the compensation of the sheriff of Crawford County and the duty of the county clerk of such county on a basis entirely different from that of other sheriffs and county clerks in the State is within the constitutional provision against special legislation. Smalley v. Bushmaier, 181 Ark. 874, 31 S. W. (2d) 292. This holding’ was reaffirmed in the later unreported case of Smalley v. Bushmaier, 181 Ark. 1147, 31 S. W. (2d) 293.

It is conceded that, if the ruling' in these cases is adhered to, the act is unconstitutional, and the judgment must be reversed; but it is insisted that the holding in these cases is wrong and should be overruled. We cannot agree with counsel in this contention. The act in question is purely local, and its application is confined to Hempstead County. It fixes the salary of the county and probate clerk of that county and has no reference to the salary of the county and probate clerk of any other county.

Prior to the adoption of the amendment in question, this court held that the act of February 20, 1893, fixing the salaries of the officers of Sebastian County was not in violation of the Constitution of 1874, article 5, § 26, providing that in all cases where a general law can be made applicable, no special law shall be enacted, since the Legislature is the judge of the necessity and propriety of the special law as applicable to any particular subject. Powell v. Durden, 61 Ark. 21, 31 S. W. 740. The court expressly stated that the act was a special one, and based its opinion on the doctrine that the Legislature was the judge of the necessity and propriety of a special law, as applicable to any subject, rather than a general law. Although there was no extended argument of the question, the court in that case recognized that a salary act for the officers of a single county was a special act. If it had deemed that a salary act was a general one, the court would doubtless have said so, as it did in the later case of Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844, where it was said that statutes establishing or abolishing- separate courts relate to the administration of justice and are not local or special in their operation. A Missouri case was cited in support of the ruling. The Supreme Court of Missouri based its holding on the principle that the judicial system of the State was a whole, and that acts dealing with the courts have been usually held general, although not applicable to every court of like nature in the State. The ruling proceeds upon the doctrine that the judicial department of the State is a “composite unit.” Greene County v. Lydy, 263 Mo. 77, 172 S. W. 376, Ann Cas. 1917C, p. 274. In this connection, it may be stated that the Supreme Court of the State of Missouri in a well-considered case has held that a statute fixing the fees or compensation of officers of a single county is a question in its nature local and a law regulating such compensation cannot 'be properly regarded as a law of a general nature but is a local or special act. Henderson v. Koenig, 168 Mo. 356, 68 S. W. 72, 57 L. R. A. 659.

The Supreme Court of New York has held that an act relating to the fees of the sheriff of a single county is a local act. Gasken v. Meeks, 42 N. Y. 186. To the same effect see Cricket v. State, 18 Ohio St. 9; Gibbs v. Morgan, 39 N. J. Eq. 126; and Commonwealth v. McMichael, 8 Pa. Dist. 157.

The reason for the rule and the rule itself is clearly stated in Ferguson v. Ross, 126 N. Y. 459, 27 N. E. 954. Judge Andrews said:

“It seems impossible to fix any definite rule by which to solve the question whether a law is local or general, and it has been found expedient to leave the matter, to a considerable extent, open, to be determined upon the special circumstances of each case. There are, however, certain general principles to be deduced from the decisions. One of these is that a statute may be public and still local, and therefore within the purview of this provision of the constitution. In accordance with this view, it has been held that acts constituting or defining the jurisdiction of local courts, amending charters of municipal corporations, regulating the appointment and election of local officers in a particular city, providing for the laying out of streets or highways or the construction of bridges in a specified locality, and for local taxation to pay the expense of the work, regulating the fees of officers in a particular county or the expenses of judicial sales therein, although public acts, are nevertheless local and to be valid the subject of the enactment must be expressed in the title. [Citing authorities.] ”
“Another rule evolved by the discussion of the subject is that an act embracing within its scope all the cities of the State, or all things of a certain class, is a general and not a local act, although by reason of some limitation, based on population or other condition, only a particular city or the inhabitants of a single locality can in the actual situation receive its benefits. In re N. Y. Elevated R. R., 70 N. Y. 328; In re Church, 95 N. Y. 2.”

The act under consideration applies to only one county in the State, excluding all other counties from its consideration, and is clearly a local or special act, under the principles of law above announced.

It is claimed that this holding will render invalid a number of salary acts of a similar character passed by the Legislature of 1929. Considerations of that sort cannot affect a judicial determination of a question of law. Our duty is to construe the Constitution as it is written. As we have already seen, the Supreme Court of this State has defined a salary act for the officers of a single county to be a local or special act before the adoption of the amendment under consideration. The legal presumption is that the framers of the amendment had in mind that the court had already held that a salary act for the 'officers of a single county was a local or special act. A prior construction of a State Constitution will be regarded, in the absence of any evidence of different intent, as adopted by re-enactment of the same language in a revision of the Constitution. Sanders v. St. Louis & New Orleans Anchor Line, 97 Mo. 26, 10 S. W. 595, 3 L. R. A. 390. This is in application of that established doctrine of constitutional construction that when a later Constitution or an amendment adopts a provision of an earlier one that has received judicial construction, it is deemed to be adopted as thus construed. State v. DeLorenzo, 81 N. J. L. 613, 79 Atl. 539, Ann. Cas. 1912D, 329; Morgan v. Dudley, 18 B. Mon. (Ky.) 693, 68 Am. Dec. 735; Cooley, Const. Lim. 8 Ed., vol. 1, p. 136, 12 C. J., p. 717; and 6 R. C. L., p. 54.

We again call attention to the fact that this decision does not impair the decision in State v. Crawford, 35 Ark. 236, where it was held that a statute settling the accounts between the State and certain parties is a general and not a special act, but the reason was that the State is sovereign and in the settlement of the account acted for all the people in the State.

Again, we do not wish to be understood as impairing the force of cases like Ark-Ash Limber Co. v. Pride & Fairley, 162 Ark. 235, 258 S. W. 335; McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707; and Farelly Lake Levee District v. Hudson, 169 Ark. 33, 273 S. W. 711. On the other hand, we think the rule there announced fully sustains the view herein expressed that the act under consideration is a local or special one because, according to its terms, it only applies to a single county in the State and could not apply to any other county or counties.

We again call attention to the case of Harwood v. Wentworth, 162 U. S. 547, 16 S. Ct. 890, cited in Webb v. Adams, 180 Ark. 713, 23 S. W. (2d) 617, where it was held that counties may be properly classified for the purpose of fixing the salaries of county officers according to population, wealth and other things, 'which are calculated to furnish a reasonable basis for the classification, so that as nearly as possible, the officers wc/uld be compensated according- to the amount of work done.

The result of our views is that the act under consideration is unconstitutional; and it follows that the judgment of the circuit court must be reversed, and the cause will be remanded with directions to the circuit court to certify its judgment in accordance with the opinion herein expressed down to the county court for its guidance in the premises.

Smith, J.,

(dissenting). In my opinion, the decisions of this court in the cases of Smalley v. Bushmaier, 181 Ark. 874, 31 S. W. (2d) 292, and 181 Ark. 1147, 31 S. W. (2d) 293, are erroneous, and the error thereof is demonstrated in the majority opinion in the instant case. These Smalley cases are, in fact, a single case, although there were separate opinions. They were companion cases involving the identical question, and the opinions in both were handed down on the same day, and in the last case it was merely held that the opinion in that case was controlled by the opinion in the former. The holding of those cases has been enlarged in the instant case, and a conclusion reached which they do not require.

The Local Bill Amendment, the correct number of which appears to be No. 12 (Applegate’s Constitution of Arkansas Annotated, p. 231), is not to be construed as if it stood alone. It can be correctly construed only when read in connection with the Constitution of which it has become a part. In the case of Hodges v. Dawdy, 104 Ark. 583, 149 S. W. 656, in construing the effect of the adoption of another amendment, we said: “The amendment being the last expression of the popular will in shaping the organic law of the State, all provisions of the Constitution which are necessarily repugnant thereto must, of course, yield, and all others remain in force. It-is simply fitted into the existing Constitution, the same as any other amendment, displacing only such provisions as are found to be inconsistent with it. Like any other new enactment, it is a ‘fresh drop added to the yielding mass of the prior law, to be mingled by interpretation with it. ’ State v. Sewell, 45 Ark. 387. In the construction of its terms, and in the determination of its scope and effect, the courts should follow settled rules of interpretation.”

Amendment No. 12 should therefore be read and construed in connection with the whole Constitution of which it has become a part, and, when so read and construed, certain conditions must be taken into consideration. It has always been the law that the General Assembly, and that agency alone, could fix the compensation of county officers, and this might be done by fixing fees for particular services to be paid them, or allowing a salary for all services. The power to do either existed, and has never been questioned.

In the case of Nixon v. Allen, 150 Ark. 244, 234 S. W. 45, we said: “The power to fix the salaries and fees of all officers in the State, and the number of their clerks and employees and their salaries, is a function, which, within the limits of the Constitution, is lodged in the supreme law-making power of the State — the Legislature. (Citing cases.) The General Assembly cannot delegate this legislative power to any individual, officer, or board. ’ ’ This language was employed in a case involving the salaries of the officers of Pulaski County, and that county alone.

The General Assembly would have had this power unless the Constitution had denied it. But this authority was not only not denied, but was expressly conferred by ■§ 4 of article 16, of the Constitution, which reads as follows: “The General Assembly shall fix the salaries and fees of all officers in the State, and no greater salary or fee than that fixed by law shall be paid to any officer, employee or other person, or at any rate other than par value; and the number and salaries of the clerks and employees of the different departments of the State shall be fixed by law. ’ ’

Express authority is here conferred to fix both salaries and fees, and compensation to an officer may therefore be provided by either a salary or fees.

Certainly, this section of the Constitution has not been repealed by amendment No. 12, and the authority to fix the compensation of all officers in the State imports authority to fix the compensation of a particular officer or officers in certain counties, as distinguished from officers in other counties, and it cannot be true that this authority may be exercised in a particular county only by the enactment of legislation applicable to all counties.

There is a wide difference in the population and wealth of the different counties of the State, with consequent difference in the extent of the services to be performed by similar officers in the different counties. An adequate compensation for one county might be inadequate in another, and this condition was taken into account in the section of the Constitution quoted, which left to the General Assembly the authority to fix the compensation of all officers.

In the opinion on rehearing in the case of Webb v. Adams, 180 Ark. 713, 23 S. W. (2d) 617, we said that: “Reasonable classification can always be made under a general law.’’ And in that opinion we further said: “In the application of this rule in LeMaire v. Henderson, 174 Ark. 936, 298 S. W. 327, the court sustained a statute classifying school districts in certain counties, and held that in classifying- school districts the Legislature may consider the density of population, the wealth of the county, the system of roads, and the topography of the country with reference’to whether it is hilly or not.” And I think the statement may be added that, in fixing the compensation of county officers, the Legislature may consider the amount of service the officer whose compensation is fixed by law will be required to perform.

In this opinion in the case of Webb v. Adams, supra, on rehearing, we further said: “In this connection we do not wish, to be understood as impairing in the least the force of the decisions in State v. Crawford, 35 Ark. 236, which holds that a statute settling accounts between the State and certain parties is a g*eneral and not a special act; and in Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844, holding that statutes establishing or abolishing separate courts relate to the administration of justice and are not either local or special in their operation. This is in recognition of that principle of State sovereignty under which the State, through its Legislature, may protect its own interest, and by virtue of it the Legislature may treat every -subject of sovereignty as within a class by itself, and bills of that kind are usually held to be general and not local or special laws. There are cases where the State, by its Legislature, commits the discharge of its sovereign political functions to agencies selected by it for that purpose, and such acts have usually been held to be general acts.

“Neither do we wish to impair the force of cases like Harwood v. Wentworth, 162 U. S. 547, 16 S. Ct. 890, where Congress by legislation fixed the salaries of county officers of the territory of Arizona and thereby displaced the system of fees and allowances; and the act was held to be a general one, and not a local or special law. The court said that the act was general in its operation, and applied to all counties in the territory. The- counties were classified for the purpose of fixing the salaries of the county officers according to population, wealth, and other things, which were calculated to furnish a reasonable basis for the classification, so that, as nearly as practical, the officers would be compensated according to the amount of work done. ’ ’

I am therefore of the opinion that act No. 150 of the Acts of 1929, vol. 1, p. 764, herein held unconstitutional, is neither local nor special, within the meaning of amendment No. 12. It is an administrative measure, of a kind of which we have innumerable examples in the published acts of all the sessions of the General Assembly since the adoption of amendment No. 12.

In the exercise of its functions as a sovereign the State has, and must have, power to enact administrative legislation, even though such legislation operates only in a particular locality or upon a single individual.

The act upheld in the case of Urguhart v. State, 180 Ark. 937, 23 S. W. (2d) 963, is an example of such legislation. That case was one in which an act was construed which made provision for the settlement of a controversy arising between the State and one of its citizens out of the purchase of a convict farm. The act was attacked as a special act and therefore void under amendment No. 12. But, in upholding the act, we said: “Act 120 is neither a local nor special act within the meaning- of this amendment. It is an exercise of the State’s sovereignty in settling a controversy with one of its citizens, and such acts are neither local nor special. State v. Crawford, 35 Ark. 237. See also other cases cited in the opinion on rehearing in the case of Webb v. Adams, ante p. 713.”

The majority recognize the right of the General Assembly to fix fees and salaries, but say it must be done in accordance with some basis of classification. I have attempted to show that this was not true as to salary acts, but, if so, it appears to me that, when this concession is made, as it must be, their argument falls. Is not the Hempstead County act a classification act? When the General Assembly has the power to act, it is not required to recite the reasons inducing its action, and should we not assume that the General Assembly was made aware of the population and wealth of Hempstead County and the amount of labor required of its county clerk in fixing his salary, and had fixed his salary accordingly? Must the General Assembly, after ascertaining these facts as to a particular county, postpone legislation as to that county until it has also ascertained these facts as to all other counties? And, if it be ascertained that the compensation of a particular officer which can be fixed only by the General Assembly is either excessive or inadequate, is appropriate legislation to correct the inequality to be declared invalid unless the legislation correcting the inequality relates to all other counties in which no such conditions are found to exist?

The majority cite the case of Powell v. Durden, 61 Ark. 21, 31 S. W. 740, but I think it'gives no support to their position. That case recognized the validity of -a salary act applicable to Sebastian County alone. It was there insisted that the officers of that county should be paid fees, and not a salary, “for the reason that a general law providing for the pay of such officers has almost from time immemorial proved itself 'applicable to the subject, and that therefore the special act is in violation of the 25th section, article 5, of the Constitution. ’ ’

Section 25 of article 5, of the Constitution provides that “In all cases where a general law can be made applicable no special law shall be enacted; nor shall the operation of any general law be suspended by the Legislature for the benefit of any particular individual, corporation or association; nor where the courts have juris- . diction to grant the powers or the privileges or the relief asked for.”

The point there involved was whether the General Assembly might, in view of this section of the Constitution, pass a law which applied only to a particular county, and the poijit decided was that the Legislature was the judge of the necessity or propriety of a special law as applicable to any subject, rather than a general law, and the act was upheld as valid on that theory.

Certainly, an aot, even though it relates to salaries, which applies to a single county, or to any part of the State less than the whole, is not a general act, and I do not so contend. What I do contend is that a salary act, even though applicable to only one county, is not a local or special act, within the meaning of amendment No. 12, because an act of that kind is administrative in its nature, and is expressly authorized by section 4, of article 16, of the Constitution, and that section of the Constitution was unaffected by the adoption of amendment No. 12.

The act held invalid in the Smalley v. Bushmaier cases was one allowing the sheriff of Crawford County a fee of seventy-five cents per day for feeding prisoners, whereas other sheriffs of the State are allowed a dollar per day for similar services. Section 6211, C. & M. Digest. That act did not fix the salary of the sheriff of that county, but did fix the fee for the particular service, different from that of other sheriffs for the same service, thereby destroying uniformity in fees for the same service throughout' the State. Charging one fee in one county for a particular service, and a less or greater fee in another for the same service, is a different proposition from that of fixing* different salaries for all services in different counties. Section 4 of article 16 of the Constitution confers authority on the General Assembly to fix the salaries and fees of all officers of the State, and may contemplate that the same fees shall be charged for the same service throughout the State (which I do not concede), but, certainly, does not contemplate that all similar officers of different counties placed upon a salary shall be paid the same salary.

Act 150 of the Acts of 1929, herein held unconstitutional, fixes first the salary of the county treasurer of Hempstead County, and also that of the county and probate clerk of that county and his deputy. But it does not affect the fees to be charged in that county which the county clerk is required to collect, for by section 1-A of the act it is provided that “All fees now provided by law shall be collected by the county clerk of Hempstead County, Arkansas, and paid into the general revenue fund of Hempstead County.” This means, of course, that the same fees shall be collected there as are collected in other counties throughout the State, arid in this respect the Hempstead County act is distinguishable from the Crawford County act, held invalid in the Smalley cases.

The Hempstead County act does nothing more than fix the salary of two county officers, and I think the Legislature has this power, and that the act is valid and not in conflict with amendment No. 12.

I therefore most respectfully dissent; and I am authorized to say that Mr. Justice MoHaney concurs in the views here expressed.


author: Smith, J.

text:
    Chapman & Dewey Lumber Company v. Bryan.
    Opinion delivered February 9, 1931.

      Joe C. Barrett and Dudley Jb Dudley, for appellant.

      Harrison, Smith $ Taylor and C. T. Carpenter, for appellee.
   Smith, J.

Appellant, a Missouri corporation, operates a large sawmill at Marked Tree in this State. Appellee, while employed at the mill, sustained a personal injury, and this suit was brought to recover damages to compensate his injury. The sawmill is located in Poinsett County, but the suit was brought in Crittenden County. Appellant is not engaged in business in the latter county, and was not in business there when this suit was brought.

An answer was filed May 31,1927, in which the negligence of the defendant company was denied, and the defenses of assumption of risk and contributory negligence were set up. The opinion of this court had been handed down (November 2, 1925) in the case of Power Manufacturing Co. v. Saunders, 169 Ark. 748, 276 S. W. 599, at the time the answer was filed, but the appeal therefrom to the Supreme Court- of the United States had not then been decided. In this Power Manufacturing Company case we construed § 1829, C. & M. Digest, which provides that service of summons upon a foreign corporation doing business in this State “shall be sufficient service to give jurisdiction over such corporation to any of the courts of this State, whether the service was had upon said agent within the county where the suit is brought or is pending or not.” We upheld the statute on the theory that venue is a question of procedure, which the State may determine, and the authority existed under this statute, as we construed it, to prosecute the present action in the circuit court of Crittenden County, where the suit was brought, although the defendant corporation was not engaged in business in that county.

But, on May 31, 1927, which was the very day the answer had been filed in this case, the Supreme Court of the United States reversed the decision of this court (Power Manufacturing Co. v. Saunders, 271 U. S. 490, 17 S. Ct. 678), holding that the statute was unreasonable and arbitrary and in violation of the equal protection clause of the 11th Amendment to the Constitution of the United States, as applied to foreign corporations doing business in the State.

Thereafter, on November 25, 1927, which was the first day of the following term of the Crittenden Circuit Court, the appellant company filed a motion, in which it asked permission to withdraw the answer previously filed and to dismiss the cause for want of jurisdiction. This motion was heard and denied and an exception was duly saved. It appears, however, that the appellant had not, prior to filing this motion, questioned the jurisdiction of the Crittenden Circuit Court, and the answer was a general appearance denying liability, without questioning the jurisdiction of the Crittenden Circuit Court.

It is not now questioned that the appearance of the appellant company might have been entered, although the court was without jurisdiction, nor is it questioned that such appearance was entered. The insistence is that the appearance was entered only because, under the law as this court had declared it, the Crittenden Circuit Court had jurisdiction of the cause of action, and that holding had not been reversed by the Supreme Court of the United States at the time the answer was filed. But the appellant company had the same right, notwithstanding our decision, to question the jurisdiction that the Power Manufacturing Company had, yet it did not do so.

It is familiar law that one may submit to a jurisdiction which could not otherwise be acquired, and that one does submit who, without questioning the jurisdiction, enters an appearance, and it has been many times decided by this court that any action on the part of the defendant, except to object to the jurisdiction, which recognizes the case as in court, will amount to a general appearance, and an appearance cannot be more completely entered than by filing an answer, and this, as we have said, the appellant company did without raising any question as to the jurisdiction of the court. This rule was announced in the early case of Murphy v. Williams, 1 Ark. 376, and has since been followed; indeed, the rule appears to be universal. Foohs v. Bilby, 95 Ark. 302, 129 S. W. 1104; Harris v. Smith, 133 Ark. 250, 202 S. W. 244; Sager v. Jung & Sons Co., 143 Ark. 506, 220 S. W. 801; Payne & Stockton, 147 Ark. 598, 229 S. W. 44; J. C. Engleman, Inc., v. Briscoe, 172 Ark. 1088, 291 S. W. 795; Fidelity Mut. Life Ins. Co. v. Price, 180 Ark. 214, 20 S. W. (2d) 874.

Appellee lost one finger and sustained an injury to another, and recovered a judgment, which is not complained of as being excessive, and this appeal has been prosecuted to reverse that judgment. It is insisted, for the reversal of this judgment, that the testimony is not legally sufficient to sustain it, and that error was committed in giving certain instructions.

The testimony tending to sustain the verdict may be briefly summarized as follows: Appellant company operates a mill at Marked Tree, where logs are first sawed into boards, which are then run through a trimmer and there trimmed into standard lengths. The trimmer is 16 feet in length, and has 6 saws, mounted in an east and west line. The first saw is at the east end, and the remaining five saws are mounted in a straight line 8, 10, 12, 14 and 16 feet, respectively, west of the first, and, according to their distance from the first saw, are called the 8-foot saw, the 10-foot saw, and so on. Each of these saws is mounted on a separate mandrel, has a separate pulley, and is driven by a separate belt, but all of the six saws are driven by the same power shaft, called the line shaft. The line shaft is eight feet south of the saws, and each belt extends back around the common line shaft. These saws are in the north end of a table, and there are slits in the table through which these saws are raised and the appropriate one used to trim the boards into the length desired. The trimmer saws are operated by an employee called the trimmer sawyer, or trimmer, who occupies an elevated position just south of the trimmer table, from which he can observe the boards as they move across the table towards the saws and determine just what part of each board shall be cut off. If the board will make one 14 feet long he pulls the lever of the 14-foot saw, and so, likewise, with the appropriate saws to mqke other lengths. This work requires experience and judgment, and the trimmer had authority over the other employees assisting him, of whom appellee was one.

A deep trough runs east and west along the north edge of the trimmer table and by the trimmer saws. The sawdust from the trimmer and the ends of boards but by it fall into this trough and are carried off by an endless chain which runs in it. This trough is about six feet deep, that is, about six feet below the level of the saws.

Appellee’s general duty was to “load the trimmer,” that is, to keep on hand a supply of boards to be trimmed. The belt which operated the 14-foot saw came off, and appellee was ordered by the trimmer sawyer to replace it. He had previously been given the general instruction to obey the orders of the trimmer sawyer. This belt which appellee was ordered to replace was not only old and worn, but, where its ends met, a piece had been torn off, and, instead of replacing it with a piece of belting, this place had been laced over and the ends of the thongs of the lacing used in splicing the belt hung loose. This fact was unknown to appellee, and could have been discovered only by inspection, and would have been unobservable while the belt was in motion. There was some question -whether appellee had, himself assisted in lacing this belt, but he denied having done so, although he admitted having assisted in lacing another belt, but it was not shown that unused ends of thongs yere allowed to remain on the belt -which appellee had assisted in lacing. When appellee was ordered to replace the belt which had come off, it was necessary for him to get down into the trough -which has been described, and, while in it, to ■brace himself against the sides thereof as best he could, as no other means had been provided for reaching the belts. Another witness, an expert sawyer and millwright, describing the position -which appellee assumed to obey the trimmer’s order to replace the belt, said, “That is the awkwardest position I was ever in.”

It -was a rule of the company not to stop the trimmers to replace a belt, so that all the other saws were in motion while appellee was replacing the belt for the 14-foot saw. In the execution of the trimmer’s orders, appellee left his table, where he -was loading the trimmer, got into the trough, and seized the belt and pulled it forward to' the pulley, and, as he pulled the belt around, it started to move on the pulley. As soon as contact was made between belt and pulley, the saw and the belt began to revolve, but, in order to get the belt properly on the pulley, it was neeessai’y for appellee to push against the belt until it had slipped to its proper position on the pulley. The belt and pulley were each eight inches wide, and, of course, occupied that much of the space between the 14-foot and the 16-foot saws, and, as these saws were only two feet apart, there was a clear space of only 16 inches. Appellee testified that when the belt started, his fingers were caught in the ends of the thongs when that portion of the belt came around, and that his hand was jerked against the 16-foot saw, which produced the injury complained of.

We think the facts thus summarized made a case for the jury, and the questions of the master’s negligence, on the one hand, and those of assumption of risk and contributory negligence, on the other, were submitted to the jury in numerous instructions given at the request of the respective parties and on the court’s own motion. These instructions conformed to the law as it has been declared in many cases by this court, and no useful purpose would be served by reviewing them.

Appellee’s testimony was to the effect that he did not know the defective condition of the belt, and therefore'did not know and appreciate the danger of attempting to restore it to its place, and the jury was warranted in finding that the appellee was injured while obeying’ the order of his superior, and that the danger was not so patent that appellee, in the exercise of ordinary care for his own protection, in the performance of his duties in the usual and ordinary manner, would necessarily have discovered the defects and have known and appreciated the danger arising therefrom.

There appears to he no error in the record, and the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    James B. Berry’s Sons Company v. Presnall.
    Opinion delivered February 9, 1931.

      Walter J. Terry and Randolph P. Hamby, for appellant.

      Bush <(& Bush, for appellee.
   Humphreys, J.

Appellee brought this suit against appellant in the circuit court of Nevada County to recover damages in the sum of $3,000 for personal injuries received through the alleged negligence of appellant in failing to furnish a safe place to work and to furnish a sufficient number of men to do the work assigned to him.

Appellant filed an answer denying the allegations of negligence and interposing the defenses of contributory negligence, assumption of the risk by appellee, and a written release of all claims and demands by appellee against appellant on account of the injury received.

The cause was submitted upon the pleadings, the testimony adduced by the respective parties and instructions of the court, which resulted in a verdict and consequent judgment against appellant for $1,750, from which is this appeal.

Appellant first contends for a reversal of the judgment because, if the facts are given their greatest probative value, they fail to establish liability. The facts, when given their strongest probative value, are as follows : Appellee was employed by appellant to roll metal drums containing asphalt, weighing 320 to 450 pounds, for a distance of fifty or sixty feet over a runway from an elevation to a shed where the drums were cleaned and loaded in cars for shipment. The runway ran down a slight decline over one-half of the waj^ from the elevation to the shed, then across a small ditch and up a slighter incline to the shed. The ditch had been cut to take care of the waste asphalt from appellant’s factory nearby. It was a rule or custom of appellant to take the waste asphalt away once a week, but at the time of appellee’s injury it had not been removed for three or four weeks, and was six to twelve inches deep and spread over parts of the ground near the runway. The waste asphalt was soft and sticky. Occasionally a drum of asphalt would get away from an employee rolling it down the decline and slip off the runway into the soft or sticky asphalt. After sinking* into the asphalt it was difficult to remove it and get it back on the runway. Sometimes the employee ivould get the drum back on the runway alone, and at other times he would call in the assistance of other employees. Appellee had been engaged in rolling these drums for about thirty days before his injury on the morning of March 26, 1929. A short time before his injury, and while getting one of the drums ready to roll down the decline, J. W. Smith, the superintendent, came along. Appellee said to Mr. Smith: “This is too heavy for one man to handle.” Smith said: “That’s all right; get it up there.” Appellee said, “Well, what if one of them gets away and rolls off the runway into the asphalt?” Smith said, “Get it out.” About an hour and a half after Smith left a drum of asphalt being handled by appellee ran off the runway and stuck in the asphalt some six or eight inches deep. Appellee tried to push it out and felt a little pain in his stomach and walked off, remarking that he would have to get somebody else to help him get it out. He turned around and got another drum and rolled it under the shed, and when he started to turn it up on its head he fell against the drum in a ruptured and unconscious condition. He was removed in that condition to the hospital. His injury consisted of a double hernia from which he suffered intensely and from which he will continue to suffer unless he submits to an operation. It is practically certain that appellee received his injury in attempting to lift the first drum out of the muck and not when he fell against the second drum which he was attempting to head up. An operation for hernia is' a major and a dangerous operation and for that reason: appellee refused to submit to same. Immediately after-reaching the hospital, appellee was requested to and did sign the following release:

“RELEASE
“Received-from James B. Berry’s Sons Company of Illinois this 26th day of March, 1929, the sum of one and no-100 dollars and other valuable considerations, in full compromise, payment, satisfaction and discharge of all claims and demands which I have against said company, its employees or agents, for or on account of any and all damages, injury, expenses or loss of whatsoever kind which I have sustained by me in person, right or property, by or through said company, its employees or agents, by reason of strain due to lifting asphalt drum, or for any matter or thing whatsoever growing- out of same. I was born on. the 30th day of March, 1890, and am 39 years of age.
“(Signed) C. A. Presnall.
“Witness: A. B. Dickey, Charles I. Gerhart.
“Approved: J. W. Smith, for Jas. B. Berry’s Sons Company.”

Witness for appellant testified that: ‘ ‘ Other valuable considerations” in the release had relation to its obligation or agreement to pay all expenses incident to appellee’s recovery and to pay one-lialf wages during such time as he was recovering.

Appellee admitted that the signature to the release was genuine, but stated that he had no recollection of signing it and knew nothing of it or its contents.

Appellant paid the hospital and doctor bills, and, after paying appellee one-half of his wages for a time, demanded that he have an operation for double hernia. Upon his refusal to do so, it refused to pay him except such days as he worked, and upon his refusal to accept pay just the days he was able to work and after he brought this suit, the foreman discharged him.

Appellee was thirty-nine years of age, was earning $4.50 a day, and suffered painful and permanent injury, which could only be relieved by a dangerous operation.

Appellant argues in support of its first contention that, under the facts detailed above, appellee assumed the risk as a matter of law. The rule of law applicable to facts in nature and effect similar to the facts in the instant case was announced by this court in the case of Woodley Petroleum Co. v. Willis, 172 Ark. 676, 290 S. W. 953, in language as follows:

“Generally, the question of whether an employee assumes the risk of an injury is one for the jury, and is always so where a servant is acting in obedience to the instructions of a superior, unless he knows and appreciates the danger incident to obeying the order or unless the danger incident to obeying the order of his superior is so obvious and patent that a reasonably prudent person would refuse to obey the order.”

The rule thus announced was approved and applied in the recent case of Owosso Manufacturing Co. v. Drennan, 182 Ark. 389, 31 S. W. (2d) 762. It is true that appellee knew the weight of the drums, that in rolling them they might slip off the runway and stick in the waste asphalt negligently allowed to accumulate by appellant, and that it was hard to remove the drums out of the waste asphalt; but it cannot be said as a matter of law that he appreciated the danger of attempting to lift the drum he was rolling out of the asphalt. It is discernible from his testimony that he thought the work assigned him was more than a one man’s job, and he went to the extent of raising the question with the superintendent, who, in substance, assured him that one man could handle the drums and remove them from the asphalt in safety, should they slip off the runway. To have put his judgment up against the superintendent’s would have brought about his immediate discharge. The danger was not so obvious that a reasonably prudent man would refuse to obey the order of his superior, and for this reason we think the question of whether appellee assumed the risk was one for the jury.

Appellant next contends for a reversal of the judgment on the alleged ground that the court submitted the issues of negligence and the assumption of risk under erroneous declarations of law. After a very careful reading of the instructions submitting these issues, we find no error in them. We also think these issues were fairly submitted in the instructions given, and that the court properly refused to give such instructions as appellant asked touching these issues.

Appellant next contends for a reversal of the judgment because the court refused to submit the issues of whether it was released from liability on account of the writing signed by appellee and set out above. Appellant requested the submission of that issue to the jury in the following language:

“The court instructs the jury that if you find from the evidence that, after the plaintiff was injured, he and the defendant entered into a contract fully releasing the defendant from all damages resulting from such accident, in consideration of which the defendant agreed to pay all expenses incident to his recovery and to pay him one-half wages during such time as he was recovering, and if you find that the. defendant has performed and stands ready to perform all the terms of said release contract, then your verdict will be for the defendant.”

The court correctly refused to give the instruction for several reasons, the main one being that appellant failed to introduce any evidence to the effect that he paid appellee one-half his wages during the entire time he was unable to do constant physical labor. The undisputed testimony is that it refused to pay him one-half time after he refused to submit to an operation, and that at the time he refused to submit to an operation he had not entirely recovered.

Appellant’s next and last contention for a reversal of the judgment is that the court refused to give its requested instruction number 8, in words as follows:

“The court instructs the jury that it was the duty of the plaintiff to reduce or minimize the injury and damages sustained by him; and if you find from the evidence that his injury produced hernia and that the only certain and known cure for hernia is an operation and that said operation is not attended with any serious danger nor excessive pain, and that his physicians advised such operation, and the defendant offered to stand all expenses incident to such operation and to pay the plaintiff one-half of his regular wages during the time he lost in submitting to such operation and during his convalescence from such operation, then it was the duty of the plaintiff to submit to such operation, and he is not entitled to any damages for his continued suffering or for his continued earning capacity.”

The cases cited by appellant in support of this instruction are to the effect that one must submit to an operation in order to minimize his damages provided the operation is not a dangerous one. The converse of the rule is, of course, true. If the operation is dangerous, one is not required to submit to it in order to minimize damages sustained by him through the negligence of an employer. In the instant case the operation suggested was a, dangerous one.

No error appearing, the judgment is affirmed.

Kirby and MoHaney, JJ., dissent.


text:
    Hail Dry Goods Company v. Dowell.
    Opinion delivered February 9, 1931.

      Cole <& Poindexter, for appellant.

      Fred M. Pickens, for appellee.
   Humphreys, J.

The referee in bankruptcy of the partnership of Dowell Brothers Mercantile Company, composed of Foster B. Dowell, Taylor G. Dowell and E, Y. Holt, who had been and were engaged in business at Tuckerman, brought suit for the benefit of creditors in the circuit court of Jackson County against appellees on the 2d day of March, 1929, to foreclose a deed of trust executed by them upon their homestead on the 27th day of February, 1927, as additional security to secure the partnership indebtedness of Dowell Brothers Mercantile Company.

Appellees filed an answer admitting the execution of the deed of trust but alleging its invalidity for failure of consideration.

The cause was submitted upon the pleadings and testimony, resulting in a decree canceling the deed of trust and adjudging the costs against appellant, from which is this appeal.

The facts reflected by the record are, in substance, as follows: Foster B. Dowell, one of the appellees, had been sole manager of the partnership business of the Dowell Brothers Mercantile Company at Tuckerman. The partnership had done an extensive credit business upon which it could not realize sufficient cash to pay the creditors and continue the business. Upon advice of attorneys a letter was written and mailed to the creditors on February 8, 1927, informing them, of its predicament and offering- to make them an assignment of all its assets and a deed of trust as additional security of certain incumbered real estate, and lots 5 and 6, block 2, Dowell and Hall’s First Addition to the town of Tuckerman, which lots constituted the home of appellees, provided they would allow the business to be operated by a trustee until January 1,1928, in an effort to collect the outstanding accounts and notes and convert the other assets into money for the payment of the partnership indebtedness. Pursuant to the letter or notice, appellees executed the deed of trust, including their homestead, to W. P. Davis, trustee, on the 28th day of February, 1927, and on the same day a collateral agreement or assignment conveying all the assets of the partnership to W. P. Davis, trustee, for the purposes aforesaid. The collateral agreement was referred to in the deed of trust. The instruments were executed with the understanding that said business should be continued by the trustee until the first day of January, 1928. Full power and authority was given the trustee in the agreement to conduct the business, to collect the accounts and notes and to apply the receipts, after deducting necessary expenses, to the liquidation pro rata of the debts of the partnership, and, in case the amount realized by that time was insufficient to pay the debts, then to sell the real estate described in the deed of trust and apply the proceeds to the further payment of said indebtedness. On March 8, 1927, another letter was written to the creditors informing them of the execution of the instruments and that the trustee was in possession of the stock of goods and other assets of the partnership and operating the business under the terms of the agreement or assignment. After operating the business about sixty days, a committee of the creditors requested the trustee to close the store and institute bankruptcy proceedings. All of the assets of the partnersliip and real estate described in the deed of trust, except the homestead of appellees, were sold and administered in the bankruptcy proceedings. There being insufficient assets to pay the partnership indebtedness, appellants brought this suit to foreclose the deed of trust upon appellees’ homestead. ,

According to the facts detailed above, it is apparent that the only consideration moving to appellees for the execution of the deed of trust on their homestead was that the business might be carried on until January 1, 1928, thereby giving Foster B. Dowell a chance through the trustee to collect and pay off the indebtedness of his partnership in order to avoid bankruptcy proceedings. The very purpose for which the deed of trust was executed was defeated by throwing the business into bankruptcy. The only consideration for the deed of trust failed, and the court properly declared a cancellation thereof.

The trial court also correctly adjudged the costs against appellant, as the only purpose of the suit was to enforce a lien against appellees’ homestead which was void on account of a failure of consideration.

No error appearing, the decree is affirmed.


author: Mehaffy, J.

text:
    Wheeler v. Ellis.
    Opinion delivered February 9, 1931.

      J. H. Lookadoo, for appellant.

      Buzbee, Pugh & Harrison, for appellee.
   Mehaffy, J.

This suit was instituted by appellant against appellees, who are road contractors in Clark County, Arkansas, and appellant was employed by them to dump the trucks as they would come up to the place where gravel was to be unloaded. On the 4th day of December, 19'29, one of the employees of appellee drove his truck up to where appellant was, for appellant to dump the gravel. They were using dump trucks, and, as appellant started to unload, he released the catch or hook of the bed of the truck. The hook hung. Appellant did not know it was out of order and gave a jerk to release it and the hook slipped, upsetting a load of gravel and a large rock on the load came down, hit his thumb, and crushed the bone.

Appellant alleged that the appellees were negligent in not having the catch or hook that released the load of gravel in proper shape, that this was the cause of injury to appellant; and that he had suffered great pain and loss of time.

Defendant answered denying the allegations in plaintiff’s complaint and alleging that, if plaintiff was injured, it was due to his own negligence or the risk assumed by him, or the negligence of a fellow-servant.

The appellant testified that he was working for the appellees, dumping gravel and keeping time for the gravel haulers, and that in the afternoon of December 4, he dumped the last load of gravel brought by Frank Smith, an employee of appellees. As he started to release the hydraulic brake that would release the load of gravel, the catch hung at the back and did not release. He saw something- had to be done to unlatch it or it would throw the truck down the dump about 15 feet. He knocked the latch with his hand, and when he did a big rock came down from the load of gravel and mashed his thumb.

The manager for Ellis & Lewis was there and saw the whole performance. Witness examined the latch on the truck and found that the rod that went to release the latch was bent, and that was what caused the catch to improperly function; does not know when the rod was bent. This was the first time it failed to properly function. Witness thought that whoever loaded it bent the rod. It had been releasing' all the time up to this trip. He does not know how it was bent; a rock could have bent it.

At the close of this testimony the court directed a verdict for the appellees, and judgment was entered accordingly. The appeal is prosecuted to reverse said judgment. •

Appellant cites and relies on the case of Gaster v. Hicks, 181 Ark. 299, 25 S. W. (2d) 760. In this case the court refused to give the following instruction: “You are instructed that the defendant is not responsible for the negligence of a fellow-servant or employee, even in the event you find that such negligence may have been proved in this case. ’ ’

This court held that it was not error to refuse to give the above instruction because the negligence complained of and proved was not the negligence of a fellow-servant, but of the master himself. We also said, if it had been some negligent act of Fowler at the time of the injury, which in any way caused the appellee to fall into the fly-wheel, then the instruction would have been proper, but the negligence, if any, was the failure of the master to furnish reasonably safe machinery with which to do the work. This is a duty of the master which he cannot delegate so as to avoid liability.

The court also said in the above case: “The evidence shows that the tractor was old and worn and had to be continuously repaired in order to keep it in working order, and that on the day before the injury to the appellee it was being repaired and the timer was being adjusted. The evidence shows that the ignition system was poor, Fowler explaining that, if it had not been, the tractor could have been started easily by one individual but that it required, in its condition, the efforts of two to get it started. * * * The mechanic did not testify. ’ ’

The facts in the instant case are very different. In this ease there is no evidence of negligence of the master, and the appellant himself testifies that at the time he dumped the load, which was brought just before the time of his injury, there was no defect and nothing about the rod that prevented it releasing’ properly. There was therefore no defect that the master could have known about. It is true the appellant testified that the manager was right there and saw the performance, but he does not say that the manager gave him any directions or that the manager had an opportunity to say or do anything. The manager, like the appellant, of course thought that there was no defect, and the appellant, when he undertook to release the load, did not know what the cause was or whether there was any defect.

This suit is based on the negligence of the master, and, in order that the injured party may recover, he must show some act of negligence of the master that caused the injury complained of.

Negligence in this sense means the violation of some duty that the master owed to the servant, and, to entitle the servant to recover, he must show that the conduct of the master was negligent or that he violated some duty which he owed to the injured servant. Nothing of the kind is shown in this case.

It is true that the servant has a right to assume that the master has performed his duty, but it is also true that, unless the evidence shows to the contrary, the master is presumed to have performed his duty, and, as this court has repeatedly said, “no presumption of negligence arises from the mere happening of the accident which caused the injury.” Bryant Lumber Co. v. Stastney, 87 Ark. 321, 112 S. W. 740.

It is contended by appellant that, if the master had tried, he could and would have known that the latch was not in safe condition. How could the master have known this? The appellant himself says that it was in safe condition when he dumped the last load, and there is no possible way in which the master could have known about any defect.

This court has said: ‘ ‘ The action, like' all others brought by the servant against his master for personal injuries sustained in the course of his employment, is based on actual negligence in the defendant, or in those who represent it. * * * The presumption is that the master has done his duty by furnishing safe and suitable appliances for the performance of his work. And when this is overcome by positive proof that the appliances were defective, the plaintiff is met by a further presumption that the master had no notice of the defect and was not negligently ignorant of it. It is not sufficient to show that the plaintiff was injured, and that the injury resulted from a defect in the machinery; but he must go further and establish the fact that the injury happened because the master did not exercise proper care in the premises. ’ ’ St. Louis, I. M. & S. R. Co. v. Gaines, 46 Ark. 555; Graysonia-Nashville Lumber Co. v. Whitesell, 100 Ark. 422, 140 S. W. 592; Kansas City So. Ry. Co. v. Cook, 100 Ark. 467, 140 S. W. 579.

In an action by a servant based on the negligence of the master, the servant, in order to recover, must show some act of negligence on the part of the master and that that negligence caused the injury complained of.

In this case there is no negligence on the part of the master shown, and it was therefore the duty of the circuit court to direct a verdict for the plaintiff. The judgment is affirmed.


author: Kirby, J.

text:
    Long v. Ellis.
    Opinion delivered February 9, 1931.

      J. H. Lookadoo, for appellant.

      Buzbee, Pugh $ Harrison, for appellee.
   Kirby, J.

This appeal comes from a directed verdict against appellant in an action for damages for personal injuries suffered while operating a grader machine on the construction of a road, which appellees were building for the State under contract.

The facts, stated briefly, are that appellees were engaged in the construction of Highway No. 8, between Amity and Arkadelphia in Clark County. Appellant was in their employ operating a grading machine which was drawn by a caterpillar tractor. He was an experienced operator of both tractor and grader, having been engaged in such work for several years prior to the injury. The tractor was operated by a man by the name of House, and was a practically new machine, having only been purchased from the factory for three or four months. Appellant and House were engaged in the work without supervision of any one else and would come from Amity in the morning to where the tractor and grader had been left the night before at the conclusion of the work and operate the machines during the day on the highway, returning to Amity in the evening. At the time of the injury, they were making a “U” turn on the road which was about 30 feet wide. In turning the grader around in the highway appellant used the crank appliance which is similar to the steering wheel on an automobile. The operator of the tractor pulling the grader in making the turn had to shift to a lower gear. While he was shifting the gear for turning the tractor and as appellant was moving the steering wheel of the grader to cause it to turn, the dutch of the tractor stuck or “grabbed,” causing an abrupt jumping movement of the grader throwing appellant’s hand off the wheel and striking it against some of the machinery mashing his finger.

The negligence complained of was that the clutch of the tractor was defective, and that appellees had not exercised ordinary care to discover the defect and remedy the same. It was the duty of the operator of the grader and the tractor to keep their machines in running order or operating condition so far as minor repairs and adjustments were concerned, reporting only such conditions as they were unable to repair to the foreman, who would have a mechanic from Little Rock sent down to service the tractor. The operator of the tractor said he noticed the clutch was grabbing for a day or two before the injury occurred, but had not taken time to fix it. “Ordinarily when the clutch would get loose the operator would tighten it. ” He said that it had not been grabbing so badly and causing the tractor to jump so much the two days before the injury as it did at the time it occurred. They continued their operations after the injury, and had no more trouble with the tractor that day, but they did not have to make any complete turns. Nothing was said to the appellees or the foreman in charge by either appellant or House about anything being wrong with the tractor, and on the evening of the day that the injury occurred appellant and House on their own motion-fixed the clutch, repairing the machine themselves. They put in some washers and lining that the factory had.furnished with the machine, after which it worked all right. The plaintiff continued to work after the doctor had treated his finger, although the doctor said he should rest. Appellees needed his services in operating the grader and, he said, threatened to discharge him unless he continued to work when he could. The injury was very painful and finally because of the continuation of work became infected and caused him much pain and suffering.

The court directed a verdict in favor of appellees, and from the judgment thereon the appeal is prosecuted.

Appellant’s right to recover was dependent upon whether appellees were negligent in failing to provide him with a reasonably safe machine for operation in doing the work required. He had the right to rely upon the assumption that the master had performed his duty in exercising ordinary care to furnish him a safe tool or appliance with which to do the work in the absence of any knowledge on his part to the contrary. Asher v. Byrnes, 101 Ark. 197, 141 S. W. 1176.

In Bryant Lumber Co. v. Stastney, 87 Ark. 324, 112 S. W. 740, the court said: “No presumption of negligence arises from the mere happening of the accident which caused the injury in such actions as these between the master and servant, but the master is required to exercise ordinary care in discovering defects and repairing them and in discovering dangers and obviating them. ’ ’

The undisputed testimony shows that appellant and House, the operator of the tractor drawing the grader, whose duty it was to make such minor repairs or adjustments thereon as he could make, did adjust the clutch on the evening after the injury occurred in the afternoon by putting in a small bolt and some washers, and also that no report of any defective condition in the tractor or need of repair thereof had been made to appellees, the contractors, by whom both appellant and House were employed in operating the machines in a common undertaking for the grading of the road and were fellow-servants in such work. There is an intimation in the testimony that a member of the appellee firm had operated the tractor a day or two before appellant was injured and might have burnt out the machinery and injured the clutch, but there was no testimony showing appellees had notice that there was such defective condition. The action is founded on the alleged negligence of the master in failing to exercise ordinary care to furnish the servant with a safe tool or machine with which to do the work, the presumption being that the master has done his duty in the furnishing of such appliance; but when this presumption is overcome by proof that the appliances were defective, there is a further presumption that the master was without notice or not negligently ignorant of it, and the showing* that the injury resulted from a defect in the machine, without evidence that the injury occurred because the master did not exercise proper care in furnishing the machine or having the repairs made thereon after notice, is not sufficient to establish a prima facie case or to support a recovery. Wheeler v. Ellis & Lewis, ante p. 133.

Since there is no substantial testimony showing negligence on the part of the master, the appellant was not entitled to recover, and the court did not err in directing the verdict accordingly. The judgment is affirmed.


author: McHaney, J.

text:
    New York Life Insurance Company v. McGee.
    Opinion delivered February 9, 1931.

      Mann <& McCulloch and Rose, Hemingway, Cantrell $ Loughborough, for appellant.

      Smith <& Fitzsimmons, for appellee.
   McHaney, J.

Appellee held a policy of life insurance in appellant company, one clause of which insured him to the extent of $50' per month against total and permanent disability. He became totally and permanently disabled, demanded payment for three months (proofs being made), which was refused, and this suit followed to collect $150 for the three months’ disability. Appellant defended on the ground that false and fraudulent answers were made to questions in his application for insurance concerning the physicians he had consulted, the diseases with which he had been, afflicted, and the condition of his health. The answer was filed April 7, 1930, and the case continued and set down for trial at a special term of court for May 12, 1930, at appellant’s request. On said latter date, after both sides had announced ready for trial and while the jury was being impaneled, counsel for appellant filed what they called an “amendment to answer, motion to malee Oleo B. McGee a party defendant and to transfer to equity,” in which it was alleg’ed that, by reason of the matters set out in its answer, the policy sued on is void, that it was entitled to have same canceled, and that it had no adequate remedy at law-; that Cleo B; McGee is named beneficiary in the policy, claims an interest therein, and should be made a party defendant. It prayed that she be made a party, that the cause be transferred to equity, the policy canceled and surrendered to it. The court overruled said motion. The cause proceeded to trial resulting in a verdict and judgment for appellee.

The only question presented for our determination is the alleg’ed error of the court in refusing to transfer the cause to equity. We think the trial court correctly overruled the motion. It was in the discretion of the court to permit it to be filed, coming, as it did, after issue joined and the case postponed and set specially at appellant’s request, and after it had announced ready for trial and the jury being struck. Therefore, no error was committed in overruling its motion under these circumstances, even though it might, under other circumstances, have 'been meritorious. Overlooking*, however, the tardiness of its presentation, we are of the opinion that appellant had a complete and adequate remedy at law, and that the case is ruled by the decision of this court in Bassett v. Mutual Benefit Health & Accident Assn., 178 Ark. 906, 12 S. W. (2d) 893, where we held that, conceding, bnt not deciding, the chancery court had jurisdiction, upon allegations of fraud in its procurement, to cancel the policy after the death of the insured, “it must also be said that the jurisdiction to grant relief by cancellation was not exclusive, as the circuit court, upon proof of fraud invalidating the policy, could, ¡by refusing to permit a recovery on the policy, have granted, in effect, the same relief. The circuit court certainly had jurisdiction to determine whether the policy was void for the reason that its reinstatement had been procured by fraud, and its jurisdiction was first invoked, and for this reason, if for no other, the cause should have been re-transferred to the circuit court.” See also cases cited in that case. So here the circuit court, whose jurisdiction was first invoked where issue was joined without objection, had jurisdiction to determine the question of fraudulent procurement of the policy, and, conceding without deciding that chancery had jurisdiction after liability had accrued under the policy, such jurisdiction was not exclusive.

Affirmed.


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    Gilleylen v. Schoolfield.
    Opinion delivered February 9, 1931.

      J. O. Livesay and Jones $ Jones, for appellant.

      Jas. D. Head and Shaver, Shaver & Williams, for appellee.
   McHaney, J.

In 1921 A. B. Schoolfield and Walter E. Gray purchased from others a dry goods business in the town of Foreman, which they operated as partners until 1925, when the business was incorporated under the name of Gray & Company, with a paid up capital of $5,500, having three stockholders, the two above mentioned with Mrs. M. -S. Gray, mother of Walter E. Gray, as the third stockholder. Mrs. Gray, although seventy years of age at the time, was elected president, A. B. Schoolfield, vice president and bookkeeper, and Walter E. Gray, secretary and treasurer. The business was thereafter operated as a corporation until March 1, 1929, when it was adjudicated a voluntary bankrupt. The stockholders constituted the board of directors, and the records show only three formal meetings of either stockholders or directors. W. E. Gray acted as his mother’s agent in all matters concerning this business, and she gave it none of her active attention. Mrs. Schoolfield, the appellee, was a sales lady in the store, but upon the death of her husband, July 28,1927, she became the bookkeeper and thereafter acted as such with the advice, assistance and counsel of W. E. Gray. On December 31, 1926, the books showed a net profit of $739.80 for the year 1926, which Mr. Schoolfield and Mr. Gray divided, the individual account of each being credited with $369.i80. Mr. Schoolfield was drawing a salary of $1,250 per year, and on December 31,19'27, his account was credited with a full year’s salary, although he had died on July 28 preceding. At the same time, December 31, 1927, the books again showed a net profit, and Mr. Gray and Mrs. Schoolfield decided to divide a portion thereof, and she credited his account and hers with $604 each. All credits above mentioned as well as any hereafter mentioned were made with the knowledge, consent and at the direction of Walter E. Gray, acting for himself and his mother. All the above amounts of credits to the Schoolfield accounts were withdrawn by Mrs. 'Schoolfield in merchandise and cash and proper charges made. At the time of Mr. School-field’s death, the company was indebted to Mrs. School-field on a note in the sum of $5,259.27. In the fall of 1927, this note was reduced by payments from collections from the business to $1,159.27, and carried into 1928 as bills payable on the company’s-books and paid that year.

This suit was brought by the trustee in bankruptcy ; to collect from appellee the amount credited to her account as a division of profits for the years 1926 and 1927, for the unearned salary of Mr. -Schoolfield after his death, and for another item or two, hereinafter discussed, in which it is alleged that the company was insolvent and the payments made to her were in fraud of the rights of creditors. The court dismissed appellant’s bill for want of equity, and the matter is here by appeal.

It is conceded that a corporation cannot lawfully declare and pay dividends to its stockholders when it is insolvent. The division of the profits above referred to amount to a payment of dividends; and, if the corporation was insolvent at the time, such payments would work a fraud on existing creditors. We do not think the record in this case shows Gray & Company to be insolvent when these dividends were credited nor when the salary of Mr. Schoolfield was credited for the whole year of 1927, although dead since July. In 14A C. J. 881, it is said: that “the most commonly accepted definition of ‘insolvency,’ as applied to corporations, is inability to pay debts as they mature in the usual course of business, either from available assets or from any honest use of credit.” And on page 883 it is said: “In determining whether a corporation is insolvent, liability to its stockholders on its capital stock is not to be taken into consideration. ’ ’ Or, as said in Radcliff v. Clendenin, 232 Fed. 61: “The sufficiency of its assets and its ability to pay its stockholders the par value of their stock in addition to the payment of the debts of the corporation are irrelevant to the issue of insolvency. ”

Eliminating therefore the capital stock from the liabilities, the assets of the corporation were largely in excess of the liabilities, either as of December 31, 1926, or 1927. But appellant says included in the assets were the face value of all the notes and accounts, and that it is well known that such notes and accounts are largely of little or no value. There is no showing in the record that any particular note or account due the company, was not collectible, and we cannot take judicial notice that they were not. Moreover, the undisputed proof is that only such notes and accounts were included in the assets as were regarded as good. Furthermore, early in 1928, the company was able, by pledging its notes and accounts to the bank, to borrow a sufficient sum of money to pay all creditors in full. It is argued by appellant that the books of the company did not correctly reflect the amount of its debts; that its note to appellee for $5,259.27, above mentioned, did not correctly appear in her account. It did not appear in her account at all, but in bills payable account._ As above stated, the amount of this note was reduced, in the falfof 1927 to $1,159.27 and was~paid in full in 1928. On December 31, 1927, the bills payable account correctly reflected the balance due on said note. The true condition of the company was reflected by the books, and on February 14, 1928, the annual statement required by law was filed Avith the county clerk, which was notice to all persons of the condition of the company. Creditors in bankruptcy, represented by appellant as trustee, are all subsequent to this time, and it is difficult to see what right they have to complain of the matters above mentioned without proof of an actual intent to defraud future creditors. There is no presumption to defraud future creditors by a voluntary conveyance, and such a conveyance is not per se fraudulent. Lee Hardware Co. v. Johnson, 132 Ark. 462, 201 S. W. 289; Jenkins v. Smith, 170 Ark. 806, 281 S. W. 377; Home Life & Accident Ins. Co. v. Schichtl, 172 Ark. 31, 287 S. W. 769.

There remains only one matter to discuss, and that is the sale by appellee to Mrs. Gray of the $2,000 stock in Gray & Company owned by the estate of A. B. Schoolfield. The sale was handled in this manner: Appellee desired to sell the stock of her late husband, so in December, 1927, W. E. Gray, acting for his mother, purchased same at par for his mother. (Another strong circumstance indicating the company was solvent at that time.) -Appellee loaned Mrs. Gray the money to purchase this stock and took a note from her, secured by a mortgage on real estate. She credited Mrs. Gray’s account on the books of the company with the amount of money loaned, and the company used the money in its business. Appellee then withdrew from time to time in merchandise and cash the amount to Mrs. Gray’s credit with the knowledge and consent of W. E. Gray and with the approval of Mrs. Gray. We see no fraud in this. Mrs. Gray was not indebted to the company. She had a credit balance on its books of $2,000 which she had the right to withdraw herself, or to permit another so to do, and her account to be charged therewith.

We find no error, and the decree is accordingly affirmed.


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    Franklin County Board of Education v. Riley.
    Opinion delivered February 9, 1931.

      Lee G. King and A. N. Hill, for appellant.

      G. G. Carter, for appellee.
   Butler, J.

There were two petitions presented to the board of education of Franklin County and filed before said board on the same date. One was a petition under act No. 156 of the Acts of 1927, praying for an order consolidating Grand Prairie Special School District No. 29 with Branch Special School District No. 13, and the other for the annexation of said District No. 29 with Charleston Special School District No. 9. There were forty-seven qualified electors in said District No. 29 and the petition for the annexation of said district to the Charleston District bore the signature of twenty-four of these electors. To that petition was attached a written request signed by the board of directors of the Charleston District assenting to the annexation and joining in the request of the petition that the order be made. The other-petition for- the consolidation of District No. 29 with the Branch. Special School District was signed by a majority of the qualified electors in the territory affected.

On a hearing of the two petitions, the county board denied the petition for the consolidation, and granted that for the annexation of District No. 29 with the Charleston District. From this action by the county board an appeal was prosecuted to the circuit court, which court, upon hearing the case, overruled the order of the county board of education and entered an order consolidating Branch Special School District and District No. 29.

It appears that the.judgment of the circuit court was based on the theory that the petition for the annexation was not signed by a majority of the qualified electors because the name of W. E. Flannegin was improperly on the list of petitioners asking for the annexation, and that his name should be stricken therefrom, and that when this was done the petition did not contain a majority of the qualified electors. The appellees here insist that the action of the circuit court in striking from the petition the name of W. E. Flannegin was justified, and that, even though his name had not been striken from the petition, the judgment of the circuit court was correct in overruling the action of the county board of education because the petition for annexation, although containing a majority of the qualified electors of School District No. 29, did not contain a majority of the electors of said District No. 29 and Charleston Special School District, and therefore did not contain a majority of the qualified electors in the territory affected. The latter position taken by the appellees cannot be maintained because the petition for annexation was in compliance with the requirements of § 8949 of Crawford & Moses ’ Digest, which provides, “The county board shall annex contiguous territory to single school districts under the provisions of this act when a majority of the legal voters of said territory and the board of directors of said single district shall ask by petition that the same shall be done.” In this case on the petition for annexation to the Charleston District a majority of the qualified electors in the territory to be annexed was all that was required, because the directors of the district to which it was to be annexed joined in the petition. Act No. 156 of the Acts of 1927 is not in conflict with the foregoing section and was intended to be, and is, cumulative to that section of the Digest. Manley v. Moon, 177 Ark. 263, 6 S. W. (2d) 281.

W. E. Flannegin signed the petition for the consolidation of District No. 29 with the Branch Special School District, and afterward, and before any petitions were filed with the county board, also signed a petition for the annexation of his district with the Charleston District. He gave as a reason for this action the frequent importunity of those circulating the petition for the consolidation with the Branch Special School District with the statement by them that there would not be any order made annexing District No. 29 to the Charleston District, and he had as well sign for the consolidation with the Branch District; that he preferred to be annexed to the Charleston District, but was induced to believe this could not be done, and therefore signed the petition for the consolidation. However, the question of Flannegin’s signing the petition for consolidation with the Branch District was not raised before the county board, so far as we can determine from the record, and not until the case was heard on appeal before the circuit court. Then, too, Flannegin had signed the Charleston petition before either was filed, and thus impliedly revoked his signature to the (Branch petition. Under these circumstances the board was justified in counting Flannegin’s name on the petition for annexation, and the circuit court erred in striking his name therefrom.

The question presented has no similarity to that considered in the case of Elkins v. Union Consolidated School District, 181 Ark. 253, 25 S. W. (2d) 443, and what was there said has no application here. As the petition for annexation with the name of W. E. Flannegin thereon contained a majority of the qualified electors of District No. 29 with the directors of the Charleston District joining in the prayer of the petition, the county board had jurisdiction, and, as there is no showing made of any abuse by the board in the exercise of its discretion, its order must be upheld.

It follows that the judgment of the trial court is reversed, and the cause remanded with directions to affirm the order of the county board of education.