author: Hart, C. J.,

text:
    Shull v. Texarkana.
    Opinion delivered February 6, 1928.
    Municipal corporations — issuance of bonds — -validity of election. —In a suit by a property owner to restrain proceedings for the issuance of bonds for erection of a municipal building and the election of taxes therefor, held that the’election to vote bonds for erecting, equipping and furnishing a municipal building was for a single purpose and the bonds were valid, though the municipal building was to contain an auditorium, a fire station, city hall, courtroom, council chambers, offices for city officials and vaults for records.
    Appeal from Miller Chancery Court; G. E. Johnson, Chancellor;
    affirmed.
    statement oe facts.
    Hubert Shull, a resident and property owner of the city of Texarkana, Arkansas, brought this suit in equity against the city of Texarkana and David Elkins, county clerk of Miller County, Arkansas, to restrain them from proceeding further in issuing bonds for the purpose of erecting a municipal building and in levying a tax to pay bonds pursuant to the provisions of an amendment to our Constitution relating to municipal improvement bonds, purporting to amend § 1, article 16, of the Constitution. Pursuant to the provisions of said amendment the city council of Texarkana, Arkansas, passed an ordinance for the issuing of bonds for three separate purposes: (a) $300,000 for a municipal building; (b) $10,000 for fire apparatus; (c) $7,000 for street cleaning equipment. .
    All of the propositions carried at the election. On the proposition of the issuance of bonds in the sum of $300,000 for a municipal building, 709 votes were cast in the affirmative and 502 votes were cast against the proposition.
    Section 5 of the ordinance relates to the issuance of bonds for a municipal building, and reads as follows:
    “Section 5. The purposes for which such bonds shall be issued are'as follows: (a) Three hundred thousand dollars of said bonds shall be issued, and the proceeds shall be used, for the erecting, equipping and furnishing of a municipal building, which shall contain a public auditorium with a maximum seating capacity of fifteen hundred persons; a fire station with not more than three apparatus exits, together with proper quarters to house the central station of the fire alarm system, and proper dormitories for the firemen needed for such station; a city jail equipped with steel cells, and an office for the police force; a chamber for the municipal court and city council; and offices and vaults for the city officials and records. 'Said building shall be erected on the lots now owned by this city at Third and Walnut Streets, being lots................... The building shall be fireproof throughout; the floors shall be of cement and tile and marble, and it shall be equipped with steam and hot water heat throughout. ' The frame of the building shall be of concrete and steel and the exterior shall be of brick, teria cotta, stone and algonite. ’ ’ ■
    The court sustained a demurrer to the complaint, and, the plaintiff refusing to plead further, his complaint was dismissed for want of equity. The case is here on appeal.
    G. G. Pope, for appellant.

      B. E. Carter, for appellee.
   Hart, C. J.,

(after stating the facts). At the general election held in this State on October 5,1926, an initiative petition to enable cities of the first and second classes to issue bonds in certain cases was adopted. The amendment may be found in the Acts of 1927, page 1210, and in Castle’s Supplement to Crawford & Moses’ Digest of the Statutes of Arkansas, page 22. The bonds involved in this suit were issued under the proviso to § 1 of the amendment, which reads as follows.:

“Provided, that cities of the first and second class may issue, by and with the consent of a majority of the qualified electors of said municipality voting on the question at an election held for the purpose, bonds in the sum and for the purposes approved by such majority at such election, as follows:
“For the payment of any indebtedness existing at the time of the adoption of this amendment; for the purchase of rights-of-way for construction of public streets, alleys and boulevards within the corporate limits of such municipality; for the construction of, widening or straightening of streets, alleys and boulevards within the corporate limits of such municipality; for the purchase, development and improvement of public parks and flying fields located either within or without the corporate limits of such municipality; for the construction of sewers and comfort stations; for the purchase of fire-fighting apparatus and fire-alarm systems ;■ for the purchase of street-cleaning apparatus; for the purchase of sites, for construction of and equipment of city halls, auditoriums, prisons, libraries, hospitals, public abattoirs, incinerators or garbage disposal plants; for buildings for the housing of fire-fighting apparatus; for the construction of viaducts and bridges; and for the purpose of purchasing, extending, improving, enlarging, building, or construction of waterworks or light plants, and distributing systems therefor.”

Another section of the amendment which is pertinent to the issues raised by the appeal reads as follows:

“Said election shall be held at -such times as the city council may designate by ordinance, which ordinance shall specifically state the purpose for which the bonds are to be issued, and, if for more than one purpose, provision shall be made in said ordinance for balloting on each separate purpose; which ordinance shall state the sum total of the issue, the dates of maturity thereof, and shall fix the date of election so that it shall not occur earlier than thirty days after the passage of said ordinance. Said election shall be held and conducted and the vote thereof canvassed and the result thereof declared under the law and in the manner now or hereafter provided for municipal elections, so far as the same may be applicable, except as herein otherwise provided. Notice of said election shall be given by the mayor by advertisement weekly, for at least four times, in some newspaper published in said municipality and having' a bona fide circulation therein, the last publication to be not less than 10 days prior to the date of said election.”

It will be noted that the amendment provides that the ordinance shall specifically state the purpose for which the bonds are to be issued, and, if for more than one purpose, provision shall be made in said ordinance to ballot on each separate purpose. The ordinance specifies a bond issue of $300,000 for the erecting, equipping and furnishing a municipal building, which shall contain a public auditorium, a fire station, a city hall, a chamber for the municipal court and city council, and offices and vaults for the city officials and records. The ordinance further provides that the building shall be erected at Third and Walnut Streets, on lots owned by the city.

It is earnestly insisted by counsel for the plaintiff that the decree must be reversed because a municipal building containing an auditorium1, city jail, a chamber for municipal court and city council, and offices and vaults for city officials and records, constitutes more than one purpose, and that the election was void because, under the terms of the amendment, provision must be made in the ordinance for balloting on each separate purpose.

The design of this provision is to prevent improper measures, which may result from combining a good purpose with a worthless one, where the two subjects have no proper relation to each other, and, if the two are submitted together, the voter cannot vote for one and against the other. Hence the framers of the amendment intended to prevent the joining of one subject to another of a different kind so that each should gather votes for both.

. Careful consideration of the subjects mentioned in the ordinance, however, leads us to the conclusion that they were all different parts of a single plan, and, as combined, were so related as to constitute a single purpose. A municipal building' was to be erected on lots belonging to the city. The ordinance provided that the building should contain a public auditorium, a fire station, ,a chamber for the municipal court and city council, a city j.ail, with an office for the police force, and offices and vaults for the city officials and records. All these matters related to the proper equipment of a city hall for the purpose of administering the city government.

Under the provisions of the constitutional amendment, the majority of the qualified electors might vote for the construction and equipment of city halls, auditoriums, etc. A fire station, a city jail, a chamber for tlie municipal court and city council, and offices and vaults for the city officials and records, are all manifestly parts of a city hall and are necessary to its proper equipment for municipal administrative purposes. While it cannot be said that a public auditorium is an absolute necessity to the proper administration of the city government, it is useful and necessary, so that the inhabitants of the city may have a place to meet and discuss their municipal affairs. Before voting on the issuance of the bonds for any purpose, the inhabitants would have been likely to congregate together for the purpose of discussing the advisability or feasibility of issuing bonds for the contemplated purpose. The object of erecting a municipal building, as we liave already seen, is to .accomplish a single purpose, and that is to properly administer the city government. All the subjects embraced in the ordinance are proper parts of the proposition to accomplish that purpose, and are so related and connected with each other as to constitute one purpose within the meaning of the amendment to the Constitution in question.

It follows that the decree will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Jones v. Adkins.
    Opinion delivered February 6, 1928.
    1. States — legislators as parties — stay of proceedings. — Under Crawford & Moses’ Dig., § 429, providing for the stay of proceedings in which members of the State Legislature were parties during the session and for fifteen days before and after such session, the term “proceedings” implies action, procedure and prosecution, indicating some steps to be taken or adopted in the prosecution or defense of an action.
    2. States — legislators as parties — stay of proceedings. — Where the court had made an order that the action should be dismissed if the plaintiff did not make a deposit for the payment of the fees of the master and give 'bond as required by the court within ten days, and plaintiff refused to do so, asserting that he was a member of the General Assembly and under Crawford & Moses’ Dig., §§ 429, 430, was not required to do so, held that no steps were to be taken which required the presence of plaintiff, and no proceedings which required any action on his part, and the order of dismissal was not a proceeding under § 430, which should have been stayed by reason of his membership in the General Assembly.
    Appeal from Pulaski Chancery Court; J. W. Souse, Special Chancellor;
    affirmed.
    STATEMENT OE FACTS.
    This suit wa,s brought in equity by Arthur J. Jones against Homer M. Adkins, as sheriff and collector of Pulaski County, to require an accounting of all moneys received by him in excess of the salary allowed him under the Constitution and laws of the State. The plaintiff asked that the defendant, Adkins, be required to bring into court the sheriff and collector’s general ledger and cash journal for the years 1923 and 1924, and also any books, papers or other writings relative to the cost of feeding prisoners in the Pulaski County jail for said years.
    » The chancery court appointed -a master to ascertain all fees received by Adkins as sheriff and collector during said years from all sources. On May 19, 1925, it was further ordered that each of the parties to the suit deposit with the clerk of the court one thousand dollars in cash, or a bond for that amount, to guarantee the expenses of said master. The plaintiff refused to comply with the order of the court, and it was adjudged and decreed that no further steps should be taken in the suit until the plaintiff complied with the order of the court. The plaintiff excepted to the ruling of the court, and prayed an appeal to the Supreme Court, which was granted. This court held that the chancery court, under -its general discretionary powers to adjust and allot costs, may adopt reasonable rules to protect and secure a master in the payment of the compensation for his services as a necessary part of the costs of the litigation. Therefore the decree of the chancery court was affirmed. Jones v. Adkins, 170 Ark. 298, 280 S. W. 389. The opinion was delivered on February 1, 1926.
    On January 7, 1927, the defendant filed a motion in the chancery court to dismiss the suit because the plaintiff had failed and refused to comply with the order of the chancery court requiring the plaintiff and defendant-each to deposit the sum of one thousand dollars with the clerk of the court to defray the expenses of the master. On the same day the plaintiff filed a response to the motion, in which he denied the right of the court to hear the motion, because he was at the time a member of the General Assembly of the State of Arkansas and could not be compelled to attend court. The plaintiff stated in his motion that the General Assembly would convene in three days. Under the order of May 19, 1925, it was ordered by the chancery court that, unless the plaintiff should deposit the sum of one thousand dollars, in compliance with the order of the court, within ten days, his cause of action should stand dismissed. It was subsequently ordered that the cause of action be dismissed because the plaintiff had failed to comply with the previous order of the chancery court. The case is here on appeal.

      Arthur J. Jones, for appellant. .

      Emerson, Donham & Fulk, for appellee.
   Hart, C. J.,

(after stating the facts). The sole ground relied upon by the plaintiff for a reversal of the judgment is that, because he was a member of the Legislature, no order of dismissal could have been -made by the chancery court in the case.

Section 429 of Crawford & Moses’ Digest provides that the members of the Senate and House of Representatives shall be. privileged from arrest during the session of the General Assembly and .for fifteen days before the commencement and after the termination of each session. Section 430 provides that all proceedings in suits pendr ing in any of the courts of this State, in which any of the persons named in the preceding section are parties, shall be stayed during the time aforesaid. It is the contention of counsel for plaintiff that the dismissal of the action for the failure to give the bond for costs or to deposit one thousand dollars with the clerk of the court for the payment of the fees of the master, was a proceeding which should have been stayed under the provisions of the statute. We do not think so.

Proceedings, both in common parlance and in legal acceptance, imply action, procedure, and prosecution. Hence it indicates some steps taken or adopted in the prosecution or defense of an action. Beers v. Haughton, 9 Pet. (U. S.) 329, 9 L. ed. 145.

It is questionable, upon the facts appearing in the record before us, whether there was any proceeding before the court for trial. The court had already made an order that the action should be dismissed if the plaintiff did not make the deposit or give the bond required by tbe court within ten days. This the plaintiff not only failed,, bnt refused, to do. At the time the order now complained of was made, he was still refusing to comply with the former order of the court, and did not ask for time in which to comply with it. There was nothing to be done in the case except to enter of record a final order dismissing the case. No step requiring the presence of the plaintiff was necessary. No proceeding was to be taken in the case which required any action on his part or his presence in court. The simple entry of dismissal was not a proceeding in the ease which it was the intention of the framers of the statute to stay during the session of the General Assembly and for fifteen days before the commencement of and after the end of it.

Therefore the decree of the chancery court will be affirmed.


author: Wood, J.

text:
    Young v. State.
    Opinion delivered February 6, 1928.
    1. Criminal law — former acquittal. — A former acquittal of seduction will not preclude a trial for the killing of an unborn quick child, though the woman involved in each case was the same and the same general testimony might be adduced at the trial.
    2. Criminal law — improper argument of prosecutor. — Where, in a prosecution for the killing of an unborn quick child, the prosecuting attorney in his closing, argument remarked, “I dare say that everybody within the sound of my voice will say that it is as plain a case as they ever heard,” such remark, if error, was harmless, where the court admonished the prosecuting attorney that his remark was improper, and directed the jury to disregard it.
    Appeal from Sevier Circuit Court; B. E. Isbell, Judge;
    affirmed.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Wood, J.

Dewey Young was indicted in tbe Sevier Circuit Court for the crime of killing an unborn quick child. He was tried, convicted, and sentenced, by judgment of the court to imprisonment in the 'State Peniten- _ tiary for a period of five years, from which judgment is this appeal.

1. The defendant entered a plea of former jeopardy. The district attorney and the counsel for appellant agree that the following are the facts concerning such plea: “About a year and a half ago the defendant was tried in the Howard County Circuit Court upon a charge of seduction growing out of the same state of facts, and the same witnesses who testified in that case will be used in the trial of this case, and the facts as developed in that case will be approximately the same as will be developed in this case. Hpon a trial of the issues in that case a verdict of not guilty was returned by the .jury.” The trial court niled correctly in overruling the plea of former acquittal. The statute under which the present indictment was lodged against the appellant provides as follows :

‘ ‘ The willful hilling of an unborn quick child by any injury to the mother of such child which would be murder if it resulted in the death of such mother, shall be adjudged manslaughter. ’ ’ Section 2357, C. & M. Digest.

The above statutory offense is wholly separate and distinct from the offense of seduction as defined in § 2414 of C. & M. Digest. Although the same testimony might be. adduced on the trial of the same party for the killing of an unborn child as was adduced at the trial on a charge of seduction, that is not the test, because, as we have stated, the crimes of seduction and killing of an -unborn quick child are entirely different. The proof to sustain the one would not sustain the other, and the accused might be acquitted on the one charge and convicted on the other, although .the same witnesses testified and the same facts were developed as far as relevant in each of the cases. In a charge of seduction it will be necessary for the State, in order to sustain the charge, to prove that the accused had sexual intercourse with the prosecutrix under an express promise of marriage. But no such proof would be essential to the crime, of killing an unborn quick child, although, in the development of the circumstances of the alleged killing of the unborn quick child, proof of sexual intercourse between the mother and the accused might become competent and relevant testimony. The court therefore did not err in overruling appellant’s plea of former jeopardy.

2. There are twenty-three assignments of error in the motion for a new trial. The appellant has not favored the court with a brief arguing these several grounds of his motion, but the Attorney G-eneral has made a complete and impartial abstract-of the record, and calls to our attention the several grounds of appellant’s motion for a new trial. Since this is a felony case, notwithstanding the fact that no brief has been filed for the appellant, we have examined the grounds of his motion for a new trial, and find that the court did not err in overruling such motion. The indictment was valid. It followed substantially the language of the statute. The charge of the court was full, fair, and correct. The rulings of the court on the admission of testimony were likewise correct, and there was. evidence to sustain the verdict.

The prosecuting attorney in his closing argument used the following language: “I dare say that everybody -within the sound of my voice will say that it is as plain a case as they ever heard. ’ ’ The defendant objected to the remark, and the court admonished the prosecuting attorney that his remarks were improper, and directed the jury to disregard them. The remarks were but the expression of the opinion of the prosecuting attorney. It is not at all probable that a sensible jury would be influenced by such an ad captandum argument. It occurs to us that such remarks were not calculated to prejudice the rights of the appellant, but, even if we were mistaken as to this, the admonition by the court that such remarks were improper and directing the jury to disregard them, removed all possibility of any prejudice being created in the minds of the jury against the appellant.

The record presents no new questions in criminal law that would be useful as a precedent, and therefore we do not discuss all the grounds of the motion for a new trial.

Since there is no error in the rulings of the trial court, its judgment must be affirmed. It is,so ordered.


author: Smith, J.

text:
    Walbert v. State.
    Opinion delivered February 6, 1928.
    1. Intoxicating liquors — transportation.—Evidence held to warrant defendants’ conviction of unlawfully transporting intoxicating liquors.
    2. Criminal law — opinions of nonexperts.- — -In a prosecution for unlawful transportation of intoxicating liquor, testimony of officers that some of the defendants appeared to have been drinking, held admissible as testimony concerning a fact about which a nonexpert might express his conclusion and was not objectionable as mere expression of opinion.
    3. Intoxicating liquors — admissibility of evidence. — Where, in a prosecution for unlawfully transporting liquor, officers testified that some of the defendants appeared to have been drinking, it was not error to exclude testimony of defendants that they had been acquitted for the charge of being drunk on a public highway at the time of the arrest, as such testimony involved a collateral issue, and defendants may have been drinking without being drunk.
    Appeal from Independence Circuit Court; S. M. Bone, Judge;
    affirmed.

      Mrs. Vera Street and I. J. Matheny, for appellant.

      'll. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Smith, J.

Appellants were tried and convicted in the coürt of a justice of the peace upon a charge of transporting intoxicating liquors, and duly appealed to the circuit court, where they were -again tried and convicted, and have prosecuted this appeal to reverse the judgment of the circuit court. For the reversal of this judgment they insist that the evidence is insufficient to sustain the verdict, and that the court erred in the admission and in the exclusion of certain testimony.

Three deputy sheriffs testified -that they saw appellants in front of a store in Locust Grove, and some of them appeared to have been drinking, and the officers suspected that appellants were transporting intoxicating liquors in the automobile in which they' drove out of the village. The officers followed in another car, and saw two or three of appellants leave their car at a place where there was a mudhole in the road and a cultivator near the road. Appellants drove on for about a quarter of a mile, and stopped their car, and the officers overtook them, and searched appellants’ car and the weeds around it, but did not find any liquor. The officers then retraced their course, and stopped at the mudhole where appellants had previously stopped. They found a half-gallon jug of whiskey at the edge of a cotton patch about eight feet from the road, and a sack containing some bottles. They crossed the road, and found another half-gallon of whiskey near the cultivator and another sack of bottles.

There was some conflict in the testimony as to the distance the officers were from appellants when they first stopped their car and the distance appellants had driven from that point when they were overtaken by the officers, but these conflicts presented questions for the jury. We think the above testimony warranted the jury in finding that appellants had placed the whiskey found by the officers near the road where appellants’ car had stopped, and, if they did this, they had transported liquor within the meaning of the law under' which they were convicted.

There was no error in permitting the officers to testify that some of the appellants appeared to have been drinking. This was not a mere expression of an opinion, as appellants contend, but was testimony concerning a fact about which any nonexpert might express his conclusion. Prewitt v. State, 150 Ark. 279, 234 S. W. 35.

Appellants, testifying in their own behalf, denied that they, or any of them, had been drinking, and they then offered to prove that they they had been arrested for being in a drunken or intoxicated condition on a public highway on the day in question, and had been acquitted of that charge by a justice of the peace, but the court excluded this testimony.

There was no error in excluding the testimony that appellants had been acquitted, of being drunk on a public highway. Such testimony would have involved the trial of a collateral issue. Appellants may have been drinking without being drunk. In the case of Simmons v. State, 149 Ark. 348, 232 S. W. 597, it was said:

“In Brooke v. State, 86 Ark. 364, 111 S. W. 471, the count had under review an ordinance of the city of Morrilton which made it a misdemeanor ‘for any person to appear in any public street in a drunken or intoxicated condition.’ In that case.the evidence showed that the defendant was drinking, and he showed some signs of the effect of strong drink, but he was attending to his own business in an orderly manner, and had not lost control of his faculties. The court held that the evidence was not sufficient to sustain the charge,- and we approved the following definition of ‘drunk’ taken from the Standard Dictionary: ‘Under the influence of intoxicating liquor to such an extent as to have lost the normal control of one’s bodily and mental faculties, and, commonly, to evince a disposition to violence, quarrelsomeness and -bestiality’ Some of the common effects of being under the influence of intoxicating liquor, or drunk, are there given, to-wit: ‘A disposition to violence, quarrelsomeness and bestiality.’ But these are by no means the only resrdts of exhibitions that may be included in the definition.”

The justice of the peace who acquitted appellants on the charge of drunkenness may have concluded that appellants were not “in'a drunken or intoxicated condition,” as defined in the case from -which we have just quoted, but such finding would not have contradicted the testimony of the officers that they thought appellants, or some of them, were drinking. They might have been drinking without reaching a “drunken or intoxicated condition. ’ ’

We find no error, and the judgment will be affirmed.


author: Humphreys, J.

text:
    Moco Oil Corporation v. Harris.
    Opinion delivered February 6, 1928.
    Appeal and error — moot case. — In an action to cancel certain assignments of royalties in a mining lease, where the record discloses that the plaintiff had assigned all of his rights and interest to a third party, who was not objecting to the assignments sought to be canceled, the questions in the case became moot and will not be determined on appeal.
    Appeal from Union Chancery Court, Second Division; A. L. Hutchins, Chancellor on exchange;
    affirmed.

      N. A. Cox, Pat McNalley and Jordan Sellers, for appellant.

      Mahony, Yocum $ Saye, for appellee.
   Humphreys, J.

This is an appeal from the decree of the chancery court of Union County, Second Division, dismissing the complaints for want of equity in the cases consolidated brought by appellant against each appellee for the purpose of canceling certain oil assignments, in the nature of overriding royalties, in an old and gas mining lease covering twenty acres of land in section 5, township 16 south, range 15 west, in said county.

One of the oil assignments sought to be canceled was executed by appellant on the 14th day of July, 1923, by its vice president, William McComb, and its secretary, C. C. Beach, to appellee, City State Bank of Chicago, Illinois, for a valuable consideration for one-fourth of all the oil and gas produced, saved and marketed from said lease until the bank should receive therefrom the sum of $24,000. Cancellation of the oil assignments was sought upon the alleged ground that it was never authorized oirá tifiod by the stockholders or board of directors of appellant, and that it was not within the scope and power of its vice president and secretary -to execute same. The prayer of the complaint was in the alternative, that, if the court found the assignment to be valid, it be declared a mortgage for the security of $10,000 alleged to have been borrowed by appellant from said appellee bank, and for an accounting and application of the proceeds of the oil received to the payment thereof.

The other oil assignments sought to be canceled were executed by appellant, acting through the same officers, to Gary G. Harris, by which it conveyed to him, on November 15, 1925, for a valuable consideration, four-sixteenths of the oil and gas produced, saved and marketed from said lease until Harris should receive from the oil and gas the sum of $4,500; and an assignment dated November 21, 1925, in which it'conveyed to Gary G. Harris, trustee, for a valuable consideration, seven thirty-seconds of all oil and gas produced, saved and marketed from said lease until he should receive $10,500 therefrom.

The grounds upon which the last two assignments were sought to be canceled are as follows:

(1) Because the assignments were not authorized or ratified by appellant either through its board of directors or its stockholders; (2) that, if the assignments should be upheld by the court, they should be declared mortgages for the security of the loans or advances made to appellant by Gary G. Harris, and declared usurious on account of an exaction of more than ten per cent, per annum for the forbearance; (3) that, if the assignments should be declared loans and not tainted with usury, an accounting should be ordered to the end that the proceeds derived from the oil received should be applied as payments upon the indebtedness.

The appellees in the respective suits filed answers controverting the material allegations in each complaint, and the cause was heard and determined upon the issues joined by the Hon. A. L. Hutchins, chancellor of the Fifth Chancery District of Arkansas, in exchange of circuits with the Hon. G. M. LeOroy, chancellor of the Seventh Chancery District of Arkansas. It is unnecessary to set out the testimony introduced by the respective parties responsive to the issues joined, as it is disclosed by the record that all the questions involved between the parties in these suits are moot. The record reflects that, on the 13th day of February, 19'2C, appellant herein executed an assignment of the oil and gas mining lease involved in this controversy to II. M. Harrell in consideration of $32,000 and other valuable considerations, with all rights therein and thereunder, together with all personal property used and obtained in connection therewith and all oil and storage land covered by the lease, at. 7 o ’clock a. m. February 13,1926, and covenanted in the assignment that it was the lawful owner of said lease and rights and interests therein and of all property thereon and used in connection therewith, and that it had good right and authority to sell the lease, rights, interest and property, and that they were clear and free from all liens and incumbrances, save and except the lien of a certain deed of trust executed to W. G. Forrest, trustee, dated February 12, 1926, securing the bonded indebtedness of appellant, aggregating $93,791, and save and except all valid oil assignments then of record.

The assignments sought to be canceled in this consolidated suit were of record at that time. Under this transfer to H. M. Harrell, all equities in the property passed out of appellant .into him. If the assignments are valid, he bought subject to them, and if they are void, then the oil which was pledged to liquidate them would belong to Harrell and not to appellant. If these three oil assignments were canceled, appellant would not profit thereby, as everything it owned had passed to Harrell, and the profit would go to him. He is the. only interested party, and is making no objection to the three assignments sought by appellant to be declared mortgage liens instead of absolute transfers.

On account of all questions involved in the appeal being- moot, we refrain from determining them, and on that account affirm the decree of the chancellor dismissing the complaints.


text:
    Missouri Pacific Railroad Company v. Sloan.
    Opinion delivered February 6, 1928.
    1. Appeal and error — effect of request for directed verdict.— Where, at the conclusion of the testimony, each party requested a directed verdict, they in effect agreed that the question at issue should be decided by the court, and the court’s finding in favor of plaintiff was equivalent to a finding of a jury in his favor.
    2. Railroads — injury by train — jury question. — In a suit against a railroad for negligently killing" a dog, evidence of her1 mangled condition and the fact that she was knocked into a ditch 50 or 60 feet from a railroad track made the question whether she was killed by a train for the jury.
    3. Railroads — presumption of negligence. — Where a dog was killed by defendant’s train, the presumption of negligence arose, which placed the burden on the railroad to show that it had not negligently killed the dog.
    4. Continuance — absent witnesses. — In a suit against a railroad for negligently killing a dog, where, on the day of trial, plaintiff named the day and the hours between which the dog was killed, and it was shown that six of defendant’s trains passed' during the hours named, and that defendant was unable to try the case without the presence of the engineers and firemen operating such trains, it was error to deny the defendant a continuance to secure the attendance of such witnesses.
    Appeal from Crawford Circuit Court; J. O. Kmcan<non, Judge;
    .reversed.

      Thomas B. Pryor and Vincent M. Miles, for appellant.
   Humphreys, J.

This suit was brought in a justice of tlie peace court in Crawford County, Arkansas, by appellee against appellant, to recover $75 for the neglig-ent killing of a female dog, on December 23,1925. Judgment was rendered for said amount against appellant, by default, from which an appeal was duly prosecuted to the circuit court of said county, where the case was set for hearing on March 24, 1927. On March 23, the day before the trial, appellant filed a motion to require appellee to make the complaint more definite and certain, whereupon he amended liis complaint to allege that the dog was killed by a westbound train on December 23, 1925, and stated in open court that the dog was killed between 6 o’clock p. m. oil the 23d and. 6 o’clock a. m. on the 24th of said month. After receiving- this information, appellant filed another motion to make the complaint more definite and certain by requiring- appellee to designate the train that killed the dog-, or to state the time within an hour when the dog- was killed, upon the theory that it could not make a defense except at great cost, on account of numerous trains that passed west between the alleged hours.

The court overruled each motion, and exceptions were properly saved to the rulings.

Thereupon appellant filed a motion for a continuance on the ground that six of its westbound trains passed between the hours alleged, and that it would require considerable time to confer with the engineers and firemen operating each train, and, as all lived at a distance, it would require time to secure their attendance as witnesses on the court, and, if present in court, each would testify he was maintaining a constant lookout at the point at which the dog was supposed to have 'been killed, but neither saw the dog, and that the train operated by him did not kill her. The court overruled the motion for a continuance, over the exceptions of appellant. On the following day the cause was called and tried, resulting-in a judgment against appellant, from which is this appeal.

Appellant testified that he loaned two dogs, on December 22, 1925, to a neighbor, one being the dbg in . question; that the other dog returned on the night of the 23d, but that the dog- in question failed to come home; that he found her on the 26th or 27th day of December, lying fifty or sixty feet off the railroad track, down in a ditch beside the track, with marks indicating- that she had been knocked down there from the east to the west; that one side of the dog was skinned up, and that blood was running from her mouth and nose; that her fair market value was $100; that the railroad track where she was killed was straight in both directions for a distance of.about half a mile. Other evidence was introcluced tending to corroborate appellant’s testimony with reference to the value of the dog.

At .the conclusion of the testimony each party requested the court to direct a verdict in his favor, and asked no other instructions. By doing this they, in effect, agreed that the question at issue should be decided by the court, and the court’s finding in favor of appellee was tantamount to a finding of a jury in his favor. St. Louis S. W. Ry. Co. v. Mulkey, 100 Ark. 71, 139 S. W. 643, Ann. Cas. 1913C, 1339.

Appellant conténds for a reversal of the judgment upon the alleged ground that there is .no substantial evidence in the record showing that the dog was killed by the train. We think the mangled condition of the dog and the __ fact that she had been knocked from east to west down into a ditch fifty or sixty feet from the track made it a question for the jury to say whether she was killed by the train. Appellant is therefore bound upon this issue by the finding of the court against him. As a result of this finding, a presumption of negligence arose, and the burden was then upon appellant to show that it had not negligently killed the dog. Mo. Pac. Rd. Co. v. Bain, 370 Ark. 594, 280 S. W. 625.

Appellant further contends for a , reversal of the judgment because it was prevented from meeting this burden by the court’s refusal to sustain its motion, for a continuance. Appellant availed itself of the first opportunity to obtain an allegation as to when the dog was killed, with sufficient definiteness to make a defense. It did not have time thereafter or before the trial to get its witnesses, so the court erred in overruling its motion.

In passing it may be said that appellant alleged as definitely as he knew as to the time the dog was killed, and testified as definitely as he could relative to the date. Appellant, could only be required, under the allegations and proof, to bring into court the witnesses who operated its westbound trains between 6 o ’clock p. m. on the 23d and 6 o’clock a. m. on the 24th of December, 1925. The expense attached to bringing them into court could not relieve appellant of the duty to meet the burden by showing that it did not kill the dog, or, if so,' that it did iiot kill her negligently.

On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial.


text:
    Arkansas Western Railway Company v. Robson.
    Opinion delivered February 6, 1928.
    Carriers — instruction as to safe carriage of cattle. — Where, under bills of lading, shippers were required to accompany their cattle in shipment, an instruction that the carrier was the' insurer of the cattle to destination was erroneous, and in conflict with other instructions requiring- the shippers to prove negligence.
    Appeal from Scott Circuit Court; J. 8am Wood, Judge;
    reversed.

      James B. McDonough, Jr., Josephine R. Brown and J ames B. McDonough, for appellant.

      A. F. Smith, for appellee.
   Humphreys, J.

This is the second appeal in this ease. On the first appeal the facts were fully stated, and reference is made to that case for a statement of the facts in the instant case, as the facts were not materially different on a retrial of the cause. Arkansas Western Ry. Co. v. Robson, 171 Ark. 698, 285 S. W. 372.

The judgment was reversed and the cause was remanded for a new trial because the trial court erred in giving instruction No. 7 at the instance of appellees, which is as follows: “You are further instructed that the burden is upon the defendant company to prove by a preponderance of the evidence that the cattle were killed by their own inherent vices, weakness and natural propensities to injure each other, and not on account of the negligence or carelessness of the defendant company.” The court, in reversing the judgment, said: “Under the provisions of the bills of lading and the admission by the appellees that they accompanied these cattle in the shipment, the burden was upon the appellees to prove that the injury and damage sustained by the appellees resulted from the negligence of the appellant’s servant.”

In the instant case the court gave instruction No. 3, at the instance of appellees, which is as follows: “You are instructed that, when a railroad company contracts to receive cattle for transportation as a common carrier, and to safely carry and to deliver the cattle to the place of destination, by virtue of its responsibility it becomes an insurer of the cattle against all loss of every kind, except that caused by the act of God, of the public enemy, of public authority,- of the shipper, or from the inherent nature of the cattle.”

This instruction erroneously told the jury that, under the bills of lading, appellant was an insurer of the safe carriage of the cattle to their destination. This instruction was inherently wrong and in direct conflict with other instructions which the court gave, admonishing the jury that appellees must prove negligence on the part of appellant in order to recover damages for the cattle killed and injured. The latter instructions could not cure the inherent defect in the former instruction, No. 3, which was in conflict with them.

On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial.


author: Kirby, J.,

text:
    National Union Fire Insurance Company v. Halfacre.
    Opinion delivered February 6, 1928.
    1. Insurance — proof of loss. — A notice of a fire given by insured to a local insurance agent having power to issue policies and collect premiums, together with a list of the property lost, held sufficient compliance with the requirements of the policy and proof of loss, where the insurer made no complaint until the last day of the period within which the proof could be made.
    2. Insurance — time to furnish proof of loss. — Where the insured reported a fire and gave a list of the property destroyed to the local agent of the insurance company a few days after the fire, and no objection was made that the requirements of insurance policy for proof of loss were not met until the last day in which such proof could be furnished, insured was entitled to further reasonable time to complete the proof of loss.
    3. Insurance — time for furnishing proof of loss. — Where a policy provided that proof of loss should be furnished within 60 days after destruction of the property, the proof was furnished within time when supplied within 60 days after cessation of the fire which consumed the property.
    4. Insurance — requirement that insured submit to examination. —The requirement in a fire insurance policy that the insured submit himself for examination under oath does not contemplate such examination after the occurrence of the fire.
    Appeal from Independence Circuit Court; 8. M. Bone, Judge;
    affirmed.
    STATEMENT OF FACTS.
    This appeal is prosecuted by the insurance company from a judgment rendered against it for the amount of the loss claimed to be due under its policy issued to appellee, with penalties, and attorney’s fees.
    The' answer of the defendant admitted the issuance of the policy to the plaintiff, insuring him in the .sum of $550 on household goods and $250 on hay, grain, saddles, etc., in his barn, but denied any liability under the policy, because it had not been furnished with an itemized proof of loss, or any proof of loss at all, within 60 days from the date of the fire, as required by the terms of the policy; denied that the fire which caused the loss occurred on the 29th day of April, 1926, as alleged, and denied the right of plaintiff to maintain his action, because he toad refused to submit to an examination under oath, according- to the terms of the policy. The amendment to its answer alleged that the purported proof of loss was insufficient, and no such proof of loss as was required under the terms of the policy, setting out the alleged defects.
    The testimony shows that the fire which destroyed the property started before midnight on the 26th day of April, 1926, and continued into the morning* of the 27th; that appellee notified J. Rich, -the agent who wrote and delivered the policy to him, and was told by the agent that he had notified the company of the loss.
    Rich asked him for a list of the property destroyed, and gave him one of his books to make the list on. "Witness made the list of the stuff on the book and gave it back to the agent, who said it was all right, that he would notify the company, and an adjuster would be sent to 'see him, and about a week later Mr. Gumm, the adjuster, came out, and he had the list of property lost that witness had given to the agent. That the adjuster came to see him three times, offered him about one-half the amount witness claimed to have lost, and finally said the proof of loss was not satisfactory, and witness, on June 28, had his attorney to fix up a proof of loss which was sworn to by him and sent to the company by registered mail on that diay.
    The suit was brought on the 13th daj^ of November, 1926, and appellee, a few days before the trial, on.................. day of........................, 1927, refused, on the advice of his attorney, to undergo an examination under oath by the attorney representing the eompaiw in the lawsuit.
    The insurance agent admitted that he wrote the policy, and was notified by the insured of the loss, and his record showed that he had notified the company, on April-30, of the loss, which had occurred on April 28, at 12:30 a. m. Said he did not tell insured that he had complied with the terms of the policy, but told him that he had already notified the companj^ of the loss, and received a notice from them that they had turned the claim over to the Southwestern Adjustment Company, and that he either wrote to the adjustment company and received an answer or that the insured brought the adjustment company’s letter and showed it to him.
    The letter stated that he had not complied with the policy, and witness told him to get up his proof of loss, and he told him that bad been done by Mr. Pickens at Newport, and he asked him what else he had to do. "Witness told him that he had to furnish a proof of loss, and if he had done that, he did not know of anything else. Witness turned over to Mr. Grimm of the adjustment company the list of the property destroyed by the fire that was made out by the insured upon the book given him by witness. Did not know who the adjuster was representing-.
    The ease was tried b}'- the court without a jury, and from the judgment the insurance company appealed.

      Samuel G. Knight, for appellant.

      Fred'M. Pickens and Goleman & Reeder, for appellee.
   Kirby, J.,

(after stating the facts). The undisputed testimony shows that the local agent of the fire insurance company* having power to issue policies and collect premiums, was notified by the insured that a loss had occurred, and received from him a list of the property destroyed, made out upon a little book furnished by the agent for that purpose; that he notified the company of the loss, 'and the adjuster had the list of the property furnished the agent by the insured when he first called upon him relative to aii adjustment of the loss; that, during the negotiations for a settlement, although complaint was made that the proof of loss was not satisfactory, no refusal to settle was made on that account until the 28th day of June, when a formal verified itemized proof of loss was sent by registered mail to the company.

There was no reason to think that a refusal to adjust the loss or pay the claim would be made until that time, and the court properly held that the insurance company had waived the proof of loss, and that the notice given and the action taken by the insured in furnishing- the list of the property lost was a sufficient compliance with the requirements of the policy. Fireman’s Ins. Co. v. Hays, 159 Ark. 161, 251 S. W. 360; Fireman’s Fire Ins. Co. v. Mitchell, 122 Ark. 357, 183 S. W. 770; National Union Fire Ins. Co. v. Wright, 163 Ark. 42, 257 S. W. 773, Fireman’s Ins. Co. v. Bye, 160 Ark. 212, 254 S. W. 465; American Ins. Co. v. Dannehower, 89 Ark. 111, 115 S. W. 950.

The proof of loss or list of property destroyed, furnished to the agent of the insurance company a few days after the fire and later found in possession of the adjuster, upon the first of his three visits to make the adjustment, was not refused as a proof of loss meeting the requirements of the insurance policy, nor any such objection made to it as amounted to its refusal as such, until what was thought to be the last of the 60 days provided in which such proof should be furnished. This being- the case, the insured was entitled to further reasonable time to complete the proof of loss. Planters’ Mutual Ins. Co. v. Hamilton, 77 Ark. 27, 90 S. W. 283, 7 Ann. Cas. 55.

The undisputed testimony also shows that the. fire which destroyed the insured property continued into the morning of the 29th, and the law will not allocate the loss to any particular part of the time, nor consider the property destroyed before the cessation of the fire which consumed it. Such being the case, the itemized verified proof of loss was furnished within the time required by the policy, in any event,.

There is no merit in the contention that appellee refused to submit himself for examination under oath, long after the loss had occurred and suit had been filed for the recovery of the amount of the loss under the policy. As said in Conn. Fire Ins. Co. v. Boydston, 173 Ark. 437, 293 S. W. 730, such clause “did not contemplate such examination after the occurrence of the fire, with subsequent loss.”

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


author: Kirby, J.

text:
    Koonce v. Pierce Petroleum Corporation.
    Opinion delivered February 6, 1928.
    1. Taxation — repeal of tax on capital stock. — Acts 1925, p. 832, § 2, amending Crawford & Moses’ Dig., § 9804, and requiring the Tax Commission to charge and certify to the Treasurer for collection as a franchise tax a certain percentage on a proportion of the subscribed capital stock of corporations represented by i property owned and used in business transacted in the State, being free from ambiguity, repeals Acts 1925, p. 692, § 7, requiring- the tax on capital stock as represented by property owned and business transacted in the State, since it is in conflict with and repugnant thereto, though both acts were passed by the same Legislature, and approved within a day of each other.
    2. Taxation — tax on capital stock. — Under Acts 1925, p. 832, § 2, amending Crawford & Moses’ Dig., § 9804, the Tax Department of the State is without authority to charge a corporation a franchise tax on its capital stock as represented by property owned and business transacted in the State, but should have charged same on the proportion of subscribed capital stock represented by property owned and business transacted in the State, as provided by act 271 of 1925.
    3. Taxation — injunction against collection of excessive tax.— Where the amount of franchise tax tendered by plaintiff corporation was the correct amount that could be charged under Acts 1927, p. 831, no error was committed by the court in permanently enjoining State officials from collecting a greater amount.
    Appeal from Pulaski Chancery Court; Frank 11. Bodge, Chancellor;
    affirmed.
    statement oe eacts.
    This appeal comes from a decree enjoining ihe State Treasurer and other officials from attempting to collect the franchise tax, $3,362, assessed against the appellee corporation by the Tax Department of the Arkansas Railroad Commission for the year 1927.
    The assessment was made upon the franchise tax report of appellee, a foreign corporation authorized to do ■business in this State, filed on March 23, 1927; and in making it the Tax Department ascertained the percentage of the property valuation used in business in the Slate, as well as a percentage of the business done in the State, levying a tax upon the property owned and the business, transacted within the State. It also figured the non-par value stock at $25 per share, in accordance with § 1, act 376 of 1923, upon the amount ascertained as being the value of the property owned and the business transacted in the State; the rate prescribed by § 7 of the amendatory act 271 of the Acts of 1925 (11/100 of one per cent.), was charged, producing- the amount $3,362.01, reported to the State Auditor as franchise tax for 1.927 and by him charged and certified to the State Treasurer, as required by law.
    Appellee brought suit in the Pulaski Chancery Court, August 6,1927, asking for an injunction against the State Treasurer and other officials restraining them from proceeding- to collect the franchise tax assessed for said year 1927, which it alleged was levied without authority of law, and that the amount due from it for such franchise tax was only $557.26, which it offered to pay, but the tender thereof was refused.
    A temporary order restraining appellant from the collection of more than the sum tendered, was made. The appellant’s demurrer to the complaint was overruled, and, upon their declining to plead further, a decree was entered permanently enjQining appellants from the collection of more than the amount tendered as franchise tax for said 3rear, and from said decree this 'appeal is prosecuted.

      H. W. Applegate, Attorney General, Hal L. Norwood, Assistant, and Sam M. Wassell, for appellant.

      Malcolm W. Gannaway and A. Carlyle Gannaway, for appellee.
   Kirby, J.

The only question for determination here is whether appellant should have charged, certified and attempted to collect, as a franchise tax from appellee, for the year 1926, upon the proportion of appellee’s capital stock as represented b3r its property owned and business transacted in this State during the said year, or only to collect, as a franchise tax for said year, the proportion \ of appellee’s capital stock as represented by its propert3r j owned land used in business transacted in this State dur- ' ing said 3-ear.

Appellants insist that the amended statute authorizing the levying of the franchise tax was inadvertently and by typographical error made to conflict with act 236 of the Acts of 1925, which covers the. entire subject of levy and collection of franchise tax, approved on the 27th day of March, 1925, the day before the amendatory act 271 of the Acts of 1925 was approved, and that said amendatory act should be construed accordingly as not -affecting the levying of the franchise tax.

The last act, § 2 of No. 271, amended § 9804, C. & M. Digest, to read as follows:

“That § 9804 of Crawford & Moses’ Digest be, and the same is, hereby amended to read as follows: ‘ Section 9804. Upon the filing of the report provided for in §§ 9802 and 9803 the Commission, from the facts thus , reported, and from other facts coming to its knowledge bearing upon the question, shall determine the proportion of the subscribed capital stock of the corporation represented by its property and business in this State on or before July 1, and shall report the same to the Auditor of State, who shall charge and certify to the Treasurer of State, on or before July 10, for collection, as hereinafter provided, annually, from said corporation, in addition to the initial fee otherwise provided by law, for the privilege of. exercising its franchise in this State, a tax of eleven one-hundredtlis of one per cent, each year upon the proportion of the subscribed capital stock of the cor_poiratioñ'repres'ented by property owned and used in business transacted in this State.’ ”

Appellee contends that this act, being in conflict with the former statute, necessarily repeals it, and that the franchise tax must be levied only upon its property., owned and used in business transacted in the State; while appellants insist that this last act only repeals act 236 as to the rate of taxation.

Said section of the statute it last amended was § 2, act approved February 15, 1917, which provided, a privilege or franchise tax as follows: “® * * A tax of one-tenth of one per cent, each year upon the proportion of the subscribed, issued and outstanding capital stock of the corporation represented by property owned and used in business transacted in this State. ’ ’

Section 7 of Act 236 of 1925 amends said section of1 the Digest to require the proportion of the capital stock of the corporation as “represented by its property and business in this State,” and charge and certify a franchise tax,.in addition to the initial fee provided, “of one-tenth of one per cent, each year upon the proportion of the issued and outstanding capital stock of the corporation used in Arkansas, as represented by property owned and business transacted in this State.”

The last act 271 of 1925 requires the Commission to determine the proportion of the capital stock of the corporation “represented by its property and business in tins State,” and to charge and certify to the Treasurer for collection as franchise tax, in addition to the initial fee, “a tax of eleven one-hundredths of one per cent, each year upon the proportion of the subscribed capital stock of the corporation represented by property owned and used in business transacted in this State.”

The Constitution provides that, in amending a law, so much thereof as is amended “shall be reenacted and published at length.” The language of this section of the statute, as last amended by said act. 271, is plain in its meaning and free from ambiguity, and is obviously in conflict and repugnant to the provisions of said statute as amended by and published at length in said act 236 of the Acts of 1925, which it necessarily repeals.

It is argued forcefully that the Legislature could not have intended, by amending this section of the statute, which was to provide means “for the erection of armories for the units of the National Guard, and for other purposes,” as shown from its title, to repeal the law enacted the day before, covering the whole subject of franchise tax, in effect destroying it.

Appellants contend, however, that the rate and percentage of taxation as.provided in said last act of the Legislature would have to be applied in the charging and collecting of the franchise tax, but that the provision limiting the charge to the capital stock of the corporation, “represented by property owned and used in business transacted in this State,” although necessarily repugnant to the provision of the said act 236, should not repeal it, but be construed to be rather in harmony with the first act covering the entire subject, both having been passed by the same Legislature and approved within a day of each other. There is no ambiguity, however, in this last act, and the law relating to the levying of the franchise tax, before the amendment by act 236, read exactly as does the last act, and there is no less reason to believe that there was a mistake made in the passage of said act 236, changing the former law, than in the last act 271, changing and amending said act 236, and necessarily repealing it.

It follows that the Tax Department of the State was without authority to. charge a franchise tax upon the, capital stock, as represented by property owned and bus^ iness transacted in this State, but should have charged same upon the proportion of the subscribed capital stock of the "corporation represented by property owned and„ used in business transacted in this Stiate, as provided by said act 271 of 1925.

It being conceded that the amount of franchise tax ' as tendered by appellee was the correct amount that could be charged under said act 271, no error was com.mitted by the court in permanently enjoining the State officials from collecting any other or greater amount than said sum, and the decree is accordingly affirmed.


text:
    Western Union Telegraph Company v. Bowen-Oglesby Milling Company.
    Opinion delivered February 6, 1928.
    1. Telegraphs and telephones — error in transmission op message — damages.—In an action by a flour milling company against a telegraph company for loss due to the sale of flour pursuant to telegram, for negligence in failing to correctly transmit such telegram, stating the price of a certain brand of flour, plaintiff may recover for loss on other brands, the price of which was governed by that mentioned, where such loss was the proximate result of the incorrect transmission of the message, and was in contemplation of the parties when the telegram' was sent.
    2. Telegraphs and telephones — damages for incorrect transmission of telegram. — In an action against a telegraph company for negligence in failing to correctly transmit a telegram stating the price of flour, thereby causing loss in sales pursuant thereto, evidence that certain sales resulted in loss of 50 cents per barrel, held sufficient to- prove damages.
    Appeal from Sebastian Circuit Court, Fort Smith District; J. 8am Wood, Judge;
    affirmed.

      Francis R. Stark, Rose, Hemingway, Cantrell S Loughborough and Pryor, Miles é Pryor, for appellant.

      Roy Gean, for appellee.
   Kirby, J.

This appeal comes from 'a judgment for damages resulting from the negligence of the appellant-in failing to correctly transmit and deliver a telegram.

The appellee, a flour milling company located in Kansas, and buying' and milling wheat purchased there, sent to its distributing agency or office, in the city of Fort Smith, which is a distinct business, purchasing for sale from the Kansas corporation flour manufactured by it as though it had no connection therewith, the following telegram from Independence, Kansas:

“Offer Marathon six seventy basis halves Fort Smith.”

The message delivered and received in Fort Smith, read:

“Offer Marathon six twenty basis halves Fort Smith. ’ ’

It was alleged that the Fort -Smith office or agency, acting under the telegram, made sales of 873% barrels of flour at a loss of 50c per barrel, resulting from the negligent transmission of the telegram; that the employees of the defendant at Independence, Kansas, and its Fort Smith agent, knew that plaintiff’s quotations on flour were based on Marathon, and that it used such ’basis for selling its other brands of flour on the basis of Marathon quotations.

The answer denied any injury or damages by carelessness or negligence of the telegraph company; that the milling company made no sales of flour other than the 52% barrels of Marathon flour, upon which it admitted it was indebted to the milling company in the sum of $26.25, which it tendered in court in satisfaction of plaintiff’s claim; denied that its employees at Independence, Kansas, or Fort Smith, Arkansas, ever knew that the plaintiff’s quotations on flour were based on Marathon, and that the defendant or its employees knew that plaintiff used Marathon as a basis for selling other grades or brands of flour upon the basis of Marathon quotations; alleged that the use- of Marathon as a basis was a trade secret of the plaintiff, and that its employees had no knowledge that the plaintiff would sell Ambassador flour, - or B. & O. flour, or any other commodity except Marathon flour, as a result of the telegram; denied that the milling company lost the sum of 50c per barrel on 873% barrels, or suffered any loss whatever.

The testimony shows that the agents of the telegraph company knew the milling company was engaged in the manufacture of flour at Independence, Kansas, and selling same through its distributing office at Fort Smith, and also that it manufactured different brands other than Marathon, which they understood was a brand or grade of flour.

The manager of the appellee company testified that the message was not received as it bad been given to tbe defendant, and, acting upon it, he sold 873% barrels of flour at an average loss of 50c per barrel; 365 barrels at $6.70, 356 barrels at $6.70, 52% barrels at $6.60, and 100 barrels at $6.95; that, in dealing in flour, the company had a basis Marathon for its quotations, and Ambassador flour is always 30c over Marathon, B. & O. brand the same as Marathon, and Heart of Wheat 30c under; the telegram meant that the flour should be sold at $6.70 per barrel, Marathon basis 98’s, the cost of manufacture; and that it was- sold at an average loss of 50c per barrel, which only included a selling charge of 10c per barrel. Said that wheat was bought on the sale of flour, and that it was difficult to make 50c per barrel profit on the manufacture of flour.

One of the ag-ents of the telegraph company stated that she understood that Marathon was a particular grade of flour, and had no information that Marathon was a basis on which other grades of flour could be sold.

The court instructed the jury,-which returned a verdict for the full amount claimed, and from the judgment thereon the appeal is prosecuted.

Appellant insists for reversal that it is not liable for special damages, the loss on other brands of flour than Marathon, having had no notice whatever from the telegram or otherwise that other brands of .flour might be sold thereunder, resulting in a loss from the negligence in failing to deliver the telegram as sent.

It is true that the answer denied that the telegraph company or its agents had any such knowledge or information, but the undisputed testimony shows that its agents knew the appellee company was manufacturing flour at Independence, Kansas, and selling and distributing it from its office in Fort Smith, Arkansas; also some of them knew that Marathon was a particular brand or grade of flour, and that the company manufactured other-brands as well. The message itself showed on its face that it was an offer to sell or a direction to offer for sale flour “Marathon six seventy basis halves Fort Smith,” and the telegraph company was thereby apprised of the importance of the message, its relation to a business transaction, and that loss would probably result unless the message was correctly transmitted and. delivered, and was sufficient, under the circumstances, to render the company liable for the resultant actual damages. 26 R. C. L., p. 605, § 102; p. 602, § 100.

The damages claimed for actual loss on the sale of all the flour are no more than would have resulted from the sale of Marathon alone on the basis quoted in the telegram as negligently transmitted and delivered, and the damages suffered because of such negligence cannot be said not to have been the proximate result thereof or not in contemplation of the parties when the message was sent.

Neither is there any merit in the contention that no damages were proved, since the undisputed testimony shows that the sales under the quotation in the telegram resulted in a loss of 50c per barrel over the actual cost of manufacture, the sale of the flour being made at a price of 50c below the actual cost, or a reduction of 50c per barrel below the cost of manufacture and sale.

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


author: Mehaffy, J.

text:
    Ramey v. Fletcher.
    Opinion delivered February 6, 1928.
    1. Alteration op instrument — evidence.—.Evidence held sufficient to justify cancellation of a deed on the ground that defendant had altered it before recording, by making herself grantee, instead of her husband, where defendant failed to produce the original deed.
    2. Evidence — presumption from withholding evidence. — In a suit for cancellation of a deed on the ground that it had been altered so as to name defendant as grantee instead of her deceased husband, defendant’s failure, upon request by plaintiffs, to produce the original deed created a presumption that such deed, if produced, would favor the claim of plaintiffs.
    3. Appeal and error — change of theory. — In a suit for cancellation of a deed on the ground that defendant altered it to name herself as grantee, instead of her deceased husband, defendant cannot contend for the first time on appeal that she was entitled to reimbursement for money paid in purchasing the land in dispute, where such contention was inconsistent with the theory presented and relied on in the trial court.
    4. Appeal and error — conclusiveness of chancellor’s finding.— The finding of the chancellor will not be disturbed unless it is against the preponderance of the evidence.
    Appeal from Logan Chancery Court, Southern District; J. V. Bourland, Chancellor;
    affirmed.

      John P. Roberts and W. L. Kincaamon, for appellant.

      Bvams & Evans, for appellee.
   Mehaffy, J.

The appellees, plaintiffs below, brought suit in the chancery court of Logan County, alleging that they are the only heirs at law of Joe M. Fletcher, deceased, and that the appellant, who wias defendant below, is the widow of the said Joe M. Fletcher, deceased; that defendant, Dave Ramey, is the husband of the said Mary Jane Ramey.

It is alleged that on the 20th day of March, 1905, Joe M. Fletcher and his aunt, Elizabeth Hurston, purchased 165 acres of land in the .Southern District of Logan County from one J. S. Cotner. The lands were described, and it was then alleged that, on the 20th day of March, 1905, the said Cotner made, executed, acknowledged and delivered to Fletcher a deed to himself and Elizabeth Hurston, jointly, in which deed Florence Cotner, wife of the said J. S. Cotner, joined, relinquishing her rights of dower and homestead. A copy of said deed is attached to the complaint as an exhibit.

Plaintiffs allege that on the first day of September, 1906, Fletcher and Elizabeth Hurston agreed on a division and partition of said land, and that partition deeds were made carrying out the agreement. It is further alleged that Fletcher did not place the deed from Eliza.beth Hurston on the record, and that, after his death, the defendants inserted in the said deed the word “Mrs.” before the name of the said J. M. Fletcher, and changed the word “his” to “her” in said deed, and then filed the same for record; that by such forgery the defendants undertook to convey the title to the above described land to the defendant, Mary Jane Ramey.

Mary Jane Ramey and Dave Ramey filed a joint answer, admitting that the plaintiffs were related to Joe M. Fletcher, deceased, as set out in the complaint, and that Mary Jane Ramey was his widow, and that, after his death, she married Dave Ramey. And the answer, then denied all of the material allegations in the complaint, and alleged that Fletcher and Elizabeth Hurston purchased the land in Logan County, and that Mary Jane Ramey paid one-half of the purchase price with her individual money, and that the deed was made jointly to him and Elizabeth Hurston, but that Mary Jane Ramey and Elizabeth Hurston agreed upon a division, and that Elizabeth Hurston executed and delivered to the defendant, Mary Jane Ramey, a deed. She further alleged that she had owned, occupied and possessed said lands, paid the taxes thereon under and by virtue of said deed from the said Elizabeth Hurston, continuously since September 1, 1906, to the present, a period of 19 years. She denied that the defendants, or either of them, had any interest in the lands.

•Certified copies of deeds were filed with the pleadings.

The chancellor entered a decree in favor of the plaintiffs, and decreed the cancellation of the deed which Was alleged to have been fraudulently altered, and that the heirs of J. M. Fletcher are invested with and hold the title to said lands, subject to the rights of dower and homestead of the widow, Mary Jane Ramey. It is ordered that the defendants paj^ all the costs. From this decree an appeal was taken to this court.

Appellant, in his brief, states :■£ ‘ The issues before the court then are two issues. First, was the testimony offered hy the plaintiffs sufficient to warrant the court in canceling the deed? Second, if it was sufficient to warrant the court in canceling the deed, equity should reimburse the defendant, Mary Jane Ramey, for the money paid 'by her in purchasing- the land in dispute. ’ ’

The first question, of course, is purely a question of fact. The undisputed proof shows that the deed from J. S. Cotner and wife was made to J. M. Fletcher and Elizabeth Hurston, and not to Mrs. J. M. Fletcher'. The partition deed from Elizabeth Hurston was not put on record during Fletcher’s lifetime, was in the possession of the defendants, and was placed on record after the death of J. M. Fletcher. The undisputed fact is that J. M. Fletcher did not put either of the partition deeds from Elizabeth Hurston to himself upon the records, and that he died in possession of both of them, and that thereafter they were in the possession of the defendants. The defendants had the deed, had it placed on record, and then it was lost. At any rate, the defendants did not produce it at the trial. They were requested by the plaintiffs to produce the original deed, which plaintiffs claim was changed by adding “Mrs.” before J. M. Fletcher and changing “his” to “her.” The fact that Fletcher had possession of the deeds and of the property during his lifetime; that, after his death, they were in possession of the defendants; that defendants placed the deed on record, and were then unable to produce the original deed for examination so that it might appear whether or not there had 'been a change; and the fact that the original deed from Cotner was to J. M. Fletcher, are all circumstances to be considered in determining whether or not the deed was made to J. M. Fletcher or to Mrs. J. M. Fletcher. These circumstances, together with the other evidence introduced by the plaintiff, when considered with the evidence introduced by the defendant, we think justified the chancellor in finding that the deed had been changed.

W. I>. Ramey, the husband of Mrs. M. J. Ramey, testified that he had the land changed on the taxbooks from J. M. Fletcher to M. J. Fletcher, and that up to that time he had never seen the deed. He testified that he had this change made through the advice of his wife. He further testified that later he came across the deed, and took it to the courthouse to be recorded. He testified that he did not change the deed. He admitted, however, that he told Mr. Beck that he understood he could pay the taxes on the land for seven years land get a ta.x title. He did not remember making any statement to Mr. Friddle. He also testified with reference to his conversation with Beck, that he was not paying the taxes for the purpose of getting a title, but that he was just talking to hear his head rattle, and he did not know what he said it for. Ramey never read the deed, never saw it for a year or two, and did not. know what the deed contained. He did not know that it was his wife’s deed; just supposed it was.

Mrs. M. J. Ramey testified that, prior to her marriage ■with Ramey, she was Mrs. J. M. Fletcher. She said thiat most of the money paid for the land bought of Cotner was her money; that she paid $450 of her own money, but that her husband had the control of this money prior to the purchase of the land; that, after they purchased it, they divided it, and the partition deed was mlade to her; that Mr. Ramey never saw this deed until the day he put it on record; during the time 'from Fletcher’s death until the day Mr. Ramey put the deed on record she had this deed, hut did not have it put on record; that she told Mr. Ramey to change the land on the taxbooks from J. M. Fletcher to her name, M. J. Fletcher.

Witness could not read. Neither of them could read, but she said that a man named Brown read the deed, and she knew that it was Mrs. J. M. when this man Brown read the deed. She does not know what became of the deed after it was recorded, but thought it was carried back to the bank, land has never seen it since. She had had the money about a year before they bought the land, but her husband had had possession and control of it until the time they purchased the land, and he stated that he paid one-half of the price, $1,200.

As we have said, the circumstances and evidence, when considered together, we think clearly show that the land -belonged to J. M. Fletcher, and that the deed was changed after J. M. Fletcher’s death and before it was put on record. There is really no satisfactory explanation of what became of the deed after it was recorded. It was, however, in the possession of the defendant, and doubtless, if it had been produced, would have shown conclusively whether or not there had 'been the change claimed by plaintiffs, and the fact that it was not produced is a circumstance very strongly tending to corroborate the theory of plaintiffs.

“An adverse presumption, usually a strong one, is ordinarily indulged against a piarty on account of his non-production of documents. If a party, after having been duly notified to produce hooks and papers at the trial, fails or refuses to do so, it may be presumed that such failure or refusal is because such books and papers, if produced, would operate against his claim and in favor of the claim of the opposite party. Where a party relies on parol evidence of a fact, instead of producing written evidence thereof in his possession, it ought to require much less evidence to defeat him than if he had no written evidence which he could have produced. And a weak case may be strongly corroborated by the opposite party’s failure to produce or account for documents that would remove all doubt. Again, where, after notice and refusal to produce documents, it is shown or admitted that they are under the control of the party, and secondary evidence is given, and such evidence is imperfect, vague, and uncertain, every intendment and presumption is to be made against the party who might remove all doubt by producing the higher evidence.” Vol. 10, R. C. L., 889.

“The plaintiff’s evidence had tended to show that the defendant, having control of the books and- papers called for by the plaintiff, and ordered by the. court to 'be produced, had refused to produce them, in defiance of the order; that the reasons given for their nonproduction were frivolous and derisive; that the defendant and its officers stood before the court in the attitude of men who had spoliated or suppressed evidence. The question is whether the court applied the correct rule of law in the instructions to the jury. * * * This language was used in the charge: ‘But you can easily see that, if books are destroyed, if books are hidden, if books are carried away, the power of the court is limited in that respect. * * * But the arm of the law is long enough and stroug enough to reach cases of that sort, and when the jury feel, in a civil case, when they are satisfied by ia fair balance of proof, fair balance of probabilities, that a party has suppressed books, has hidden books, has kept books away that have been called for, and which it has had notice to produce, then the law says the jury may presume from the absence of those hooks and papers against the party called upon to produce them, and not producing them, and in favor of the other party.”

Further on the court said: “If you find that the defendant, after being notified to produce books and papers, has failed to do so, you have a right to presume that it is because those books and papers would make against its claim and in favor of the claim of the plaintiff. You can give to that presumption such weight as you think it ought to have.” F. R. Patch Mfg. Co. v. Protection Lodge, etc., 77 Vt. 294, 60 Atlantic 74.

“Mere withholding or 'failure to produce evidence, winch, under the circumstances, would he expected to be produced, and which is available, gives rise to a presumption less violent than that which attends 'the fabrication of testimony or the suppression of documents in which other parties have a legal interest; -but the courts recognize and act upon the natural inference that the evidence is held hack under such circumstance's because it would be unfavorable.” Jones on Evidence, vol. 1, 152. See also notes on page 582 of L. R. A. 34.

It cannot be doubted that the deed, if produced, would have shown conclusively whether or not the deed had been changed as alleged by plaintiff. Certainly, if there had not been a change, and if defendant’s theory is correct, the production of the deed would have demonstrated this — would have removed all doubt.

Appellant’s next contention is that, if the evidence was sufficient to warrant the court in canceling the deed, equity should reimburse the defendant, Mary Jane Ramey, for money paid by her in purchasing the land in dispute. Appellants did not ask this relief in the court below, and this contention is inconsistent with the theory presented and relied on in the court below.

“The appellant did not ask the court below to present to the jury the theory of the case it contends for here. Therefore it cannot complain. ” Southern Ins. Co. v. Hastings, 64 Ark. 253, 41 S. W. 1093.

“It is contended by counsel for appellant that there was no evidence at all of correctness of the account sued on. This, however, was not made an issue by the pleadings, and the question cannot be raised here for the first time.” Shinn v. Platt, 82 Ark. 260, 101 S. W. 742.

£ ‘ It is well settled in this State that a party cannot, on appeal, contend for a theory of the case different from that which was contended for in the trial court.” White Company v. Bragg, 168 Ark. 670, 273 S. W. 7.

It is a well established rule of this court that the finding of the chancellor will not be disturbed unless it is against the preponderance of the evidence.

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