author: McCulloch, C. J.

text:
    Glens Falls Insurance Company v. Jenkins.
    Opinion delivered December 7, 1925.
    1. Insurance — proof of loss — waiver of objection. — Where written proof of loss under a fire insurance policy was submitted two days after a fire on a printed blank and complying with the insurer’s requirements, except that it included property not insured, and failed to itemize the property destroyed, failure of the insurer’s adjuster to object to such proofs until after the time for filing had expired constituted a waiver of the defense that the proofs were not filed in time.
    2. Insurance — condition as to ownership. — A condition in an insurance policy regarding the unconditional ownership of the insured property applies only to property covered by the policy, and testimony as to liens on property not insured was irrelevant.
    3. Appeal and error — conclusiveness of verdict. — A verdict on conflicting evidence is conclusive.
    4. Evidence — statement of conspirator.. — In an action on a fire insurance policy, where the issue was whether plaintiff and another conspired to burn the ^building, testimony of a witness that she saw plaintiff hand the alleged conspirator something which looked like paper, and that the conspirator later stated that “if he could get his deal pulled off he would have money to throw to the birds” was incompetent as not connecting defendant or stating any fact in a transaction ¡between plaintiff and the conspirator.
    5. Evidence — competency.—In an action on & fire insurance policy, Where the issue was whether plaintiff and another conspired to bum and did bum the insured ¡building, proof that a third party, who was financially unable to do so., did put up a cash bail for such conspirator, was incompetent, where there was no testimony tending to show that plaintiff furnished the money.
    6. ' Insurance — stipulation as to false representations. — Stipulation in a fire insurance policy against false swearing and false representations relate only to the insured property, and not to property not covered by the policy.
    7. Trial — time of raising question. — In a suit on a fire insurance policy, where the clause limiting the recovery of plaintiff to three-fourths of the value was not pleaded by the defendant, and it applied only to his personal property, and the description of the insured property in the policy did not show whether the property was chattels or fixtures, the court properly refused to permit the question of the three-fourths clause to be raised for the first time after the close of the evidence.

      Appeal from Little River Circuit Court; B. E. Isbell, Judge;
    affirmed.

      Webber db Webber, for appellant.

      Shaver, Shaver <$> Williams and Moore, Walker & Moore, for appellee.
   McCulloch, C. J.

The plaintiffs, C. N. Jenkins and J. W. White, operated a motion picture theatre, in the city of Helena, and owned certain property in connection with the building and business. They carried fire insurance with several companies, and, among others, the defendant, Glens Falls Insurance Company, in the sum of $3,500 on the property described in the policy as follows: ‘ ‘ On improvements and betterments to the building described herein, the insured part being the ground floor, occupied by a first-class moving picture theatre, known as the Best Theatre. These improvements and betterments consist principally of floors, ceiling, side wall, balconies, stairs, doors, windows, partitions, lattice work, ticket office, and theatre front, and all other im-~ provements and betterments to the building which were made and paid for by the assured, all while contained in the three-story, composition roof, brick building situated 532 east side of Cherry Street, block 18, page 14, San-born’s map of the city of Helena, Arkansas.”

The policy contained What is known as a “three-fourths value clause” reading as follows: “Applicable to personal property only; it is understood and agreed to be a condition of this insurance that in the event of loss or damage by fire to the property insured under this policy this company 'shall not be liable for 'an amount greater than three-fourths of the actual cash value of each item of property insured by this policy (not exceeding- the amount insured on each item) at the time immediately preceding- such loss or damage. ’ ’ The policy also contained the customary clause, as a condition of liability, that proof of loss should be made within sixty days after date of the fire. The property was destroyed by fire, and, upon refusal Iby the defendant to pay, plaintiffs instituted this action on the policy.

Defendant filed an answer denying liability on several grounds, namely, that proof of loss had not been made within the time prescribed in the policy; that there was a breach of the terms of the policy by plaintiffs in that their interest in the property was not sole and unconditional; that there was a breach on account of incumbrance on the insured property; and also that there was no liability by reason of the fact alleged that plaintiffs wilfully caused the property to be burned for the purpose of collecting the insurance.

The trial before a jury resulted in ^ verdict in favor of plaintiffs for the recovery of the sum of $2,100, and the defendant has prosecuted - an appeal to this court.

Within, two days after the fire, the plaintiffs sent to the company what purported to be proof of loss in accordance with the terms of the policy. The proof was made out on a printed blank purporting to be a proof of loss. It contained a long list of articles destroyed in the building which were not covered by the policy, and the only description of property insured was under one item, as follows: “Loss to walls, ceilings, fans and fixtures not mentioned above, $2,311.50.” The proof was received by defendant’s •authorized adjuster, who made no response or objection until after the expiration of the sixty days for furnishing proof of loss, when he wrote to appellees and informed them that the proof was unsatisfactory, and defendant then denied liability on the ground that proof had not been made during the time provided in the policy.

Counsel for defendant recognize in their argument the force of the decisions of this court, as well as other courts, that where an insured furnishes to the insurer within the time stipulated by the policy what purports to be a proof of loss, and which is evidently intended to be a compliance with the policy, it is the duty of the insurer to seasonably make objections thereto, if any found, and that a failure to do so will constitute a waiver. Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475; American Ins. Co. v. Haynie, 91 Ark. 43; Business Men’s Accident Associa tion v. Cowden, 131 Ark. 419. But it is contended that the instrument of writing delivered to defendant was not made in good faith as a proof of loss, and did not purport to be a compliance with the policy, so as to challenge the attention of the adjuster and call for objections to discrepancies. We cannot agree with this contention, for the alleged proof was made, out on a printed form which expressly purported on its face to be a proof of loss under the designated policy, and it complied with all the requirements except as to itemizing the property destroyed. The attention of the adjuster was necessarily called to the fact*tha.t the insured was attempting to comply with the policy, and, jf the same was unsatisfactory and incomplete, it was the duty of the adjuster to call attention of the insured to- that fact and to specify the defects. It was too late to do that after the time for preparing the proof had expired, unless an extension of time was given for that purpose.

It is also contended that evidence offered by defendant would have shown that there was- a breach of the terms of the policy by reason of the fact that plaintiffs were not the unconditional owners of the insured prop-' erty, but that, on the contrary, the property was covered by a chattel mortgage. The offered evidence did not tend to show that the property covered by this policy was incumbered by any mortgage or lien, but that other property, in the building owned by plaintiffs was so incumbered. The condition in the policy in regard to unconditional ownership and against liens applied only to property covered by the policy, hence there was no error in excluding' testimony in regard to other property not covered. #

The principal defense offered in the trial of the case was that J. W. White, one of the plaintiffs, hired a man named BE. L. Keener to burn the building, so that .the insurance could be collected, and that Keener set fire to the building’ during the night time, pursuant to his agreement with White. The defendant introduced testimony tending very strongly to establish those facts., It is undisputed that Keener set fire to the building, and he was introduced as a witness by the defendant, and testified that White hired him. to ¡Uum the building. Keener’s "narrative on the witness stand was that he was living in Texarkana with a man named Petty and had known White for 'several years; that White came,to. see him at the tent where he and the Pettys were living and proposed to hire him to burn the theatre building in Helena. ■ He stated that when White came to see him he got in a closed automobile with White, and they drove around two or three hours, and then came back to the Petty tent, and that he got out there in the presence of Petty and his wife. .He testified also that Petty’s stepson, Willie Satterfield, was present when he and White made the trade to burn the theatre, and that White first gave him a dollar to buy a ticket to New Boston, and that later he met White in New Boston and got some more money from him, about thirty dollars, to use in paying the expense of the trip to Helena. He testified that he burned the building as directed and was arrested and afterwards pleaded guilty; that, while he was .in jail in Helena with a man named Morris, who was let out on bond, he told Morris to get in touch with White and tell White to make his bond for him, and that in about two months there was a deposit of cash in lieu of bond. The sheriff testified that, after Morris got out of jail, he came back and put up a deposit of $1,000 for Keener’s bond. Petty and wife and Satterfield were each introduced as witnesses by defendant, and they corroborated Keener’s statement. They testified that they saw Keener and White sitting in the car together in close conversation and saw White hand money to Keener.

White testified as a witness, and denied the whole story about his hiring Keener to burn the theatre, and stated that he was not acquainted with Keener, and had never seen him until he met him in Helena at the time of this investigation. He also denied that he had made bond for Keener or furnished the money which Morris put up in lien of bond. Other witnesses introduced by plaintiffs tended to establish contradictory statements on the part of Petty and Satterfield.

The issue concerning the destruction of the property iby plaintiffs as alleged in the answer was submitted to the jury on proper instructions, and there was evidence sufficient to sustain the verdict. iWe must treat the issue therefore as being* settled in favor of plaintiffs.

Mrs. Petty, when introduced as a witness by defendant, testified that she had known Keener for several years, that he lived with her and her husband in a tent in the outskirts of Texarkana, and that she saw Keener and White together on the occasion described by Keener, which was late in the evening eh a certain day just before the theatre in Helena was burned; that she saw White hand Keener something which “looked like paper,” but she could not tell precisely what is was; that White left there, and Keener came into the tent for supper. The defendant proposed to prove by her that after supper Keener said that he was going away, and that “if he could get his deal pulled off he would have money to throw to the birds.” This testimony was excluded, and defendant saved exceptions, and urges the ruling now as grounds for reversal. We do not think that the statement, in the form it was made by the witness, was competent. Conceding that the declaration of Keener as a co-conspirator with White was competent evidence against both of the plaintiffs, this declaration does not connect White with it or purport to state any fact in the transaction between White and Keener. It was merely a declaration of Keener’s that “if he could get his deal pulled off, he would have money to throw to the birds.” Later, when witness Satterfield was put on the stand and testified substantially to the same facts with reference to what transpired on the occasion mentioned between Keener and White, he was asked to" state what declaration or statement Keener made as to what occurred between him and White, and the witness replied that Keener said on his return from the machine where White and Keener were sitting, that “he had made a deal with White and when he carried ont the deal he would have money to throw to the birds, or words to that effect.” The court admitted this statement for the obvious reason that it was a declaration by Keener as to what had occurred between him and White. It is altogether different from the declaration sought to be proved by Mrs. Petty. iWe think there was no error committed by the court in excluding Mrs. Petty’s testimony on this subject.

Again, it is insisted that the court erred in refusing to allow defendant to prove by the sheriff of Phillips County, and another witness residing at Helena, what the financial condition of Morris was, as tending to establishing the fact that he did not put up the '$1,000, and some one else must have furnished it. This testimony had no tendency to establish the fact that White furnished the money to Morris; in 'fact, there was 'no competent testimony at all introduced tending to show that White furnished the money. The* jury would have had no right to infer, from the fact that Morris’ financial condition. did. not admit of his putting up the money himself, that White had furnished the money. There was no error therefore in excluding this testimony.

There is a further contention that ‘.the court erred in excluding testimony with respect to the value of other property contained in the proof of loss. The contention is that this constituted false pretenses, which, under the terms of the policy, constituted a breach and absolved the insurer from liability. The offered testimony related entirely to property not included in the policy. The stipulation in the policy against false «wearing and false pretenses relates to the insured property, and not to any other, hence any representation or statement as to the value of the other property was immaterial.

Finally, it is insisted that the court erred in refusing to give instruction No. 10, requested by the defendant, limiting the recovery of the plaintiffs to three-fourths of the value. This is the first time that the question concerning the three-fourths value clause has arisen in the proceedings. There was no reference to this clause in the answer, and, since it was not pleaded in the answer, it was too late to raise the question in the court’s charge to the jury. This clause of the policy applied only to personal property. The description in the policy of the insured property did not show on its face whether the property was of the character of chattels or fixtures, so in order to raise that question for the application of the three-fourths value clause it was necessary to plead it. The court was correct, therefore, in not permitting the question to be raised for the first time after the introduction of the evidence had been closed, and the instructions to the jury toeing considered. Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Ucker v. Watson.
    Opinion delivered December 7, 1925.
    1. Mortgages — deed absolute in form. — While oral evidence is admissible to show that a deed absolute in form was intended •as a mortgage, the intention of the parties will govern its construction and enforcement.
    2. Mortgages — deed absolute in form. — A deed absolute in form will not be construed to ¡be a mortgage, though a contemporaneous contract provided that the several lots conveyed might be repurchased by the grantor within a year by paying certain sums, where both parties testified that the deed and contract expressed their intention.
    Appeal from Washington Chancery'Court; Sam Williams, Chancellor;
    reversed.

      H. L. Pearson, for appellant.

      J. V. Walher, for appellee.
   McCulloch, C. J.

Appellee, Charles A. Watson, was the owner of certain lots in the city of Fayetteville, and on April 5, 1922, he conveyed them to appellants, W. E. Uclcer and A. C. Ucker, by deed in absolute form purporting to convey the title in fee simple. The present controversy arises concerning the effect of the deed, whether it is to be construed as a conveyance of the title of the lots in fee simple, or as a mortgage in connection with á written contract between the panties, entered into prior to the execution of the deed.

Appellee first executed two mortgages to appellants to secure debts aggregating $1,000. The two mortgages conveyed all of the lots described in- a contract entered into between the parties on March 30‘, 1922, which said contract, omitting caption, etc., reads as follows:

“That Charles A. Watson, first party, agrees to deed to the Ucker Bros., the following lots, all in Gunter’s Addition to the city of Fayetteville, Arkansas, to-wit: lots 1, 2, 5 and 6, block 8, and lot 6 and the south half of lot 5, block eleven (11). That the Ucker Bros, by A. C. Ucker, for himself and under power of attorney for W. E. Ucker, agrees to the following: That on payment by the said Chas. A. Watson to A. C. Ucker on or before June 1, 1922, of $150 to release lots 1 and 2, block 1, of aforesaid addition from the mortgage held by Ucker Bros., found in record 152 on page 82, of Washington County, Arkansas, records, and on payment by Chas. A. Watson likewise of $200 on or before June i, 1922, to release lot 6 and the south half of lot 5, block 11, aforesaid, from the mortgage held by Ucker Bros., found in record 147 on page 611, Washington County records, and to deed said lot and one-half to Chas. A. Watson free of .said mortgage; that likewise the Ucker Brothers agree to give Chas. A. Watson, first party, one year from April 1, 1922, to sell lots 1, 2, 5 and 6, block 8, said addition, and likewise agree that each of the 4 lots last mentioned are likewise to be regarded as of equal value, and that, if Chas. A. Watson at any time within the’year from April 1,1922, shall sell two or more of said lots just mentioned, they shall be released, and deeded to said first party on payment of their proportional value of what is then due; that is to say, said lots 1 and 2, block 8, shall be released from mortgage found in record 152 on page 82, and 5 and 6, block 8, likewise from mortgage in record 147, on page 611, Washington 'County records, and the same shall then on payment mentioned he deeded by A. C. Ucker to Chas. A. Watson free of said mortgages. And it is agreed that, in case any of these 4 lots held one year are not sold at that time, they are to be the property in fee simple of the Ucker Bros., and the debt is to be discharged. Interest is to be compounded yearly and not quarterly on the principal note. ’ ’

Pursuant to this contract, appellee executed a deed to appellants on April 5, 1922, conveying the lots which the contract specified should be deeded, to-wit: lots 1, 2, 5 and 6, block 8, and lot 6, and the south half of lot 5 in block 11. Subsequently appellee paid to appellants the sum of $150, and lots 1 and 2 of block 1 were released from the mortgage in accordance with the contract, and appellee also paid to appellants the sum of $200, and the lots in block 11 were released as provided in the contract. Appellee failed to sell the other four lots «specified in the contract within the time mentioned or to pay for the same, and, as before stated, the controversy between the parties now is whether the deed should be treated as a mortgage, or as an absolute conveyance. The chancery court held that the deed and contract, when read together, constituted a mortgage and offered to decree a foreclosure, but appellants declined to accept such a decree and insist upon having the absolute title decreed to them.

" The controversy must be decided upon the face of the papers, for each of the parties expressly disclaims any intention other than that expressed in those instruments of writing. -Each of them testified as witnesses in the case and very candidly admitted that at the time of this transaction between them they had no idea that a deed absolute in form could, under any circumstances, ' be treated as a mortgage, and that they had no intention other than that expressed in the written record of the transaction between them.

The testimony introduced in the case establishes the fact that at the time the deed was made the lots were worth not exceeding $400, which was substantially the amount of the balance of the original debt after all payments had been made. In analyzing the contract and its relation to the deed it must be remembered that lots 1 and 2 in -block 2 are not conveyed in this deed, but were embraced in one of the mortgages. There being no absolute conveyance of these, and no release from the mortgage prior to the payment of the $150 as specified in the contract, they were left subject to the mortgage, and the fact that they remained under mortgage lien does not affect-the interpretation to be placed on the conveyance of the other lot. Appellee paid the sum mentioned, and these two lots were released from the mortgage; therefore that part of the transaction has no bearing upon this controversy.

The lots in block 11 were in the conveyance, and also in the original mortgage; but the amount of $200 spécified in the contract was paid, and those two lots were deeded back to appellants as provided in the contract. Neither does that transaction have any bearing on the controversy, because the contract expressly provided for a reconveyance of the property.

It is insisted by counsel for appellee that the language of the court necessarily characterizes the transaction as a continuation of the original mortgage, and not as a contract for sale and resale. Stress is laid on the concluding clause of the contract, which reads that, in case the four lots are not sold within the year “they are' to be the property in fee simple of the-Ucker Brothers and the debt is to be discharged.” The whole tenor of the contract was that the amount of the original debt should be paid. This was the consideration upon which appellee was to have a reconveyance of the property, and the concluding language of the contract was merely descriptive -of this debt, and does -not show any intention to treat the conveyance as ,a mortgage instead of an absolute conveyance of the title according to the import of the deed itself. The contract provides for the conveyance by appellee to appellants, and merely specifies the terms upon which reconveyance may be had. This of itself constitutes a sale on condition, and not a mortgage. The existence of the original debt was continued only for the purpose of providing the terms upon which there should lie a reconveyance by appellants to appellee, and the fact that the original debt was thus used in the transaction does not convert the deed into a mortgage.

We have often held that oral evidence is admissible to show that a deed absolute in form was intended as a mortgage, and that the true intention of the parties to the transaction will govern its construction and enforcement. Wimberly v. Scoggin, 128 Ark. 67; Snell v. White, 132 Ark. 349. In the present case the real intention of the parties as shown by the undisputed evidence was in accord with the express language of the deed, which was absolute in. terms; for, as we have already seen, both parties testified that they intended just what was expressed in the language of the deed and contract— nothing more and nothing less. The fact that certain partial payments were made iby appellee to appellants, and the acceptance thereof by appellants during the year specified in the contract, has no bearing upon the construction of the deed and contract for the reason that appellee had the legal right to make payments and appellants were bound to receive them. It is true the contracts provided for the sale of these lots by appellee during the year specified, and that, when one or all of them should be sold, appellants would reconvey them,, but the gist of this provision was that appellee should have the lots back upon payment of the proportionate part of the original debt. The fact that they were to be reconveyed to the purchaser was a mere incident, and appellee had the right to pay the proportionate part specified, and have the lots reconveyed to himself.

Our conclusion is that the chancery court erred in holding that the deed should be construed as a mortgage. The decree is therefore reversed, and the cause remanded with directions to enter a decree in favor of appellants in accordance with the prayer of the complaint.


text:
    Little Rock v. Pfeifer.
    Opinion delivered December 7, 1925.
    1. Municipal corporations — zoning ordinance. — Under Acts 1924, 3d Extra Sess., No. 6, authorizing cities of the first class to establish zones for building purposes, an ordinance of the city of Little Rock regulating the erection of gasoline and oil filling stations, automobile repair garages, store buildings, or any other building for ¡business purposes, in what is known as residence districts of ■the city, held valid.
    2. Municipal corporations — unreasonable regulation of buildings — remedy.—An unreasonable and arbitrary building restriction, constituting an abuse of discretion by a city council, is void, and an aggrieved property owner is entitled to relief in equity, whether provision is made therefor in statute or ordinance or not.
    3. Municipal corporations — business district. — Where a business district grows, it ceases to be a residence district to that extent, within the purview of a zoning ordinance, and any attempt on the part of the city council to restrict the growth of an established business district is arbitrary.
    4. Municipal corporations — restriction of business district.— Where a business district has once been rightly established, the owners of property adjacent thereto cannot be restricted so as to prevent them from using it as ordinary business property not hurtful to adjacent residence property, though it may make such property less desirable for residence uses.
    Appeal from Pulaski Chancery Court; John E. Martineau, -Chancellor;
    affirmed.

      A. B. Cypert, and Rose, Hemingway, Cantrell é> Loughborough, for appellant.

      Coleman, Robinson & House, for appellee.
   McCulloch, C. J.

Pursuant to statute (act No. 6, extraordinary session 1924) authorizing- cities of the first class to establish zones for building- purposes, the city council of Little Rock passed an ordinance establisliing fire limits and providing that it shall be unlawful to erect any gasoline and oil-filling station or any automobile repair garage or any store-building, or to erect for business purposes any other building “in what is commonly known as the residence district of the city of Little Bock outside of the fire limits hereinafter specified, until after having first filed an application with the city engineer for said permit, along with all plans, specifications, etc.” The ordinance provides for publication of notice of application for permit, that protests of owners of property in the vicinity may be made to the city council, and that where such protests are filed “the city engineer shall refuse to grant said permit and refer same to city council of the city of Little Rock, which shall, after a hearing upon the petition for and against such building, grant or refuse issuance of permit as it may deem best.” The statute which authorizes the ordinance provides that, in case of abuse of discretion by the council in granting the permit, the adjacent property owners may appeal to the chancery court to protect their property from depreciation by reason of the erection of the building over their protests.

Appellees were the owners of a vacant lot fronting-north on Prospect Avenue in that portion of Little Rock known as Pulaski Heights, and, desiring to erect a brick building thereon to be used for business purposes, applied to the city engineer for a permit, which was granted. This occurred the day after the ordinance was passed by the city council, but before the same was published in accordance with the statute. Thereafter, the city council revoked the permit, on protest of owners of adjacent property before any work liad been done on the construction of the building, but after the contract had been let and other expenses incurred by appellees. This action was instituted by appellees in the chancery court against the officers of the city to prevent them from interfering with the construction of the building, and they asked for an injunction. On final hearing of the cause by the chancery court, the relief prayed for by appellees was granted.

The protest against the construction of the building by appellees 'was made by numerous owners of adjacent property — persons owning and occupying residences. The contention is that the locality in question is a residence district, and that the construction of a building for business purposes would be in violation of the ordinance of the city. On the other hand, it was contended by appellees that the locality had already become a business district in which they had a right to construct a building for business purposes, and that the city had no power to curtail that right by refusing the permit.

In the recent case of Herring v. Stannus, ante p. 244, the ordinance now under consideration and the statute authorizing it were both fully considered and the validity of each sustained. In that case there was involved a permit to erect a gasoline station, and the decision was confined to the validity of the statute and ordinance so far as they affected a structure of that kind; but the court concludes now that the decision in that case necessarily upholds the validity of the statute and ordinance as to other structures mentioned therein.

Treating the ordinance as valid, we pass to a consideration of the question whether or not the building sought to be constructed by appellees constituted a violation of the ordinance, and whether they are entitled to relief against the action of the city council in refusing the permit. Neither the statute nor the ordinance contains any provisions for remedy of a property owner when á permit is refused. The statute provides, as we have already seen, that where a permit is g’ianted over the protests of owners of adjacent property, such owners are given the right to appeal to the chancery court, but the statute and -ordinance are silent as to the remedy where the permit is refused. It is not essential that the statute should confer a remedy, for a remedy must necessarily exist where there is an abuse of discretion by the city council, and the owner of property is thereby denied the use of his property. An unreasonable and arbitrary restriction is void, and the owner of property is entitled to a remedy in a court of equity to prevent the imposition of such a restriction.

There is no conflict in the testimony as to the kind of building sought to be erected and the character of the locality generally, except as to the varying inferences which, the witnesses draw as to the character of the locality — whether business or residence. The building to be constructed by appellee is a one-story brick building, one room to be used as a sub-station of the Little Rock post office, and two other rooms for ordinary business purposes in the sale of merchandise, and it is situated near the center of the block, fronting north on Prospect Avenue, between Palm and Beech .Streets. There is an alley running north and south through the center of the block, and this building adjoins tlie alley on the west side. There is a residence west of the building on the northwest corner of the block, and the wall of the building is within about eight or ten feet of the residence. The rear end of this building will come within about fifteen feet of a residence fronting on Palm Street. Across the alley from the building of appellees there is a residence building, and a brick store building is on the corner of Prospect and Beech Streets. The whole of the block on the east, fronting north on Prospect, is built up with two-story business buildings, and on the north side of Prospect the corresponding block is thus built up, and also the east half of the block on the north side of Prospect, in front of the block where appellees’ building is situated, is covered with business structures. The other half of the block is occupied by two residences.

There are numerous witnesses in the case, and they express various opinions as to the effect of the construction of a business house on contiguous residence property, and they also differ as to whether or not the locality should be regarded as business or residence property. Giving due effect to the statements and opinions of all the wituesses, we are of the opinion that the evidence establishes very clearly and beyond controversy that the locality in question is a business district which has been well established, and which is now expanding, the expansion having reached the point where appellees are constructing their building. There is substantial evidence tending to show that the value of some of the adjacent residence property will be depreciated on account of the lessening of usable value of the property for residence purposes, but we do not think that this affords justification for interfering with the gradual expansion of the business district, which has already been established. As the size of the business district grows, it ceases to be a residence district to that extent within the purview of the zoning ordinance, and any attempt on the part of the city council to restrict the growth of an established business district is arbitrary. When a business district has been rightly established, the rights of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property. It is the contention of the protestante that residence property adjacent to a business district becomes, on that account, loss desirable for residence use. Conceding this to be true, and it is undoubtedly true, in a sense, that property thus located is not as desirable as residence property, it demonstrates the right of owners of borderline property between residence and business district to use their property for either purpose. In.other words, if it has become less desirable for residence property because of its proximity to the business district, they have the legal right, without interference, to use it for business purposes. We are, of course, speaking now with reference to such ordinary business property as is not shown to be hurtful in its use to adjacent residence property. That is the kind of structure appellees propose to erect, and the proof does not warrant the conclusion that its proximity and use will injure adjacent residence property except as such proximity necessarily makes the locality less desirable for residence.

After giving- due consideration to all the testimony in the case, we are of the opinion that the chancery court reached the correct conclusion in holding that the action of the city council in refusing the permit was arbitrary and constituted an abuse of discretion. The decree is therefore affirmed.


author: Wood, J.

text:
    Cone v. Hope-Fulton-Emmett Road Improvement District.
    Opinion delivered December 7, 1925.
    1. Statute; — time op taking effect. — Acts 1925, No. 147, amending § 25 of the Harrelson Law of October 10, 1923, contains no emergency clause, and went into effect on June 10, 1925, 90 days after the Legislature adjourned.
    2. HIGHWAYS — allotment OF funds. — 'Though the Harrelson Law, § 23, requires an estimate to be made on or before September 1st of the amount of the fund available to road districts and the county highway improvement fund, § 21 thereof, as amended by Acts 1925, No. 147, governs the allotment of funds to be made in July, 1925.
    3. Constitutional law — impairment of obligation of contracts. —Acts 1925, No. 147, amending the Harrelson Law as to the allotment of State funds to the counties, as applied to the allotment of funds for which estimates had already been made, did not impair the obligation of road districts bonds, in violation of Const., art. 2, § 17, since the bondholders have no contract with the State and Federal Governments where revenue of such governments must toe applied to payment of the bonds.
    4. Taxation — control over revenue. — -The sovereign has complete control over its revenue derived from taxation.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      II. W. Applegate, Attorney General, and J. 8. Abercrombie, Assistant, for appellant.

      U. A. Gentry, 0. A. Graves and B. W. Robins, for appellee.
   Wood, J.

The General Assembly of 1925 passed an act, Nu. 147, approved March 7, 1925, amending § 21 of act No. 5 of the acts of the extraordinary session of 1923, approved October 10, 1923, commonly known as the Harrelson law. By the amendment § 21 is made to read as follows: ‘ ‘ The State Highway- Commission shall, as soon as possible, ascertain the amount and dates of maturities of the principal of the valid, unmatured bonds outstanding on January 1,1924, that have been issued by each road improvement district in the State at the time of the passage of this act for the purpose of improving the said public roads in the State, and which mature January 1, 1924; and thereafter in each year, beginning with the year 1924, as soon as sufficient funds are available for the purpose, shall allot the sum of $3,000,000 or so much thereof as is available in the treasury by July 1st, to the respective counties of the 'State on the same basis that the population of each county bears to the population of the 'State of- Arkansas as shown by the last official United States census. Each county’s portion thus set aside shall be paid by the treasurer of the State in the manner and for the purposes specified for each county.”

Then follows the classification of certain counties, naming them, and desigmating the proportion in which the State highway fund allotted to them shall be used in the payment respectively of bonds and interest coupons, and the proportion of said amount to be paid into the county highway improvement fund. Following this classification and apportionment of the funds allotted to the respective counties, the act provides methods for the distribution and use of the funds apportioned.

Section 2 of the act is as follows: - “All unallotted funds now on hand shall be distributed and paid out in the proportions, and for the purposes as above set forth, and the State Highway Commission, the county courts of the various counties and the commissioners of all said road improvement districts shall make all necessary and proper orders to carry into effect the objects and purposes of this act. ’ ’

Section 3 of the act is as follows: ‘ ‘ All laws and parts of laws in conflict herewith be, and the same are hereby repealed, and this act shall take effect and be in force from and after its passage.”

This action was brought by the appellee against the appellant, the Auditor, -State Treasurer and State Highway Commission. In its complaint the appellee set up that it is a road improvement district organized under act 153 of the Acts of 1919, approved March 1,1919; that under the provisions of § 21 of the Harrelson law, as amended by act 147 -of the Acts of 1925, supra, it is the duty .of the State Highway Commission to allot on July 1, 1925, the sum of $3,000,000, or so much of that sum as .is available in the State Treasury by that date, to the respective counties of the State on the same basis that the population of each county 'bears to the population of the State, as shown hv the last official United States census, and that the am'ount set aside to Hempstead County should be paid by the Treasurer of the State as follows: 50 per cent, to the countv highway improvement fund; 50 per cent, for the payment on bonds and interest coupons as provided under act 147, supra, making the amount to which Hempstead Countv is entitled, when so allotted, the sum of $54,105, and that of this amount, when properlv apportioned under the law, the appellee is entitled to $9,857.12. ■ The appellee alleged that, unless the appellant’s officers, above designated, were restrained, they would pay to the appellee district only one-half the amount to which it was entitled, and there would be paid to the county highwav fund an amount greatly in excess of the amount to which it was entitled under the law. The appellee praved that the appellants be restrained from paying the funds due it into the county highway improvement fund of Hempstead County, and that they be required to certify the amount, and issue warrants, and pay to the appellee the amount due it as provided by law.

Certain road improvement districts of Faulkner County intervened, and also set up act 147, supra, and asked that they be allotted the amounts apportioned to. them on July 1,1925, under § 21 of act No. 5, as amended by act 147, supra, as prayed in the complaint of the Hope-Fulton-Emimett Boad Improvement District. The appellants demurred to the complaint ón the ground that it did not state a cause of action. The court overruled the demurrer, and the appellants elected to stand thereon. Whereupon the court entered a decree granting the relief prayed for in the appellee’s complaint, and the interventions. From that decree is this appeal.

It will be observed that act 147, supra, has no’ emergency clause. It therefore went into effect ninety days after the adjournment of the Legislature, which was June 10, 1925. Notwithstanding the act went into effect on that day, the Attorney General contends that, when the provisions of the amendatory act are considered in connection with the provisions of act No. 5, approved October 10,1923, it was not the intention of the Legislature, to affect the distribution, of the funds, which should be made in July, 1925, but that the first distribution to be made of the .funds under act 147 could only take place in July, 1926. The Attorney General argues that this is true for the reason that § 23 of the Harrelson law provides the manner and time in which the amount available shall be determined, and that under § ■ 23 of that act ' the distribution to be made in July, 1925, was determined on or before September 1, 1924, prior to the passagé of the amendatory act. In other words, the contention of the Attorney General is that the “estimate” which the highway com,mission is required to make under § 23 of the Harrelson law on or before 'September 1st of each year of the amount of the fund that will certainly be available to the respective road districts and the county highway improvement fund before July 1st of the succeeding year is tantamount to an “allotment” óf such funds, and that therefore, when the amendatory act took effect on June 10,1925, the allotment for that year had already been made by the highway commission on September 1, 1924, and that under § 2 of the amendatory act it was intended that the distribution to be made under the amendatory act only applied to the next allotment or certification, which was to taire place after the passage of such amendatory act and which estimates or allotment could not be had until September, 1925.

We cannot concur in this construction of the act by the Attorney General, for such construction would do violence to the express language of the amendatory act. It will be observed that § 21 of the Harrelson law and act 147 amending § 21, both provide in effect that beginning with the year 1924 the State Highway Commission shall allot the sum of $3,000,000, or so much thereof, as is available in the treasury by July 1st, to the respective counties of the State on the same basis that the population of each county bears to the population of the State as shown by the last official United States census. Each county’s proportion thus set aside shall be paid by the Treasurer of State in the manner and for the purposes specified for each county. The amendatory act then changes § 21 of the original act by changing the classification of counties and the proportion of the fund to be used in the payment of outstanding bonds and the amount to be paid into the county highway improvement fund respectively of the counties as classified. Under the original, as well as the amendatory, act, the allotment is made on or before July 1st, and the Treasurer must pay each county its portion in the manner and for the purposes specified for each county according to the law in effect at the time the allotment and apportionment is made. Now, the amendatory act went into effect June 10, 1925, and the allotment was made to the counties as classified on July 1, 1925. Section 2 of the amendatory act requires, it will be seen, that all unallotted funds noiv on hand shall be distributed and paid out in the proportions and for the purposes as above set forth, and requires the State Highway Commission, the county courts and the commissioners of all road improvement districts to make all necessary and .proper orders to carry into effect the objects and purposes of the act.

Section 2 of the amendatory act is in perfect har- . mony with the first section of that act, and is not at all inconsistent -with the original act. The amendatory act went into effect June 10,1925. At the time of its passage funds were on hand and unallotted. They were allotted on July 1,1925, thereafter, and as soon as they were thus allotted they had to be distributed, and paid out in the proportions and for the purposes as set forth in the first section of the amendatory act, which, as we have already observed, only amended the original act by changing the classification, and the proportion of the highway fund to be used in the payment of outstanding bonds, and the proportion 'of the amount of such fund to be paid into the county highway fund of the respective counties as classified. The Legislature is conclusively presumed to have known that the enactment without the emergency clause would take effect before July 1, 1925. So, the manifest purpose of the Legislature as indicated by the ' language of § 2 was to make sure that the classification, and the change in the proportion of the amount of funds to be allotted to the respective counties should apply to the allotment to be made July 1, 1925, as well as to all succeeding allotments after that date. The word “estimate,” as used in § 23 of the Harrelson law, is not synonymous with the word “allotment” as used in § 2 of the amendatory act, nor are these words convertible terms. The “estimate” of the amount available to the counties is made on or before September 1st in each year, but the “allotment” of the actual amounts to the respective counties is made on or before July 1st of the succeeding year. To construe them as contended by the Attorney General, it occurs to us, would be a confusion of these terms, and would be contrary to their plain and ordinary meaning.

The Attorney General contends that, if the act be construed as above indicated, it would violate article 2, § 17, of the Constitution which prohibits the Legislature from: enacting laws impairing the obligations of contracts. There is no merit in this contention. There is no contract between the bond holders of road improvement districts and the State and Federal governments under the Harrelson law by which the revenue of these governments must be applied to the payment of bonds. The bonds are secured by levies or improvement taxes levied on the assessment of benefits on the lands according’ to the statutes under which the districts are created. If the State and Federal governments, in aid of the taxpayers of .improvement district taxes and the bond holders of the district, set apart a portion of their revenues to be applied on the payment of bonds, such act on the part of the sovereign is a gratuity, rather than a contract. The sovereign has complete control over its revenue derived from taxation. As is said in Sanderson v. Texarhana, 103 Ark. 529, 533, “Unless inhibited by some constitutional provision, the State Legislature has full power over all matters of taxation and the collection and disbursements of taxes, and may exercise absolute control over all revenues collected by subordinate branches of the State government.” See also Wade on Retroactive Law, § 22.

It follows that the decree of the trial court overruling the demurrer to the complaints and interventions and granting the relief prayed therein is in all things correct, and the same is therefore affirmed.


text:
      Harrell v. State.
    Opinion delivered December 7, 1925.
    1. Larceny — sufficiency of evidence. — In a prosecution for grand larceny, evidence held sufficient to sustain a conviction.
    2. Larceny — allegation and proof of ownership. — In a prosecution for grand larceny, where general and special ownership of the property was alleged to be in different persons, proof of the ■special ownership was sufficient.
    3. Larceny — indictment—felonious intent. — An indictment for grand larceny, charging that defeiidant did unlawfully and feloniously steal, take and carry away, held to charge felonious intent.
    4. Criminal law — hearsay evidence — harmless error. — In a prosecution for grand larceny, statement made by accused’s father to third person, in absence .of defendant, whil'e hearsay, was harmless where defendant in his testimony made the same statement.
    Appeal from Faulkner 'Circuit Court; George W.

      Clarh, Judge;
    affirmed.

      W. D. Swaim, Lewis Rhoton and Geo. F. Hartje, for appellant.

      E. W. Applegate, Attorney General, and Darden ■ Moose, Assistant, for appellee.
   Wood, J.

Earl Harrell was indicted in one indictment for the offenses of grand larceny and receiving stolen property. The first count charged the offense of grand larceny, and the second count the offense of receiving stolen property knowing the same to have been recently stolen. It was charged in the first count that Earl Harrell in the county of Faulkner, State of Arkansas, on the 15th day of April, A. D. 1925, 150 bushels of cotton seed of the value of $100, 250 bushels of corn, of the value of $400, 180 bales of hay of the value of $75, a total value of $475, the personal property of OB. D. Broekington, being* then and there in the custody and possession and control of J. I. Summers, the sheriff of Faulkner County, Arkansas, did then and there unlawfully and feloniously steal, tahe and carry away, against the peace and dignity of the State of Arkansas.”

John Mitchell testified 'that he lived in Faulkner County; that he had in his custody at the request of the sheriff of the county a certain crop consisting of 200 bushels of corn, 3,000 pounds of cotton seed and 180 bales of hay. The com was worth from $1.35 to $1.50 per bushel. He placed the corn and the cotton seed in a crib, and the hay in a separate barn. He nailed a board across the door of the crib'. C. S. Harrell, father of Earl, lived about thirty steps from the crib at the time the crib was destroyed by fire. Earl Harrell lived something like two miles from Ms father. Witness lived about 175 yards from O. S. Harrell. On a Sunday night in April, 1925, witness was aroused from sleep by some one screaming down at 0. >S. Harrell’s. He went down there, and found that the barn containing the corn and cotton seed was on fire. The roof had not ye,t fallen in. In witness ’ opinion from his observation of the pile of corn when the barn fell in there were not more than 20 or 25 bushels of corn in the barn when it burned. Witness described to the jury the situation of the barn, and stated that he had nailed a plank across the crib door to make the same secure. When witness arrived there, the plank had been removed from the crib door. 'The fire occurred about twelve o’clock at night. Witness observed the tracks of a wagon in the lot, and traced these from under a wagon shed in front of the crib door and through the lot gate to the field gate. The barn was on the place occupied by O. S. Harrell about which there was a controversy between Mm and Brockington. In about five minutes after witness arrived 'Sam Ark came, and witness met Mrs. Harrell running toward the fire with a bucket. No one else was present at the fire but C. S. Harrell, his wife and Sam Ark.

The witness was asked the following: “Q. Did you hear a conversation at the fire between Sam Ark and C. S. Harrell as'to the whereabouts of the team? A. Yes, sir. Q. Tell the jury what Mr. Ark said to Mr. Harrell and the response of Mr. Harrell to Ark’s question.” The appellant objected to the question. The court overruled the objection. The appellant saved his exceptions The witness answered: “A. Yes, sir. Q. You recall the conversation between Mr. Harrell and Mr. Ark ? A. Yes, sir, with reference to the whereabouts of the wagon and team. Well, Mr. Ark asked him where his team was, when he got there. Q. What did Mr. Harrell say? A. He said one of his work mules was out in the field, and the other was out in the pasture. Mr. Ark also asked where the wagon was, and Harrell said, ‘Well, just to tell the truth about it, my -wagon and team is down at Mr. Dawson’s.’ ”

Mitchell further testified that C. S. Harrell had only one wagon, and it had two inch tires: The corn in the crib was ear corn in the shuck. _

Sam Ark testified and corroborated the testimony of Mitchell as to the appearance /of the Wagon tracks and also as to the conversation between himself and C. S. Harrell.

Neal Webb testified that he was a depiity sheriff of Faulkner 'County, and was called to (¡I S; Harrell’s residence on the morning of April 13th. When he arrived, he didn’t see any tracks iu the lot. Something had been dragged over the tracks across the lot before witness got there, and also over the tracks tó the pasture gate. At the lot gate witness picked up the' track. It was a mule track on the left, and! witness didn’t notice any other track. The wagon track looked like a ‘tolerably new wheel not quite two inches ■ broad to a hew three-quarter Wagon. Witness followed the track 'all the way for two miles through the mud, and-they were-leading to the house. Witness became confused with a similar track going in the opposite direction. The wagon track had mashed the grass down, and witness could not tell for sure that it was the wagon track he started withy 'but now and then he would see it plain enough to identify it. Witness followed the track for a mile and three-quarters through the field, and struck the gap or gate where they •came out; found the tracks all the way there, and -witness discovered that the same track that went out came back. The same outfit went both ways into the field. In tracing the track witness and sheriff Summers picked up the mule track a quarter of a mile from the -defendant’s' fióme— the same track they had picked up down at the lot gate. The track led to Earl Harrell’s house. Where the tracks crossed the branch there were some shucks that had fallen out that were not wet through: When they got to the branch they discovered the tracks and the shucks, and when they got to the house the wagon had turned into the lot, and had come hack. They saw that it was the same wagon, and the same mule track. They also discovered about ten or fifteen bushels of corn in the crib, that looked as if it had just been thrown in. It was near the door of the crib. Witness didn’t know whether there was any more corn in there or not. Witness examined the ruins of the fire which was still smoldering. Most everything had burned up. There were fifteen or twenty-five bushels of corn in the pile. Witness, in tracing the wagon tracks, found shucks within a quarter of where the barn burned.

J. I. Summers testified that he was sheriff of Faulkner County, and as such process was placed in his hands for an attachment on the property described in the indictment, which he served and placed the property in the custody of John Mitchell, who was acting as witness’ agent. Before the barn was burned on Sunday night, witness was notified that the property had been advertised for sale under an order of the court. Witness corroborated the testimony of Webb as to what he discovered when witness went to the place where the barn burned, and in tracing the wagon tracks. Witness stated that, in tracing the wagon tracks, when they reached the house of defendant, they found some corn in the rear end of his crib. Defendant told witness that he got that corn from Dawson, but later stated that he got it from his brother. The corn in the crib didn’t look like Dawson’s corn. Witness didn’t know the kind of corn that he had attached of the property of Brockington. The ear of corn that Witness picked up at C. S. Harrell’s where the fire occurred was a nubbin, and the corn in the defendant’s crib was very light com. Witness saw the corn that Dawson had in the crib, and it didn’t correspond with the corn witness found in the front part of defendant’s crib. It was entirelv different corn. The corn that witness attached and placed in Mitchell’s possession was attached as the property of Brockington. Witness also stated that he had a conversation with C. S. Harrell, the father of defendant, when he went down to the place where the barn was burned, and G. S. Harrell told witness that the week bef ore about five or six wagons came in, and hauled away that many loads of corn. Witness didn’t-give any authority to haul the corn away.

Witness Dawson on behalf of the defendant testified that he knew the defendant. A few days before the fire witness sold defendant eleven bushels of sorry new-ground corn. A wagon going from witness’ house to defendant’s 'house would travel over the same road on which the .tracks and shucks are alleged to have been found. Witness was plowing with C. S. Harrell’s mules on Saturday preceding the Sunday night of the fire. Sunday morning Harrell’s wagon was in the corner of the field next to witness’ field. Witness didn’t know where Harrell’s team was Sunday night, but witness plowed with the team on Monday morning. Witness didn’t tell Summers that he had not sold corn to any one. Witness told Webb that he had sold corn to Earl Harrell, and iSummers was present at the time.

Other witnesses testified on behalf of the appellant, and the appellant himself testified. Their testimony tended to prove that the appellant was not guilty of the crime charged, and of which he was convicted. The jury returned a verdict finding appellant guilty of grand larceny, and fixing his punishment at one year in the State Penitentiary. Judgment of sentence was entered in accordance with the verdict, from which is this appeal.

Counsel for appellant contend that there is no evidence to sustain the verdict. It could serve no useful purpose to discuss the testimony. It is set forth above and speaks for itself. Suffice it to say we are convinced, that it was an issue for the jury under the evidence to determine whether or not appellant was guilty of grand larceny as charged in the indictment-.

The appellant contends that, inasmuch as it was charged in the indictment that the property alleged to have been- stolen was the property of B. D. Brockington, it was necessary to prove-that allegation. Such is the general rule. Fletcher v. State, 97 Ark 1; Russell v. State, 97 Ark. 92; Wells v. State, 102 Ark. 627. But in the case at bar, while it was alleged in the indictment that the personal property Was that of B. D. Brockington, there- was the further special allegation that the property at. the time'it was alleged to have been stolen was “in the -custody and'possession- and control of J. I. Summers,! the sheriff - of - Faulkner County, Arkansas.M This allegation of special ownership, custody and control made it unnecessary, to prove the allegation of general ownership. For it was wholly immaterial who owned the property if, at the time the sa-me was stolen, it was in the possession,, and under the control of some other person, and the possession and control of such person' was alleged and proved. Such proof of special ownership and of the felonious taking, stealing and carrying away from -the -custody of such special owner would constitute larceny. - - ;

It is impossible f-or the appellant to have been misled by .the -allegiation iii the indictment as to the ownership,- and the-pro-of adduced-by the State- to establish such -ownership; While general ¡and special ownership was alleged, proof was made of. special ownership, and of the control and possession of the property at the time the same is alleged to have 'been stolen. This meets •every requirement of the law. In Porter v. State, 123 Ark. 519-522, we -announced the principle Which controls here as follows: “In other words, an indictment must -allege the -names of the- owners to- enable the -coiirt to pronounce judgment, on-conviction, -according to the rights of the case, and to prevent prejudice to the substantial rights of the defendant. If he is to be -convicted, he -has' the right to have named in his indictment all persons who are supposed to have been aggrieved by his act, so that he may prepare for his defense, and plead the acquittal or conviction successfully, should he be again indicted for the same offense, but when this has been done, and the indictment is otherwise sufficient, he is not prejudiced by the insertion of the name of a person as an owner who, in fact, has no interest in the property 'alleged to have been stolen. ’ ’ Here it was alleged that the property was that of B. D. Brockington, and that the special custody and control was in Summers, the sheriff. There was proof tending to show that Brockington had the process of attachment issued under which the sheriff obtained special possession and control of the property. The testimony was sufficient to meet the requirements of the law as to the proofs of ownership.

The appellant next contends that the testimony upon which he was convicted was wholly circumstantial, and not sufficient to sustain the verdict. Even though the testimony was circumstantial, as already stated, it was sufficient to sustain the verdict.

Appellant’s contention that the indictment wholly fails to allege a felonious intent is not well taken, for the indictment expressly charges that the defendant ‘‘did then and there unlawfully and feloniously steal, take and carry away, etc.” Thus felonious intent is expressly alleged. Parker v. State, 130 Ark. 234.

The last contention of appellant is that the court erred in permitting the statements by the father of the defendant to Sam Ark and John Mitchell, in the absence of the defendant, to go before the jury. These witnesses, as set forth above, testified that when they questioned the father of the defendant on the night of the fire as to the whereabouts of his wagon and team he replied, ‘ ‘ To tell the truth, they are down at Dawson’s.” This testimony was purely heresay and highly prejudicial to the appellant, and the court erred in admitting the same, which error, unless obviated or cured, would entitle the appellant to a reversal of the judgment. Moore v. State, 151 Ark. 515. But we find that the appellant, in his cross-examination, was asked the following question: “"Where were your father’s wagon and team when you were at his house that evening,” and he answered, “He said his wagon was over next to Mr. Dawson’s field.” This answer of appellant in response to the question propounded was wholly voluntary on his part. It was substantially the same as the testimony of Sam Ark and John Mitchell as to what C. S. Harrell had said when asked concerning'the whereabouts of his wagon and team on the night of the fire. Since the appellant himself volunteered the same information contained in the testimony objected to, he is certainly not prejudiced by such testimony.

In Clayton v. State, 159 Ark. 592, speaking of testimony to which Objection was made, we said: “Still no prejudice resulted to the appellant from such testimony, ¡because appellant himself took the witness stand, and testified to the same state of facts brought out by su'ch testimony. ’ ’ '

. The record presents no reversible error, and the judgment is therefore affirmed.


author: Hart, J.,

text:
    Creasey Grocery Corporation v. Southern Mercantile Company.
    Opinion delivered December 7, 1925.
    1. Appeal and error — conclusiveness of court’s finding. — Where both parties request a peremptory instruction and ask no other instruction, they thereby submit the case to the court sitting as ■a jury, and the court’s finding will be affirmed on appeal if there is any testimony legally sufficient to support it.
    2. Evidence — admission.—Where defendant merchant sent to plaintiff corporation a 'stock certificate in another corporation and bearing a similar name, a letter from plaintiff to defendant stating that under the law a corporation could not ibuy back its stock, and further that the certificate was not issued by plaintiff, was not an admission that plaintiff and the other corporation were the same.
    S. Corporations — representations of third persons. — The representation of a corporation, having a name similar to that of plaintiff that a certain mercantile company was founded by the former corporation was insufficient to render the plaintiff liable for the debts of the former corporation merely because plaintiff succeeded to the mercantile company’s business, in the absence of .proof that plaintiff knew of the representation .and in some way acquiesced in it, of otherwise expressly or impliedly agreed to 'become liable for such debt.
    4. Corporations — identity op corporations — evidence.—In an action for the sale of goods, in which defendant counterclaimed damages for breach of a contract for the sale of goods by another corporation of similar name, evidence held insufficient to establish that plaintiff corporation was a subsidiary of the other corporation and that the two were in fact one and the same concern.
    Appeal from Washington Circuit Court; W. A. Dickson, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    The Creasey Grocery Corporation sued the 'Southern Mercantile 'Company to recover $167.50 for merchandise sold by the plaintiff to the defendant.
    The defendant admitted that it had purchased the goods sued for, and by way of icounterclaim alleged that it has been damaged in the sum of $302 by reason of the failure of the Creasey Corporation to carry out a contract for the sale of goods to it, and further alleged that the Creasey Corporation and the Creasey Grocery Corporation are one and the same.
    George M. Wiley, vice-president and manager of the Creasey Grocery Corporation, was1 the principal witness for it. According to his testimony, the plaintiff was a Missouri corporation engaged in selling groceries by the wholesale at St. Louis and Kansas City, Mo. The goods sued for were shipped from the St. Louis house upon orders addressed to the Creasey Grocery Corporation, at St. Louis, Mo., which were signed by the Southern Mercantile Company. Upon cross-examination the witness stated that he had been employed by the Creasey Grocery Corporation since January, 1923, and had 'been a stockholder in it for about sixty days. His testimony was taken on the trial of the case on the 30th day of April, 1924. The witness had been the manager of a branch house for the Creasey Corporation at Huntington, W. Ya., for about a year. He resigned his position with the Creasey 'Corporation, and accepted his present position with the Creasey Grocery Corporation at St. Louis. The Creasey Grocery Corporation was a successor to the Brite-Mawnin Mercantile Company, of St. Louis, which was also a Missouri corporation.
    On the '20th day of May, 1922, the plaintiff wrote to the defendant a letter which contains the following:
    “Wo have yours of the 19th and contents noted with your enclosure of your stock certificate No. 503 in the Creasey Corporation which we are returning to you 'by registered mail. A Missouri coporation cannot buy back its stock, even if it wishes to do so, as it is illegal, and furthermore your certificate is not from the Creasey Grocery Corporation. ’ ’
    The Creasey Grocery Corporation is not interested in any way in the Creasey Corporation. They are two separate and distinct corporations. The defendant,owes $167.50 for goods sold it by the plaintiff.
    IX N. McCormick, secretary and manager of the Southern Mercantile Company, doing business at Prairie Grove, Washington County, Ark., was the principal witness for it. According to his testimony, he entered into a written contract with the Creasey Corporation, wholesale grocers incorporated under the laws of the State of Delaware, for a membership in the Creasey chain of co-operative wholesale grocers. The defendant paid the Creasey Corporation $302 for what is called a service contract. Under this contract the Creasey Corporation agreed to establish a wholesale grocery store at - Ft. Smith, Ark., and sell at a discount to all service contract holders. The Creasey Corporation did establish a wholesale grocery store at Ft. Smith ¡but only operated it eight months, and never kept, anything like the stock of goods which it agreed to dp. After it went out of business at Fort Smith, the - Creasey Corporation asked the defendant to do business with the Creasey house at St. Louis. The defendant sent in the orders sued on to the Creasey Grocery Corporation, at -St. Louis, under the belief that it was the same corporation as the Creasey Corporation, and the defendant thought it would, obtain the same terms from the Creasey Grocery Corporation, that it was entitled to under the service contract with the Creasey Corporation.
    . Both the plaintiff and the defendant asked for a directed verdict, and asked no other instructions. The court directed the jury to return a verdict in favor of the defendant in the sum of $300, less the $167.50. due on the account sued on.
    The jury returned the verdict in accordance with the directions of the court, and from the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

      C. D. Atkinson, for appellant.

      II. L. Pearson, for appellee.
   Hart, J.,

(after stating the-facts). Under our practice, where both parties request a peremptory instruction and ask no other instructions, they thereby submit the case to the court sitting as a jury, and the court’s finding will be affirmed on appeal if-there-is 'any testimony legally sufficient to support it. St. L. Sw. Ry. Co. v. Mulkey, 100 Ark. 71, and Staggs v. Joseph, 158 Ark. 133.

The undisputed evidence shows that the defendant purchased goods from the plaintiff in the sum of $167.50.' The defendant admits this to be true, and'seeks to recover by way of counterclaim from the plaintiff the sum of $302 -alleged to be due' for a breach- of contract of the sale of merchandise.

The record shows that the Creasy Corporation, which was organized under the laws of Delaware, entered into what is called -a service contract with various - retail grocery dealers throughout the United States, whereby it was to- furnish groceries to its members at. -a smaller price than is usually paid to wholesale grocers. The theory upon which the members were secured was that the Creasey Corporation was to establish branch wholesale stores in the various States where its members could purchase goods, and save a material amount in freight on account of the nearness of their retail stores to the branch wholesale stores. Under this agreement or service contract, the defendant became a member entitled to credit with the Creasey Corporation, and was to purchase goods from a wholesale branch house of the Creasey Corporation to be established at Ft. Smith.

It is conceded that there is evidence sufficient to show a breach of contract on the part of the Creasey Corporation, and the defendant seeks to maintain its counterclaim against the Creasey Grocery Corporation on the ground that the Creasey Corporation and the Creasey Grocery Corporation are the same. The manager of the plaintiff testified that he had been employed !as manager for the Creasey Grocery Corporation, and had become a stockholder in it; that he had formerly been employed by the Creasey Corporation, and that the two corporations were two separate and distinct corporations. To establish the fact that they were the same corporation, the' defendant adduced evidence tending to show that when the Creasey Corporation ceased to operate its branch wholesale house at Fort Smith, it notified the defendant to purchase goods from the Creasey house at St. Louis, Mo. The defendant purchased the bill of g-oods sued on from the Creasey Grocery Corporation, believing it to be the same as the Creasey Corporation. This fact, however, would not make the Creasey Grocery Corporation liable. There must be something tending to -show that the two corporations were the same, or that the plaintiff agreed to ibe bound by the contract of the Creasey Corporation, or that it acquiesced in the representation of the Creasey Corporation that it would carry out its contracts.

It is true there is a letter in the record from the plaintiff to the defendant in which it states that a Missouri corporation can not buy back its stock; but this is not sufficient to constitute an admission that the Creasey Grocery Corporation and the Creasey Corporation are the same. The statement just referred to is coupled with the further statement that the certificate in question was not from the 'Creasey Grocery Corporation. So, instead of being an ¡admission that the two corporations are one and the same, it is a denial that such is the case.

It is also true that the Creasey Grocery Corporation 'became the successor to the Brite-Mawnin Mercantile Company in business, and that the latter company was represented by the Creasey Corporation as being a wholesale grocery house founded by it. Here again, however, we must not confound conjecture with proof. The representation of the Creasey Corporation that the Brite-Mawnin Mercantile Company of St. Louis, Mo., was a wholesale grocery house founded by it would not make the plaintiff liable for its contracts simply 'because it succeeded to its business without proof to the effect that the plaintiff knew of the representation, and in some way acquiesced in it.

There is not sufficient evidence in the record to establish any connection whatever between the plaintiff and the Creasey Corporation, or to show that the plaintiff agreed directly or indirectly to carry out the contracts of the Creasey Corporation. As we have just seen, the mere fact that it succeeded to the business of a corporation which was associated with the Creasey Corporation would not render it liable for the contracts of the Creasey Corporation, in the absence of an agreement, express or implied, that it would become liable therefor. Neither would the fact that the defendant believed the plaintiff to be a part of the Creasey Corporation make it liable for the contracts of the latter in the absence of knowledge on the part of the plaintiff that the Creasey Corporation had represented to the defendant that it would carry out its contracts. ■ Therefore, there was a lack of proof to establish the finding of the circuit court that the Creasey Grocery Corporation was a subsidiary part of the Creasey Corporation, and that the two wei*e in fact one and the same concern.

It follows that the court erred in directing a verdict for the defendant on its counterclaim, and for that error the judgment must he reversed, and the cause will he remanded for a new trial.


author: •Smith, J.

text:
    Bean v. Coffee.
    Opinion delivered December 7, 1925.
    1. Municipal corporations. — The law of the road does not apply to private property.
    2. Municipal corporations — negligence—instruction.-—In an action for personal injuries, an instruction that, if plaintiff was on private property at the time he received the alleged injury, he should not be found guilty of negligence in stopping his team on the left -side of a private alley was properly denied, the question of negligence in -such case being for the jury.
    3. New trial — -preponderance op evidence. — -Where the trial court found that the verdict of the jury was contrary to the preponderance of the evidence, it is reversible error for him thereafter to refuse to -set the verdict aside.
    Appeal from Johnson 'Circuit Court,- J. T. Bulloch, Judge;
    reversed.

      Hugh Basham and G. 0. Patterson, for appellant.

      Jesse Reynolds, for appellee.
   •Smith, J.

Appellant, who was the plaintiff below, brought suit to recover compensation for a personal injury which he sustained by reason of the alleged negligence of -appellee, the defendant below, in driving his automobile within a few feet of appellant’s team, hitched to a hack, under which appellant was at the time engaged in making some repair. The hack and team were standing at the time on the left side of a private alley back of a store in the city of Clarksville, and it was insisted that this was negligence on the part of the plaintiff which contributed to his injury. Dealing with this question, the plaintiff asked, but the court refused to give, an instruction numbered 4 reading as follows: '“You are instructed that the law of the road requiring the driver of a vehicle along, the public highway to turn ■to the right on meeting another vehicle upon said highway -applies -only to drivers- upon the highway, - and would not apply to private property at or near the highway. If you find from the evidence in'this’ case that the plaintiff, at the time of his alleged injury, -was not ;on the highway but was on private-property, but had stopped his team on private -property,'even though he was.on the left of the highway,' he would not be guilty of negligence in so doing.”

It is insisted that the refusal to give this instruction was error, and "that it announces the controlling legal'principle in the case.

This instruction- contains two sentences, the first of which correctly states the law to be that the law of the road does not- apply to private property. But we think it was not error to refuse this instruction, for the reason that the last sentence in the instruction makes' an incorrect application of the correct statement of the law contained in the first sentence. This is true because the instruction, read as a whole, told the jury, as a matter of law, that it was not negligence for plaintiff to stop his hack on the left side of the alley. Under the circumstances of the case this question of negligence should have been submitted to the jury. In • other words, although the statute (§' 7433, iC." & M: Digest) - did not apply and, define the respective fights’and duties -of the parties, it was still a question.of fact,for the .jury, and not on.e of law for the court, .whether ■ it was negligence for plaintiff to stop his hack on the left side of the alley. The alley did not belong to either-the -plaintiff- .or the defendant, but was privately owned; although1 there appears to have been a permissive use of it to some extent by the public. .

In overruling the motion for a. new trial, the court said: “I am of the opinion that the verdict' of the jury is contrary to the weight' of the evidence, and I feel like plaintiff should have a verdict, but a jury 'has passed on the matter, and I am not going to disturb their verdict.” In view of this finding by the court a new trial should have been granted. The duty of the trial court, when it is believed and found that the verdict returned is contrary to the preponderance of the evidence, was thoroughly considered by us in the case of Twist v. Mullinix, 126 Ark. 427, and we need not repeat here what we there said. A syllabus in that case reads as follows: “Where the trial court finds positively and unequivocally that the verdict of the jury is against the preponderance of the evidence, it is reversible error for him thereafter to fail to set aside the verdict.” See also Spadra Creek Coal Co. v. Callahan, 129 Ark. 448; Spadra Greek Coal Co. v. Harger, 130 Ark. 374; Mueller v. Coffman, 132 Ark. 45; Wilhelm v. Collison, 133 Ark. 166; Pettit v. Anderson, 147 Ark. 468.

For the error in refusing to grant a new trial in view of the court’s finding as to the weight of the evidence, the judgment will be reversed, and the case remanded for a new trial.


author: Smith, J..

text:
    Wilson & Company v. Smith.
    Opinion delivered December 7, 1925.
    1. Master and servant — instruction—furnishing safe materials. — In an action for personal injuries sustained ¡by a servant while scrubbing floors with a mixture of hot water and lye, an instruction to the effect that to sustain a recovery the jury must And that plaintiff was injured without negligence on his part, and that the mixture had been negligently furnished by the master, was not objectionable for omitting that defendant was only required to use ordinary care to furnish safe material with which to work that question; the question of assumption of risk being covered by other instructions.
    2. Trial — instruction1—Undisputed question. — In an action for injuries sustained by a servant while scrubbing floors for the master, an instruction held not erroneous in submitting the question whether a preparation of hot water and lye was dangerous when any one of ordinary intelligence would know that it was, since it was an essential part of plaintiff’s case that the preparation be found to toe a dangerous substance.
    3. Master and servant — furnishing dangerous substance — duty to WARN. — In an action for injuries sustained by an ignorant servant while scrubbing floors for his employer with a mixture of hot water and lye, whether there was any duty to warn plaintiff of the danger of using such mixture held for the jury.
    4. Witness — responsiveness of answer. — Where physicians, testifying as experts, were asked whether concentrated lye and hot water could have caused plaintiff’s injury, their answers that a strong solution of lye would be required to inflict such an injury were responsive.
    Appeal from Miller Circuit Court; J. H. McCollum, Judge;
    affirmed.

      John N. Cook, for appellant.

      Wm. TJ. Arnold, Jr., for appellee.
   Smith, J..

Appellee recovered a judgment, which is not complained of as being excessive if there is liability, to compensate his injury alleged to have been sustained while using concentrated lye in washing windows for appellant. This appeal is prosecuted to reverse the judgment, and it is insisted, for the reversal thereof, that no liability was shown, and that error was committed in giving certain instructions.

Appellee testified that he and three other colored men and a boy worked two days for appellant scrubbing floors with hot water and lye, that the three other men were then discharged, and that he and the boy were retained to wash windows and window and door frames.

There was some question whether lye was used for the purpose stated, but the verdict returned indicates a finding that lye was used, not only with appellant’s knowledge, but under the direction of appellant’s foreman, as these questions were submitted to the jury, and we think the testimony sufficient to support the finding made.

The court gave over appellant’s objection an instruction numbered 1 'reading as follows: “The court instructs the jury that if they believe from the evidence that on or about January 4, 1924, plaintiff was in the employ of the defendant, and that, while in the discharge of Ms duties as such employee, lie "was, without carelessness or negligence on his-part, which contributed directly thereto/injured by reason of- concentrated lye and hot whter having* been negligently furnished him by defendant or its agent, and that said hot water and concentrated lye were.dangerous substances to the human hand, and that, the dangerous condition of said concentrated lye and hot water, if any, was unknown to plaintiff and he could not have known it by the use of ordinary care, and that defendant, its officers or employees, negligently furnished said materials, and that same were dangerous, and that - the injury resulted from the plaintiff’s use thereof while working for defendant, you will find for the plaintiff.” -. . .

This instruction shows the theory upon which a recovery was-asked and secured, and, in addition to a general objection thereto, it was specifically objected to on the ground that it left out of consideration the fact that the defendant was only required to use ordinary care, in seeing that the plaintiff was furnished safe material with which to work, and also the question of assumption of risk.

Plaintiff testified that he did not know the mixture was dangerous, and that he would not have used it, had he known it. . The instruction required the jury to find from the evidence that the plaintiff was injured without carelessness. or; negligence on his part contributing directly thereto, and to find that the liability of the preparation to injure plaintiff was unknown to him and “could not have, been known by the. use of ordinary care,” and to find that the preparation was dangerous, and that the use- thereof injured the plaintiff, and that the preparation had been negligently furnished to appellee for his use. If these conditions existed, there was no assumption -of risk. The instruction did not tell the jury that merely- furnishing; the preparation constituted liability, but the.jury was.required to find that this was negligently done. Other instructions, especially those given at the request ,of defendant, dealt with the defendant’s duty in this respect, and in several of these instructions the jury was specifically told that defendant was required only to use ordinary care in the selection of materials for plaintiff to use, and full and complete definitions of ordinary care were given.

It is further objected that this instruction was erroneous in submitting to the jury the question whether or not hot water and lye were dangerous when any one of ordinary intelligence would know that it was. We think it was not prejudicial to submit this question to the jury, even though it was a question about which there could ‘be no difference of opinion, as it was an essential part of the plaintiff’s case that the' preparation be found to be a dangerous substance.

It is insisted that the danger was one so obvious that there was no duty to warn. This, we think, under the case made, was properly a question for the jury, and one which was submitted under instructions correctly declaring the duty of the employer in furnishing the servant reasonably safe appliances with which to work and the duty of warning where there was danger.

The doubt in the case is whether there was a question for the jury; but, as we have said, the jury might have found from the testimony that lye was used, and that the plaintiff, who it is claimed was a very ignorant man, did not know the danger of using it, and was not properly warned in regard thereto.

Two physicians testified in the case as experts, and in a hypothetical question submitted they were asked to assume that concentrated lye and hot water were used, and, on this assumption, were asked if this could have caused plaintiff’s injury, and in answering the question they stated that a strong solution of lye would be required to inflict such an injury as plaintiff sustained. The objection was made that the answer'was not responsive to the question. We think the answer was responsive to the question propounded. The testimony did not show the -strength of the solution used, but the lye was referred to as concentrated lye, and the question implied that the lye possessed burning properties, and we think the question did not exclude the idea that a strong solution had been used, and we also think it was not mere speculation for the jury to find that a strong solution had in fact been used.

Upon a consideration of the whole case we find no prejudicial error, ¡and the judgment is therefore affirmed.


author: Smiti-t, J.

text:
    Crosby v. State.
    Opinion delivered December 7, 1925.
    1. Larceny — sufficiency of evidence. — Evidence held sufficient to sustain a conviction of grand larceny. '
    2. Criminal law — order of introduction of evidence. — In a prosecution for a felony, though it would have been fairer to the accused to require the State to produce its essential witnesses as part of its ease in chief, rather than to allow such witnesses to testify after accused’s testimony had been offered, the latter procedure did not constitute reversible error in view -of the discretion vested in the trial court in the matter of the order of introducing testimony.
    3. Criminal law — instruction on weight of evidence. — In a prosecution for larceny, an instruction that the possession of property recently stolen and unexplained is prima fade evidence of guilt is erroneous as being a charge on the weight of the evidence; and accused did not waive his objection thereto by requesting a definition of “prima facie,” which the court stated was such evidence as would authorize the jury to convict if unexplained and uncontradicted.
    Appeal from Fulton Circuit Court; John G. Ashley, Judge;
    reversed.

      Geo. T. Humphries, P. G. Goodwin, F. M. Pickens, and Gustave J ones, for appellant.

      II. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Smiti-t, J.

Appellant was tried on an indictment containing two counts, the first charging him with the crime of burglary, and the second with that of grand larceny, alleged to have been connnittéd on or about April 11th, 1925, by breaking into and entering the store of H. H. Lucas and stealing therefrom 65 suits of clothes. Appellant was acquitted on the first count, but was convicted on the second, and was given a sentence of five years in the penitentiary, and has appealed.

Numerous objections were made to the argument of special counsel assisting the prosecuting attorney in closing the case for the State. But we have concluded that, while the argument was perfervid, the statements in it were either in response to statements made by an attorney for the appellant, or were mere expressions of special counsel’s opinion.'

Appellant’s defense was that of an alibi, and he insisted that’he had never been in the county where the crime for which he was convicted was committed until after the commission thereof, and his arrest on that charge when he was taken to Fulton County for the preliminary examination.

Appellant vigorously insists that the testimony is not legally sufficient to sustain the conviction; but we do not agree with his counsel in this respect.

The testimony on the part of the State is to the effect that the store of Lucas was broken into late one night, and about 65 suits of clothes were stolen, enough to fill an automobile. Appellant was suspected of complicity in the crime, and Lucas, accompanied by the sheriff of Fulton County, went to Newport, where appellant operated a clothing store. Lucas discovered and identified some of the suits which had been stolen, and he told appellant that he was going to have a search warrant issued to search the store, whereupon appellant told Lucas that if any of the suits in his store had been stolen from Lucas that he (Lucas) could have them, and 35 suits of clothes were identified, and recovered by Lucas. There was testimony tending to identify appellant as one of two persons seen in Fulton County the day after the burglary with an automobile load of clothing, one suit of which was traded for a few gallons of gasoline.

An exception was saved to the order of the introduction of the testimony of witnesses Green Howard and Walter Nichols, who were not called as witnesses for the State until after the testimony introduced in appellant’s behalf had been offered. These were not only material witnesses, but they might also be called essential witnesses, as it was their testimony which tended to show that appellant was in Fulton County immediately after the burglary.

The discretion of the trial court in the matter of the order in which testimony may be admitted is so wide that we do not reverse the judgment on this account, but we do express the opinion that it would have been fairer to appellant to have required the production of this testimony as a part of the 'State’s case in chief.

The court gave, over appellant’s objection, an instruction reading as follows: “You are instructed that possession of property recently stolen and unexplained is prima facie evidence of guilt. The words ‘prima facie’, as used in this instruction, mean such evidence as would authorize a jury to convict the defendant, if same is unexplained and uncontmdicted.”

A motion has been filed by the Attorney General in which time is asked to amend the bill of exceptions to show the following facts:

The court first instructed the jury as follows: “You are instructed that possession of property recently stolen and unexplained is prima facie evidence of guilt, ’ ’ and an exception Was saved by appellant. Counsel for the defendant then 'asked the court to define the words “prima facie,” and the court responded to.this request by adding the last sentence of the instruction reading*: “The words ‘prima facie,’ as used in this instruction, mean such evidence as would authorize a jury to convict the defendant, if same is unexplained and uncontradicted.”

For the purpose of disposing of this motion we assume that an order of court could be obtained to amend the record in the respect stated; ¡but we are of opinion that the error in the instruction would not be cured if this were done. On behalf of the State, it is insisted that the error in the instruction was invited, and that appellant cannot therefore be heard to 'complain. We do not concur in this view, because the instruction as originally given was erroneous, and appellant did not waive his objection thereto by asking that it be made less objectionable, inasmuch as the instruction, in its entirety, is erroneous and was objected to in the form given.

Instructions in substantially the form set out above have been many times condemned by this court for the reason that it is a charge on the weight, of the evidence. We have often said that the unexplained possession of recently stolen property is a fact from which an inference of guilt may be drawn, but that the weight to-be attached to this circumstance in any given case, and the inferences to be deduced therefrom, are wholly for the jury, and it is an invasion of the province of the jury for the court to declare as a matter of law that the unexplained possession of recently stolen property is sufficient to sustain a conviction. A number of cases so holding are cited in the recent case of Mays v. State, 163 Ark. 232.

The instruction as first given by the court offends against the rule announced in the Mays case, supra, and in the cases there cited, and appellant did not waive his objection thereto by asking the court to define what was meant by the words “prima facie,” because the instruction as amended was also erroneous.

For the error in giving this instruction the .judgment must be reversed, and the cause will be remanded for a new trial.