author: Butler, J.

text:
    Missouri Pacific Railroad Company v. Meyer.
    4-2818
    Opinion delivered January 16, 1933.

      R. E. Wiley and E. W. Moorhead, for appellant.

      Garneal Warfield, for appellee.
   Butler, J.

In an action for damages to an. automobile at a crossing over the public highway, where a spur track of appellant’s main line crosses to a gin nearby, judgment was rendered against the appellant, from which is this appeal.

The appellant’s claim of exemption from liability is predicated upon the contention that the switch or spur track was not its property, but was built by it for one T. E. Head, and at his expense, and, when the construction was completed, no duty thereafter rested upon the appellant to maintain the crossing. This contention is based upon the familiar principle that, “when the work is finished by the contractor and accepted by the employer, the liability of the former generally ceases and the employer becomes answerable for damages which may thereafter accrue from defective conditions in the work.” The theory is that, in the absence of a special statute making a private siding a public track for the use of the public, no liability would attach for failure to properly maintain it, and, as we have no such statute, under the contract in the instant case, in pursuance of which the track was built, the property rights to the spur track were in Head, and he, or his successors in title, are liable, and not the appellee.

It is further argued that, although Head could not exercise the right of eminent domain and the railroad company could, the exercise of that right was not called for in the instant case as the highway was located on the land of Head, and he had the right to cross the same with the spur track, as the public owned only an easement, the fee remaining in Head, and his only duty was to so construct and maintain it as not to interfere with the public use; and, if he did not keep up the crossing, then he or his successors are alone liable for damages accruing because of its defective condition.

Referring to the last argument first, we note that it is assumed in the statement of the case made by the appellant that “the switch and place where it crosses over the public road was not on the right-of-way or any property belonging to the Missouri Pacific Railroad Company,” and from the argument it is inferred that the public highway was across the lands of Head. We have carefully examined the plat filed as an exhibit in the case and the testimony of the witnesses, and are unable to determine where the public highway is located. It may be upon the land of Head, but there is no evidence which we have discovered to justify the statement. However, it is our opinion that this question of fact becomes immaterial because we think the defense in the case is based upon the erroneous view that the spur track was a private one. For the sake of brevity, the contract relied on is not written herein at length, but only the substance of its material parts stated.

The contract was called “An Industrial Track Agreement,” and provided that, at the request of the shipper (Head), the appellant would construct a track 500 feet long, more or less, leading from carrier’s (appellant’s) existing sidetrack at Indian Station in Chicot County, Arkansas, to the ginnery and cotton seed house of the shipper. Section 1 of the contract provided that the connection with carrier’s existing sidetrack should be at its cost, and that it should furnish all material and perform all labor required for the remainder of the switch at the shipper’s cost. The shipper was to provide the roadbed, right-of-way, crossties and fastenings, and the use of so much of any highway as might be required. The estimated cost of the construction of the switch was $380, which the shipper was required to, and did, pay.

Section 2 of the contract provided that “the carrier may at any time, unless necessarily detrimental to shipper, lengthen, extend or connect with, and use any of switch.” Provision was further made that the carrier should be indemnified for any expense or liability for any change or readjustment of the switch, and that the switch should be kept in good condition at shipper’s cost,' the carrier acting for the shipper to furnish or perform any work at shipper’s cost in the event the shipper should neglect to furnish or do the work within ten days following the carrier’s written request. For material furnished, or work done, the shipper was required to pay the cost to the carrier, plus ten per cent. By section 3 the shipper was required to indemnify the carrier, regardless of its negligence, for damages arising from fire caused by the carrier’s locomotives operating on the switch aiid for indemnification for any damages or injury from act or omission of the shipper, or his agents, to the person or property of the parties to the contract, and to the person or property of any other person or corporation while on or about the switch, and, if any claim or liability other than from fire shall arise from joint or concurring negligence of both parties, it should he borne by both parties equally.

Under the terms of section 4 of the contract, provision was made for its termination, and in that event the carrier was authorized to remove from its premises any metal track material, paying to the shipper from available funds its then present value as salvage. It was also stipulated that all of the switch at any time existing on the premises of the carrier, which should be deemed to include any portion of any intersecting public highway falling within the carrier’s right-of-way, should belong to the carrier.

The contract was entered into and the switch constructed in 1924. It was moved and relocated some fifty to one hundred feet west of its first location, and, after its relocation and shortly before the happening of the injury complained of here, the track was again slightly moved and realigned for the purpose of straightening a curve. The appellant’s employees did all this work, for which they were paid by the shipper, or his successors. The principal purpose for which the switch was built was for the movement of cotton and cotton seed from the shipper’s gin to the main line of appellant for shipment thereon to the market. The evidence shows that it was also used by the appellant for other purposes than to serve the shipper and his successors, such as for the “spotting” of cars loaded with gravel, billets, bolts, etc.

It is apparent from the contract and the use to which the spur track was put that it was not constructed for the exclusive use of Head, but for the use of the appellant also, and for tbeir mutual benefit. While the contract provided that Head should pay for the cost of the original construction and for its maintenance, the work was actually done by the appellaift, as well as the relocation and realignment of the switch; and appellant reserved the right, upon Head’s failure to do maintenance work after notice, to do the work itself and charge the cost to Head, or his successors. The .switch track emerged from the siding and was constructed in a slight curve down the right-of-way for approximately half of its distance from its emergence from the siding to the ginhouse, and the ownership of this portion of the switch was especially reserved in the appellant. It also reserved the right to lengthen the switch if it deemed it expedient, and to use it for purposes other than to serve Head, and it did, in fact, so use the spur track, and recognized its liability for damages by requiring indemnification in paragraph 3 of the contract. From this it will be seen that the appellant exercised practically the same control and dominion over the switch track that it did over any part of its system, and, to all intents and purposes, while constructed primarily to serve the ginnery of Head, it was a sidetrack of the appellant, although located on private property for a part of its length. The spur track is therefore included within the term “railroad” and comes within the duties imposed upon railroads by § 8483 of Crawford & Moses’ Digest, which provides, among other things, that railroad companies which have constructed railroads across any public road shall construct and maintain suitable crossings. Conway Oil & Ice Co. v. Gibson Oil Co., 175 Ark. 902, 1 S. W. (2d) 60, and cases therein cited; Lane v. Interurban Ry. Co., 190 Ia. 738, 180 N. W. 895.

The undisputed evidence is to the effect that the crossing was in bad repair, and that the appellee, while traveling along the highway and while in the exercise of ordinary care, suffered an injury to his automobile because of the defective crossing. Since, as we have seen, it was the duty of the appellant to properly maintain the crossing, the court properly found it liable for the injury, and its .judgment is therefore affirmed.


source: Caselaw Access Project

author: Btttt.ee, J.

license: Public Domain

text:
    Boyett v. State.
    Crim. 3825
    Opinion delivered January 16, 1933.

      R. E. Peace, J. 8. McKnight and G. L. Poole, for appellant.

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

From a conviction of the crime of assault with intent to rape this appeal is prosecuted. The only question presented is that of the sufficiency of the evidence to warrant the conviction of the crime charged. The evidence adduced by the State, briefly stated, is as follows:

The prosecuting witness, a young girl about fifteen years of age, was walking alone on a road leading from a place where she had been attending a singing school to her home. She was met by the defendant, a man about twenty-eight years old, to whom she spoke. After he had passed her, he returned in a short time, overtaking her, and, over her protests and despite her resistance, forced her to go with him some distance from the road into the forest. He placed his hand over her month to prevent any outcry, and,, after he had reached a spot in the woods, and after some struggle, he threw her upon the ground and exposed her person by pulling down her underclothing. He got down on his knees over her, hut for some reason proceeded no further in the attempt to ravish her. During the time that he was taking her from the road to the forest, and while she was on the ground, he indulged in conversation, which the prosecuting witness repeated on the witness stand, and which the appellant urges negatives the contention of the State that it was. the defendant’s intention to ravish the girl. We do not think that this interpretation can be placed on the language used, and do not deem it necessary to state it here.

It is well settled that an assault with intent to rape is an effort to obtain sexual intercourse by force and against the will of the person assaulted, and the intent is to be ascertained from the commission of some act or acts at the time or during the progress of the assault. The force actually used need be of no specific degree or character, but comes within the meaning of the law if it is reasonably calculated to subdue and overcome; nor need it be persisted in until the assailant’s design is accomplished; if the assault is actually begun and the intent can be inferred from the acts committed, the offense is complete, notwithstanding the fact that the assailant may, for some reason, relent and forbear from the consummation of his purpose. Anderson v. State, 77 Ark. 37, 90 S. W. 846; Tyra v. State, 120 Ark. 179, 179 S. W. 167; Loekett v. State, 136 Ark. 473, 207 S. W. 55; Snetser v. State, 170 Ark. 175, 279 S. W. 9; Begley v. State, 180 Ark. 267, 21 S. W. (2d) 172.

Drom the evidence we have related, it will be seen that it was of a substantive nature and brings the case within the rule announced, and warrants the jury in the verdict reached.

Judgment affirmed.


author: Smith, J.

text:
    Taylor v. Greene.
    4-2808
    Opinion delivered January 23, 1933.

      M. A. Hathcoat, for appellant.

      Woods and Jones, for appellee.
   Smith, J.

Mrs. Jane Greene Weseher owned fifteen shares of the capital stock of the Citizens’ Bank & Trust Company, of Harrison, Arkansas, which became insolvent and was taken over on September 1, 1931, by the State Bank Commissioner for liquidation. The Commissioner made and levied an assessment of the full amount of the capital stock of said hank against the shareholders thereof. Mrs. Weseher refused to pay the assessment against her stock, amounting to $375, and the Commissioner brought this suit to enforce its payment. As Mrs. Weseher is a nonresident, service was had by attaching her undivided interest in a certain tract of land.

An intervention was filed in this suit by Laura Glass Greene, who alleged the following facts: Frank B. Greene, the husband of the intervener and the father of the defendant, owned and occupied the attached land as his homestead at the time of his death. He was survived by his widow and three children, all of whom have now passed the age of twenty-one years. Intervener, the widow, occupies the property as her homestead, and does not own any other homestead.

No personal service was had on Mrs. Weseher, and she has not entered her appearance.

A demurrer was filed to the intervention by the plaintiff, which the court overruled, and, as no amendment to the complaint was made, it was dismissed, and this appeal is from that judgment.

The question for decision is, whether the interest of the nonresident heir is subject to attachment during the continuance of the homestead right of her mother, there being no minor children to share the homestead right with -the widow?

It is apparent, from the facts stated, that the defendant and the other heirs have a vested interest, the enjoyment of which is. postponed during the homestead estate of their mother. McCarroll v. Falls, 129 Ark. 245, 195 S. W. 387. The homestead is not subject to partition during the continuance of the homestead estate. But it is not prayed that partition thereof be granted. It is prayed that an attachment be sustained against a nonresident heir more than twenty-one years of age; and we think this relief may be awarded. The Commissioner had the right, and was under the duty, to collect the stock assessment from the stockholder, and, upon his demand for payment being refused, he had the right to invoke the aid of the court, and, as an incident to this right, to attach the vested interest of the nonresident heir in the land which she had inherited from her father, even though this interest was subject to the homestead right of her mother.

The third headnote in the case of Scoggin v. Hudgins, 78 Ark. 531, 94 S. W. 684, 115 Am. St. Rep. 60, reads as follows: “Notwithstanding Constitution 1874, art. 9, § 3, provides that the ‘homestead of any resident of this State who is married or the head of a family shall not be subject to the lien of any judgment or decree of any court, or to sale under execution or other process thereon,’ etc., a court of equity may declare that a claim of creditors is a lien on the homestead of a deceased debtor in the hands of his widow and heirs, but that it shall not be sold until the homestead expires.”

In the case of Winfrey v. People’s Savings Bank, 176 Ark. 941, 5 S. W. (2d) 360, the facts were as follows : Pottebahm sued Williams, a nonrésident, upón'a note. Judgment was rendered for the amount of the note, and an attachment was sustained against a lot, upon which the mother of the defendant resided as the homestead of her deceased husband, who was the father of the defendant. • The interest of the nonresident defendant was later sold under the judgment to Potte-baum. The homestead estate of the widow was later terminated by her death, and the widow of Pottebaum, who had acquired the interests of the heirs of her husband, brought suit to partition the lot which had constituted the homestead, and to have assigned to her the half interest which her husband had purchased at the execution sale under the judgment against Williams, one of the heirs. It was there said: “It was alleged that the judgment against Williams was void for the following reasons: The lot levied upon had been owned by Williams’ father, who, upon his death, was survived by his widow and two children, and the lot was then occupied by Williams’ mother as her homestead. It is therefore insisted that, as the lot was a homestead, it was not subject to sale. In reply to this contention, it suffices to say that the widow was not a party to the attachment suit, and her homestead right was not affected by it. The defendant had an interest in the lot, which was, of course, subject to his mother’s right of homestead, and it was upon this interest that the attachment was levied. The homestead interest of the widow terminated by her death in 1925, before the institution of this suit.” The decree from which the appeal had come directing’ the partition of the land was affirmed.

In the instant case the widow occupying the attached property is a party, but she became a party upon her own intervention. No relief was prayed against her, and her homestead right is not questioned, and no judgment rendered against her daughter will divest this right. See, Brandon v. Moore, 50 Ark. 247, 7 S. W. 36. There is therefore no reason why the court should not adjudicate the claim of the Bank Commissioner for a judgment against the daughter, and the judgment of the court below overruling the demurrer to the intervention will he reversed, and the cause will be remanded with directions to sustain the demurrer.


author: Humpheets, J.

text:
    Temple v. Gates.
    4-2800
    Opinion delivered January 23, 1933.

      Jones & Jones, for appellant.

      Hal L. Norwood, Attorney General, Walter L. Pope, David A. Gates and Chas. W. Mehuffy, for appellee.
   Humpheets, J.

Appellant brought suit in the circuit court of Miller County against appellee to recover $796.54 income tax which he paid appellee under protest, and which was assessed by appellee, in his official capacity, against the dividend received by appellant on three thousand shares of capital stock of the Southern Pine Lumber Company, a Texas corporation. The cause was tried by the court, sitting as a jury, upon tbe pleadings and an agreed statement of facts, which, resulted in a dismissal of appellant’s complaint, from which is this appeal.

The agreed statement of facts is, in substance, as follows:

That at all times hereinafter mentioned plaintiff was and now is a resident of the State of Arkansas. That at all such times the Southern Pine Lumber Company, hereinafter called “Company,” was and now is a corporation duly incorporated, organized, and existing under the laws of the State of Texas, and that at all such times, said Company owned and operated sawmills and planing mills, all located in the State of Texas, and sold and manufactured products of said mill in many States, including the State of Arkansas, and that said Company also purchased lumber in the State of Texas and sold the same in other States, including the State of Arkansas, and that the principal executive offices of said Company were and now are located in the Texarkana National Bank Building in the city of Texarkana, Texas.

That said Company sells the manufactured products and its lumber in the State of Arkansas by and through its duly appointed and acting agent, Southern Lumber & Supply Company, a corporation duly organized and existing under the laws of the State of Arkansas. That said Company furnishes to its said agent its stock sheets, price lists, and other selling information, and the officers and agents and employees of its said agent, Southern Lumber & Supply Company, acting for and on behalf of the Company, call upon the retail lumber dealers and other prospective purchasers of lumber in the State of Arkansas and personally solicit and obtain orders for lumber from them, and its said agent transmits the orders received by it to the Company at its principal office in the city of Texarkana, Texas, and the Company passes upon the credit of the purchaser of the lumber, and if the credit of the purchaser is approved by the Company, the lumber is shipped from the State of Texas to the purchaser in the State of Arkansas on the order so placed; the said agent of the Company having full authority to bind the Company on all orders taken by the agent under the terms and according to the stock sheets, price lists, and other selling information furnished by the Company to its said agent, except the Company reserves the right to pass upon the credit and business methods of the purchaser of the lumber.

That 99 per cent, of the sales in Arkansas are handled by shipping the lumber on open bill of lading from the mill in Texas to the customer in Arkansas. That prices are quoted by the Southern Lumber & Supply Company to the purchaser, which includes the list price of the lumber plus the freight from mill to purchaser.

That payment is usually made by the buyer by sending its personal check to the Company at Texarkana, Texas, said check being deposited by the Company in a Texas bank for collection. That in some instances, when accounts become past due, the Arkansas agent corporation aids the company in pressing payment of the account.

. That the Southern Lumber & Supply Company, in its advertising, holds itself out to be the agent of the Company.

That for several years it has been the custom of the Company to send one of its office staff to the retail lumber dealers’ convention in Arkansas to meet the retail lumber dealers and work with the agent corporation for the furtherance of their joint interest.

That said Southern Lumber & Supply Company has been the agent for the Company in Arkansas for five years before the filing of this complaint.

That the Company has not filed its articles of incorporation with the Secretary of State of the State of Arkansas under § 1826 of Crawford & Moses’ Digest, and that, other than hereinbefore stated, the Company has no place of 'business in the State of Arkansas, owns no property in the State, and that the business done by the Company with Arkansas customers was and is interstate commerce.

That in 1928 the total gross sales of the company amounted to $4,954,166.10, and the gross sales of the company in Arkansas amounted to $23,577.36.

That on September 5, 1929, the Company, under advice of counsel and believing that same was required by law, filed its corporation tax return with the Commissioner of Revenues of the State of Arkansas, and paid said Commissioner the sum of $30.48, the same being tax due on net income of the company derived from sales in the State of Arkansas during the year 1928. Said Commissioner accepted such sum subject to any readjustment that might thereafter in due course be made.

That on December 31, 1928, the Company duly declared a cash dividend of 8 per cent, on its common stock, said dividend being held by the Company payable on demand to said stockholders.

That the dividend of $24,000 on the three thousand shares of common stock owned by plaintiff herein was not included in plaintiff’s income tax return for the year 1928, but that later, plaintiff paid the Commissioner of Revenues of the State of Arkansas, under written protest, the sum of $796.54, the same being the income tax on the said $24.000 as computed by the Commissioner of Revenues of the State of Arkansas in his statement of differences mailed to plaintiff on January 17, 1930.

Appellant contends that the trial court erred in including, in his gross income, dividends received by him on his stock in the Southern Pine Lumber Companv because said Company, itself, was properly assessable for income tax in Arkansas. He bases this contention on § 3, (b) of the Arkansas Income Tax Act, which provides that, in computing the gross income, from which deductions are to be made in arriving at the net income assessable under said act, there shall be exempted dividends payable to the taxnaver which have been received from stock in any corporation, the income of which was assessable for the preceding year under the provisions _of the act. In order to determine whether the conrt erred in so doing, it is necessary to ascertain whether the Southern Pine Lumber Company itself was subject to the assessment and payment of an income tax in this State. If it was, then the dividend derived from the stock owned 'by appellant was exempt from the imposition of an income tax under subdivision'(b) of § 3 of the Income Tax Act. The agreed statement of facts reflects that the Southern Pine Lumber Company is a foreign corporation organized and doing- business under the laws of the State of Texas. The Arkansas Income Tax Act imposes an income tax on the net income of foreign corporations doing- business in Arkansas. Subdivision (c) of § 3 of the Income Tax Act is, in part, as follows:

i£A like tax is hereby imposed ■* * * with respect to the entire net income as herein defined except as hereinafter provided * * * from every bflsiness, trade, or occupation carried on in this State by * * * corporations * * * not residents of the State of Arkanesas.”

This statute means that if a foreign corporation conducts a business in this State, it must pay an income tax fixed upon its entire net income. The statute has no relation whatever to profits gained from interstate transactions by a corporation conducting a business in another State. In order to subject a foreign corporation to the payment of the income tax imposed by the statute in question, the business transacted by it in this State “must be of such nature and character as to warrant the inference that the corporation has subjected itself to the local jurisdiction.” Gillen v. Hessig-Ellis Drug Company, 181 Ark. 386, 26 S. W. (2d) 122. The substance of the agreed statement of facts warrants no such inference in the instant case. The agreed statement of facts shows that the Southern Pine Lumber Company was organized under the laws of, and has its business situs in Texas, where it conducts its business. It has never qualified to do business in this State in accordance with onr statute. The transactions between it and the citizens of this State were interstate in nature and character.

The judgment is therefore affirmed.


author: Humphreys, J.

text:
    St. Louis-San Francisco Railway Company v. Taylor.
    4-2825
    Opinion delivered January 23, 1933.

      E. T. Miller, E. L. Westbrooks, Jr. and E. L. West-brooke, for appellant.

      A. F. Barham and Sam Rorex, for appellee.
   Humphreys, J.

Appellant filed an intervention in the case of Walter E. Taylor, State Bank Commissioner, v. Bank of Osceola, pending in the chancery court of Mississippi County, to have three cashier’s checks and a time certificate of deposit, issued to it by the Bank of Osceola before it closed its doors, declared preferred claims. It was alleged in the intervention that appellant purchased the cashier’s checks and certificate of deposit with currency, silver and checks its agent received in the course of its business, and, at the time, it was not a depositor in or indebted to said bank. It was also alleged in the intervention that the cashier’s checks were presented in due course to the First National Bank of Memphis, Tennessee, but were not honored because during the interim the Bank of Osceola had gone into liquidation.

A demurrer was filed to the intervention on the ground that it did not state facts sufficient to show that the cashier’s checks and time certificate of deposit were preferred.

The demurrer was sustained to the intervention, and same was dismissed in so far as it prayed for a preference, hut the claims were allowed as general claims, from which is this appeal.

Appellant seeks a reversal of the decree denying its prayer for a priority or preference of its claims over those of general creditors on the ground that it was entitled to a preference under subdivision 7 of § 1 of act No. 107 of the Acts of the General Assembly of 1927. The subdivision referred to applies only to collections made by a bank in which the relationship of principal and agent exists. The purchase of cashier’s checks and of time certificates of deposit creates a relationship of creditor and debtor. The instant case is governed by the interpretation placed upon said act in the cases of Taylor v. Dermott Grocery & Commission Company, 185 Ark. 7, 45 S. W. (2d) 23, and Missouri Pacific Railway Company v. Taylor, 185 Ark. 211, 46 S. W. (2d) 642.

No error appearing, the decree is affirmed.


author: Kirby, J.,

text:
    Safeway Stores, Inc., v. Rogers.
    4-2720
    Opinion delivered January 23, 1933.

      G. R. Haynie, Robinson, House & Moses and W. H. Holmes, for appellant.

      Gaughan, Sifford, Godwin & Gaughan and Powell, Smead & Knox, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted for reversal that the verdict is not supported by the testimony, there being no proof of publication of the alleged slanderous1 statements, which it was claimed was semi-privileged, and that the court should have directed a verdict in its favor; that appellant company could not be held liable for the slanderous statements made by its employees without authority; and that the verdict is excessive.

Appellee testified that Mr. G-reen, who made the first statement, tapped her on the shoulder at the front door and told her to come back to the back thereof, that “she had stolen a can of pineapple,” and that the others, who continued the conference or investigation and who were also clerks in the store and whose business it was to collect for goods sold, also accused her of stealing the can of pineapple.

It appears from the connection in which the charge was made, and, under the circumstances attending its utterance, that it was intended and understood to impute the crime of larcenv — it so expressly stated it — and must be regarded as actionable per se. Dean v. Black & White Stores, Inc., ante p. 667; 36 C. J. 1208; § 2396, Crawford & Moses ’ Digest.

The jury found from substantial testimony that numerous persons were present when the slanderous statement was made, in a position to bear it, and it will be assumed, unless the contrary is made to appear, that those present both heard and understood the words; and, although the burden is upon the plaintiff to prove the publication by a fair preponderance of the testimony, many persons were shown to have been present when the words were spoken, and it was a question for the jury to say whether such persons did or did not hear them. Only one of the persons present stated she did not hear the statement as first made at the door of the store when appellee was stopped by the manager and requested, “I want to see you in the back, lady you have stolen a can of pineapple.” Townshend on Libel and Slander, page 555; Newell on Slander and Libel, page 725.

If the statements were made in the tone of voice as testified to, they could have been heard by a number of the many people in the store at the time, and certainly, when Mrs. Jennings returned to the store for appellee, who had not followed her out, the statement was made by Mrs. Rogers, it is true,' explanatory of the delay that they had accused her of stealing a can of pineapple. This statement was made in the presence of the investigators, to whom she was turned over by the manager, and who were insisting that she did steal the can of pineapple and must pay $5 before she would be released from custody, otherwise she should be turned over to the sheriff. Under such circumstances, it cannot be said that the publication of the slander was invited or procured by appellee; and it was also shown that Worrell had charged her at that time with stealing the can. of pineapple in the presence of Mrs. Jennings.

The court did not err in giving appellee’s requested instruction No. 6, specially objected to as containing the clause, “that these statements were made in furtherance of the company’s business.” This language was approved as correct in Waters-Pierce Oil Co. v. Bridwell, 107 Ark. 310, 155 S. W. 126.

There was no testimony warranting the giving of appellant’s requested instructions Nos. 10 and 11, and the court did not err in refusing them.

The majority of the court has concluded that the verdict is excessive. It is true that no great amount of actual damages suffered was proved, hut appellee was greatly humiliated and embarrassed at the store and suffered from nervous excitement and did not sleep well on the night the incident occurred or for several nights thereafter. The words being actionable per se however, appellee was entitled as a matter of law to compensatory damages, and was not required to introduce evidence of actual damages, it being necessary in such cases to prove special damages, which under the circumstances of this case the court has concluded should not be more than $2,500. The damages were probably aggravated by proof of the fact that the employees required the payment by appellee of $5 for a 10-cent can of pineapple, although the jury was instructed to disregard this fact, which the jury evidently believed she had no intention of stealing, and their action in forcing her to make a written statement that she had stolen the can of pineapple during the investigation of the matter when the slanderous statement was made.

If appellee will 'enter a remittitur reducing the amount of the judgment to said amount of $2,500, it will be affirmed; otherwise it will be reversed and remanded for a new trial. It is so ordered.

Humphreys, J., dissents from modification.


text:
    McMahon v. McNabb.
    4-2810
    Opinion delivered January 23, 1933.

      Hardin S Barton and Reynolds & Maze, for appellant.

      Patterson & Patterson and Starbird & Starbird, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted that the court erred in the giving of certain instructions requested for the plaintiff Nos. 1, 2, 3, 4 and 5, it being contended that said instructions were erroneous in directing the jury to find in appellee’s favor, if they found the facts as stated therein, without consideration at all or mention of the appellant’s alleged defense of contributory negligence.

In instruction No. 4 the jury were told that, if they found the defendant was negligent or that his negligence was the proximate cause of plaintiff’s injuries, “then it is your duty to return a verdict for the plaintiff.” Objection was made specially to this instruction for the reason that it directed a verdict for the plaintiff without taking into consideration any issue of defense. There was a plea of contributory negligence, and the testimony was in conflict thereon.- The court should not therefore have instructed the jury that they might find for the plaintiff, and that it was their dnty to do so without consideration of such issue, and erred in so doing. Herring v. Bolinger, 181 Ark. 925, 29 S. W. (2d) 676; Newell Cons. Co. v. Lindahl, 181 Ark. 272, 25 S. W. (2d) 1052; Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676; Garrison Co. v. Lawson, 171 Ark. 1122, 287 S. W. 396; Wisconsin-Arkansas Lbr. Co. v. Hall, 170 Ark. 576, 280 S. W. 363; National Gas & Fuel Co. v. Lyle, 174 Ark. 146, 294 S. W. 395. This instruction also uses the words “safe transportation,” when under the law the driver of an automobile is only bound to the use of ordinary care in the transportation of the passengers in his car and is not bound as an insurer for the safety of persons riding- therein whether by sufferance or invitation.

Instruction No. 9 is objected to as assuming that defendant was negligent and allows the jury to find against the defendant even if the taxicab driver was negligent, etc., omitting entirely the issue whether the plaintiff himself was guilty of contributory negligence.

It was insisted in the oral argument that the specific objections to the instructions had not been properly made and should not be allowed for the reason that they were permitted to be written out by the trial court after the instructions were read to the jury, thereby depriving plaintiff of any knowledge of such objections before the conclusion of the trial and preventing him from consenting to or meeting such objections if he cared to do so and thus avoiding the errors, if any. The objections were permitted to be made however by the court, doubtless because he thought the instructions were not subject to the objections and that they were entitled to be given without regard to said specific objections. It is not complained that the objections were not made general or specific, as shown in the bill of exceptions,. but only of the practice in permitting them to be made after the case had gone to the jury, which the bill of exceptions does not show was done.

Because of the errors already pointed out, it is not necessary to pass upon the question of the excessiveness of the verdict for damages, nor upon the admissibility of the testimony of certain witnesses as experts about nervous disorders, who did not claim to be qualified as experts to give opinions thereon, as these things will not likely occur upon the new trial.

For the errors designated the judgment is reversed, and the cause remanded for a new trial.


author: Kirby, J.

text:
    Quirles v. Smith.
    4-2801
    Opinion delivered January 23, 1933.

      G. T. Carpenter, for appellant.
   Kirby, J.

This appeal comes from a judgment of the circuit court refusing to vacate and set aside a default judgment rendered herein.

The case was begun in the justice court as a suit on a note with an attachment issued. An affidavit and bond for attachment were filed and a writ of replevin was issued, it seems. The case was transferred to the court of common pleas on motion of the defendant’s attorney, who failed to appear for his clients, and the default judgment against them and their bondsmen was rendered but was not entered on the judgment record of that court. Their attorney, Kelley, filed a motion to vacate the judgment, but withdrew it and took an appeal to the circuit court.

There was no record of the proceeding and no judgment of the court of common pleas, no note or copy of it and no mortgage transmitted to the circuit court,

On December 21, 1931, the circuit court affirmed the judgment of the court of common pleas by default, it being alleged that no evidence was introduced there nor a copy of the note upon which suit was brought, no judgment or docket entries of the court of common pleas, and no evidence to support the attachment and fix the damages. The defendants and their bondsmen learned of the judgment and at the adjourned day of the court on February 19, 1932, presented their motion to vacate the default judgment, which the court overruled, and this appeal is prosecuted from that order.

The motion to vacate the judgment was filed on the 21st day of January, 1932, and heard by the court at an adjourned day of the regular term on February 19, 1932. It was alleged in the motion to vacate that the defendants had employed and paid an attorney to defend the suit, but that he failed to attend the trial or notify the defendants and judgment was taken against them by default. It was alleged that the judgment was void because rendered -without evidence and was but an af-firmance of the judgment of the common pleas court, where no judgment was in fact entered of record; and that the defendants and their bondsmen have a good defense for the following reasons:

“(a) That the property was never attached; (b) that the affidavit calls for attachment but no order of attachment was issued but an order of delivery in its stead; (c) that the property was never taken under the order of delivery; (d) that the property, if attached or taken, was not worth over $25.”

The court was requested to make findings of law and fact, but refused to do so and overruled and denied, the motion to vacate the judgment. Appellants gave notice to opposing counsel on March 15, 1932, that the motion for a new trial would be presented on the 16th day of March, the court having adjourned. The motion was overruled, and an appeal granted.

It is urged that the court erred in not setting aside the default judgment on the ground of unavoidable casualty because defendants’ attorney, duly employed, failed to appear and represent them at the trial or notify them that he would not do so or had not done so. The motion to vacate or set aside the judgment, however, did not set up a meritorious defense so far as the original defendants were concerned, but only stated that they had such a defense and specified that the bondsmen were not liable because, the property was never attached, but an order of delivery was issued therefor, and that if the property was attached or taken it was not of the value of more than $25.

One seeking relief from a default judgment on the ground of unavoidable casualty preventing defense to the action, as here, must allege and show that he has a meritorious defense, it being held in some cases that such defense must not only be alleged but a prima facie showing of merit made in order that the court may determine whether he was injured by not being permitted to have benefit of it. Lambie v. Rawleigh and Co., 178 Ark. 1019, 14 S. W. (2d) 245; Smith v. Globe-Rutgers Fire Ins. Co., 174 Ark. 346, 295 S. W. 388; United Order of Good Samaritans v. Brooks, 168 Ark. 570, 270 S. W. 955: Minick v. Ramey, 168 Ark. 180, 269 S. W. 565; Supreme Lodge of Woodman of Union v. Johnson, 179 Ark. 589, 17 S. W. (2d) 323.

A mere allegation of having a meritorious defense is not a sufficient showing of such defense as would warrant or require the granting of the relief sought.

There was no abuse of discretion in .the court’s holding, and the judgment will be affirmed. It is so ordered.


author: Mehaeey, J.

text:
    Mid-Continent Petroleum Corporation v. Smith.
    4-2815
    Opinion delivered January 23, 1933.

      J. G. Denton, I. L. Lochewits and Dwight L. Savage, for appellant.

      John Mages, for appellee.
   Mehaeey, J.

On May 28,1931, the appellees were the owners of an automobile service station in Fayetteville, Arkansas, and executed in writing a lease called the “Private Service Station Lease,” for the period of from June 1, 1931, to June 1, 1934, and, on the same day the appellant executed to appellees a license called “Private Service Station License Agreement,” for the same period of time. It was provided in each of the instruments that the appellant might revoke the license upon giving 10 days’ notice, and mig’ht terminate the lease by giving a like notice and paying $5.

Some time about January 22, 1932, the appellant served notice upon appellees of the cancellation of the license. It did not undertake to cancel the lease. At the same time that it served notice of the cancellation of the license, it offered another contract too appellees, which they declined to accept.

In June, 1932, appellees filed this suit in the Washington 'Chancery- Court for the cancellation of both ’the lease and license. It alleged, among other things, that they were procured by fraud. Considerable evidence was taken on the question of whether the lease was procured by fraud,

The property on which the lease was given was the homestead of appellees, and consisted of a two-story building, a portion of the first floor being occupied by a grocery, which extended the entire length of the building, There is a garage, and in front of the office and store building is the filling station. Appellees live above, occupying the whole of the second floor, and their dwelling extended over the filling station and land described in the lease.

Appellees are husband and wife, and the lease was not acknowledged by either.

Section 5542 of Crawford & Moses’ Digest is as follows: “No conveyance, mortgage, or other instrument affecting the homestead of any married man shall be of any validity except for taxes, laborers’ and mechanics’ liens, and the purchase money, unless his wife joins in the execution of such instrument and acknowledges the same.”

The only question we find it necessary to determine is whether the lease was void because it was not acknowledged by the wife, and, that being true, it is unnecessary to set out the testimony with reference to fraud.

Our Constitution provides for homesteads, and the section we have above quoted provides that no instrument affecting the homestead shall be of any validity unless the wife acknowledges the instrument.

It is contended by appellant that it is unnecessary for the wife to sign and acknowledge a lease where it does not interfere with the comfortable use of the property as a homestead. It says that a leading case on the subject is Millikin v. Carmichael, 139 Ala. 226, 35 So. 706, 101 Am. St. Rep. 29.

The statute of Alabama, however, is somewhat different from ours. It provides that no mortgage, deed, or other conveyance of a homestead by a married man shall be valid without the voluntary signature and assent of the wife, etc. Our statute makes invalid any instrument affecting the homestead, but the court, in the case of Millikin v. Carmichael, supra, said: “The authorities are not uniform as to the right of the husband alone to lease the homestead premises, for this right has been both affirmed and denied. The most satisfactory rule would seem to be that the husband alone may lease the homestead lands for purposes not interfering with the use of the property as a homestead, hut cannot do so when the lease interferes with such possession and enjoyment of the premises by the wife.”

In that case the lease was to box and take from pine trees standing on the homestead gum or resin, and the court said that it did not deteriorate the value of the trees, diminish the value of the land, or otherwise impair its value as a homestead, but rather that its value was enhanced, and its use and occupancy as a homestead rendered more valuable.

Under statutes like the Alabama statute, it has been held, not only by the Alabama court, but by some other courts, that a lease like the one in the Alabama case, that in no way interfered with the occupancy of the homestead, did not require the signature and acknowledgment of the wife; but those cases all hold that, if it does in any way interfere with the use, occupancy and enjoyment of the homestead, the lease is void unless the wife signs and acknowledges same.

Taking gum and resin from pine trees in the forest would probably in no way affect the use or enjoyment of the homestead, whereas a stranger conducting a filling station right under the living rooms of the parties would certainly interfere with the occupancy and enjoyment of the homestead.

The same rule is announced in 15 A. & E. Enc. of Law, 674, and it is said in a note in the case of Mailhot v. Turner, 133 Am. St. Rep. 333, that a lease of the homestead property amounts to such an alienation as to render it void when executed by one of the spouses only, when it interferes with the possession and enjoyment of the premises as a homestead. If he may do so for a period of five years, as attempted in that case, he may continue to lease the premises for a longer period, and even for an indefinite period.

If the parties conld execute the lease in this case, they conld do it for an indefinite period. If appellants conld occupy the space in front of and under the floor where the parties were living without the wife’s consent and acknowledgment, then a valid lease could be given on any part of the building occupied as a homestead. We know of no court, however, that has ever held that this could he done.

In the case of Bacon v. Mirau, 148 Minn. 248, 180 N. W. 579, cited and relied on by appellant, the court said: “In this case the lease was of a business appendage, not a part of the residence, and the lease of it in no sense interfered with the family occupation, but added to the family income.”

Not only is our statute different from the statutes construed in the cases relied on by appellant, but this court has said, with reference to an oil and gas lease affecting the homestead: “In this connection it may be stated that under our statute no conveyance or other instrument affecting the homestead shall be of any validity except in certain enumerated cases, unless the wife joins in the execution of the instrument, and acknowledges it.” Miles v. Jerry, 158 Ark. 314, 250 S. W. 34.

Under our statute, no instrument affecting the homestead is valid unless the wife joins in the instrument and acknowledges the same, and this is true, although it might not interfere with the occupancy and enjoyment of the homestead.

In the last case referred to, the court was discussing a gas and oil lease, and held in that character of lease that the wife must join and acknowledge to make it valid.

Any instrument affecting the homestead must be acknowledged by the wife, and, if not, such instrument is void.

The decree of the chancery court is affirmed.


author: McHaNey, J.

text:
    Haynie v. Camden Gas Corporation.
    4-2807
    Opinion delivered January 23, 1933.

      Haynie, Parhs & Westfall and Gaughan,' Sifford, Godwin & Gaughan, for appellant.
   McHaNey, J.

This appeal is prosecuted from an order of the circuit court denying the petition of appellants for an attorney’s lien under § 628-, Crawford & Moses’ Digest. The petition was filed in a proceeding tried in the circuit court, wherein the Camden Gas Corporation was plaintiff and the city of Camden, the mayor, and members of the city council were defendants, in which plaintiff sought to enjoin the enforcement of a city ordinance lowering gas rates in said city to domestic consumers of gas. In that case the mayor, by authority of the council, employed appellants to represent the city and the domestic consumers of gas as attorneys in that litigation. The ordinance fixing the maximum rates to be charged domestic consumers was adopted April 1, 1929. The Camden Gas Corporation refused to accept the new rates fixed by said ordinance, and brought suit attacking its validity. An injunction was issued suspending the new rates, and a bond was given by the gas corporation guaranteeing a refund of the difference to domestic consumers between the old rates and the new, in the event it was finally determined the ordinance of April 1 was valid. The ordinance was sustained. See Camden Gas Corporation v. Camden, 184 Ark. 34, 41 S. W. (2d) 979. Tke result was tkat during tke pendency of tkat litigation tkere was a fund accumulated in tke kands of tke Camden G-as Corporation in tke sum of $17,819.17, for wkick amount judgment was rendered. Tke judgment reads: “Tkat tke defendant, city of Camden, Arkansas, do kave and recover of and from tke plaintiff tke sum of $17,819.17 for tke use and benefit of tke domestic consumers of gas witkin tke city of Camden, Arkansas.”

At a mass meeting of tke domestic consumers of gas, an agreement in writing was reacked between appellants, and nearly all tke domestic consumers, wkereby appellants were allowed a fee of 20 per cent, of tke money due tke consumers as a refund from tke gas company. However, tkis petition for a lien was filed. Tke Camden G-as Corporation is ready, willing and able to pay, but one consumer, for kimself and others, filed objection to tke claim of lien on tke ground tkat appellants kad no contract witk tke consumers, either express or implied, but their contract was witk tke city, and not for or on behalf of tke consumers; tkat, if tke city employed them on behalf of tke consumers, its act was ultra vires, null and void and not binding on tke consumers. It was admitted by tke intervener tkat appellants were employed by a large number of tke domestic consumers, but says said employment was a voluntary arrangement between them, wkick did not affect tke rights of those consumers who did not employ them. Tke court held appellants were not entitled to a lien on tke fund due interveners, and dismissed its petition.

Every act of tke mayor and members of tke council in tke defense of tke action to nullify tke ordinance, including tke employment of attorneys, was on tke behalf and for tke benefit of the domestic consumers of gas in tke city of Camden. Not a single cent of benefit did accrue or could kave accrued to tke city of Camden, as a corporation. If tke new rates fixed in tke ordinance of April 1, 1929, were sustained, all tke benefit therefrom would accrue to the domestic consumers. The bond given was for their benefit, and tbe final judgment rendered was one in favor of tbe city “for tbe use and benefit of tbe domestic consumers of g’as.” Tbe city employed counsel to defend an action, not for its benefit, but for tbe benefit of these consumers, with their knowledge, and, if not with their actual consent, with their implied consent. In other words, tbe action of tbe city was as tbe representative or agent of tbe consumers who stood by and, without objection' accepted tbe service and its beneficial result. Under such circumstances the law implies an agreement, or that tbe agreement made by tbe city in employing counsel bad been ratified. In either case tbe domestic consumers would be liable to pay counsel for their services a reasonable fee, and, if any should refuse to do so, tbe court should declare a lien on tbe fruits of tbe litigation. Compare Board of Education of Lonoke Comity v. Lonoke County, 181 Ark. 1046, 29 S. W. (2d) 268.

Tbe judgment will be- reversed, and tbe cause remanded with directions to declare a lien in appellant’s favor to tbe extent of 20 per cent, on tbe fund in tbe bands of tbe Camden G-as Corporation.


text:
    Massachusetts Protective Association v. Oden.
    4-2816
    Opinion delivered January 23, 1933.

      Frank L. Harrington and Cravens & Cravens, for appellant.

      Hill, Fitzhugh & Brizzolara, for appellee.
   McHaNey, J.

In June, 1922, appellant issued to ap-pellee its policy of accident and health insurance, by which it agreed to pay him $50 per week for total disability caused by sickness for a total period of 60 weeks. The application for the policy was taken in Fort Smith and forwarded to appellant at its home office in Massachusetts, where the policy was promptly issued. The application provided for a quarterly premium of $43.25 until he was fifty year's of age, and thereafter a quarterly premium of $45. This application was changed at the home office to show a quarterly premium up to fifty years of age of $46.25 and thereafter of $53.75, and the policy as issued contained or called for these amended amounts as quarterly premiums, and attached to the policy was a letter calling appellee’s attention to such changes. The policy, with letter attached was forwarded by appellant to its agent in Fort Smith for delivery to appellee. It was accepted by him, and the premium was paid according to such changed amounts, and has been continuously paid since that time. Also attached to the policy is what is called a “continuous disability rider,” which reads as follows: “If total disability resulting from disease and " arising thereunder prior to the insured’s sixtieth birthday continued beyond the sixty weeks described in clause 1 of the attached policy, the weekly indemnity provided for by clause A of said policy shall continue to be payable to the insured so long as he thereafter lives and is continuously totally disabled and necessarily confined within the house under the care of licensed physician. In all other respects the terms, provisions and conditions of said policy remain the same.”

More than sixty weeks prior to August 1,1931, appel-lee became totally disabled, being afflicted with heart trouble, known as myocarditis, for which appellant paid to him $50 per week for sixty weeks, which expired August 1, 1931, and thereafter it refused to pay under said “continuous disability rider,” although demanded so to do, because it claims appellee was not “necessarily confined within the house,” as provided in or within the meaning of said rider. Suit was thereafter brought to collect the accumulated benefits which had accrued under said policy, which resulted in a verdict and judgment in appellee’s favor with penalty and attorney’s fees.

Por a reversal, appellant first insists that the evidence is insufficient to entitle appellee to recover. It admits that he is totally disabled, was so during the sixty weeks for which it paid up to August 1,1931, and still is. But it says, in order for him to be entitled to recover under said rider for continuous disability, he must not only be totally disabled, but must be confined within the house as a necessary result of his sickness. In other words, it is contended that he was not “necessarily confined within the house.” This contention is based on the fact that appellee, under the advice of his physicians, took frequent short automobile rides, in favorable weather, for fresh air and sunshine; that he also, under the same advice, took a train trip to the seashore at Corpus Christi, Texas, for a change of climate and for the salt air; and that he made an automobile trip to Monticello, Arkansas, to spend Thanksgiving with relatives and friends. This evidence, of course, shows that he was not confined within the four walls of his house for every' minute of the day. But does it show such a break in confinement as to preclude a recovery as a matter of law? We do not think so, and we think the case is ruled on this point by the previous decisions of this court in Great Eastern Casualty Co. v. Robins, 111 Ark. 607, 164 S. W. 750, and Interstate Business Men’s Accident Association v. Sanderson, 144 Ark. 271, 222 S. W. 51. In the former case the clause under consideration was, “and shall necessarily and continuously confine him within the house”; while in the latter it was, “that the disease shall compel the insured to remain continuously and strictly within the bouse,” etc. In tbe former or Robins case tbe trial court instructed tbe jury that ‘ ‘ a continuous confinement within tbe meaning of this instruction does not mean that tbe plaintiff, in order to be entitled to this benefit, must have actually been confined within tbe walls of a bouse every minute or hour, ’ ’ and that ‘ ‘ tbe mere fact that be went out occasionally and at stated intervals for tbe purpose of taking exercise and fresh air, under tbe instructions of bis physician, would not be sufficient to prevent plaintiff from recovering in this action.” This instruction was approved by this court. A number of cases from other courts are cited to tbe same effect. In tbe course of its opinion, tbe court said: ‘ ‘ Tbe contract is couched in tbe language of tbe insurer, and it would be following too much tbe letter of it to say that temporary excursions from tbe bouse upon tbe advice of a physician for tbe purpose of treatment, take tbe case outside of tbe terms of tbe policy. That would be a very strained construction of tbe language of the policy, and would defeat its very purpose.” In tbe Sanderson case, supra, tbe court held that it was ruled by tbe Robins case and followed it on tbe construction of tbe language quoted. Tbe case now under consideration is not distinguishable from those. Tbe facts are quite similar, and tbe law is tbe same. Of course, as said in tbe Sanderson case, and as tbe court instructed tbe jury in this case, if tbe disease is such as to require tbe insured to remain out of tbe bouse, be could not recover, as tbe insurer has the right to dictate tbe terms upon which its risk is assumed. “But,” as said in tbe Sanderson case, u short trips away from tbe bouse for purposes necessary to bring beneficial results to the health of tbe insured does not take tbe case out of tbe operation of tbe language of tbe policy which requires confinement to tbe bouse.”

It is next insisted that tbe policy and rider constitute a Massachusetts contract, and that tbe courts of said State have placed a different construction on tbe language used than tbe foregoing, and bold under such circumstances there is no liability. The case, of Rocci v. Mass. Acc. Co., 222 Mass. 336, 110 N. E. 972, is cited. We will not here determine what the Supreme Court, of Massachusetts has decided in the premises, for we are convinced that, under the facts heretofore detailed, this is an Arkansas contract. The application was changed at the home office so as to increase the rates named therein; the policy was issued based upon the increased rates; it was sent to its local agent in Fort Smith for delivery to appellee; and it had to be accepted by him and at least the additional premium paid by, him in Fort Smith before any binding contract was made. It became a completed contract upon delivery, acceptance of the policy, and payment of the premium, all of which occurred in Arkansas. Therefore it was an Arkansas contract and governed by its laws. Scaife v. Bird, 39 Ark. 568; Cage v. Black, 97 Ark. 613, 134 S. W. 942; Garnet Carter Co. v. Carver, 132 Ark. 305, 200 S. W. 984; Connor v. Excess Ins. Co., 51 Fed. (2d) 626.

Complaint is also made of the action of the court in giving appellee’s instruction No. 3 and in refusing to give appellant’s requested instruction No. 4. What we have already said disposes of these assignments. No. 3 was similar to that given in the Eobins case, which was there approved, and No. 4 was properly refused.

Other assignments are argued, which we have carefully considered, and find them without merit. We think it unnecessary to discuss them, and to do so would unduly extend this opinion.

We find no error. Affirmed.


text:
    Wolff v. Alexander Film Company.
    4-2828
    Opinion delivered January 23, 1933.

      P. 8. Seamans, for appellant.

      A. R. Cooper, for appellee.
   McHaNey, J.

Appellee contracted in writing with, appellant for the rent of “a series of advertising films for a continuous period of twelve months from the date the first film is shipped,” to be screened in the Siegel Theatre of McG-ehee at a cost to appellant for screening of $10 per month. He also agreed to pay appellee for rent of the advertising films in installments of $15 per month, the first to be and was paid at the date of the contract, March 7, 1930; the second to be due and payable 30 days after the first shipment of service, and the others every 30 days thereafter, covering twelve months. The first shipment of film service was April 5, 1930, and the service was thereafter continued as per contract until said theatre was closed, about May 20,1930. Thereafter, on July 30, 1930, the theatre was reopened by Mr. Bara-del under the name of the Ritz Theatre. Shipments of film service was then continued to the Ritz Theatre, which screened the films under agreement between appellee and Baradel that a monthly charge of only $7.50 should be made to appellant. This new arrangement with the Ritz was brought to the attention of appellant by appellee, and he made no objection thereto. These shipments continued to September 20, 1930, when they were suspended by appellee because appellant had breached the contract by refusing to pay it the rental price of $15 per month. The contract provides that “the film company may, in case of delinquency in payments, suspend service until such payments are made.” Upon appellant’s refusal to proceed further under the contract, or to pay therefor, this suit was instituted for the recovery of $150, the balance due, appellant having paid the cash payment and one installment of $15. Trial before the court sitting as a jury resulted in a .judgment for appellee for the amount sued for with interest.

For a reversal of the judgment, it is first urged that the closing of the Siegel Theatre terminated the contract, and that the evidence fails to show it was thereafter revived. We think appellant is wrong in both contentions, but, assuming without deciding that the closing of the Siegel Theatre did terminate the contract, we are of the opinion that the evidence is sufficient to support the judgment of the court on the finding that it was thereafter revived. The evidence shows that, after the opening of the Ritz Theatre, appellee arranged with Mr. Baradel to screen the same film service for $7.50 per month, a cost to appellant of $2.50 per month less than was to have been paid to the Siegel, and that appellant was imm.fi-diately notified of such arrangement and made no objection thereto. The films were thereafter exhibited at the Ritz with his knowledge and without objection, and it is admitted that he made at least one payment to the Ritz. The proof further shows, viewed in the light most favorable to appellee, as we must do, that he promised appel-lee that he would pay, would mail his check in payment for the service under the contract. This conduct on appellant’s part is strong evidence of a waiver of the right to insist on a breach, and this court has many times so held. In Clear Creek Oil & Gas Co. v. Brunk, 160 Ark. 574, 255 S. W. 7, we said: “The principle is elemental that one party to a contract who, with knowledge of a breach by the other party, continues to accept benefits under the contract and suffers the other party to continue in performance thereof, waives the right to insist on a breach”- — citing cases. This principle applies here in bar of the rig’bt of appellant to insist on a breach when sued for the price of the service agreed to be rendered.

It is next urged that the court erred in rendering judgment for the full amount of rentals less payments, as that is not the correct measure of damages. That was not an issue in the court below. Appellant defended on the sole ground of a breach of the contract. The question of the measure of damages was raised in the motion for a new trial for the first time. Since it was not an issue in the court below, it cannot be considered here on appeal.

No error appearing, the judgment must be affirmed. It is so ordered.


text:
    Temple v. Tobias.
    4-2827
    Opinion delivered January 23, 1933.

      Bridges, McGcmghy i& Bridges, for appellant.

      Isaac McClellan and Wm. J. McClellan, for appellee.
   Mehaeey, J.

On March 4, 1932, John Temple filed snit in the Grant Circuit Court against T. 0. Tobias and Eva Tobias, alleging that he was the owner in fee simple and entitled to the immediate possession of certain described lands; that the defendants wilfully and without right were holding over said lands after the termination of the time for which they were demised to them, and wil-fully and unlawfully holding possession of said lands after written demand for delivery of possession; that the reasonable rental value of said lands is $100 per year; that the defendants have not paid any rental for the year 1931.

He prayed for a writ of unlawful detainer, for judgment for possession, for $100 rent, and costs.

Bond was filed on March 5, 1932, and on the same day the appellees entered into and filed a bond that they would perform the judgment of the court.

The appellees answered, denying each of the allegations of the plaintiff’s complaint, and alleging that the lands belonged to T. C. Tobias, and have belonged to him for many years, where he has lived in the peaceable possession of same, and is still in possession, and no one has ever claimed title or possession until this suit.

On April 18, appellant, B. T. Burkett, filed suit in the same court, alleging that he was the owner of the lands described in plaintiff’s complaint, and that the appellees had conveyed the land to John Temple on April 14,1926, and on April 3, 1931, Temple and -wife had conveyed the lands to Burkett. He also alleged that the defendants were in possession of the premises.

The appellees answered Burkett’s complaint, denying the allegations, and denying that they had conveyed the land to Temple. They further stated in the answer to Burkett’s'complaint that he gave to John Temple a mortgage, or what he understood was a mortgage, for an account due Temple for merchandise; that he had traded with Temple for many years, and had given him mortgages from year to year before this, and that Temple-represented to him that this was a mortgage; that, while he had traded with Temple for many years, he went to him in the spring of 1927, and Temple told him he would have to get furnished elsewhere; that he had kept the lands described and lived on them and cultivated them, and no one had ever claimed any rights or title to them until Temple’s suit was brought, and then Temple informed him that, instead of making a mortgage in 1926, he had made a deed; that it was not his intention to make a deed, and Temple had told him it was a mortgage; that Temple had died since he brought his suit, and that Bur-kett’s complaint alleged that he bought the lands from Temple a year before Temple’s death, and that the claim was fraudulent and void; that the deed mentioned was a mortgage, was intended to be a mortgage, and was so understood by him, and was so represented by Temple; that five years has run without any payments being made on said indebtedness, and that defendant pleads the statute of limitations of five years, and asks that said deed be held as a mortgage, and set aside and held for naught.

There was a prayer also that the ease of Burkett be consolidated and tried with the case of Temple, and both complaints be dismissed.

The case brought by Temple was, after his death, revived in the name of Susie B. Temple. Appellants filed motion to transfer to equity, which was overruled, and the parties announced ready for trial.

There was a verdict and judgment for defendants, and the case is here on appeal.

It will be seen from the pleadings that Temple deeded the place to Burkett on April 3, 1931. Temple’s suit was begun March 4,1932, not quite a year after the deed.

The undisputed evidence shows that Burkett purchased the lands while the appellees were in possession, occupying the place ás a homestead, as they had for many years.

S. M. Burkett, the father of appellant, testified that he boug’ht the lands in the fall of 1930 for his son; that Mr. Temple furnished him an abstract; that Temple dealt with witness as agent for his son, and that, after he got the abstract, he paid $100, and that his son gave five notes for the rest of the purchase money. He introduced the deed from Temple, which was a warranty deed, retaining a vendor’s lien for the payment of $430.16 unpaid purchase money; that the notes were afterward paid off. He testified that he knew nothing about Tobias claiming the lands; all he had was the abstract. He said Tobias told him that he signed a paper, but that he was signing for something to eat. This conversation was aftér the purchase by Burkett.

He further testified that both he and his son knew that Tobias was living on the land, but they went by the abstract. Tobias was notified as soon as bis son purchased tbe land. Tobias refused to give possession. He did not know that Temple owned tbe land until be saw tbe abstract. Tobias was in possession, but Temple told Burkett be bad rented it to Tobias.

It was agreed that Temple was dead, and that Ezell, who acknowledged tbe deed, is also dead.

It will be seen from tbe above evidence that Burkett knew at tbe time be purchased tbe lands that tbe appel-lees were in actual possession, and be therefore purchased with notice of appellees’ equities, and is bound thereby.

In a somewhat similar case, where there was a party in possession, a purchase was made-, although tbe purchaser did not have actual notice of tbe occupancy of tbe place, and this court said:

“She purchased without any actual notice of appel-lee’s occupancy, and appellee did not place a deed of record until after tbe sale to Mrs. Tbalbeimer. But she was informed by Smith that be bad previously sold forty acres to appellee, and when she purchased appellee was in actual, open and visible possession of eight acres of tbe land which Smith conveyed to her. Such possession was equivalent to actual notice of the title, rights or equities of the occupant.” Thalheimer v. Lockert, 76 Ark. 25, 88 S. W. 591.

Burkett, the purchaser, with appellees in possession of the lands purchased and holding adversely, acquired no greater title than Temple had. He was not an innocent purchaser. Crowley v. Neal, 152 Ark. 232, 238 S. W. 1054 ; Naill v. Kirby, 162 Ark. 140, 257 S. W. 735; Reed v. Ziff Lodge No. 119, Order of Masons, 175 Ark. 979, 1 S. W. (2d) 1000; Midland Savings & Loan Company v. Brooks, 177 Ark. 470, 6 S. W. (2d) 828.

Whatever rights Burkett acquired by his purchase depended upon the rights of Temple, and, if Temple did not have title to the property, Burkett did not have, because Tobias’ occupancy of the premises was notice to Burkett of whatever rights and equities Tobias had.

Appellants contend that the court should have given the peremptory instruction for possession of the property, or should, under the undisputed testimony, have declared a lien upon the property, and cites and relies on the case of Sturdivant v. McCorley, 83 Ark. 278, 103 S. W. 732. It is insisted that that case is conclusive of all the questions involved here.

That case was in chancery court, and the undisputed evidence showed that the son borrowed money from his father and gave him an absolute deed to the land, under an oral promise from his father that he would reconvey so soon as the money was paid. The court held that, as no time was fixed for the payment of the money, it was due on demand, and the statute of limitations began to run immediately; but it also held that the title to the land was in the grantee, and that he had a right to bring an action at law to recover the possession, and, as the deed was absolute in form without written defeasance, the defendant could not show the parol agreement to reconvey; and, as the defendant had not held the land adversely for more than seven years, the grantee or his heirs could recover possession, unless the defendant set up an equitable defense that the deed was in equity a mortgage. The court also held that when he did this he would be met by the equitable principle that he who asked equity must do equity, and that the court would interfere only on condition that the debt be treated as a valid lien on the land; that the statute of limitations as to mortgages did not apply to equitable mortgages, evidenced by absolute deeds without any written defeasance.

This court has repeatedly held that, when a deed, absolute in form, was given as security for debts, the statute of limitations as to mortgages does not apply, and that, when suit is brought for the possession of the land by the grantee, the grantor cannot sh,ow that the deed was intended and was in fact a mortgage to secure debt, and defeat the grantee’s action, by pleading the statute of limitations. In other words, he cannot defeat the action without paying the debt.

This doctrine seems to be supported by the weight of authority, but, so far as we have been able to discover, all the cases hold that this is because the grantee has title to the land.

In this case Temple brought suit claiming to be the owner of the land and entitled to possession and rent for the year 1931. He claimed that he was the owner and had title under the deed from Tobias and wife, dated April 14, 1926. He, however, deeded the land to Burkett on April 3, 1931, and the suit was not brought until March 4, 1932, nearly a year after he had conveyed the land to Burkett and been paid for it, and he had no title or interest in the land at all at the time he brought suit.

According to the undisputed testimony in this case, it was not the intention of the parties to take a deed absolute in form for the purpose of securing indebtedness, but that the deed'was acquired by Temple fraudulently, •and that he told Tobias at the time that it was a mortgage.

If there had been a deed for the purpose of securing a debt, and it had been the agreement and understanding that it was for this purpose, then the cases referred to by appellant would apply. But, if the evidence of appellees is true, this deed was procured by fraud, and was absolutely void. It is only where the parties agree to make a deed to secure a debt that it will constitute an equitable mortgage.

In the motion to transfer, made by the appellants, they did not claim that the instrument was a mortgage, but said that the answer in the consolidated cause stated grounds of defense cognizable only in equity, and that, in substance and effect the answer asked that the deed executed by defendants be reformed to read as a mortgage.

This was a suit in unlawful detainer for the possession of property and rent, and this court has many times held that a defendant may set up or plead all the defenses he may have, both legal and equitable. The defendant in this case alleged that he did not give a deed to Temple, that it was never intended that he give a deed, and that Temple himself said that it was a mortgage, and his prayer was that both complaints be dismissed and the title vested in him. That is, his contention was that the deed relied on by Temple was void, and this was a legal defense to plaintiff’s canse of action, a defense in a court of law, as well as in a court of equity.

If the evidence of appellee is true, Temple could not fraudulently procure a deed, and then, when the deed was held invalid, take advantage of his own wrong and have it declared a mortgage.

Appellant’s contention all the way through the lawsuit was that it was not a mortgage, but a deed. Certainly there was no equitable mortgage as is discussed in the case of Sturdivant v. McCorley, supra.

Under the pleadings in the case, it was not contended by appellants that Tobias owed anything, but it was contended that the property did not belong to him because he had conveyed it.

If there had been a mortgage, the right to foreclose would have been barred when the debt was barred.

Appellant calls attention to some other cases which are, in effect, the same as Sturdivant v. McCorley, supra, but in all of them that we have examined, they were discussing deeds intended as mortgages.

Temple could not have had any intention that the deed should be a mortgage, but he intended it as an absolute deed, and actually conveyed the lands to Burkett, nearly a year before the beginning of the suit, and, so far as the evidence shows, never at any time said any: thing to Tobias about conveying it.

Therefore, under the evidence, there can be no conclusion other than that Temple did not take this deed to secure a debt, but to acquire title to the lands.

Appellant requested the court to instruct the jury in effect that, if Tobias signed the instrument believing it to be a mortgage, its verdict would be for the defendant for possession of the land, subject to a lien of $1,477, with interest, to be enforced by appropriate orders of the court.

The court modified this instruction by adding- the following: “unless you further find that the statute of limitations has run against plaintiffs, Temple and Burkett, as defined in other instructions given in this case.”

It is contended that this modification by the court was error because it has no application under this type of mortgage. As we have already said, appellants contended that this was a deed conveying the land to them, not intended as a mortgage, and, according to appellees’ testimony and the finding of the jury, the deed was void, and was not an equitable mortgage.

Therefore the instruction requested by appellants was erroneous, and there was no error in the modification by the court.

The court, at the request of the defendants, gave the following instruction: “The jury is instructed that the plaintiff must recover upon the strength of his own title and not on the weakness of the title of the defendant, and if you believe from the evidence that the plaintiff has failed to establish a good title within himself, then he cannot recover in this action, and you should find for defendant.”

Appellants’ objection to this instruction was that the undisputed evidence established plaintiff’s muniments of title, and that the burden was on the defendants. But the court gave instruction No. 3 at the request of appellants, which was as follows: “If you find from'all the evidence that the deed made by the defendants to plaintiff in 1926 was intended as a mortgage -and the defendants signed it under that belief and understanding, then you will find the title to the lands in controversy in Tom Tobias, regardless of any amount that may be shown he owes plaintiff.”

There was no conflict between these instructions, and instruction No. 1, given at the request of appellees, is a correct statement of the law.

Appellants also objected to instruction No. 3, given at the request of the appellees, which told the jury that, if the deed was intended as a mortgage, and the defendants signed it under that belief and understanding, they would then find the title to the lands in controversy in Tobias, regardless of any amount that he might owe. This instruction, we think, is a correct statement of the law. If appellee- thought he was signing a mortgage, but, by reason of the false and fraudulent representations by Temple, he was induced to sign a deed instead of a mortgage, the deed would be void, and the appellants would not be entitled to recover.

Temple could not recover in this case in any event, "because the undisputed evidence shows that, even if the deed to him had been valid, he had conveyed the land and had no interest whatever in it.

Appellants also object to instruction No. 4, given at-the request of the appellees, because they say it tells the jury that defendants may recover if they held the lands adversely for more than five years after the deed. The instruction tells the jury, if it was executed as a mortgage, then the statute would begin to run from the date of the alleged deed. They object to the instruction also because they say it disregards their theory that the instrument was a mortgage given to secure a current account, and was not barred for that reason.

In the first place, that was not the theory of the appellants. Their theory was that it was not a mortgage; that it.was a deed, and that it was intended to be and was executed as a deed.

As to whether the deed was procured by fraud, and as to whether the debt was barred by the limitations, were questions of fact submitted to the jury at the request of both parties, and the jury’s verdict on these matters is conclusive.

We find no error, and the judgment is affirmed.