author: Hart, C. J.,

text:
    Berry v. Sale.
    Opinion delivered November 16, 1931.

      W. J. Dungcm, for appellant.

      Elmo Carl-Lee, for appellee.
   Hart, C. J.,

(after stating the facts). The Legislature of 1931 passed an act to provide for the organization and administration of the public schools. Acts of 1931, p. 476. Section 59 of the act gives the school districts authority to borrow money for certain purposes, and reads as follows:

“All school districts are authorized to borrow money and issue negotiable coupon bonds for the repayment thereof from school funds for building and equipment of school buildings, making additional repairs thereto, purchasing sites therefor, and for funding any indebtedness created for any purpose and outstanding at the time of the passage of this act as provided in this act. ’ ’

This court has uniformity held that, in the construction and interpretation of statutes, the intention of the Legislature is to be ascertained and given effect from the language of the act if that can be done. In doing this, each section is to be read in the light of every other section, and the object and purposes of the act are to be considered. Miller v. Yell & Pope Bridge District, 175 Ark. 314, 299 S. W. 15; and Berry v. Cousart Bayou Drainage District, 181 Ark. 974, 28 S. W. (2d) 1060. The reason is that statutes are written to be understood by the people to whom they apply, and their words and phrases are considered and used in their plain and ordinary, as distinguished from their technical, meaning, where the language is plain and unambiguous. In such cases it is said that, where the intention of the Legislature is clear from the words used, there is no room for construction, and no excuse for adding to or changing the meaning of the language employed.

The section of the act under construction was a part of the act passed by the last Legislature for the organization and administration of common public schools. The act contains 198 sections with an emergency declared, and there is nothing in any other section of the act which tends to show that the language used in § 59 was intended to be given any other than its ordinary and normal meaning. Under the express terms of the act, power is given to the school district to borrow money and issue negotiable coupon bonds for funding any indebtedness created for any purpose and outstanding at the time of the passage of the act, March 25, 1931. According to the allegations of the complaint, which are admitted by the demurrer, the outstanding indebtedness of the district at that date was $58,500. It is also alleged in the complaint that since that time the school district has paid the sum of $11,093:89 of this indebtedness by certain sums of money received from the tax collector and advanced by him to the district from the school taxes of said district, payable in 1931. Payment is a satisfaction of a debt and extinguishes the indebtedness. The section of the statute under consideration authorizes school districts to borrow money and issue bonds for funding any indebtedness outstanding at the time of the passage of the act, but does not contain any mandatory requirement for the issue of bonds for such purposes.

In the present case, the district might have issued bonds in the sum of $58,500, which represented the outstanding indebtedness of the district at the time of the passage of the act; but the district did not choose to do so. It paid the sum of $11,093.89, and this had the effect of extinguishing that much of the outstanding indebtedness. Consequently, the district would only have power and authority under the act to issue bonds for the remaining indebtedness, which was outstanding as of March 25,1931. If it had paid all of the indebtedness of the district out of the tax moneys due the district from the collection of tax money due the school district, it would not have had any authority to issue bonds at all. Having paid only a part of the outstanding indebtedness of the date of March 25, 1931, it has the power and authority to issue bonds in the principal sum of $58,500, lessened by the sum of $11,093.89, which has been paid since that date.

It is contended, however, that such construction of the statute is contrary to- the holding and reasoning of the court in Hagler v. Arkansas County, 176 Ark. 115, 2 S. W. (2d) 5, but we do not think so. In that case, the court had under consideration an act of the Legislature of 1927, which was enacted to provide for the relief of all of the counties in the State which had issued and sold bonds under the provisions of amendment No. 10 to the Constitution, and which had originally paid some of the indebtedness for which said bonds were sold out of the revenues of said counties. This act author-. ized each county to make an order allowing amounts which had been originally paid out of the general revenue fund as a charge ag’ainst the bond issue. This was held to be a relief against a mistake of fact which had occurred because it was first thought by the people of the State that amendment No. 8 became effective October 7, 1924, when, according to the holding of this court, it became effective on December 7, 1924. Amendment No. 10 gave the counties authority to issue bonds for funding their indebtedness which existed at the time of the adoption of the amendment. Consequently, the court said that a mistake of law and fact both had been made when the counties issued bonds to cover the outstanding indebtedness of October 7, 1924, instead of December 7th of that year. The Legislature of 1927 passed an act for the relief of these counties, and it was held that the indebtedness accruing between October 7th and December 7, 1924, might have also been included in the amount of the outstanding indebtedness at the time of the adoption of the amendment. Having been omitted from the bond issue by mistake, it was held that a supplementary bond issue might be made for the omitted part, or, in cases where payment had been ont of the general revenue, such payment would be considered made under a mistake of fact and treated accordingly.

No such issue is presented in the present case. As we have already seen, § 591 authorizes school districts to issue bonds for funding1 any indebtedness outstanding at the time of the passage of the act. No mistake has been made as to the time of the passage of the act, and bonds could be issued only for an indebtedness of the district at that time. If the whole or any part of the indebtedness has been paid, this would extinguish the debt in whole or as to the part paid, and no bonds could be issued to fund an indebtedness which had already been paid and thereby had become extinguished.

It follows that the decree will be reversed, and the cause will be remanded with directions to overrule the demurrer, and for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.


source: Caselaw Access Project

author: Hart, C. J.

license: Public Domain

text:
    Railway Express Agency, Inc., v. S. L. Robinson & Company.
    Opinion delivered November 16, 1931.

      A. M. Hartung and Warner $ Warmer, for appellant.

      D. H. Howell, for appellee.
   Hart, C. J.

Appellant, Railway Express Agency, Inc., prosecutes this appeal to reverse a judgment for $339.50, in favor of appellee, S. L. Robinson & Company, for damages sustained to an interstate shipment of strawberries.

In the original complaint, it is alleged that the negligence of the carrier consisted in failure to furnish the shipper with a properly constructed and equipped refrigerator car in which to ship the berries and the failure to properly ice it in transit. Counsel for appellees claim that they amended their complaint and relied solely on liability for loss by negligence of the carrier as at common law. Inasmuch as we have reached the conclusion that the carrier has- overcome the prima facie case made by the shipper, we shall treat the complaint as amended as contended for by appellees. ■

On May 11, 1929, appellees delivered to appellant at Roland, Oklahoma, a station on its railroad twelve miles from Van Burén, Arkansas, 457 crates of strawberries, consigned to themselves at Kansas City, Missouri. Two hundred and forty-seven crates of the berries were loaded in the car on May 10th, and 210 crates were loaded in the car on May 11th. On the 15th day of May, 1929, the shipper diverted the car from Kansas City to A. H. Welch, Chicago, Illinois.

According to the testimony of A. H. Welch, he was notified of the arrival of the car and inspected it on May 16, 1929. He did not make any written report of the inspection, but his recollection is that he inspected it on the team track of the railroad and found the berries in poor condition. Many of them were bruised, but he could not state what caused this.

The amount of damage to the shipment of berries was also proved by appellees. This proof made a prima fac,ie case in favor of the shipper against the carrier, and cast the burden upon it to show that damages did not result from any cause for which it was responsible by law or by contract.

The reason the burden of proof changes from the shipper to the carrier when the former has proved delivery in good condition to the carrier and failure to redeliver in good condition is, that during transit the goods are no longer subject to the shipper’s supervision or observation and are solely in the care of the carrier. The carrier has the better means, and frequently the only means, of showing whether there was any negligence in its handling of the berries. The employees of the carrier are with the goods during the whole time they are under its charge, both by day and by night. The rule is well settled and requires no further discussion. Galveston, Harrisburg & San Antonio Ry. Co. v. Wallace, 223 U. S. 481, 32 S. Ct. 205; St. L. I. M. & So. Ry. Co. v. Cunningham Commission Co., 125 Ark. 577, 188 S. W. 1177; Missouri Pac. Rd. Co. v. Bell, 163 Ark. 284, 259 S. W. 745; H. Rouw Co. v. St. L. S. F. Ry. Co., 172 Ark. 881, 290 S. W. 936; and C. R. I. & P. Ry. Co. v. Robinson & Co., 175 Ark. 35, 298 S. W. 873.

We are of the opinion that the prima facie ease so made by appellee, which raised a presumption of negligence against the carrier, was completely overcome by the evidence introduced by the latter. The evidence introduced by the carrier to overcome the prima facie case for negligence against it is very voluminous and cannot be set out in detail within the compass of this opinion. We have carefully considered it, however, and shall attempt to set out the substance of it.

The carrier did not content itself with introducing witnesses as to the general condition of the shipment of strawberries while in its hands, but introduced all persons employed by it who had part in the different transactions during transit. We do not mean that all the operatives of the train were introduced as witnesses, but we do mean that the carrier followed the shipment step by step from the place of shipment to the place of delivery. It was shown by competent evidence that a refrigerator car of the most approved type was furnished the shipper within which to carry the berries. The condition of the car and its material, both as to its equipment and construction, were detailed by the witnesses. It was shown that the carrier had a sufficient number of stations along’ the route for re-icing the car and that the car was properly inspected and well iced at all these stations. The evidence shows that the car of strawberries was in good condition at all these points. The car was diverted by the shipper from Kansas City, Missouri, to Chicago, Illinois. As soon as it arrived at its destination, the consignee was notified. An examination of the berries was made when they arrived at their destination, and they were found to be full ripe and watery. None of the crates were broken or damaged.

One inspector testified that the berries contained •brown rot which is a disease of berries known as botrytis. This exists from water-soaked berries, causing a dry and leathery rot. Botrytis in these berries originated from the berries getting water-soaked, forming a dry leathery rot. This resulted from the inherent nature and infirmities of the berries. Another inspector testified that brown rot, called botrytis, is an inherent field disease. The condition existed when the berries were loaded, although it might not then be visible. The berries could be infected with that disease and on inspection at the loading point be accepted as number one berries because the disease might not be sufficiently developed to be noticed. Leather rot is an advanced stage of the disease when the skin gets hard. It is an advanced stage of botrytis. The water-soaked condition of the berries indicated that they were handled shortly after a rain and encountered rain during the ripening period. This hastened maturity, but the berries could still be graded as number one at the loading point, since it would take time to show the effect o'f the disease. Too much water causes the calyx to get dark or black. Refrigeration in express cars would tend to retard ripening, but, if the berries are diseased, refrigeration will not stop the disease. If the berries are water-soaked, refrigeration will not remedy it. The inspectors expressed the opinion that the berries in question possessed the inherent disease at the time they were loaded in the oar.

The testimony of the witnesses for the appellant was reasonable and consistent in itself, and we think entirely overcame the presumption of negligence in favor of the shipper caused by proof that the berries were received in good condition at the point of shipment, and were in a decayed condition at the time of reaching their destination. In this connection it may be stated that the undisputed proof shows that the berries were handled according to schedule time of the train, and there was no delay in their transit. It is true that A. H. Welch, a witness for the shipper, testified that the berries were bruised when inspected by him at the place of destination in Chicago. He said that he did not know, however, what caused this; but the explanation given by the witnesses for the carrier explains it. On account of their diseased condition they became soft and watery, and this, in the very nature of things, would cause them to become bruised. According to the train operatives, at no point along the route was there any rough handling of the car of berries.

It follows that the court erred in not directing a verdict for appellant; and for this error the judgment must be reversed, and the cause will be remanded for a new trial.


author: Smith, J.

text:
    Thompson v. Taylor.
    Opinion delivered November 16, 1931.

      Willard Pendergrass and Evans d Evans, for appellant.

      W. B. Rhyne and Partain d Agee, for appellee.
   Smith, J.

In 1925 R. M. Thompson and L. P. Strobel formed a mercantile partnership under the name of Strobel-Thompson Dry Goods Company. The partnership continued until March, 1929, at which time it was dissolved by the retirement of Thompson. Strohel had been in active charge of the business, and from time to time borrowed various sums of money from the American Bank & Trust Company, of Paris, Arkansas. The loans were evidenced by notes executed by 'Strohel in the name of the partnership. Strobel’s authority to borrow this money and execute the notes is not questioned.

At the time of the dissolution of the partnership the bank held two notes of the firm. Strobel continued in business and continued to use the original partnership name. When the notes held by the bank at the time of the dissolution matured, they were not paid but were renewed by Strobel, who signed the renewal notes in the name of the partnership as the original notes had been signed. The renewal notes were signed November 14,1929.

At the time of the execution of these renewal notes the bank was advised that Thompson was no longer a member of the partnership which had been dissolved, and it is an undisputed fact, and was well known to the bank that, while Strobel had continued to use the name-under which the partnership business had been operated, he was the sole owner of the business. Shortly after the execution of the renewal notes Strobel became a bankrupt, and later the bank became insolvent and was taken over by the State Banking Department. Suit was brought by the bank commissioner on the renewal notes against Thompson, and from a judgment in the bank commissioner’s favor is this appeal.

It was contended by Thompson at the trial below that the dissolution was discussed with the cashier of the •bank, and that it was agreed on behalf of the bank that Strobel would take over the assets of the firm and assume its liabilities, and that Thompson should be discharg*ed from any and all partnership liability, so far as the bank was interested. This agreement was denied by the cashier of the bank.

The court submitted Thompson’s defense to the jury under an instruction which told the jury that, if the bank accepted the defendant Strobel’® individual assumption of the firm’s indebtedness to the bank, with knowledge of the dissolution of the firm, it thereby released defendant' Thompson from liability for said indebtedness.

In other instructions the court charged the jury that the burden was upon Thompson to show his release, and we think this was error under the facts of this case.

It may be conceded that, if Thompson had not been released by the bank from his liability to it, he would still be liable for the original debt which the renewal notes evidenced. However, he was not sued upon the original debt but upon the renewal notes. It is an undisputed fact that the partnership had been dissolved, and that for a period of eight months thereafter Strobel was engaged, not in winding* up and settling the partnership affairs, but in carrying on the business in which the partnership had been engaged as sole owner thereof. In the meantime Strobel continued to be a customer of and depositor with the bank, whose officers knew that, while Strobel had continued to use the firm name, he had become the sole owner of the business, and that the partnership had ceased to exist. The notes sued on were executed in the name under which the partnership had operated, but this was the name under which Strobel transacted all other business with the bank after the dissolution. It was the name under which Strobel carried his individual account with the bank. In this name Strobel had deposited and had checked out of the bank more than twenty thousand dollars.

Of course, Thompson’s retirement from the partnership did not discharge his liability to the bank for the partnership debts due at the time of the dissolution, unless it was agreed by the bank that it would thereafter hold Strobel only liable. But this question of fact was submitted to the jury, and the verdict of the jury would •be conclusive of the question of liability, but for the error in placing the burden of proof upon the defendant Thompson.

Prima facie Thompson appears to have been discharged by the execution of the individual note of Strobel and by the subsequent transactions between Strobel and the bank, and we think the burden was upon the bank to show that this was not true, and that the original liability of Thompson as a member of the dissolved firm subsisted and continued, and for the error indicated the judgment will be reversed, and the cause remanded.

•Certain questions are raised on this appeal as to errors occurring at the trial, but, as they are not likely to recur on the retrial of the cause, we do not discuss them.


text:
    Little Rock Granite Company v. Ross.
    Opinion delivered November 16, 1931.

      J. 8. Utley and Wm. T. Hammock, for appellant.

      Henry G. Riegler, for appellee.
   Smith, J.

Appellants brought this suit to recover damages to compensate a trespass alleged to have been committed by appellees in the removal of a small house and the digging up of a driveway on lot 58 of Stewart’s Subdivision to the city of Little Bock. The house, a small building about twelve feet square, was torn down and the driveway was dug up for the purpose of clearing up a small lot which the defendants claim to own.

Plaintiffs ’ ownership of lot 58 is not denied, and the question in the case is one of fact whether the house and driveway were on lot 58.

Plaintiffs acquired title to lot 58 from J. M. Stewart, trustee, who had the subdivision bearing his name surveyed and platted and the map thereof recorded.

The portion of Stewart’s land out of which lot 58 was carved has as its western boundary line the east boundary line of the north half of the northwest quarter of the southwest quarter of section 33, township 1 north, range 12 west. Adjacent to lot 58, and lying between it and the right-of-way of the Bock Island Bailroad, is a small triangular lot 19 feet wide at its base and 57 feet in length and containing .’22 of an acre. The plaintiffs do not claim to own this triangle. It is the property of the defendants, and the question in the case is the location of the line between lot 58 and this triangle. Defendants deny that the property damaged was on lot 58.

Two surveys of the line between lot 58 and the triangular lot were made, one being referred to as the Conway survey, the other as the Martin survey. In addition to the plats of these two surveys, the plat of the entire Stewart addition was offered in evidence, and the witnesses testified with reference to one or the other of these maps. The testimony is difficult to understand with the plats before us, and without them it would be almost impossible to make the testimony intelligible.

We shall not therefore set this testimony out, and it will suffice to say that, according to one survey, the property damaged was on lot 58, whereas it was not on that lot according to the other survey.

The cause was heard by the court sitting as a jury by consent, and certain findings of fact and declarations of law were made, upon which there was a judgment in favor of the defendants, and this appeal is therefrom.

It is practically conceded, and such is the fact, that the testimony is legally sufficient to support a finding either way upon the disputed question of fact. This being true, the finding of the court is as conclusive as the verdict of a jury would be, and we would not be required or permitted to pass upon the question of the preponderance of the testimony, and we do not do so.

It is insisted, however, that the judgment in favor of the defendants is contrary to and inconsistent with the special findings of fact made by the court as to the correct location of the dividing line between the two lots. If this be true, the judgment of the court must be reversed, for the statute which provides that, “When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly” (§ 1304, Crawford & Moses’ Digest), applies to a finding of fact made by the trial court as well as to the verdict of a jury. Gebhart v. Merchant, 84 Ark. 359, 105 S. W. 1034. But we do not concur in the view that the court’s special finding is in conflict with the judgment.

The essence of the plaintiffs’ case was presented in a finding numbered six, which the court refused to make. This finding was to the effect that the plaintiffs were the owners of all that part of lot 58 lying east of the west boundary line of the north half of 'the northeast quarter of the southwest quarter of § 33, and that the defendants, through their agents and servants, entered upon said lot and tore down the building and dug up the driveway. The plaintiffs’ right to recover was dependent upon the establishment of the facts which the plaintiffs requested the court to find. The court was not asked by the defendants to make any special findings, but the refusal to make this special and essential finding necessarily indicated a finding to the contrary, as the controlling point in the case was the establishment of these facts.

As the judgment of the court is based upon testimony legally sufficient to sustain it, we must affirm it, even though in our opinion the judgment was contrary to the preponderance of the testimony. The judgment must therefore be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Ford v. Ferguson & Son.
    Opinion delivered November 16, 1931.

      8am Levine, for appellant.

      Rowell iS Alexander and Hendrix Rowell, for appellee.
   Humphreys, J.

This is an appeal from a summary judgment rendered in the chancery court of Jefferson County on a bond executed by appellant as surety and John W. Gibson as principal to enjoin an exeéution sale of equities of the said John W. Gibson in certain lands in said county and growing crops thereon until November 1, 1930. The judgment under which the execution had been levied was obtained in the circuit court of said county by appellees, C. M. Ferguson & Son, against John W. Gibson on the 12th day of April, 1929, for $1,920.50. Its validity was not attacked in the suit to enjoin it. The chancery court prohibited the appellees herein from enforcing, the judgment until November 1, 1930, on condition that John W. Gibson would execute a bond with good and sufficient security in conformity with the requirements of § 5806 of Crawford & Moses ’ Digest, which is as follows:

“Where the injunction is to stay proceedings upon a judgment or final order, the bond will be to the effect that the party obtaining the injunction will satisfy the judgment or order, or so much of it as is enjoined, to the extent to which the injunction may be dissolved; and that he will also satisfy any modified judgment or order that may be rendered or made in lieu of it, or so much of it as exceeds the amount left unenjoined. In other oases, unless otherwise directed by the court or judge, the bond shall be to the effect that the party giving it will pay to the party enjoined such damages as he may sustain, if it is finally decided that the injunction ought not to have been granted.”

In compliance with the order, Gibson and his surety, the appellant herein, executed the following bond:

“We undertake and are bound to the defendants herein that the plaintiff, John W. Gibson, will satisfy the judgment against him in favor of the said C. M. Ferguson & Son involved herein, or so much thereof as is enjoined by the court in this action, to the extent to which said injunction may be dissolved, and that the said John W. Gibson will also satisfy any modified judgment or order that may be rendered or made in lieu of said judgment, or so much of said judgment as exceeds the amount left uhenjoined.
“John W. Gibson,
“Jim G. Ford.”

On the 19th day of March, 1931, the court, upon motion of appellee, C. M. Ferguson & Son, entered the summary judgment appealed from against the principal and surety in the bond for the total sum of $2,141.43.

•Appellant contends for a reversal of the decree on the ground that the court was without authority to render a summary judgment against the principal and surety in the bond until the injunction had been dissolved by order of court. Neither the language of the statute under which the bond was given nor the bond admits of such construction without reading into one or the other or both the words “by the court” after the word “dissolved.” The bond is in the nature of a stay bond for a money judgment. The court is of the opinion that the final order of injunction issued on May 14, 1930, was automatically dissolved by failure to pay the judgment on or before November 1, 1930, and that it was within the inherent power of the chancery court as well as within its statutory power (§ 5822 of Crawford & Moses’ Digest) to render a summary judgment upon the bond.

No error appearing, the decree is affirmed.


text:
    Boehmer v. Short.
    Opinion delivered November 16, 1931.

      Pryor $ Pryor, for appellant.

      Roy Gecm, for appellee.
   Humphreys, J.

This is an appeal from a judgment for $1,300 obtained by appellee against appellant in the circuit court of Sebastian County, Fort Smith District, for injuries to her automobile and herself, resulting from the negligence of an employee of appellant in driving their service car into appellee’s car. The driver was a negro regularly employed by appellant to wash cars and drive a service ear. The ears were moving in the same direction on the highway between Fort Smith and Van Burén, and, just before reaching the free bridge, the negro overtook and ran into the rear end of appellee’s car and injured both the car and appellee. The negro abandoned appellant’s car and absconded before the officers arrived oh the scene. There was a chain in the service car which was used to attach the service car to wrecked cars and haul them in. The appellee used this chain in attaching her car to the car of the two young men who pulled her home. A single barrel shotgun was in the back end of the service car. There was a negro in the service car who stated that the driver had picked him up to accompany him on a hunting trip.' The collision occurred at about two-thirty o ’clock p. m. Christmas day. The next morning, Gfus Boehmer, who was the senior member of the firm, in response to a ’phone call from appellee, came to appellee’s home to see her car. According to the testimony of appellee and her witnesses, he admitted that the negro was their regular employee and made no denial that he was working for them. After examining her car, he admitted that she was not at fault, and said that he could not understand how it happened as the negro was a careful, dependable employee, and, before leaving, offered to repair her oar as he was personally interested. Boehmer denied making the statement, saying that the substance of what he said was that he would investigate the matter, and, if he became convinced that they were liable, he would repair the car. Subsequently, Boehmer refused to fix the car.

H. A. Slack, one of appellee’s witnesses, who corroborated her statement as to what was said in the conversation, later testified that Boehmer said the negro was in the habit of carrying his car keys and driving it when he wanted to. C. M. Short, the father of appellee, testified that he talked to Boehmer afterwards, and Boehmer made the statement to him that the negro Avas their employee, and that they would pay the damage. Boehmer denied making such a statement.

Appellee also testified that she called appellant’s garage the day after the. accident and inquired for the negro driver; that she was answered by a son of Boehmer, who stated that he was not there; that he had an accident Christmas day and had not been seen since.

Appellant and his witnesses testified that they left the service car the negro was driving in the garage when they closed their, business Christmas eve; that the garage doors were locked and remained in that condition until they opened them the morning* of the 26th for business; that there were no evidences of the garage having been broken into, and that they could not account for him having the car as none of them had given him permission to take it or directed him to go anywhere for them; that no one except Boehmer, his son, and the foreman, had keys to the garage.

Over the objection and exception of appellant, the cause was submitted to the jury upon the issuemf whether the driver, at the time of the injury, was acting within the scope of his employment and in furtherance of appellant’s business, notwithstanding appellant’s request for a directed verdict.

The sole question therefore involved on this appeal is one of agency, and appellant contends that the undisputed testimony shows that the negro driver was not appellant’s agent, but, on the contrary, had unlawfully obtained possession of the car without the consent or knowledge of appellant, and, at the time of the injury, was on a hunting trip with another negro. If the undisputed proof reflected that the negro had stolen the car out of the garage and was using it for his own purposes and was not in pursuit of his employer’s business, appellant would have been entitled to an instructed verdict. Appellee, however, made a prima facie case of liability against appellant when she showed that she was negligently injured by a regular employee of appellant, who was driving a service car belonging to appellant, properly equipped to haul in wrecked cars. Mullins v. Ritchie, 183 Ark. 218, 35 S. W. (2d) 1010; Casteel v. Yantis-Harper Tire Co., 183 Ark. 475, 36 S. W. (2d) 406. It was ruled in both cases, however, that the prima facie case established by such proof might be overcome by testimony to the contrary, saying that, where the evidence on that point was contradictory, the question became one for the jury.

We think the testimony adduced by appellant to the effect that at the time of the injury the negro driver was not engaged in the service of appellant was contradicted by the statements made by Boehmer the next day, if believed by the jury, and also was contradicted by the unreasonable statement made by appellant that the negro got the car out of the garage without their knowledge and consent. The jury might have disbelieved their unreasonable explanation and reasonably concluded that they had sent him to haul in a wrecked car. There were no evidences that the negro had broken into the garage. He had no key, and the only way he could have obtained it was from one of the three who had keys.

The facts in the instant case bring it within the principles announced in the Mullins and Casteel cases, supra.

No error appearing, the judgment is affirmed.


author: Mehaffy, J.

text:
    Tri-County Highway Improvement District v. Taylor.
    Opinion delivered November 16, 1931.

      Horace Sloan, for appellant.

      Lamb Adams, for appellee.
   Mehaffy, J.

The appellee filed in the chancery court of Craighead County the following complaint:

“Comes the above-named plaintiff and, complaining of the above-named defendant, for his cause of action stsitos *
“(1) That plaintiff, Walter E. Taylor, is State Bank Commissioner of Arkansas, and as such is in charge of the liquidation of the American Trust Company, insolvent, said bank having been closed and turned over its assets to the State Bank Commissioner on November 1, 1930.
“ (2) In the capacity aforesaid, the said plaintiff is the owner and is in possession of the following described lands located in the western district of Craighead County, Arkansas, to-wit:
“South half of the southwest quarter of section seventeen (17), southwest quarter of the northwest quarter section seventeen (17), southeast quarter of the northeast quarter of section eighteen (18), north half of the northeast quarter of section nineteen (19), except ten acres for railroad right-of-way.
“(3) The defendant, Tri-County Highway Improvement District, was created by act No. 186- of the year 1919, (Vol. 1, Boad Acts, 1919, p. 510) which said act was amended by act 61, approved at the special session of the Legislature, February 5, 1920 and by act 680, 1921, p. 414, the said Tri-County Highway Improvement District was dissolved, subject to the liquidation of all its debts.
“(4) • After considerable litigation, claims of creditors were established against the said district and taxes were extended against the lands in said district. Suit was finally filed for delinquent taxes, and, on May 18, 1925, this court rendered decree foreclosing lien of said delinquent taxes, and ordering delinquent lands sold. That, among the lands located in the district and so ordered sold, are lands above described by an adequate description, the void description being as follows: ‘Pt. NW NE (30a) 19-15-3.’
“The court designated a special commissioner for the purpose of making said sale, and said sale was had on May 21, 1927, at which sale all delinquent lands were struck off and sold to the defendant, and at the August, 1927, term of this court the commissioner made his report of sale, which was duly confirmed, and executed a commissioner’s deed, purporting to convey title to the said lands to the defendant.
“(5) The Forty-seventh General Assembly of the State of Arkansas, by act No. 153, approved March 20, 1929 (Acts 1929, p. 785), provided that the said highway commission should ascertain as soon as possible the amount of- valid outstanding indebtedness against any road district in this State and pay same, and, after considerable litigation in the courts, said act was sustained by the Supreme Court of Arkansas and all indebtedness of the Tri-County Highway Improvement District was paid and discharged in full. That it was the purpose and intent of said act of the Legislature to relieve the taxpayers and property owners in road improvement districts of this State, and, when all of the indebtedness of the Tri-County Highway Improvement District became paid in full, it was the purpose and intent and necessary effect of said act and payment thereunder that all claims of road improvement districts against the delinquent lands in said district should be terminated and at an end, and that the owner of said property should hold the same free from any claim on the part of said improvement district.
“(6) The Tri-County Highway Improvement District embraces lands in three counties, viz: Craighead, Poinsett and Greene; that the number of delinquent tracts of land in said district from which a redemption has never been effected are as follows: Craighead County, approximately 800 tracts; Poinsett County, approximately 580 tracts; Greene County, approximately 300 tracts.
“That the lands situated in Craighead and Poinsett counties have been conveyed to the district. By far the majority in number of said tracts of land are wild and unimproved, and, in addition to having these delinquent Tri-County Highway Improvement District taxes thereon, there are delinquent drainage and State and county taxes. In the greater number of instances such wild lands are not worth the total of the delinquent general, highway and drainage taxes now due against the same. Large areas of said delinquent lands consist of wild, flat, post-oak lands underladen with hardpan and of slight fertility, and in most instances the wild lands have been cut over with the result that the timber growing thereon is at present of very slight value.
“The Tri-County Highway Improvement District taxes were originally payable in the years 1921 and 1922, and same have been paid on most lands which are actually being farmed and of real agricultural value. There is no possibility that any appreciable percentage of said delinquent taxes can ever be collected in view of the small value of the delinquent tracts affected as compared with the total tax burden thereon. That there are practically no sales whatever between private parties of wild unimproved lands. The Tri-County Highway Improvement District has no bonds outstanding, and the taxes above levied by it were imposed solely for the purpose of paying off and discharging the preliminary expenses of said district, the unpaid balance of which, as above set out, was paid by the State Highway Department in full.
“(7) By reason of the matters and things stated aforesaid, this plaintiff should be held to own the lands above described free from any claim by the said TriCounty Highway Improvement District, and therefore asks that his title to the lands be quieted and confirmed in him, and that commissioner’s deed to the defendant hereinabove described be set aside, canceled, and held for nanght as a cloud upon this- plaintiff’s title, and for all other proper relief.”

The appellant entered its appearance and filed a demurrer on the ground that the complaint did not state facts sufficient to constitute a cause of action.

The court overruled the demurrer, and appellant stood upon its demurrer. The court rendered final decree setting aside the deed to the lands to the Tri-County Highway Improvement District as being a cloud upon the title. The appellant excepted, prayed an appeal to the Supreme Court, which was granted, and the case is here on appeal.

The Tri-County Highway Improvement District was created by an act of the Legislature of 1919. The land involved in this controversy was sold for delinquent assessments and purchased by the district:

The act Creating the district and the act amending the act creating the district were both repealed. The repealing act in. 1921 authorized and impowered the commissioners to wind up and liquidate all the affairs of said district. In 1927 the Legislature passed an act, the first section of which reads as follows: “It is hereby declared to be the policy of the State to take over, construct, repair, maintain and control all the public roads in the State comprising State highways as herein de-r fined.” Act 11 of the Acts of 1927.

The Legislature in 1929 passed act 153, reciting that there was an extensive amount of indebtedness against road improvement districts, and that no provision was made for the payment of these obligations by act 11 of 1927, and this act, No. 153, provided that the highway commissioner should ascertain the outstanding indebtedness of road districts organized prior to 1927 and pay such indebtedness.

It is the contention of the appellant that the donation made to pay the indebtedness of road districts was a donation to the district as such, and not merely to one class of property owners, namely, delinquent property owners.

The only thing, therefore, for us to determine is what was the intention of the Legislature in passing the act for the payment of the indebtedness of road districts.

Appellant states that there are three possible views to take of the effect of payment by the State. One is that when the indebtedness of the district was all paid, that the State became subrogated to the claims of creditors, and that the proceeds of collections, less the cost of collecting, should be paid to the State and credited to the highway fund. However, both the appellant and the appellee argue that this could not have been the intention, and that the State could not be subrogated to the claims of the creditors. That the State was a volunteer in the payment of these claims cannot be controverted.

It would therefore not be entitled to subrogation. N. Y. Life Ins. Co. v. Nichol, 170 Ark. 791, 281 S. W. 21; Grable v. Blackwood, 180 Ark. 311, 22 S. W. (2d) 41. We think it therefore clear that it was not the intention of the Legislature that the land in controversy should belong to the State, or that the proceeds from the sale of the land should belong to the State.

It is contended, however, by the appellant, that the act was intended for the relief of all the landowners in the district, or the district as a whole, and that the payment of delinquent taxes should be enforced and the collections divided among all the property owners in the district, so that the payment would inure to the benefit of all owners alike.

Appellant argues that, as evidenced by the title of the act, the Legislature intended that the donation was for the benefit of all the landowners in the district, or of the district as a whole, the title of the act being “An act in aid of road districts in the State of Arkansas.” However, the act does not provide for the refunding of any money to taxpayers who have already paid their taxes, but expressly provides for the payment of outstanding indebtedness.

It is a matter of common knowledge that many landowners in improvement districts all over the State of Arkansas were unable to pay their assessments, and, unless aided by the State, would lose their land, and it was, we think, the intention of the Legislature in passing the act to pay the debts and relieve these persons who had been unable to pay.

It would be manifestly unjust to sell these lands, deprive the owners of them, and distribute the proceeds among all the taxpayers in the district, because the money with which these debts were paid was received from taxes collected from, all the people in the State; therefore, if the land could be sold and the proceeds distributed at all, it should be distributed to all the taxpayers in the State, which would be impractical, and the cost of distributing the funds would exceed the amount for which the lands would sell. Evidently the Legislature did not intend this.

The act creating the improvement district has been repealed, the district abolished, and the road taken over by the State. We must presume that the Legislature, in passing the statute, acted with a full knowledge of all these facts, and we must also presume that the Legislature did not intend any absurd or impractical consequences.

The Legislature knew the conditions of the country, knew that much of the land in many improvement districts were being sold to pay the taxes, and knew that many landowners were unable to pay, and, unless they received aid from the State, they would lose their lands.

“ Every statute must be construed with reference to the object intended to be accomplished by it. In order to ascertain this object, it is proper to consider the occasion and necessity of its enactment, the defects or evils in the former law, and the remedy provided by the new one, and the statute should be given that construction which is best calculated to advance its object by suppressing the mischief and securing the benefits intended. For the purpose of determining the meaning, although not the validity, of a statute, recourse may be had to considerations of public policy and to the established policy of the Legislature as disclosed by a general course of legislation.” 36 Cyc. 1110.

We think when the statute is considered as a whole, taking into consideration the object intended to be accomplished, which was manifestly to relieve persons unable to pay their taxes, and delinquent landowners as well as debts of the district, it shows the intention of the Legislature to relieve the delinquent landowners.

The decree is affirmed.


author: Mehaeey, J.

text:
    Moore v. State.
    Opinion delivered November 16, 1931.

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

Appellant was convicted in the Sebastian Circuit Court of murder in the first degree and sentenced to life imprisonment in the penitentiary. The indictment charged that he killed J. A. Thompson. The killing was on the 28th day of October, 1930, and on the 31st day of October, 1930, the grand jury returned the indictment against him for murder. On the 3d of Novernher tbe appellant was arraigned, and, being without money or means for procuring counsel, the court appointed Joseph "W. Prather to represent him. The court then set the case for trial on November 17th.

On November 7th appellant filed motion for continuance, stating that he was unable to employ counsel, and that the counsel appointed by the court did not have sufficient time to prepare his defense, and that two weeks was an insufficient and unreasonable length of time; that he had a defense, and that there were witnesses he could produce if given time; that the sanity of the defendant would be an issue, and that the appellant, by reason of his condition of mind, was unable to properly assist his attorneys; that the witnesses could not be procured and appellant be ready for trial on the 17th; that there was great public excitement in the minds of the people, and there was great prejudice against appellant, and that he had reason to apprehend that, -because of the condition of the public mind, a jury could not be had that would be free to render justice; that the public excitement was such as to influence the jury and prevent his getting a fair and impartial trial.

On November 17th, appellant filed another motion for a continuance, setting up substantially the same grounds. Both motions for continuance were by the court overruled, and exceptions saved.

Appellant then was required to go to trial on the 17th, and on the 18th the jury returned a verdict of guilty of murder in the first degree and fixed his punishment at life imprisonment.

On November 20th, the appellant was given five days in which to prepare and file a motion for new trial. Motion for new trial was filed on the 22d of November; said motion was overruled, exceptions saved, and 55 days given in which to file bill of exceptions. The case is here on appeal.

Several witnesses testified that the appellant shot and killed J. A. Thompson, and appellant himself testified that he fired three shots, and that he was neither crazy nor drunk; that lie was on his way to surrender to the sheriff when apprehended.

We deem it unnecessary to set out the testimony of the witnesses about the killing, there being no dispute about the fact that appellant shot and killed Thompson.

Thompson and his brother, Wayne Thompson, were both killed by appellant, and a number of witnesses testified that he was going to kill another brother. The appellant married the mother of the Thompsons about twenty years ago, and for a short time some of the boys lived with appellant and their mother.

Appellant testified that the Thompson boys had been trying to put him out of the home where he lived with their mother; that they were indebted to him, and would not pay him; that they finally succeeded in driving him from home, and he left the State and was gone about a year. When he returned, he testified that he attempted to get a settlement but failed. He said that on the day of the killing he went by Louis Thompson’s store, and, finding him out, went by the store where Wayne and Aubrey Thompson worked; that, as he entered the store, he told them he had come for a settlement, and Aubrey said that he was going to call an officer and have him arrested; that he only fired three shots, and that Aubrey Thompson was shot during the scuffle for the possession of the g*un. He said he did not think, he had done any great wrong. .

There was considerable evidence as to the sanity or insanity of appellant.

The first ground for appellant’s motion for new trial was that the court erred in refusing to grant appellant’s continuance on the grounds that two weeks was insufficient time for him to properly make his defense, and the second ground alleged in his motion for new trial was that the court erred in not granting his motion for continuance on the grounds of public excitement and prejudice.

The statute provides that the court, upon sufficient cause shown by either party, may direct the trial to be postponed to another day in the same term or another term. ■

However, sufficient cause must be shown beforé the court would have a right to postpone the trial. The motions for continuance were verified, but no evidence was taken, and no showing made other than the statement in the motions themselves, either that two weeks was insufficient time or that there was any great excitement. The motion did not contain the names of any witnesses, nor did it contain a statement or statements what the witnesses would testify to.

This court has repeatedly held that the granting or refusing a motion for continuance is addressed to the sound discretion of the trial court. Thompson v. State, 26 Ark. 323; Jackson v. State, 54 Ark. 243, 15 S. W. 607; Price v. State, 57 Ark. 165, 20 S. W. 1091; Sullivan v. State, 109 Ark. 407; Cox v. Jonesboro, 112 Ark. 96; Morris v. State, 102 Ark. 513, 160 S. W. 239; Franklin v. State, 85 Ark. 534, 164 S. W. 767; Rucker v. State, 77 Ark. 23, 90 S. W. 151.

There is no abuse of discretion of the trial court shown. It was not shown that witnesses were wanted, whether they were present in court at the time, where they resided, or what they would testify to, and there was no abuse of discretion in overruling the motions. Holmes v. State, 144 Ark. 617, 224 S. W. 394; Gooch v. State, 150 Ark. 268, 234 S. W. 33; Mason v. State, 152 Ark. 36, 237 S. W. 435; King v. State, 177 Ark. 812, 7 S. W. (2d) 987.

There was no error committed by the court in overruling appellant’s motions for continuance. The granting or refusing motions for continuance is not cause for reversal unless it appears that the trial court abused its discretion. •

It is next contended that the court erred in refusing to allow counsel for defendant to read to Dr. Foltz the statement of the Supreme Court in the case of Bell v. State, 120 Ark. 530, 180 S. W. 186, as to a paranoid condition, and to state whether said statement agreed with his opinion of a paranoid condition.' Appellant also contends that the court erred in refusing to permit him to read a treatise on paranoid from Wharton & Stille on Medical Jurisprudence.

In the first place, the record shows that counsel for appellant was permitted to read from the case of Bell v. State, but the counsel asked permission to prove by Dr. Foltz that, in his opinion, the statement was a correct statement of paranoiac condition. The court said that the doctor could state his opinion as an expert, based on the testimony in the case, and then appellant’s counsel asked to introduce in evidence a statement from Wharton & Stille on Medical Jurisprudence, and the record is silent as to whether there was any objection to this evidence. Dr. Foltz was a witness for the appellant, and appellant was permitted by the court to ask any questions tending to show whether appellant was sane or insane.

The extracts from the medical and law books were not competent, and the court did not err in refusing to permit appellant to introduce them.

“It is very generally recognized that extracts from medical books are not admissible in evidence, and for the very sufficient reason that the author does not write under the sanctity of an oath and has not been subjected to a cross-examination, and the decisions of this State are to the effect that statements from these books may not be presented as such in the arguments of counsel or introduced by the means of questions put on cross-examination as by reading an opposing opinion from text books, and asking the witness if it is or is not true; for this would have the effect of putting the statement in evidence and thus accomplishing by indirection what,is forbidden.” State v. Summers, 92 S. E. 328.

The correct rule is that an attorney may use a medical book to aid him in framing questions to be asked of a physician testifying as an expert, but it is not permissible to read from such books to the jury. Brown v. Springfield Traction Co., 141 Mo. App. 382, 125 S. W. 236; State v. Brunette, 28 N. D. 539, 150 N. W. 271; State v. Blackburn, 136 Iowa 743, 114 N. W. 531; Underhill’s Criminal Evidence, § 191.

The witness, Dr. Foltz, pnt on the stand by the appellant, and was on direct examination. On cross-examination of an expert witness, where he bases his opinion on a text book, he may be cross-examined, and for the purpose of impeaching him, extracts from the authorities may be read; but it is never proper to introduce the books, or extracts from- them, except on cross-examination.

The appellant objected generally to giving each of the instructions given by the court on behalf of the State. They were, however, the usual instructions, and we do not find any error in the court’s charge.

Appellant, also, in his motion for a new trial, contends that the -court erred in refusing to give each of 15 instructions requested by appellant. The record, however, does not show that the appellant requested the court to give any instructions.

The chief defense relied on by the appellant was insanity. 'Several witnesses testified, and their testimony was in conflict. As to whether appellant was or was not insane was a question of fact properly submitted to the jury, and the evidence is ample to sustain the verdict.

The judgment is affirmed.


author: McHaney, J.

text:
    Langston v. State.
    Opinion delivered November 16, 1931.

      Jackson do Blackford, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   McHaney, J.

Appellant was convicted upon a charge of the unlawful sale of intoxicating liquor and sentenced to one year in the penitentiary. To reverse the judgment of conviction against him, he prosecutes this appeal upon the single assignment of error that the prosecuting attorney made certain prejudicial remarks in his closing argument to the jury. Appellant did not testify in his own behalf, and he offered no evidence by any other witness. A witness for the State, 'Burley Tyler, testified that he and two others went to appellant’s place of business, and that he and one of the others went into the store and purchased two pints of liquor. This evidence was not disputed in any way, and in his closing argument the prosecuting attorney said: “The fact that Burley Tyler bought the liquor from the defendant has not been denied, and his testimony stands unimpeached.”

The above statement was objected to on the ground that it was a comment on the fact that appellant had not testified, and the court was asked to instruct the jury not to consider the statement and to reprimand the counsel for making same, which the court refused to do. Another statement made by the prosecuting attorney over appellant’s objections and exceptions is the following: “Gentlemen of the jury, the cold facts in this case are that Burley Tyler went into this man’s place of business, and that the defendant called him off into the kitchen and sold and delivered to him two pints of liquor, as charged in the indictment, for two dollars, and I want to call your attention to the further fact, gentlemen, that this testimony is undisputed, undenied and unimpeached.”

At the conclusion of the argument the court gave the jury an instruction as follows: “Gentlemen of the jury, you are instructed that the remark made bv the prosecuting attorney, during his argument of the case to the jury, that the testimony of Burley Tyler was undisputed, uncontradicted and undenied b'y any testimony, that is, as to his purchase of the liquor alleged to have been purchased, is not to be considered by you as a comment on the fact that the defendant did not testify, and yon' are now further instructed that the fact that the defendant has not testified in this case should not be considered as a circumstance against him, or a circumstance of his guilt.

“In arriving at your verdict in this case, you will consider only the testimony as you have heard it from the witness stand, and the statements made by either party not borne out by the records should, not be considered by you. You will base your verdict on the testimony given by the witnesses and the law as given by the court. ’ ’

We think this case is ruled by the decisions of this court in Markham v. State, 147 Ark. 509, 233 S. W. 676; Davis v. State, 174 Ark. 892, 298 S. W. 359; Ferrell v. State, 177 Ark. 742, 9 S. W. (2d) 15, even, though the court hadn’t given the above-mentioned instruction. The giving of that instruction removed whatever prejudicial effect the remarks of counsel may have had, conceding that they were prejudicial. Greathouse v. State, 166 Ark. 206, 265 S. W. 950.

Affirmed.


author: Butler, J.

text:
    American Bank & Trust Company v. First National Bank of Paris.
    Opinion delivered November 16, 1931.

      Rhyne $ Shaw and Hays <$> Smallwood, for appellant.

      Evans Evans, for appellee bank.

      Leora Blair, pro se.

   Butler, J.

The appellee bank filed an action in the chancery court of Logan County for judgment against Thomas B. Harris on a note executed by Harris to the bank, and for foreclosure of a mortgage given to secure the same and executed and filed for record on December '24, 1926. Appellee bank alleged among other things that appellant bank and trust company was claiming some interest in the property secured by the mortgage, and asked that it be made a party to the action. The bank and trust company answered, alleging that Harris was indebted to it for a balance on a note of $9,644 to secure which he had executed a mortgage in favor of the bank and trust company, which mortgage included the property named in the mortgage from Harris to the appellee bank, as well as certain other property located in the town of Paris. This mortgage was executed and filed for record on February 9, 1925. The bank and trust company made its answer a cross-complaint against the appellee bank, and Harris, and asked for judgment for the balance claimed, and that its mortgage be declared prior and paramount to that of the appellee bank, and prayed for foreclosure.

Thereafter, the appellee, Leora Blair, having obtained permission of the court, filed an intervention by which she claimed that on December 4, 1925, Harris and wife were indebted to T. C. Blair, the debt being evidenced by a note and mortgage executed to the said Blair by which it conveyed certain town lots in the city of Paris included in the mortgage executed on March 9, 1925, to appellant bank and trust company. She alleged that this note and mortgage had been assigned to her, and asked that her rights be adjudicated, alleging further, as also did the appellee bank in-its reply to the cross-complaint of the appellant bank and trust company, that the note given by Harris to said bank and trust company had been paid, and that the cross-complaint should be dismissed.

After having heard the evidence on the issues raised by the above pleadings, the chancellor found in favor of the appellees, and that the indebtedness secured by the mortgage set up in the cross-complaint of the bank and trust company had been paid, and that the lien of said mortgage had been satisfied. The court dismissed the cross-complaint as to its asserted rights under the mortgage for want of equity.

It was established by the evidence that in 1923 Harris borrowed $2,500 from the appellee bank and gave his note to evidence the transaction with Lewis C. Sadler as security thereon, executing to Sadler a mortgage on a small farm near Paris to secure Sadler from loss and to protect and save him on any renewals of the note, provided that, if Harris should pay the money borrowed when due, the mortgage should be void, etc. This note was extended from time to time in consideration of payments of interest made and indorsed thereon; the due date of the original note being January 2, 1924. This note and mortgage remaining unpaid, the note sued on by appellee bank was given in renewal on the 24th of December, 1926, and a new mortgage including the same property was executed by Harris to the appellee bank direct, but the original note and mortgage given to Sadler were not canceled or satisfied.

In the beginning of the year 1925, Thomas B. Harris, a brother-in-law, W. M. Quaile, and Guy O’Kelly purchased a mercantile business located in the city of Paris, and Harris applied to appellant for a loan of $9,000 with which to pay for his third interest in the business purchased. This loan was approved, the interest to the amount of $600 was included in the note which was executed on March 9, 1925, for the sum of $9,600, to secure which Harris executed the mortgage set out in the appellant’s cross-complaint. At that time the mortgage from Harris to Sadler and the debt secured thereby were still subsisting, of which fact the cashier of the appellant bank who handled the transaction had actual notice. The mortgage required by appellant included the mercantile business for which the money was borrowed, several town lots in the city of Paris, and also the small farm which had been mortgaged to Sadler as aforesaid.

Leora Blair, the appellee, loaned Harris, through her brother, T. C. Blair, $1,600; to secure which the note and the mortgage on some town lots was given as set up in her intervention.

A number of questions are presented by counsel in their respective briefs which will be unnecessary to consider, for in our view of the case a decision of only two questions is necessary to a determination of the issues.

It was shown by the evidence that Harris, prior to the date of purchase of the third interest in the mercantile business, was indebted to appellant bank on a note for which he was surety in the sum of $1,053.33, and two other smaller notes amounting to about $126. From February 9, 1925, down to, and including, August 16, 1926, he made a number of small notes, discounting others which he owned and which, not being paid, were charged back to his account. All these amounted to about $4,500. At and during the time of the purchase by Harris of the one-third interest in the mercantile business, he seems also to have been engaged in the insurance business, but in the year 1925 his health became bad, and he had to go to a hospital on several occasions and so concluded to sell his interest in the mercantile business. He induced his father-in-law, Mr. Quaile, to buy it, who, on March 9, 1926, in payment of the same, executed a note payable to appellant bank in the sum of $9,7i89.74, which note he afterwards paid.

It is the contention of the appellees that the transaction last referred to was a payment of the $9,600 note made by Harris to appellant and secured by mortgage. Appellant contends first that the $9,600 note was not paid, but that when Quaile executed his note for $9,-789.74, there was no direction given as to what debt the proceeds should be applied, and therefore appellant had the right, and did, make application first to the payment of the small notes, crediting the residue on the $9,600, leaving a substantial amount of that note unpaid. Second, appellant contends that, even though the $9,600 note was paid, the mortgage given by Harris on February 9, 1925, was security not only for that note but also for all indebtedness incurred by Harris from its date to the time due, and that therefore its mortgage still subsisted, and it was entitled to have its mortgage declared paramount to the mortgages of the appellee, and to foreclosure in satisfaction of that indebtedness.

Reed, the cashier, testified in positive terms that Harris not only did not direct that the $9,G00‘ note was to be paid, but expressly agreed that the payment made by Quaile was to be applied, first, to the “small notes and get them out of the way, and apply the balance to that covered by this mortgage ’ ’; that the understanding was that he was to take up “all of his little stuff and leave one note — get that all out of the way and apply the balance to the one big note which was covered by the mortgage.” This testimony was contradicted by the testimony of Harris and of Mr. Quaile and by the attendant circumstances. Harris repeatedly stated during the nine times he was examined and cross-examined by the attorneys that he never at any time had any specific agreement or made any specific direction as to what should be done with the proceeds of Mr. Quaile’s note, but that it was understood “between me, Mr. Quaile, Mr. O’Kelly and Mr. Reed that Mr. Quaile was taking up my interest in the business. So far as to Mr. Reed applying it, where he applied it, I don’t know. I didn’t give him authority to apply it anywhere else. I didn’t specify him to apply it anywhere. ’ ’

Quaile testified that, after he had agreed to buy Tom Harris’ interest in the store, he told Mr. Reed that he wanted to pay Tom Harris’ note; that Reed figured up the amount of the note with the accrued interest and accepted the note of Quaile for that amount (which note Quaile afterward paid); that “he (Reed) figured it up, and I gave my note, and I said, ‘You take my note and relieve Tom.’ He said: ‘All right, I will do that’,” and the circumstance that the note taken from Quaile was for the exact amount of Harris’ $9,600 note strongly corroborates the contention of Harris and Quaile, especially as Reed admitted that when he made the loan to Harris it was for the purpose of enabling him to buy in the business ; and that he knew what the money was first borrowed for and knew what Mr. Quaile was paying the money for —“to take up that indebtedness.”

The chancellor resolved the conflict in favor of the appellees, which finding we are not inclined to disturb, for, as we view the testimony, there was in fact a general understanding between Reed, Harris and Quaile that the proceeds of the latter’s note were to be used only for one purpose, namely, to pay the $9,600 note, and no specific direction was required.

Reed testified that it was the understanding that the indebtedness incurred by Harris after February, 1925, and after the execution of the mortgage to appellant was to be included in the mortgage security, and stated that he advanced those amounts to Harris on account of the mortgage, and that he would not have advanced the same if he had not had the mortgage. This testimony was given in answer to questions propounded by his attorney which were suggestive of the answers, but other parts of his testimony indicated that he did not consider any of the small notes included within the mortgage, for, in. speaking of the application he made of the money from Quaile, he said that he took up the little notes and applied the balance “on the one big note covered by the mortgage”; and later on in his testimony he uses practically the same expression, and before that, in testifying as to the alleged agreement made with Harris as to the application, he stated that they would take up the small notes and apply the balance on the note “covered by the mortgage.” At the time of the execution of the mortgage Harris was already indebted on one note in excess of 1,000 and two smaller notes, and it is likely that, had it been the intention to include any other amounts than the $9,600 note in the mortgage security, these notes would have been included.

It is argued that the intention is shown because Harris did not specifically deny the statement made by Reed. Throughout his entire testimony it is apparent Harris thought the only note secured was the $9,600. So, as between the parties, it is doubtful whether there was any such intention as claimed by Reed, but whatever might have been the intention, this could not affect third parties to the transaction for as to them the intention must have been shown by the plain terms of the mortgage itself.

One may execute a valid mortgage to secure a debt to be contracted in the future (Jarrett v. McDaniel, 32 Ark. 598; Fort v. Black, 50 Ark. 256, 7 S. W. 131) but, in order to do so, there must be an unequivocal agreement in the instrument itself that it is given for debts to be incurred in the future. Martin v. Holbrooks, 55 Ark. 569, 18 S. W. 1046; Greeson v. German Nat. Bank, 78 Ark. 141, 95 S. W. 439.

“The effect of our cases is that a mortgage to secure future advances * # # is valid, but, if such purpose is intended to be accomplished, that fact must clearly appear from the instrument, and such purpose will not be presumed where the instrument does not contain a general description of the indebtedness secured so as to put one who examines it on notice that, this was its purpose in order that such person may pursue the inquiry which such knowledge would suggest.” Word v. Cole, 122 Ark. 457, 183 S. W. 757; Patterson v. Ogle, 152 Ark. 395, 238 S. W. 598.

The circumstances attendant upon the execution of the mortgage and the nature of the transaction subsequent thereto are always matters of consideration in determining the effect of the mortgage, and, as these circumstances and the language of the instruments vary “each ease (as said in Patterson v. Ogles, supra) on this subject calls for an interpretation of the language of the mortgage so as to determine whether the description falls within the rule announced above.”

As we have seen, the primary purpose of the execution of the mortgage to the appellant was to secure a note given by the mortgagor for money loaned for the purchase of an interest in a mercantile business. The mortgage in express terms secured only Harris’ note for $9,600, the amount of the- purchase price. The language of the mortgage which appellant interprets as security for debts incurred by Harris after the execution of the mortgage is found in its defeasance clause: “Now, if the said T. B. Harris and Susanna Harris shall pay said money at the time and in the manner aforesaid, together with renewals, extensions or advances, then the above conveyance shall be null and void.”

This court, in Thompson v. Reaves, 170 Ark. 409, 279 S. W. 1011, under the particular facts of that case, held, as between the parties, that the future advances might be secured by reference to such only in the defeasance clause, but its language was essentially different from that of the mortgage in the instant case, the condition being that if the mortgagor should “pay said note or any renewals thereof at the time same fall due and all other indebtedness above provided for, then this deed is to be void.” The mortgagee in that case conducted a general mercantile business, the mortgagor was a farmer, and it appears that- the advances made were for such as would be ordinarily made by a merchant to a farmer, and were clearly referable to the specific obligations.

Appellant has cited the case of Jones v. Dowell, 176 Ark. 986, 4 S. W. (2d) 949, as authority for its contention that the defeasance clause in the mortgage was sufficient to cover future advances, but in that case the court said: “But whether it included the advances or not appears to be immaterial in this case.” In order for future advances to come within the terms of the mortgage, that purpose must be unequivocally stated, and, unless the' nature of such are otherwise clearly defined, they must bear some relation to the subject-matter for which the primary debt is incurred and which the mortgage is given to secure. Whitener & Lark v. Beebe, 12 Ark. 581; Briggs v. Steele, 91 Ark. 412-3, 121 S. W. 754; Martin v. Holbrook; Gleason v. German Nat. Bank; and Word v. Cole, supra; Berger v. Fuller, 180 Ark. 372, 21 S. W. (2d) 419.

In the case at bar the primary debt was incurred for the purchase price of a third interest in a mercantile business, and the debts subsequently contracted are not shown to have had any relation to the conduct of that business. Some of the subsequent' indebtedness seem to have been notes which Harris had taken in payment of insurance premiums, discounting same at the bank, which were not paid when due and were accordingly charged back to his account. The other notes were personal notes of Harris, and had no apparent connection with the mercantile business.

Where one contracts in good faith with a debtor that the security given should include not only that specifically mentioned in the mortgage but other indebtedness, whether existing then or to be incurred in the future, it is not difficult to describe the nature and character thereof, so that both the debtor and third parties may be fully advised as to the extent of the mortgage. Sound policy demands no less. Especially is this true where the terms of the mortgage are sought to be extended by means of the language of the defeasance clause, which is usually at the end of the mortgage and, in the prepared forms commonly in use, is in small type wliich escapes all but tbe closest scrutiny.

In tbe instant case tbe language is equivocal, and, applying to it tbe rules announced, we are of tbe opinion that it did not include witbin tbe security any indebtedness owing by Harris to tbe appellant except that specifically mentioned, and, since tbe chancellor found that tbis bad been paid, tbe mortgage lien was by that fact discharged. It follows that tbe decree of the trial court is correct, and must therefore be affirmed. It is. so ordered.


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    Arkansas Power & Light Company v. Beauchamp.
    Opinion delivered November 16, 1931.

      Robinson, House $ Moses, for appellant.

      H. B. Means and John L. McClellam, for appellee.
   Butler, J.

The appellant, Arkansas Power & Light Company, built a water power dam, called the Remmel Dam, across the Ouachita River in Hot Spring County, about midway between the towns of Hot Springs and Malvern, by which a reservoir known as Lake Catherine was created covering an area of approximately 3,000 acres. Later, the appellant began the construction of another dam about twelve miles above the Remmel Dam, and at the upper head of Lake Catherine, the construction of which was nearing completion in the fall of 1930. The appellees owned and operated some small farms lying adjacent to the Ouachita River, about ten to fourteen miles below the Remmel Dam. On October 7, 1930, a part of these farms were overflowed, and the matured crops of corn then standing thereon were destroyed.

The appellees brought suit against the appellant company to recover damages for the destruction of the crops on the ground that the same was occasioned by the negligent operation of the flood gates of the Remmel Dam, by which a volume of water was suddenly released from the reservoir above into the stream below in such quantity as to cause the overflow7 and damage. The appellant company denied the allegations of negligence, and contended that the damage to appellees’ crops was not the result of any negligent act on the part of its servants, but was occasioned by an unusually large quantity of rain which suddenly fell during October 5th, 6th and 7th, in the watershed of the Ouachita River above the lands of the appellees, and that the overflow was the result of the high flood stage of the river due to natural causes, and not in any manner to the operation of the dam.

At the trial of the issues a verdict was rendered in favor of the appellees. In presenting the case here on appeal it is conceded that the court’s declarations of law were correct except as to instruction No. 4% given at the request of the appellees, and the giving of that instruction is assigned as error,

The principal question raised and argued by the appellant, however, is the sufficiency of the evidence, the contention being that there was no competent evidence of a substantial nature to support the verdict.

The Remmel Dam was so constructed as to impound the waters of the Ouachita River and raise them to a certain height and then permit the ordinary flow of the river to pass on over the dam to the river below. The dam was constructed with 12 openings, each 27% feet wide and 18 feet deep, called flood gates, which were closed by means of a door let down from above. These floodgates were for the purpose of letting the excess water through in times of flood and were supposed to be large enough to permit the maximum floods of the river to pass through. The doors or gates were so arranged that they might be raised to any desired height at the will of the person in charge of the dam. The testimony of the witnesses for the appellant tended to prove that the floodgates were properly operated at the time of the flood, and that no more water was allowed to pass than the existing natural flowage, and that the quantity of water passing and the resultant overflow of appellees’ lands were occasioned solely by unusual and excessive rains. Indeed, there is evidence that the construction and operation of the dams as shown by the records on the occasion of the overflow, instead of causing the overflow, had the effect of lessening its extent as the dams impounded the water and controlled its flow so as to lessen the volume of water which would otherwise have covered the lands of the appellees. It would serve no useful purpose to detail this evidence, for, as we have seen, it is sufficient to have warranted a verdict for the appellant, if it had been accepted as true by the jury.

Since this testimony was not accepted by the jury, it becomes important to review such circumstances as appear in the evidence tending to contradict that testimony and to refute the contention made by the appellant. It is well settled that the verdict must not rest on mere conjecture or speculation, but on some substantial testimony tending to establish the negligence alleged or proof of some other related facts from which the negligence might reasonably be inferred, but, where there is some substantial testimony, the verdict of the jury may not be set aside by this court, although.it may appear against the preponderance of the evidence. It may be conceded that there is no direct evidence contradicting the testimony of the witnesses for the appellant regarding the operation of the floodgates of the Remmel Dam. Such contradiction, if any, must appear from proof of circumstances. The jury has found by its verdict that such circumstances existed, and that from these the reasonable inference arose that the appellant was negligent, and that this negligence was the proximate cause of the damage to the lands of the appellees.

The circumstances which the testimony tended to establish are as follows: Prior to October 5th there had been a severe and protracted drouth, and the water of the Ouachita River, with its affluents, was extremely low. In the vicinity of the Remmel Dam and in the territory drained by the Ouachita River above the same, a heavy rain begun falling on the afternoon of October 5th, continuing without intermission through the 6th and until the morning of the 7th. The heaviest precipitation was between the midnights of the 5th and 6th, 4.03 inches, and from midnight of the 6th until about eight o’clock of the morning of the 7th, 3.49 inches. The employees at the Remmel Dam had means by which they could communicate with the weather bureau and thus obtain information of the rainfall and the volume of water likely to come down the river. There is no testimony that the employees of defendant company availed themselves of this means of information, although the assistant engineer of the Phoenix Utility Company (a corporation not connected with appellant company) in charge of the work at the Carpenter Dam on the morning of the 7th did call by telephone at hourly intervals and obtained information relating to the rainfall and the rise of the river above the dam. At this time the waters had already begun to pile up against the Carpenter Bam and were rapidly rising. From seven o’clock on October 6th till seven o’clock on the morning of the 7th it rose 11% feet and at noon of that day it had risen 31.7 feet above the stage shown at seven o ’clock on the day previous. There was no evidence offered from which it could be known at what time the reservoir began to rise, but it was shown to have been rising from 1:00 o ’clock a. m., on the 7th to 5 :50 a. m. on that morning. At that hour the floodgates of the Remmel Dam were begun to be opened at intervals of about fifteen to twenty minutes apart so that at eight o’clock seven floodgates had been raised to a height of ten feet and one to a height of six feet. At 8:45 a. m. the gates began to be gradually closed, this operation continuing until 8:00 p. m. At about six o’clock on the morning of the 7th of October the river below the Remmel Dam and opposite the lands of the appellees was about 26 inches above low water mark. At eight o’clock it had risen to 12 feet, between nine and ten o’clock it was 16 feet, and at noon it had reached its highest point of about 19 feet. The water which came down the river that morning was as clear as spring water. Before this, from a low water stage, it had always taken from 24 to 36 hours for the water to rise sufficiently to flood the lands of the appellees. These circumstances warranted the inference that the water came from Lake Catherine, and that the floodgates had been opened negligently, thus precipitating within a few hours the water which before had flowed more slowly down stream. Fad the appellant kept informed of the amount of water falling and the stage of the river, and gradually lowered the level of Lake Catherine, the reservoir might have held the floodwaters, but appellant neglected to take any precautions until the morning of the 7th and the jury were justified in the conclusion that the appellant then opened the floodgates more than was necessary and to such an extent that the flood resulted,

The appellant argues that the fact that the water was clear would have no probative force, but it is well known that water when confined in a lake become clear by reason of the sediment being deposited, and that when flood-waters, loaded with silt, are poured into such a reservoir they push the clear water before them, and this clear water will first flow out. This is evidently what happened in this case.

Instruction No. 4y2 is as follows: “The court instructs the jury that while negligence cannot be inferred merely from the happening of the' injury, but the court instructs you that negligence may be inferred from the facts shown and detailed in the testimony introduced in the case.”

The appellant specifically objected to the giving of this instruction, and now insists that it erroneously applied the doctrine of res ipsa loquitur when such doctrine was not involved, and, further, that it amounted in effect to a peremptory instruction for the plaintiff because its language amounted to a judicial interpretation that there were sufficient facts already introduced in the case from which negligence would be inferred, and that the only prerogative of the jury would be to determine the amount of the damage.

Such interpretation is not justified by a fair analysis of the language used in the instruction. Nowhere are any words used which in their ordinary meaning can be construed to mean that the proof of the happening of the injury made out a prima facie case of negligence. This is the doctrine of res ipsa loquitur. The language used could not have been so construed by the jury, especially when in every instruction given the burden of proof is cast upon the plaintiff and more especially so by instruction No. 6y2 given at the instance of the defendant, in which it is emphasized that the plaintiffs are “required by law to establish all of the material allegations of their complaint on which they claim damages by a preponderance of the evidence before they can recover,” and “* * * if the evidence is evenly balanced so that the jury are in donbt and nnable to say on which side is the preponderance * * * then # * * your verdict should be for the defendant.” It is elementary law that any fact at issue may be proved by circumstantial evidence, and this, we think, is all that the instruction complained of, as reasonably interpreted, undertook to say.

Finding no error, the judgment is affirmed.