text:
    Wilson v. Land.
    Opinion delivered November 10, 1924.
    1. Elections — right to contest primary election. — The right to contest a primary election is purely statutory, and the Legislature may confer it upon such terms as it sees fit.
    2. Elections — time for contesting nomination. — Under Crawford & Moses’ Dig., § 3772, a candidate’s contest of a nomination, filed more than 10 days after the county central committee had canvassed and tabulated the votes and determined the nominee, but within 10 days after vote was certified, held too late.

      Appeal from Jefferson Circuit Court; T. G. Parham, Judge;
    affirmed.
    statement of facts.
    H. C. Wilson instituted this action in the circuit court against Mrs. L. K. Land to contest her right to the nomination for the office of county treasurer at the primary election held by the Democratic Party on August 12 1924.
    Mrs. L. K. Land, H. C. Wilson and C. H. Moore were candidates for the nomination for county treasurer at the primary election held in Jefferson County, Arkansas, on Tuesday, August 12, 1924.
    The members of the county central committee of Jefferson County met at noon on Friday, the 15th day of August, 1924, and canvassed the returns filed with said committee. The returns were canvassed, and a tabulation of them made by the county central committee on the same day. The tabulated returns show that in the race for county treasurer Mrs. L. K. Land received 2,232, H. C. Wilson 1,849, and C. H. Moore 997 votes. A certificate, signed by every member of the county central committee, was attached to the tabulation of the returns made by said committee on the 15th day of August, 1924. The tabulation shows the number of votes received by each candidate at said primary election. The nominees were ordered to be certified to the county convention which was to meet on August 18,1924, and the county central committee adjourned at six o’clock on the evening of the 15th of August, 1924, except to meet again for the purpose of recounting the ' votes east for chancellor.
    On the 18th day of August, 1924, the Democratic Central Committee again met to take action, except in the chancellor’s race. On the same day the Democratic county convention was held, and a certificate of nomination for the office of county treasurer was given to Mrs. L. K. Land, duly signed by the chairman and secretary of the said Democratic convention. At a later date a certificate of nomination, bearing the date of August 15, 1924, was given to Mrs. Land, signed by tbe chairman and secretary of the Democratic Central Committee.
    H. C. Wilson filed his complaint contesting the nomination on the 26th day of Angnst,' 1924. His complaint was accompanied by the affidavits of ten reputable citizens who are members of the Democratic Party.
    Mrs. Land made a motion to dismiss the complaint because it was not filed within ten days, as prescribed by the statute. The court sustained the motion to dismiss, and, from the judgment rendered dismissing his complaint, H. C. Wilson has duly prosecuted an appeal to this court.

      W. B. Sorrels and Coy Nixon, for appellant.
    As long as the returns were with the committee, subject to such corrections, additions, modifications or changes which the committee might make, on Monday the 18th, and which, under the law, they had the right to make, the contestant was not bound to institute proceedings. For definition of “results” see 142 Ark. 244; Century Diet. Crawford & Moses’ Digest, § 3768, declares that the Central Committee “shall certify the results not later than Monday following the primary.” See Id. §§ 3770, 3813. If the nomination of a candidate may be certified before the returns,and ballots of absentee voters are in, C. & M. Digest, § 3813, and before the time expires to get in their votes and have them counted, then their right to vote is cut off, and they are denied their right of franchise. 36 Cal. 430, i87 Pac. 544; Jones v. Smith, 165 Ark. 425.

      Caldwell & Ross, and Rowell & Alexander, for appellee.
    The complaint and supporting affidavits were not filed within ten days after the 15th day of August, the day the central committee made the certification of the votes, and it was therefore too late. 136 Ark. 217, 221. On the contention that the central committee had no authority to issue the certificate on August 15, see C. & M. Digest, §§ 3767, 3768; 160 Ark. 269; 145 Ark. 431; Id. 371. There is no showing that the votes of absentee voters were not counted, or that the result would have been different, if counted. The contestant, must show that he is the nominee instead of the other party, and, unless he- so states in his complaint, he -fails to state a cause of action. Story v. Looney, 165 .Ark. 455; Hill v. Williams,, 165 Ark. 421. As supporting the trial court’s findings and judgment in this case, see initiative act No. 1, Acts 1917, p. 2287, known as the Brundidge Primary Law, 11 and 12; 1 R. C. L., 340; 14 Ark. 427; 136 Ark. 217.
   Hart, J.,

(after stating the facts). This court has held that the filing of a complaint supported by the affidavits of ten reputable citizens, who are members of the party holding the primary election, within the time prescribed by the statute, is a jurisdictional prerequisite, and that, if it is not filed within the statutory time, the circuit court has no jurisdiction to hear or determine the contest. Logan v. Russell, 136 Ark. 217, and McLain v. Fish, 159 Ark. 199.

Counsel for the contestant, however, contends that the ten days required by the statute within which to file the complaint did not begin to run until the certificate of nomination was given Mrs. Land by the Democratic county convention, on the 18th day of August, 1924, or, in any event, that it did not begin to run until Saturday at noon, the 16th day of August, 1924.

The right to contest is given by § 3772 of Crawford & Moses’ Digest. The section provides that a right of action is hereby conferred on any candidate to contest the certification of nomination or certification of vote as made by the county central committee.

It provides further that the complaint shall be supported by the affidavits of at least ten reputable citizens, and shall be filed within ten. days of the certification complained of.

As we have already seen, the right to contest a primary election is purely statutory, and the Legislature may confer it upon such terms as it sees fit. Thus it will be seen that a right of action is given any candidate to contest the "certification of vote as made by the county central committee. The statute is unambiguous in this respect, and it was evidently the intention of the Legislature to provide for a speedy hearing and determination of a contest.

In our opinion it was not necessary, under the statute, that contest proceedings should be delayed until a certificate of nomination had been actually issued by either the county convention or by the county central committee. We think that, when the county central committee has canvassed and tabulated the votes, and it is ascertained by this canvass and tabulation which candidate has received the greatest number of votes, the opposing candidate may at once, and must within ten days thereafter, begin his contest proceedings, although no certificate of nomination has been issued.

It will be noted that the section referred to above provides that the complaint shall be filed within, ten days of the certification complained of. This carries us to a consideration of the provisions of §§ 3767-3769 of Crawford & Moses’ Digest.

Section 3767 provides that the county central committee shall convene at noon of the Friday following the primary on Tuesday, and that the returns shall be delivered to said committee, as hereinbefore provided, oh or before said time.

Section 3768 provides that, if the returns and ballots of any precinct are not then delivered, the committee shall send for the same and immediately bring the same to said committee. Continuing, it provides that, if all returns and ballots are not before the committee by Friday noon, it may adjourn until it receives them, not later than Saturday noon. Then the section provides that the committee shall canvass the returns, and, when demanded, examine the ballots, may hear testimony, if offered, of fraudulent practices and illegal votes, and may cast out illegal votes, fraudulent returns, and find the true and legal votes cast for each candidate, and shall certify the result not later than Monday following the primary.

Section 3769 provides that said committee shall certify the nomination of all county and township officers. Thus it will he seen that the county central committee is vested with quasi-judicial powers. It has the power to hear testimony, cast out illegal votes or fraudulent returns, and find the true and legal votes cast for each candidate. It is then made its duty to certify the result. When the county central committee has canvassed and tabulated the votes and ascertained who has received a majority of the votes, its duties, except to issue a certification of nomination, are at an end, and it must award a certificate of nomination to the candidate who, by its canvass and tabulation, has received a majority of votes.

Section 3768 provides that the county central committee shall find the true and legal votes cast for each candidate, and shall certify the result. This means that it shall certify its decision of the number of votes received by each candidate. When the canvass and tabulation show that a particular candidate has received the hig’hest number of votes cast for the office, he is then entitled, as a matter of right, to a certificate of nomination.

It is true that the certificate of nomination is evidence of title to the nomination,. and should be given the successful candidate, yet the actual issuance of the certificate is not a prerequisite to the commencement of a contest. The right to contest grows out of the fact that one candidate has received, on the 'face of the returns made by the county central committee, a majority of the votes, and this gives him the rights of a regular nominee until he is deprived of them by a successful contest against him.

It is true that, under the statute, the county central committee might have adjourned until Saturday noon to complete its canvas and certify the results thereof. But our statute regulating primary elections does not provide that contest'proceedings shall not be started until after a certificate of nomination has been issued. On the other hand, it provides that the complaint shall be filed within ten days of the certification complained of; and that certification, we think, is the one made hy the ; county central committee finding the number of legal votes cast for each candidate and certifying that result. In short, the intent of the statute is that the contest shall be commenced within ten days from the time the county central committee finishes canvassing and tabulating the returns and ascertaining the result thereof. This was done by the county central committee in the case of all the races, except that for chancellor, before the county central committee adjourned on Friday.

The views we have expressed are strengthened by the holding in McLain v. Fish, 159 Ark. 199. It was there held that the requirements of the statute as to the time of completing the canvass of a primary election and the issuance of a certificate of a nomination are directory.

In the case before us the county central committee finished canvassing and tabulating the votes on Friday, the 15th day of August, 1921, in so far as all of the offices were concerned, except that of chancellor, and this finding included the office of county treasurer. The tabulation made hy the committee showed that Mrs. Land received the highest number of votes cast for treasurer, and the result was so certified by the committee on the same day. Wilson did not file his. contest within ten days thereafter, and the court was right in dismissing his complaint.

The judgment will therefore he affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Kay v. Kay.
    Opinion delivered November 10, 1924.
    Judgment — dismissal op suit — res judicata. — Where a decree dismissed a suit at defendant’s cost, and one of the defendants paid the costs, such decree was an adjustment of the merits of the controversy and a bar to a subsequent suit by such defendant’s widow and heirs upon the issues joined in the prior suit.
    Appeal from Fulton Chancery Court; Lyman F. Reeder, Chancellor;
    affirmed.

      H. A. Northcutt and G. T. Humphries, for appellant.
    The general statute of limitations had not run against any of the plaintiffs, and for that reason the one-year nonsuit statute does not apply. 102 Ark. 65; 93 Ark. 215. L. P. Kay was acting in a fiduciary capacity; hence no statute of limitations would run against the plaintiffs. 96 Ark. 577; 49 Ark. 242; 54 Ark. 640; 78 Ark. Ill; 84 Ark. 557; 102 Ark. 65; 103 Ark. 385; 113 Ark. 39; 129 Ark. 149. The three-year statute does not apply to an infant who desires to disaffirm a deed. 103 Ark. 312; 34 Ark. 596; 44 Ark. 158; 51 Ark. 294.

      'Oscar E. Ellis, for appellee.
    There was no fiduciary relation on the part of L. P. Kay with reference to the land in question. The fact that he was administrator did not create that relation, since there were far more personal assets, as shown by appellant’'S own testimony, than necessary to take care of the liabilities of the estate. 27 Ark. 235; 46 Ark. 373. This dismissal of the former suit was more than a mere nonsuit; it was an adjudication, and binding upon the parties and their privies. 70 S. W. 527; 24 Am. & Eng. Enc. of L., 728, and cases cited; 105 Ark. 105; 96 Ark. 451; 7 Enc. of Ev. 808, 809, and cases cited; 1 Wheat., 179; 14 Pet. 156; 24 Ark. 371; 43 111. 504; 119 111. 606; 80 Mo. App. 327; 2 N. Y. 113. Thus it appears that the dismissal of a cause in equity bars a later suit, unless it was dismissed without prejudice. It must affirmatively appear that the dismissal was not intended by the parties to be treated as a decision on the merits, to prevent the dismissal from operating as a bar. 7 Ene. of Ev. 909-911, and cases cited. See also 10 Ark. 201; 24 Ark. 371; 130 Ark. 566, and cases cited.
   Humphreys, J.

This suit was brought to the April term, 1921, of the chancery court of Fulton County, by C. C. Kay, Frank P. Kay, Ottie Kay Herndon and Katie Kay Schisler, against C. E. Kay, Freddie Kay Palmer, Minnie Kay, Mary A. Kay Hassell, Jim Kay, Tee Kay and Jack Kay. As originally brought, it was a suit in partition, alleging that the plaintiffs owned a one-seventh interest each in certain lands in said county owned by their brother, ft. K. Kay, at the time of his death on the 9th day of March, 1908, and that the defendants owned the other three-sevenths interest therein. After the filing of the bill, Katy Kay Schisler withdrew from the suit, leaving three plaintiffs, and C. E. Kay and Freddie Kay Palmer filed a disclaimer of any interest in the property, leaving six defendants. When ft. K. Kay died, he left surviving him, as his only heirs, seven brothers and sisters. One of them was L. P. Kay, who died in November, 1920, leaving, as his only heirs at law, Minnie Kay, his wife, Jim Kay, Mary Kay Herndon, Tee Kay and Jack Kay, his children. Upon the completion of the pleadings the only parties to the suit were three brothers and sisters of It. K. IUiy, deceased, who were plaintiffs, and the widow and children of L. P. Kay, deceased, a brother of R. K. Kay, who were defendants. The pleadings as finally made up presented the following issues:

First, whether the land was owned in common by the parties plaintiff and defendant, or in fee by the children of L. P. Kay, subject to their mother’s dower interest therein.

Second, whether there should be an accounting of rents and profits by defendants to plaintiffs, and, if so, how much.

Third, whether a deed to the laud executed on the first day of October, 1912, by C. C. Kay, Frank Kay and others to L, P. Kay, should be canceled on account of the minority of C. C. Kay and of alleged misrepresentations made to Frank P. Kay by L. P. Kay.

Fourth, whether appellants were precluded by a former adjudication of the cause from bringing this suit.

The cause was submitted to the court upon the issues joined and the testimony introduced by the parties responsive thereto, which resulted in a finding against Frank P. Kay because of the insufficiency of the evidence to support his allegation of misrepresentation in the procurement of the deed; and against C. C. Kay and Ottie Kay Herndon because barred by a former suit, and a consequent dismissal of plaintiff’s bill.

An appeal has been duly prosecuted to this court from the findings and decree.

After a careful reading of the abstract of the testimony we are convinced that the findings of the trial court are correct.

(1) . Frank P. Kay was twenty-four years old when he and others made a deed to the land to L. P. Kay. Frank P. Kay and his wife signed and acknowledged the deed before a notary public after the others had done so, and, with this opportunity to see and inspect the deed, must be held to have known what he was signing. According to the testimony of Minnie P. Kay, Frank P. Kay knew of the existence of the deed more than two years before the institution of this suit. She testified that, when the first suit was brought, Frank P. Kay told her that he had shamed C. C. Kay for bringing the suit to cancel the deed. Frank P. Kay testified that L. P. Kay represented to him that the property was about to be sold under a mortgage, and that his purpose in signing the instrument on October 1, 1912, presented to him by L. P. Kay, was to save the property. This representation was a fact, if made, and not a misrepresentation, for a foreclosure proceeding upon the mortgage had been instituted and was pending at the time Frank P. Kay signed the deed in question.

(2) . A suit involving the same issues as the instant case was instituted in the chancery court of Fulton County by C. O. Kay, Ottie Kay Herndon, and Katy Kay .Scbisler, against L. P. Kay and Minnie Kay, Ms wife. Frank P. Kay was not a party to that suit and, of course, was not bound by the adjudication therein, but the other parties in the instant suit, being parties in that suit, were bound by the decree rendered therein. The following decree was rendered in the former suit:

“On this day, this cause being reached upon call of the docket, the parties appearing in person and by their attorneys, and the same is dismissed at the cost of the defendants.” Following the above judgment record entry is a notation showing that L. P. Kay paid the costs three days later.

It is necessarily implied that the cause was dismissed by and with the consent of L. P. Kay, as it was dismissed at his cost. The effect of this dismissal was an adjust7 ment of the merits of the controversy, and is a bar to another action between the parties thereto upon the issues joined therein. Doan v. Bush, 130 Ark. 566.

No error appearing, the decree is affirmed.


text:
    Greene County v. Paragould.
    Opinion delivered November 10, 1924.
    1. Municipal corporations — order fixing boundaries — parties.— In a proceeding in the county court, by a resident landowner and taxpayer, to fix the boundary line of a city, the city was a necessary party, and, though not joined, could appeal from the order of the county court therein, without moving in the county court to vacate the order and appealing from a denial of such motion.
    2. Estoppel — unauthorized act of officer. — A governmental agency, such as a city, will not be estopped by the unauthorized acts of its officers, as by their recognizing the middle of a certain creek as the north boundary of the city, by working the streets to such line, by paying half of the expense of maintaining a bridge across the creek, and collecting taxes on lands up to the creek.

      Appeal from Greene Circuit Court, First Division; Q. E. Keck, Judge;
    affirmed.

      M. P. Huddleston, for appellant.
    1. No appeal will lie from ex parte proceedings and orders. 2 Cyc. 621, note; 2 Standard Enc. of Procedure, 158; 10 Am. & Eng. Ann. Cases, 38, note. One who is not a party to a suit is not entitled to appeal. 30 Ark. 578; 52 Ark. 99; 77 Ark. 586; 26 Ark. 461. The. only method of reviewing the correctness of an ex parte order is by motion to vacate it, and, if that is denied, by appeal from the order of denial. Ill N. Y. S. 736; 2 Cent. Digest, “Appeal .and Error,’.’ § 892.
    2. The county court in 1906 had no power to make an order different from that voted for by the people and prayed for in the petition; it had no power to grant the petition in part only, and annex to the city of Paragould only a portion of the territory described in the petition. 54 Ark. 321. The circuit court therefore had no power to enter an order in the premises! which the county court in the first instance had no power to make. ■ On the other hand, it should have indulged the conclusive 'presumption that the county court, in 1906, entered - a proper order in accordance with the petition, and should have excluded all evidence tending to show that a different order was in fact made. 55 Ark. 61i8.
    3. The city of Paragould, after having recognized the center of Eight Mile Creek as the north line of the city by working the streets to said creek, by paying one-half of the expenses of building and maintaining the bridge across the same, and by levying and collecting taxes from the territory in dispute, for 15 consecutive years, is estopped from saying that such creek or ditch is not the north line of the city. 28 Cyc. 214, 215; 16 L. R. A. 178; 31 L. R. A. 186; 54 Ark. 372; 29 L. R. A. 455; 38 Ark. 81; 131 Ark. 453.
    The rule announced' in the case of Hull v. Bledsoe, 126 Ark. 125, has never been extended, and, under that rule, the circuit court on certiorari can hear no evidence
      dehors- the record, except for the purpose of possessing itself fully of the matter presented to the inferior tribunal — only such .evidence being admissible as -will show what evidence was heard by the inferior tribunal in order to determine whether or not it was legally sufficient to sustain the judgment rendered by that tribunal. On the appeal case, the question was not what order the county court might have made in 1906, but what order was made. 143 Ark. 543.

      Jeff Bratton, for appellee.
    A court is without power to make' an order mmc pro tunc changing or revising* a judgment formerly rendered. 23 Cyc. 843. If the order of the county court entered September 29, 1906, was improperly entered, the mmc pro tunc entry of the county court order of August 15, 1921, being the certified order of that court rendered in 1906, and recorded in the ordinance books of the city, and fixing .and establishing the corporation line as now contended for by the city, is valid, and its entry of record was in compliance with the law. 23 Cyc. 46. That nunc pro turne entry is conclusive against all persons. 15 R. C. L. 627. And cannot be disputed except in the man-, ner provided by the statute, O. & M. Digest, § 6290. The nunc pro tunc entry of June, 1923, appears to have been made at the instance of a single petitioner, having no interest except as a taxpayer. Notice therefore should have 'been given both to the city and McDonald. 23 Cyc. 844; 15 R. C. L. 624. There is no merit in'the contention that the city is estopped. It cannot be estopped by the unauthorized .acts of its officials. 21 C. J. 1191-1194 inclusive; 24 S. W. (Ark.) 429.
   Humphreys, J.

This case involves a controversy between Greene County and the city of Paragould as to the true location of the north boundary line of said city between certain points.

On the first Tuesday in April, 1906, an election was held in said city upon the annexation of certain adjoining territory, at which a majority voted for annexation. The petition for annexation, which was the basis for the election, described a portion of the north boundary line as being in the center of Eight Mile Creek. Based upon the returns of the election, the mayor, recorder, and aldermen of said city filed a petition at some time in 1906, in the county court, to make the' center of said creek a part of the north boundary line and to make the bridge across the creek on the Gainesville road a boundary line bridge. After the county court had adjourned to October, 1906, a vacation order was entered in the judgment record, showing that the court had considered the petition and annexed certain territory on-the north to the center of North End Avenue, paralleling the Eight Mile Creek, but seven hundred feet south thereof. The petition of the city officials was presented to the county court at the October term, 1906. There appears in the ordinance book of the city a copy of the order of the county court refusing to fix the north boundary line in accordance with the petition, but establishing same as being in the center of North End Avenue. The digest of the ordinances of said city was made by authority of the city council, which designated the north boundary line of said city as being in the center of Eight Mile Creek. From 1916 until 1921 the city recognized the middle of said creek, between certain points, as the north boundary line of said city, by working the streets to the creek, by maintaining one-half the bridge, and by taxing the property to the creek for city purposes. On August 15, 1921, the city officials obtained an entry to be made in the judgment record book of the county, a nunc pro tunc order of a purported judgment rendered at the October term, 1906, of the county court, fixing the north boundary line of said city in the center of North End Avenue. On the first day of June, 1923, M. P. Huddleston, a resident owner of and taxpayer on real estate in and out of said city, obtained, in an ex parte proceedings in the county court, a mmc pro tunc order of a purported judgment rendered at the October term, 1906, of said court, fixing the boundary line as being in the eenter of Eight Mile Creek.

The city of Paragould took an appeal to the circuit court from the order of the county court entering the nunc pro tuno judgment on June 1,1923, and also brought said nunc pro tunc order up to the circuit court on writ of certiorari for the purpose of quashing same. The county and others also brought the nunc pro hum order of August 15, 1921, up to the circuit court for the purpose of quashing same. The three cases were consolidated and treated as one case in the circuit court, and submitted upon oral and documentary evidence, which resulted in a finding that the nunc pro tunc order of August 15, 1921, was entered through mistake, and, for that reason, was void; that the nunc pro tunc order entered on June 1, 1923, was erroneous, and should be corrected so as to make the center of North End Avenue the north boundary line of said city in that vicinity. Judgment was entered in accordance with the findings, from which an appeal and cross-appeal have been prosecuted to this court by the respective parties, in so far as the judgment was adverse to each.

Appellant’s first contention for a reversal of the judgment is that the city of Parag'ould was not entitled to appeal from the ex parte nunc pro tunc order of date June 1, 1923, to the circuit court. It is argued that the city was not a party to the proceeding, and for that reason it was necessary to file a motion to vacate the order, and, if denied, to appeal from the order of denial. The answer to this method of proceeding is that the city was necessarily a party to an annexation order defining its boundary lines for the purpose of an appeal.

Appellant’s next contention for a reversal of the judgment is that the county court could not have made an order in 1906 embracing a portion only of the territory described in the petition for annexation. If the county court was compelled to follow the description in the petition, and in fact did not do so, then, according to the contention of appellant, the order was void, and no territory was annexed at all. The effect of the contention of appellant would be to deprive it of a remedy by mmc pro tunc order, for the court could not enter a different judgment by nunc pro tunc order from that originally rendered by it. Both appellant and appellee admit, in their briefs, that the county court had the power to enter a nunc pro tunc order in accordance with whatever judgment was rendered in 1906 relative to the boundary lines of the city of Paragould.

Appellant’s next contention for a reversal of the judgment is that the city was estopped by the conduct of its officials in recognizing the center of Eight Mile Creek as the north boundary line by working the streets to the creek, and by paying one-half of the expense for maintaining the bridge across the creek, and by collecting taxes on the lands immediately south of said creek. The answer to this contention is that a governmental agency cannot be estopped by the unauthorized acts of its officers.

Appellant’s next and last contention for a reversal of the judgment is that the evidence is not sufficient to support the finding of the court to the effect that at the October term, 1906, the county court adjudged that the north boundary line of the city was in the center of North End Avenue. The real question presented to the circuit court on appeal was what order the county court actually made as to the whereabouts of the north corporate line of the city in 1906. The court found that it was the center line of North End Avenue. The appeal to this court from the judgment of the circuit court can only be reviewed for error, and will not be tried de novo. Suffice it to say that there is substantial evidence in the record to the effect that the county court rendered a judgment in 1906 fixing the north boundary line more than 700 feet south of the center of Eight Mile Creek. There is both documentary and oral ■ evidence in the record tending to 'show this fact. ■

No error appearing, the judgment is ■affirmed. -


author: McCulloch, C. J.

text:
    Missouri Pacific Railroad Company v. Story.
    Opinion delivered November 17, 1924.
    1. Witnesses — impeachment.—In an action for an injury alleged to have been received from a piece of coal falling from defendant’s train while plaintiff was passing under defendant’s bridge, wherein it appeared that plaintiff filed a similar claim against another railroad, it was not error, on plaintiff’s cross-examination, to exclude a question as to whether plaintiff’s son-in-law, who claimed to be an eye-witness to plaintiff’s injury, had not filed a claim for personal injuries against another railroad company.
    2. Appeal and error — harmless error — modification of instruction. — Modification of a requested instruction by striking out a portion thereof was harmless where the instruction was complete without the eliminated portion.
    3. Railroads — contributory negligence. — Where plaintiff was struck by a lump of coal which fell from defendant’s train while he was passing along a street under defendant’s bridge, there was no question of contributory negligence in the absence of a showing that he saw the lump of coal and could have dodged it.
    Appeal from Miller Circuit Court; James IS. McCollum, Judge;
    affirmed.

      E. B. Kmsworthy and R. E. Wiley, for appellant.
    Tire court properly permitted proof of a similar claim made against the Cotton Belt Railroad, under the rule that, where intent or fraudulent intent is the issue, evidence of other similar transactions is admissible, and that another act of fraud is admissible to prove fraud •charged in the instant case when there is evidence to show that the two are go connected as to indicate a common purpose. Authority for such action is found in 143 Ark. 413; 81 Ark. 25; 65 Ark. 278. By the same authorities the court erred in not allowing proof to be made of the connection appellee had with a claim made by one Splaun, Ms son-in-law, on a similar accident. This would have shown his effort to perpetrate a fraud.

      J. M. Carter and B. E. Carter, for appellee.
   McCulloch, C. J.

Appellee claims that he was injured while passing along a public street under appellant’s railroad track in the city of Texarkana. He was injured by being struck with a lump of coal, wbicb fell or was thrown from the tender of one of appellant’s engines passing along the bridge over the street, and he instituted this action to recover compensation for such injuries. Appellant filed its answer denying each of the allegations of the complaint, and, on .a trial of the issues before a jury, there was a verdict in favor of appellee fixing the damages at the sum of $400.

Appellee testified that he was passing along the street in question about midnight, with a companion, and, as a train passed along the bridge over the street, he was struck in the face by a lump of coal which came from the tender of the engine. He testified that the piece of coal struck him above the eye and cut to the bone, dropping the flesh down over the eye. He was corroborated by the testimony of his companion, who was his brother-in-law. There was other testimony to the effect that appellee was found at the scene where he claimed the injury occurred, and was carried to a hospital and treated by an eye and ear doctor.

Appellant introduced testimony of its trainmen who operated the engine which passed over the bridge at the time appellee claims to have been hurt, and this testimony was to the effect that coal did not fall from the tender of the engine, and that the tender was so con-' structed that lumps of coal could not roll off. The testimony of these witnesses tended to establish the fact that the claim of appellee was false, and that a lump of coal was not in any way expelled from the tender.

It is not contended that the evidence is insufficient to sustain the verdict, 'but the first assignment discussed in the brief relates to the ruling of the court in refusing to permit appellant to propound a certain question to appellee on cross-examination. Appellant’s attorney, in cross-examining appellee, asked him many questions for the purpose of testing his credibility. Among other things it was shown by appellee’s own admission on cross-examination that he was an ex-convict, having pleaded guilty in the State of Illinois to the crime of robbery, and had been sentenced to the penitentiary. It was also shown by appellee’s own admission that he had collected a claim against another railroad company for an injury of the same character, inflicted in the same way, by having a lump of coal strike him on the head. Appellee also admitted that he had frequently passed under an assumed name. Counsel for appellant questioned appellee for the purpose of proving that the latter’s son-in-law, Wesley Splaun, had received a personal injury at Benton, Arkansas, prior to the date of the injury to appellee, for which injury Splaun made a claim against the Rock Island Railroad. The court excluded the question, and appellant saved its exceptions. Further on, in the cross-examination, appellee testified that he was at Benton at the time Splaun claimed to have been injured, but was not with Splaun at the time, and that he registered under an assumed name at one of the hotels in Benton. It is insisted that the court erred in excluding the question propounded to appellee on cross-examination concerning the claim of Splaun against the Rook Island Railroad Company. The argument is that, having shown that appellee had put in a similar claim against another railroad company, it was competent to show that Splaun, his son-in-law, had put in a claim against the Rock Island, so as to discredit appellee by establishing a scheme on his part to present fictitious personal injury claims against railroad companies. The ruling of the court was, we think, correct. It was not competent to prove the bare fact that the son-in-law of appellee had presented a personal injury claim to another railroad company. But when counsel for appellant sought to connect appellee with the occurrence of the injury to his son-in-law and the presentation of his claim, the court permitted counsel to question appellee about that and to ask him whether or not he was present.with Splaun when he was injured, and if he did not put in a claim for Splaun, all -of which appellee denied.

The only other assignment of error argued in the brief relates to alleged error of the court in modifying one of appellant’s requested instructions, which reads as follows, the modification being the striking out of the words italicized:

‘ ‘ 5. The court instructs you that the defendant railroad company had the right to occupy its tracks and run its trains over the crossing at any and all times, and to use such means for that purpose as were necessary; and the court further instructs you that the law required the plaintiff to use ordinary care for his own protection in approaching to and crossing under the tracks; that is to say, he must use such care as an ordinarily prudent person would use, in view of the rights of the railroad company to operate its trains over the crossing, and he must use ordinary care to look out and protect himself, from injury from missiles falling from the train, and if you believe from the testimony that he failed to do that, then plaintiff was guilty of contributory negligence; and if you find that plaintiff himself was negligent in that respect, and that the accident was caused partly by the negligence of the plaintiff himself and partly by the negligence of the railroad company, and that they were equally negligent, then your verdict should be for the defendant, notwithstanding’ plaintiff was injured. ’ ’

The instruction was complete without the use of these words, and there was no prejudice in modifying the instruction by striking them out. Moreover, there was no place in the case for the question of contributory negligence, for there was no testimony tending to show negligence on the part of appellee. The issue in the case was whether or not the coal fell from the tender and struck appellee. He and his companion testified that this did happen, but the testimony adduced by appellant tended strongly to show to the contrary. Appellee was traveling along the street, as he had a right to do, and he also had the right to assume that lumps of coal would not be expelled from the tender of the engine or from any part of the train. If there had been any testimony tending to show that appellee saw the lump of coal falling from the engine and might have dodged it, there would have been a question of contributory negligence involved, but there is no such state of facts presented by the evidence. Appellant defended on the ground that the claim of appellee was fictitious, but the verdict of the jury is conclusive on that issue.

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


text:
    Southern Mutual Life Association v. Cocherell.
    Opinion delivered November 17, 1924.
    Insurance — mutual companies — by-laws.—In an action against a mutual or assessment life insurance company on a policy of life insurance, admission of a copy of the by-laws adopted after issuance of the policy and limiting defendant’s liability and repealing all former by-laws, was properly refused, in the absence of proof that similar by-laws or a provision authorizing material change was in force at the time the policy was issued.
    Appeal from Logan Circuit Court, Southern District; James Cochran, Judge;
    affirmed.

      Longstreth ■& Longstreth, for appellant.
    Under a policy issued by a mutual company the beneficiary is controlled by the terms of the contract, which include the policy, application and by-laws. 249 S. W. 3; 244 S. W. 719. Under the by-laws, etc., only the sum of $175.57 was due, and it was error to direct a verdict for a larger amount.

      Evasts & Evanis, for appellee.
    The by-laws attempted to be introduced were not the ones in force at the time of the issuance of the policy. Subsequently enacted by-laws, unless the contract specially so provides, cannot he retroactive so as to affect vested rights. To change a by-law which is a part of a contract is to change the contract itself. Bacon, Life & Acc. Ins. (4th ed.) ^ 231. 233; 120 Pac. 363, Ann: Cases 1913C, p. 679; R. C. L., § 19, Mutual Benefit Societies. Under a reserved right to change by-laws see 117 Ark. 136. The by-laws were not properly identified in any way required by law to entitle them to be admissible in evidence. 10 R. C. L., § 368, “Evidence.” See also 70 Ark. 364; 109 Ark. 403; 71 Ark. 174; Chamberlayne’s HandBook on Evidence, § 1092. When the by-laws conflict with the policy contract, the latter has preference over the former.- 101 Ark. 353; 140 Ark. 313; 156 Ark. 300; 113 Ark. 400; 199 N. Y. 103; A. & E. Ann. Cas., vol. 20, p. 930. Parol evidence as to the contents of books and records cannot take the place of the records themselves. 10 R. C. L. § 59; 65 Ark. 261.
   McCulloch, C. J.

Appellant is a life insurance company, conducted on the mutual, or assessment, plan, and, on November 1, 1916, issued and delivered to William S. Cocherell, the husband of appellee, Anna Cocherell, a policy in one of the circles of the company, payable to appellee. William S. Cochérell died in December, 1922, and this is an action instituted by appellee on the policy against the Southern Mutual Life Association and the three individuals who signed its bond filed with the Insurance Commissioner of the State in accordance with the statute.

There is no dispute as to the issuance of the policy to Cocherell or the payment of the premiums, and no dispute that the policy was in force at the death of Cocherell, but the contention of appellants is that, under a provision of the by-laws, the company is only liable for such sum, not in excess of $1,000, “that the fund received from the assessment next preceding the death of a member against the members of the circle of which the deceased was a member shall amount,” and that “the sum received from said assessment shall, upon its delivery to the beneficiary entitled thereto, constitute payment in full of the amount due under the. said certificate. ’ ’

Appellants contended, and attempted to prove, that the last assessment preceding the death of Cocherell amounted to only the sum of $175.57, and that sum was tendered to appellee before the trial. There was a peremptory instruction in favor of appellee for the recovery of $886.50, which was the maximum amount named in the policy, $1,000, less the payment of $50 and certain premiums which were entitled to be credited.

The policy, which was introduced in evidence, recites its issuance in consideration of the application for membership, and then proceeds with the following provision:

“The value of this certificate, during the first six months after the date of the issuance thereof, is $75,. after- which time it increases at the rate of $12.50 per calendar month for seventy-four months, when it reaches its maximum value of one thousand dollars.” The application signed by Cocherell, omitting the caption, reads as follows:
“I hereby certify that I have read all the statements, questions and answers in this entire application, and hereby warrant and agree that said statements and answers, together with this declaration,' are true, complete and full, and shall be the basis of, and the consideration for, the contract hereby applied for; and I further agree that this entire application, and the certificate that may be hereafter issued hereon, together with the by-laws, rules and regulations of the association and myself, and that no statements, promises or information given by, or to, the person taking this application shall in any way affect 'this contract unless reduced to writing and presented in this application. ” '

Appellants read in evidence the by-laws' of the company, or association, a section of which reads as follows:

“The value of membership certificates representing a benefit of one thousand dollars at maturity shall increase from date of issuance as follows: The value of said certificate during the first six months of membership will be seventy-five dollars, the said value will increase thereafter at the rate of twelve dollars arid fifty cents per calendar month up to' and including the eightieth month of the life of the certificate, when it reaches the maximurii value of one thousand dollars. provided that the funds received from the assessment next preceding the death of a member, against the members of the circle of which the deceased was a member, shall amount to the sum designated on said certificate. Otherwise the sum received from said assessment shall, upon its delivery to the beneficiary entitled thereto, constitute payment in full of the amount due under the said certificate. ’ ’

The court refused to permit appellants to introduce a copy of the by-laws, and that ruling of the court is assigned as error. Conceding that the copy sought to be introduced was sufficiently authenticated and identified as the by-laws of appellant company, yet there was no prejudice in the ruling of the court, for the reason that the offered copy of the by-laws contained a preliminary recital that they were adopted by the company on September 30, 1921, and repealed all former by-laws and amendments. There was no proof, either introduced or offered, that similar by-laws were in force at the time of the issuance of the policy to Cocherell or that there was a provision authorizing a material change in the by-laws. It will be seen from a reading of the policy that it contained an unconditional promise to pay the beneficiary seventy-five dollars in case of death during the first six months, with an increase of $12.50 per calendar month for seventy-four months, until the policy reached the maximum of $1,000. In other words, if death did not occur within seventy-four months, the death claim should be the sum of $1,000. It is true the • application of Cocherell contained a recital that the policy would be issued subject to the by-laws, but that meant, of course, the by-laws as existing at the time of the issuance of the policy. Appellants therefore have failed to show any limitation upon the unrestricted liability expressed in the policy for the sum of $1,000.

Other questions discussed by counsel for appellee need not be mentioned, for the reason that, under the views expressed above, an affirmance of the judgment must result.

Judgment affirmed.


author: Wood, J.

text:
    Greathouse v. State.
    Opinion delivered November 17, 1924.
    1. Witnesses — latitude of cross-examination.- — It is within the trial court’s discretion, on cross-examination of a witness, to refuse to permit questions -of the same purport as those already asked to be repeated.
    2. Seduction — competency of evidence. — Testimony in a seduction case that defendant had been going with the prosecutrix, and that he had stated that if he ever married he would marry her, was competent as to the issues both of intercourse and of promise of marriage.
    3. Criminal law — declaration in nature op confession. — Testimony as to a statement of the accused in a seduction case that he would have to marry the prosecutrix or leave the country was admissible as in the nature of a confession that he had had intercourse with her and had promised to marry her; also because it tended to corroborate the prosecutrix.
    4. Criminal law — argument of counsel. — Comments of the State’s attorney in a seduction case on defendant’s failure to testify and to introduce certain letters in his possession, while improper, were cured by the court’s admonition to disregard such remarks.
    5. Criminal law — instructions.-—The court’s charge in a criminal case should be considered as a whole.
    6. Criminal law — argumentative instruction. — An instruction in a seduction case, that, in determining the corroboration of the prosecutrix, the jury might consider statements made ¡by the defendant, if any, letters, if any, birth of a child, and such other facts and circumstances as in the jury’s -opinion tend to shed light upon the facts o.f the case, held not argumentative.
    Appeal from Howard Circuit Court; Ben E. Isbell, Judge;
    affirmed.

      Jas. 8. McConnell and W. P. Feazel, for appellant.

      J. 8. Utley, Attorney General, and John L. Carter, Assistant, for appellee.
   Wood, J.

Tbe appellant appeals from a judgment convicting bim of tbe crime of seduction. He assigns seventeen separate grounds for reversal, in bis motion for a new trial, and groups these assignments, for argument in bis brief, under tbe following beads:

1. Error of tbe court in tbe manner in which tbe court’s examination of witnesses was conducted.
2. Error of the court in permitting incompetent testimony.
3. Error of the court in permitting improper argument of counsel.
4. Error of the court in granting instructions.
5. The evidence was not sufficient to sustain the verdict.

We will dispose of these in the order mentioned.

First. The prosecuting witness testified that she had sexual intercourse with the appellant because she loved him and had confidence in him, and because he promised to marry her. She stated that she had sexual intercourse with him more than once; that, when she discovered that she was pregnant, she communicated that fact to the appellant, and that he said, “We will have to get rid of it,” and told her that he was not able to marry then, and persuaded her to take medicine, if he would get it, to get rid of the child. After answering repeated questions on cross-examination with reference to her association with another boy while she was going to school, she stated, in answer to a question, that the first act of sexual intercourse with the appellant was about eighteen months prior to the trial. She stated that she didn’t remember the date exactly. Counsel for appellant then asked her the following question: “Do you know what took place at this time?” and she answered, “I do, but I don’t want to state it.” Thereupon the prosecuting attorney stated, “That is an impertinent question.” 'She was then asked where it took place, and stated that she didn’t remember — somewhere between Shiloh and her home. The question was then repeated, “Do you know what took place at that time?” The prosecuting attorney objected, and the court sustained the objection. The appellant duly excepted to the ruling of the court.

There was’ no prejudicial error in.this ruling of the court. The witness had already testified as to the first alleged act of sexual intercourse and detailed fully the circumstances as to the time and place of its occurrence. Then when she stated that she didn’t remember exactly the date, she was asked the further question, “What took place at that time?” and, in making his objection, the prosecuting attorney stated that the question was “impertinent.” Then, after the witness had answered further that she didn’t remember where the alleged act took place — somewhere between Shiloh and her home— the question, “Do you know what took place at that time?” was repeated. The district attorney objected,' whereupon the court sustained the objection.

Counsel for appellant contends that the court sustained the objection on the ground that the question was impertinent, meaning that counsel for appellant was impertinent or impolite to the witness. But it occurs to us that the court sustained the objection on the ground that the fullest latitude had already been allowed to counsel for appellant in developing the circumstances as to the time and place of the first act of sexual intercourse, and that therefore the further question as to what took place at that time was impertinent in the sense that it was unnecessary and improper to continue the 'Cross-examination along this line. It was within the discretion of the court to refuse to permit questions of the same purport as those already asked to be repeated. There was no abuse of the court’s discretion.

Second. Appellant next contends that the court erred in allowing the testimony of Tressie Hosey, Will Hosey and Parker Davidson. Tressie Hosey testified that she was a sister of Lottie Hosey, the prosecutrix, and also of Mrs. Dose Spicer. She heard part of a conversation between her sister, Mrs. Spicer, and the appellant on the first .Sunday in-June, 1923, in which the appellant stated that if he ever married he would marry Lottie. She further stated that appellant had been going with her sister Lottie, who was then in school, and that he was going with her at that time. This testimony was relevant to the issue. It tended to prove the intimacy of the relationship that existed between the appellant and the prosecutrix, and was competent both on the issue as to the alleged intercourse and as to whether it took place under a promise of marriage. It tended to corroborate the testimony of the prosecutrix on these issues.

Will Hosey testified as follows: “About the last of June a year ago we were talking about young people, and Ellis up and told me he was going to marry Lottie, and asked me, ‘Reckon the old man would care?’ No objection was made to the testimony of Will Hosey. Moreover, it was competent, for the reasons above given ■with reference to the testimony of Tressie Hosey.

Parker Davidson, a witness for the State, on being recalled testified as follows: “Q. Did you know, or were you able to know from the course of the conversation you had with him, who he had reference to? A. I could not say, because I had not lived there in eighteen months. Q. Did you know who he was going with? A. I heard about Lottie Hosey. Q. Did you also have a conversation with him in Parker’s grocery store about Miss Hosey? A. I don’t know whether I did or not; the only conversation I had anyways near telling me about his circumstances was there at the old bank build-in. Q. For the purpose of refreshing your memory, isn’t it true you had a conversation with Ellis in the grocery store, in which he told you he had got in trouble with Lottie, and you advised him to carry out his promise, and you thought at first the conversation was heard by Mrs. Hodge and her daughter? A. No, I don’t think so. Court: Do you know? A. The only conversation he had with me was at the bank. Q. Who was that with reference to ? A. He said he had to marry or leave the country. He did not tell me it was Lottie or who it was. They had told me he was going with Lottie.”

The court admitted the testimony on the ground that it was a declaration against interest, and was subject to explanation if it was made.

The rule that declarations against interest are admissible is not applicable in criminal cases unless such declarations are in the nature of a confession of guilt, or unless they are a part of the res gestae. It occurs to us that the testimony was admissible on the ground that, taken as a whole, it tended to show that the conversation between appellant and Davidson had reference to the prosecutrix, and was in the nature of a confession that he had had sexual intercourse with her and had promised to marry her, and would have to carry out this promise or leave the country. Witness had previously testified that he knew appellant and Lottie Hosey, the prosecutrix. He was asked what statement, if any, appellant made to him about marrying her, and answered, “There was a bunch of boys standing there in front of the old bank building, and I just made the remark to the boys about when was they going to get married, and Ellis said that he was going to have to marry or leave the country.” Witness also stated that he knew that Lottie Hosey was ruined.

The testimony was relevant as tending to corroborate the testimony of the prosecutrix both as to the promise of marriage and the alleged act of sexual intercourse.

Third. In his remarks to the jury, June H. Morrell, a specially employed attorney for the State, while commenting upon the testimony of the prosecuting witness, among other things stated: “Why, gentlemen of the jury, this is the plainest case I ever saw. The prosecuting witness testified as to the act of the intercourse, and further testified that Ellis Greathouse was the father of her child, and he has not denied it.” The appellant objected to the argument of counsel, and the court sustained the objection and instructed the jury that the argument was improper; and that they should pay no attention to it.

The prosecuting attorney, in his closing argument, while referring to and discussing the letters that the prosecutrix had received from the defendant, among other things said: “Gentlemen of the jury, Sam McConnell has a great big stack of letters written by the prosecuting’ witness to the defendant, lying there on the table within three feet of where I am standing, and he has not offered to introduce a single one of them.” The defendant .objected to this statement, whereupon the court remarked, ‘ ‘ The statement was improper, and the jury will not consider the same.” The remarks of the attorneys representing the State were improper, and, in the absence of instructions of the court to the effect that the remarks were improper and that the jury would not consider them, the cause would have to be reversed on account of such improper argument. Curtis v. State, 89 Ark. 394; Holder v. Jones, 58 Ark. 481; Hall v. Jones, 129 Ark. 18. But the instructions of the court were sufficient to eliminate any prejudicial effect that the improper argument otherwise might have left in the minds of the jury. McFalls v. State, 66 Ark. 21.

Fourth: Among other instructions, the court gave the following: “Instruction No. 2. While it is necessary that the prosecuting witness be corroborated both as to the promise of marriage and the act of intercourse, the amount of such corroboration is a matter solely for the jury, and is sufficient if there is any, circumstantial or otherwise, provided you believe from the testimony the defendant guilty, beyond a reasonable doubt. And in determining the corroboration you may take into consideration their associations; statements made by the defendant, if any; letters, if any; the birth of the child; and such other facts and circumstances which, in your opinion, tend to shed light upon the facts of the case.” The appellant objected generally and specifically to the giving of the above instruction.

The instruction was not phrased as aptly as it might have been, but, when the charge of the court is considered as a whole, as it must be, the instruction complained of was not calculated to confuse or mislead the jury, and was not an erroneous declaration of law, and the giving of same was not error for which the judgment should be reversed.

At the instance of the appellant, the court gave the following instructions:

“No. 5. You are instructed that, before vou can convict the defendant in this case, you must find from the evidence, beyond a- reasonable doubt, first, that the defendant had sexual intercourse with the prosecuting witness in Howard County, within three years next before the finding of the indictment; second, that such carnal knowledge was obtained by virtue of an express promise of marriage, made to her at the time of or prior to the intercourse; and you cannot convict the defendant unless both of these facts are corroborated by other and independent evidence.
“No. 7. You are instructed that you cannot convict ■the defendant unless the prosecuting withness is corroborated by some other testimony, both as to the act of intercourse and as to the promise of marriage prior to the act of intercourse.”

When instruction No. 2, given at the instance of the State, is read in connection with instructions Nos. 5 and 7, supra, it is clear that the charge of the court as a whole conformed to the law as announced by this court in numerous cases. Jackson v. State, 154 Ark. 120; Lasker v. State, 77 Ark. 468; Nichols v. State, 92 Ark. 412; Brooks v. State, 126 Ark. 98. The concluding paragraph of instruction No. 2 is not argumentative. It simply told the jury that they might take into consideration the statements made by defendant, if any, the letters, if any, the birth of the child, and other facts and circumstances in evidence which, in their opinion, tended to shed light upon the facts in the case. The instruction would have been in better form if these matters had not been specifically enumerated, but there was testimony tending to prove each one of the particular facts mentioned, and therefore the instruction did not assume the existence of facts which there was no testimony tending to prove. As we have already stated, instruction No. 2, when taken in connection with all the other instructions of the court’s charge, could not have misled the jury to the prejudice of the appellant. The charge as a whole was a correct pronouncement of the law applicable to the facts of this case.

Fifth: It could serve no useful purpose to set out and discuss the testimony in detail on the issue as to whether there was legally sufficient evidence to sustain the verdict. The prosecutrix testified as to the act of sexual intercourse and that it was upon the promise of marriage, and there was testimony tending to corroborate her testimony both as to the act of sexual intercourse and the promise of marriage. The evidence therefore was legally sufficient to sustain the verdict. The judgment is correct, and it must be affirmed.


text:
    Arkansas Railroad v. Winters.
    Opinion delivered November 17, 1924.
    1. Carriers — liability for freight — delivery at destination.— The liability of a common carrier ceases with delivery at point ■of destination, according to the directions of the shipper or the usage and custom of the trade at the destination.-
    2. Carrier — liability for loss of freight. — Where logs, delivered to defendant carrier, consigned to -shipper at specified place in care of a connecting carrier, to be transported by the latter in accordance with a previous arrangement between the shipper and the connecting carrier, were delivered by defendant and accepted -by such connecting carrier, defendant was thereby relieved from liability for their subsequent destruction.
    Appeal from Lincoln Circuit -Court; T. G. Parham, Judge;
    reversed.

      A. J. Johnson, for appellant.
    Delivery had been made by appellant of the logs at the point of destination, before the fire occurred, and such delivery discharged appellant from further liability. 100 Ark. 37; 131 Ark. 153, at 163; 38 Minn. 95. The logs had been delivered on the tracks of the Missouri Pacific railroad, and were beyond appellant’s line of road, and.it could not be held liable in damages under su-ch circumstances. 115 Ark. 20.' While a carrier is an insurer of goods during transportation -and for a reasonable time thereafter (60 Ark. 375), the rule is relaxed when delivery is made, and the burden is imposed on the shipper. 100 Ark. 43.

      Brockman & Lucas, for apppellee;
    There was not a sufficient of reasonable time allowed appellee after the so-called delivery to' the Missouri Pacific in which to have the logs moved, before their destruction, and appellant cannot escape liability. 100 Ark. 37; 131 Ark. 163. At any rate it was a disputed question of fact and one for the jury. 99 Ark. 568; 60 Ark. 375. A finding by a jury will not be disturbed where there is substantial evidence to support it. 153 Ark. 598; 144 Ark. 227.
   Wood, J.

This is an action by the appellee against the appellant to recover damages for the loss of thirty logs, which appellee alleges he delivered to the Gould Southwestern Railway Company and the appellant, its successor, for shipment to the MeLean-Arkansas Lumber Company at Little Rock, Arkansas. Appellee alleges that the logs' were damaged by fire at Gould, Arkansas, in the sum of $211.48, for which he prayed judgment.

The appellant answered, denying the allegations of the complaint, and set up that the appellee delivered to the appellant two cars of logs consigned to himself at Gould, in care of the Missouri Pacific Railway tracks; that the appellant transported the cars and delivered same in good order on the Missouri Pacific tracks at Gould, and the appellee accepted the delivery and paid the freight to the appellant. Appellant alleged that, if the oars were damaged by fire, such damage occurred after the delivery had been effected as alleged, and that its liability to the appellee had therefore ceased.

The testimony of the appellee was to the effect that he shipped the logs over appellant’s line to Gould. They were billed to appellee at Gould, in care of the Iron Mountain Railroad. The appellee had been making shipments before the one in controversy, and the agents of the appellant had always delivered to the appellee bills of lading from the Missouri Pacific for these shipments. The appellee understood that the appellant was to deliver the cars to the Missouri Pacific Railroad and receive a bill of lading, and return the same to the appellee. The logs were burned on the night of the day the appellee shipped them — the 24th of February, 1922.

On cross-examination appellee identified a bill of lading that was given to him by the appellant, which shows the point from which the cars were shipped and the .point of, destination, and that they were consigned to appellee in care of the Missouri Pacific Railroad; that represented the only written contract between the appellee and the appellant. Appellee had told the agent of the Missouri Pacific at Gould to issue bills of lading, and Forbes, the agent of the appellant, would bring the bill of lading from the Missouri Pacific back to the appellee, after Forbes had delivered the logs to the Missouri Pacific. Appellee had told the Missouri Pacific agent at Gould where he wanted the logs to go, and had given him shipping instructions — had been doing that for some time. There was no instruction in writing. Forbes had done this on other shipments for the appellee before. There was nothing said about these particular cars. Witness signed the bill of lading, and thought that Forbes understood. The appellant had nothing to do in connection with the cars, except to deliver them to the Missouri Pacific. On the day the logs were delivered to the appellant, when Forbes returned that afternoon he told the witness that the Missouri Pacific had said they could not accept the logs; that they were not wired properly; that, later, the agent told him (Forbes) that the Missouri Pacific would accept the shipment. The agent of the appellant notified the appellee at the time that the cars had been placed on the Missouri Pacific tracks and what the Missouri Pacific agent said about them. Forbes told the appellee that the Missouri Pacific agent had accepted the cars for shipment, but the agent denied it.

On redirect examination appellee testified that the bill of lading which he received from the appellant did not have on it “in care of Missouri Pacific tracks.” Appellee stated that it was the custom of the appellee, in hauling and shipping logs over the Missouri Pacific, •for the appellant to put the logs across to the Missouri Pacific tracts when they arrived at Gould. The appellant used the tracks on the north side of the main tracks of the Missouri Pacific, whether it was taking the consignment in or out. The cars which were burned were over at this track. Appellee stated that, on the particular occasion when the logs were burned, the appellant had not carried out appellee’s instructions to get a bill of lading from the Missouri Pacific and deliver it to the appellee. Appellee was never notified by the appellant that the Missouri Pacific would not receive the logs. The logs went over to Gould on Friday, and appellee heard they were burned on Monday. Appellee was trying to ship the logs to Little Rock. Appellee was selling the logs f. o. b. at Gould, and the log's had to be rebilled from Gould. The Missouri Pacific had been doing that for appellee. Appellee had told the Missouri Pacific agent at Gould how he wanted the logs to go. It was no part of the duty of Forbes, the agent of appellant, to give instructions for the reshipment of the logs. Appellee concluded his testimony by stating that, in shipping the logs over appellant’s line, he did so with the understanding that the appellant would ship the logs to Gould and turn them over to the Missouri Pacific, and get the bill of .lading from the Missouri Pacific and deliver the same to the appellee.

Forbes testified that he was the general manager of the appellant. He issued a bill of lading for the cars in controversy. The bill of lading in this case did not have “Care of Missouri Pacific” on it at the time he delivered the same to the appellee. The only instruction that witness had, under the contract and bill of lading, was to deliver to the appellee at Gould the logs in controversy. The appellee did not furnish the appellant with any shipping directions from Gould. The cars were at Gould on the day they were shipped, in good order. When witness delivered the cars to the Missouri Pacific, the agent of that company first said that he would not receive them because they were not properly wired'. Before witness left Gould, however, the agent stated that he would try to get the cars through, but told witness in the future to put five wires on the oars. Witness stated that appellee asked him to get bills of lading from the Missouri Pacific, and witness had done that before, but it was no part of his duty. Appellee gave witness no instructions except those contained in the bill of lading. Witness delivered the cars in question -to the Missouri Pacific in good order at 2:10 o’clock in the afternoon of the day they were shipped. Witness brought back to the appellee from the agent of the Missouri Pacific complaint about the manner in which the oars were wired, and delivered to appellee a letter from the Missouri Pacific agent to that effect. Witness never furnished any shipping directions to the Missouri Pacific, because he had none. The reshipping was done for the appellee by the Missouri Pacific. The contract of appellant was fulfilled when witness delivered the cars on the Missouri Pacific tracks. Witness didn’t offer the ears to the Missouri Pacific with directions for reshipment, because he had no such directions. He put the cars in the yard, and notified the appellee that they were there and in good order.

On cross-examination witness stated that, a time or two in previous shipments, appellee had made out a bill of lading at Firth and .witness took it to Gould, had it signed by the Missouri Pacific, and returned it to appellee. As to these particular logs, witness delivered them on Friday to the Missouri Pacific. He didn’t say anything to the Missouri Pacific about rebilling them at all. He put them there, and the agent said that he could not accept them. Appellee had given instructions to the Missouri Pacific agent in regard to the reshipping, and if the agent issued a bill of lading for the reshipment, witness would carry it back to the appellee, but witness didn’t have a thing in the world to do with the reshipment. If the witness received a carload of logs for delivery at Gould, with no further instructions, witness would determine to whom, they were billed, and, if billed to the shipper, witness would put them on the Missouri Pacific tracks, if he were asked to do that. Before witness left the cars on the Missouri Pacific tracks, the Missouri Pacific agent told witness that he would get these oars out on the local, and witness further explained that the appellant had shipped thirty-one cars for the appellee consigned to appellee at Gould. Witness supposed-that the cars in controversy were to be reconsigned or reshipped beyond Gould, and hence he placed the same on the Missouri Pacific tracks at 2:10 in the afternoon, as before stated, and the same were burned the next morning at 2:35. There was no- rule between the Arkansas Railroad and the Missouri Pacific as to the time the cars should be put on the Missouri Pacific tracks in order for the Missouri Pacific to receive them. Witness delivered them when he got there. Witness had a daily schedule, running first to Gould in the morning and back in the afternoon, which appellee knew; that was the schedule he had been shipping logs'on before, and the same on which these logs were shipped. Witness understood a shipping order on which the original bill of lading was issued, made out by the appellee in the same manner as the other bills on which the other logs were delivered, and he delivered these in the same way that those were delivered. Witness had shipped thirty-one cars before.the one in controversy, and they had all gone to a certain place. The only instructions witness had was to deliver the car of logs to Gould, which witness did in the manner already indicated. Witness never had any instructions under the contract with the appellee to deliver the logs on the Missouri Pacific railroad track next to the house that was burned, but witness took it for granted that they were for reconsignment, like all the others, and witness expected the Missouri Pacific to issue a bill of lading and take them, and, if they had not burned, witness supposed the Missouri Pacific would have done so. The Missouri Pacific agent told witness he would get the logs out on the local the next morning.'

The bill of lading issued by the appellant, introduced in evidence, among others contained the following provisions: “In issuing this bill of lading, this company agrees to transport only over its own line, and, except as otherwise provided1 by law, acts only as agent with respect to the portion of the route beyond its line. ’ ’ Also, “the carrier shall not be liable for cars, damage or delay occurring while the property is stopped or held in transit upon request of shipper,” etc.

There was still a further provision: “No carrier shall be liable for loss, damage, or injury not occurring on its own road or its portion of the through route, nor after said property has been delivered to the next carrier, except as such liability is or may be imposed by law, but nothing contained in this 'bill of lading shall-be deemed to exempt the initial carrier from any such liability so imposed.”

The jury returned a verdict in favor of the appellee in the sum of $136.48. The court rendered a judgment in favor of the appellee in that sum, from which appellant duly prosecutes this appeal.

The instructions of the court are not set fdrth in appellant’s abstract, and the only question presented for our decision is whether -the verdict is sustained by legally sufficient evidence. The substance of the testimony is set forth above, and the essential facts are undisputed. It therefore becomes a question of law as to whether the appellant is liable. In Arkadelphia Milling Company v. Smoker Mdse. Co., 100 Ark. 37, among other! things, we said: “The liability of the common carrier ceases with delivery of the goods at the point of destination according to the directions of the shipper, or according to the usage and custom of the trade at such place of destination. This delivery may be actual, or it may be constructive; and, in either case, the liability of the carrier terminates with such delivery. An actual delivery of goods' is made when the nossession is turned over to the consignee or his duly authorized agent and a reasonable time has been given him' in which to remove tlie goods. When such delivery is thus made, the carrier is fully discharged from further liability.” See also Southern Grocery Co. v. Bush, 131 Ark. 153, 163.

The undisputed evidence shows that appellee delivered the logs in controversy to the appellant at Firth to be transported by the appellant to Gould, Arkansas. The cars were consigned to the appellee. They were to be delivered at Gould to the Missouri Pacific Bailroad, to be by it transported to such consignee as the appellee directed. The logs were shipped to Gould for reeonsignment and' shipment over the Missouri Pacific railroad. The appellee testified that he had made arrangements with the Missouri Pacific agent where he wanted the logs to go, and instructed him as to shipping directions ; that he had been doing this for some time. Just previous to this, thirty-one cars had been transported by appellant and delivered to the Missouri Pacific, to be reconsigned as the appellee directed. The agent of appellant received the cars in controversy and delivered same to the Missouri Pacific railroad, as he had done for the appellee before. Appellant’s agent having charge of the shipment testified that he delivered the cars in good order on the Missouri Pacific tracks, and, while he states that the Missouri Pacific agent at first refused to receive the cars, he afterwards did take them for shipment, and sent a message to appellee, through Forbes, and also by letter, that the Missouri Pacific would not accept future shipments unless they were wired with five wires instead of three.

This testimony is undisputed, and the only conclusion that any reasonable mind could draw from it is that the appellant delivered the cars on the Missouri Pacific tracks, and that the Missouri Pacific accepted and agreed to transport the same for the appellee. Such being’ the.case, under the above authorities there was no longer any liability on the part of the appellant for damage to the logs. Since there was no evidence to “■nstain the verdict, the jnd.vmeTit is erroneous, and is therefore reversed, and, since the testimony has been fully developed, the cause is dismissed.


author: 'Wood, J.

text:
    Riner v. Ramey-Milburn Company.
    Opinion delivered November 17, 1924.
    1. Receivers — bond of party applying for appointment of receiver. — Since there is no statute requiring an indemnifying bond from a party applying for a receiver, it is within the discretion of the court whether such party be required to give bond to pay damages to the other party growing out of the receivership.
    2. Receivers — liability for procuring receivership. — A party is not liable for damages growing out of the procurement by him -of a receivership, in the absence of a showing that the appointment was obtained maliciously or without probable cause; no bond having been required of him by the -court.
    Appeal from White Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      John E. Miller, Bogle & Sharp, for appellant.
    A party who wrongfully causes a receiver to be appointed becomes liable to the rightful owner of the property for all damages which he may sustain by reason thereof. 23 R. C. L., p. 45; 34 Cyc. 511; 5 la. 521; 69 Kan. 682; 3 Tenn. Ch. 332. Practically all of the States have conferred the right of action by statutes which usually require a bond, conditioned to pay all costs and damages in case it i-s adjudged the appointment of a receiver was improper. 140 Ala. 257; 159 Ala.- 570; 182 111. App. 413; 32 Mont. 80; 39 Neb. 201; 76 Neb. 594. While this court has never directly passed upon the exact question, it intimated that it favored the above rule in the opinion in 141 Ark. 393, and it did lay the burden of paying the expenses of the receivership, wrongfully procured, upon the party causing it, in 107 Ark. 554.

      Brundidge & Neelly, for appellee.
    Appellees were simply pursuing a right given them by statute (section 8600, G. & M. Dig.), in asking for a receiver. In the eases cited by appellant, if the party aggrieved could not make out a case of malicious prosecution by showing malice and want of probable cause, his sole recourse was upon the bond filed for the receivership. Here there was no bond, nor was there any allegation or proof of malicious prosecution, hence appellant’s complaint stated no cause of action. See L. R. A. 1916E, p. 1277, for a full discussion of the subject and the numerous authorities cited, and note on p. 1282. The case cited by appellant in 141 Ark. 393 is not in point on the facts.
   'Wood, J.

This is an action by the appellant against the appellees to recover damages growing out of the alleged wrongful appointment of a receiver at the instance of the appellees. The appellant alleged, in substance, that one Charles H. Sevick owned a large quantity of personal property and real estate, located in White County, consisting of five mills and their equipment, which property is described in the complaint; also certain lands, town lots and timber rights. The appellant alleged that Sevick conveyed all of this property to appellant, by instruments duly executed and placed of record, and that appellant entered into possession of the property; that, shortly after this, appellees brought suit against Sevick and appellant, alleging that Sevick was indebted to them on divers accounts in sundry sums, and that he conveyed certain of his property to appellant -with the fraudulent intent of defeating their claims; that the appellees, in their action against Sevick and the appellant, asked that the conveyances made to appellant by Sevick be set aside, and that a receiver be appointed to take charge of the property and hold it during the pendency of the action; that, upon the representations made by the appellees in that action, a receiver was appointed who took charge of all the property which had been conveyed by Sevick to the appellant; that an answer was filed in that case by the appellant, and, upon final hearing of the cause, the issues were determined in appellant’s favor, and the receiver was directed to return the property to him; that such cause was appealed to the Supreme Court, and the decree of the lower court in that cause was affirmed. The appellant in the present action alleges in detail the damages which he sustained bv reason of the amoointment of the receiver, which amounted in the aggregate to $13,033.11, and asked judgment against tlie appellees in this snm. General demurrers were sustained to the complaint. The appellant stood on his complaint, and the court entered a decree dismissing the same, from which is this appeal.

The only question for decision is whether of not the complaint states a cause of action. Our statute provides that “whenever it shall not he forbidden by law, and shall be deemed fair and proper in any case in equity, the court, judge or chancellor shall appoint some prudent and discreet person as receiver.” Section 8600, C. & M. Digest. By the same section the receiver is required to take an oath to “faithfully, impartially, diligently and truly execute the trust reposed in him,” and he is also required to give bond1 with good and sufficient security to be approved by the court, judge, or chancellor, in such sum as may be deemed sufficient for the benefit of all persons in interest, conditioned that he will faithfully discharge the duties incumbent on him and faithfully account for all assets coming into his hands as such receiver.

Our statute further provides that receivers may be removed at any time by the court, judge, or chancellor, when it shall appear that they have failed to discharge any duty incumbent upon them, or for other sufficient cause, upon motion of any person interested, either as party, creditor, or otherwise. Section 8609, C. & M. Digest.

There is no provision in our statute requiring those who desire to apply for the appointment of a receiver to execute a bond as a condition precedent to such appointment, that they will pay all damages growing out of the receivership if it should afterward be determined that his appointment was unnecessary or improper. In the case of injunctions there is a provision requiring the party obtaining’ the injunction to execute a bond sufficient to cover all probable damages that may be occasioned by the injunction. Section 5801, C. & M. Digest. But in the case of the appointment of a receiver, in the absence of a statutory provision requiring it, it is wholly a matter within the discretion of the court as to whether a bond will be required of the parties applying therefor to pay all damages to the other party growing out of such receivership. There is no statute forbidding any litigant to apply to the court for the appointment of a receiver without first making a bond to pay damages. It is therefore one of the rights that every litigant has in the course of the litigation, if he so elects, to ask for such remedy as incident to the litigation, and he is not liable in damages for so doing, any more than he would be for instituting the action itself in which he asks for the receiver.

In the appellant’s complaint he does not allege that he resisted the appointment of a receiver in the action by appellees against him and Sevick; nor does he allege that he had made application to the court in which the receiver was appointed at any time to discharge the receiver; nor does he allege that he requested the court to require the plaintiffs in that case, appellees here, to execute a bond conditioned to pay all damages that he might sustain by reason of the appointment of the receiver.

To be sure, in those jurisdictions where the statute requires the execution of a bond 'by the party applying for a receiver, to pay all damages growing out of the wrongful appointment of such receiver, such damages are recoverable in an action on the bond, and it is not necessary in such cases to prove that the action in which the receiver were appointed, and the appointment of the receiver, was malicious, and without probable cause. Pagett v. Brooks, 140 Ala. 257, 37 So. 263; Sullivan Timber Co. v. Black, 159 Ala. 570, 48 So. 870; Strum v. Blair, 182 Ill. App. 413; Thornton-Thomas Merc. Co. v. Bretherton, 32 Mont. 80, 80 Pac. 10; Haverly v. Elliott, 39 Neb. 210, 57 N. W. 1010; Joslin v. Williams, 76 Neb. 594, 107 N. W. 837.

But in jurisdictions like ours, where there is no such statute, and where there is no law forbidding the appointment of a receiver without bond, and where the matter of the appointment of such, receiver depends entirely upon the discretion of tlie court, judge, or chancellor, there can be no liability for damages growing out of the appointment of a receiver, in the absence of allegations and proof to the effect that the appointment was sought and obtained maliciously, or without probable cause. In the absence of a statute requiring the party applying for a receiver to pay damages growing out of a wrongful appointment, the action against a party wrongfully procuring the appointment of a receiver is likened to that accruing on the dissolution of an improperly procured injunction. See 23 R. C. L., p. 45. In injunction cases, since our statute requires the giving of a bond to pay damages, the party aggrieved and suffering damages by the wrongful issuance of an injunction may recover on the bond, or, if he does not so elect, he may bring his action as if it were a common-law action on the case for the damages done him by reason of the wrongful injunction, alleging that such injunction was malicious and without probable cause. But, in the absence of such allegation and proof, he cannot sustain such action. Riger & Co. v. Knight, L. R. A. 1916E, p. 1277, and case notes.

In Powell v. Woodbury, 85 Vt. 504, at page 513, it is said: “No action lies at common law for damages by an injunction, unless it was sued out maliciously and without probable cause. To remedy this defect, injunction bonds were devised, and then there were two remedies, one on the bond and one for the malicious use of the process without probable cause.” See numerous authorities cited in ease note to this case in Ann. Cases 1914D, 606.

In Meyers v. Block, 120 U. S. 206, it is said: “Without a bond for the payment of damages 'or other obligation of like effect, a party against whom an injunction wrongfully issues can recover nothing but costs, unless he can make out a case of malicious prosecution.”

The same rule obtains with reference to an action for wrongfully procuring the appointment of a receiver. See Lyon v. United States Fidelity, etc., Co., Ann. Cas. 1915D, p. 1036, and case note.

It follows that the appellant’s complaint against the appellees did not state a cause of action, and the decree of the court so holding and dismissing the complaint is correct, and it is therefore affirmed.