author: McCulloch, C. J.

text:
    Smith v. State.
    Opinion delivered March 23, 1925.
    1. Criminal law — confession.—A confession of guilt, in connection with proof of the commission of the crime, is sufficient to support a conviction, under-Crawford & Moses’ Dig., § 3182.
    2. Criminal law — assignment of error not carried forward in motion for new trial. — An assignment of error in refusing to exclude evidence, not carried forward in a motion for n,ew trial, cannot be considered on appeal.
    3. Criminal law — repetition of instructions. — The refusal to give a requested instruction covered by one given held not error.
    Appeal from Sebastian Circuit Court, Fort Smith District; JoJm E. Tatum, Judge;
    affirmed.
   McCulloch, C. J.

Appellant-is a young man under twenty-one years of age, and he and another young man named Taylor were separately indicted for the crime of- robbery. Appellant .was convicted, and has prosecuted an appeal to this court. The first contention -of his counsel is: that ,-the evidence is not sufficient to sustain the verdict. ■ ■ ‘

The- two boys who were robbed, Will Little and-Bob Harper, testified that they were asleep in an automobile on the" night of September 30, 1924, when two men- woke them up, and forcibly took from them a watch and-three dollars in money. Neither of the accused persons were identified, but the State proved by-two witnesses a subsequent confession-by appellant to the effect that he and Taylor committed the robbery. There was evidence tending to show that appellant, was induced to make the confession by promises of a juvenile-court officer, who had him in his custody, to the effect that the officer would render such help as he could in lessening the punishment of appellant 'if he would disclose the facts in regard to the crime. The court submitted to the jury the question whether .or not the confession was voluntarily made. "We are of the opinion that the evidence was sufficient to sustain the verdict, for an admission of guilt, in connection with proof of the commission of the crime, is sufficient, under the statute, to support a conviction. Crawford & Moses’ Digest, § 3182.

It is contended that the court erred in admitting proof of appellant’s alleged confession, it being contended that the evidence showed that the confession was not voluntary.- Appellant moved to exclude the testimony of the witnesses concerning the confession, and exceptions were duly saved, but the assignment was not carried forward in the motion for a new trial, therefore we cannot consider it. .

Appellant requested the court to give the following instructions:

“1. The court instructs the jury that evidence of a confession has been admitted against the defendant, but, 'before you can convict the defendant upon any evidence of confession, you must find from the evidence that such statements, if any, were freely and voluntarily made; and if such statements were: made upon any hope, promise or actions on the part of any officer, such as to lead the -defendant to believe that he would obtain liberty or leniency, then such statements cannot be considered by you- as evidence upon which to -convict the defendant.
‘ ‘ 2. • Confessions ■ not voluntarily made are inadmissible against accused, he being protected by law against -confessions obtained by duress .or through hope or fear.”

The court gave instruction No. 1, but refused to give instruction No. 2, and that ruling is assigned as error. It is easily seen that the subject-matter of instruction No. 2 was fully covered in instruction No. 1, which was given, and there was manifestly no error in the refusal to give No. 2.

There is no error in the record, and the judgment is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Boyd v. Ozark Trail Road Improvement District.
    Opinion delivered March 23, 1925.
    Highways — changes in assessments — eight to complain. — Where a general assessment of benefits in a road improvement district was made in 1921, and a year later the board of commissioners made some changes lowering a few assessments to correct obvious errors, but no general reassessment was made, taxpayers who made no complaint of the 1921 assessment within the time allowed are in no position to complain of the 1922 changes, if the taxpayers whose assessments were lowered were not made parties.
    Appeal from Poinsett 'Chancery Court; J. M. Fut-rell, Chancellor;
    affirmed.

      Little, Buck & Lasley, for appellants.

      J. G. Waskom, for appellees.
   McCulloch, C. J.

' Appellants are the owners of. real property within the boundaries of a road improvement district organized by special act of the General Assembly of 1919 (Road Acts 1919, vol. .l, p. 1130),. designated as the Ozark Trail Road Improvement District of Poinsett County, Arkansas, the authority conferred by the statute being to improve, by hard-surfacing, a public road running southeasterly from Marked Tree to the Crittenden County line, a distance of about nine miles. The statute is in the usual form, providing for the organization of the commissioners with authority to employ necessary agents, to form plans, borrow money, issue bonds, levy taxes on assessed benefits, and qon: struct the improvement. There is a specific provision as to the method of assessing benefits and giving notice thereof, so that property owners could have an opportunity to be heard. Authority to reassess benefits was. conferred in a section of tibe statute which reads as follows: -

“Section .7. The. commissioners may, not oftener. than once a year, reassess the benefits in said, district; but, in .the event the district shall have incurred, an indebtedness or issued bonds, the total amount - of assessed benefits shall never be diminished.”

Plans were formed and bonds were issued, and there was partial construction under this statute, but the General Assembly of 1921 • enacted another special statute (Special Acts 1921, p. 1000) consolidating this district, with another one designated as Road Improvement District Not'2, or rather authorizing this district to construct the road formerly authorized to be constructed by the other district, and also authorizing this district to improve two laterals, one of which is known as lateral 2-A. The last mentioned statute contains the following provision with reference to assessment of benefits:

“Section 4. The commissioners of the Ozark Trail Road Improvement District are hereby authorized to revise their plans, after determining what roads they desire to construct and how such roads shall be improved, including the roads of Road, District Number Two of Poinsett County, and to -file said plans with their secretary at their office at Marked Tree; that they then may make'a reassessment of all lands in the distriqt so as to set' forth the benefits and damages which will accrue to all-lands in the district by the carrying out of -the completed and entire plans adopted by the commissioners, and this reassessment shall be made and equalized in the manner provided by § 6 -of the act creating said Ozark Trail Road Improvement District,' and the1 determination of the commissioners at the hearing provided herein shall be final, unless suit is brought in the chancery court , within thirty days thereafter to review it. Tie total amount of benefits, as finally equalized, shall never be less than the present combined assessment of benefits of the Ozark Trail Road Improvement District and of Road Improvément District Ñumbér Two of Poinsett County. ”

In conformity with the provisions of the last-mentioned statute, the commissioners proceeded to reassess the anticipated benefits on. all the lands in the original district, as well as the lands added thereto from Road Improvement District No. 2, and said assessment was completed and duly confirmed on November 28, 1921. No. action wias taken by appellants or any other taxpayers to set aside or question the correctness of those assessments. However, the board of commissioners, in November, 1922, undertook to change the assessments on tracts of land owned by certain persons other than- the appellants, .and, after making the corrections, gave notice thereof in the manner provided by the original statute. No changes were made in the assessments of property of appellants as made by the commissioners upon the general reassessment in November, 1921, but appellants contend that the assessments on their property are unjust and not in conformity with other assessments in the district, for the reason that their lands are not adjacent to the hard-surface road, but lie near lateral 2-A, which was improved merely by grading and draining, without putting a hard surface thereon, and appellants allege that they have to use this unsurfaced lateral in ordér to get out to the hard-surfaced main road.

It is shown that the commissioners issued additional bonds to a large amount and constructed the improvement by building a hard-surface main road in accordance with the original statute, and by constructing the lateral as la drained and graded road, but no,t hard-surfaced. The contention of appellants is that, by reason of the fact that the lateral is not hard-surfaced, their assessments are too high, and should be reduced, and they claim that the action of the board in 1922 was a general reassessment under the statute, and that they have a right to attack its correctness and to have their assessments lowered.

This is an action commenced by appellants against the commissioners in the chancery court of Poinsett County, and was commenced within thirty days after the-alleged reassessment made by the board in November, 1922. The commissioners, answered for -the district,-denying "that there was. any reassessment made in 1922, and .pleaded that. the confirmed assessment of November, 1921,. was- conclusive of the rights of appellants. >

On a careful review of the record in the ease we are of- the opinion that the contention of appellee is correct. The chancellor .so held. . It does not appear from the record that the commissioners undertook to maké a general reassessment under the statute. The minutes of the board, as well as the oral testimony in the:case, show that all. the commissioner's did was to correct obvious errors in the assessment of. a very limited number of tracts of land. Section 4 of the ackof 1921, supra, does not confer continuing power upon the board of commissioners to reassess benefits. It merely authorized one reassessment after the passage of that act, for the purpose of determining- the benefits to accrue from .the whole of the improvement as .added to by the last statute. Authority for continuing- power to make reassessments must ■ be found in,§ 7 of the original statute, supra. -That section, as we have already seen, provides for a reassessment not of tener than once a year, and provides that, after the district shall have incurred indebtedness -or issued bonds, “the total amount of the assessed benefits shall never.be diminished..” The statute conferred no authority on the commissioners to correct errors ■ad libitum, but. the authority is to make- a general reassessment •not oftener than once a year, -and, as before stated,, the- testimony shows that the Commissioners did not attempt to. do so. Appellants therefore are bound by the original reassessment made' in November^ 1921, as they failed- to complain of it. ; The validity of the corrections made by the board of commissioners on tracts -of land owned by other persons is not involved in the present litigation, for those owners have not been made parties.

. The chancery court was- correct- -therefore in dismissing appellants5 complaint far want of equity, and the decree is affirmed.


text:
    Missouri Pacific Railroad Company v. Wright.
    Opinion delivered March 23, 1925.
    1. RAILROADS — FAILURE TO MAINTAIN lookout. — I.n an action for inr juries received in a collision ¡between a railroad train and an ' automobilé at a crossing, it was error to submit to the jury the issue 'of a failure to keep a lookout,' both because there was no allegation of negligence in this regard, and because it was undisputed that the view was obstructed so that the trainmen could not see any one approaching in time to avoid a collision.
    2.' Appeal and :error — submission of 'improper issue — prejudice.—' In an action for injuries at a railroad crossing the error of submitting an issue as to a failure to keep a lookout was prejudicial wthere the evidence on other issues was conflicting, .there 'being'no way to determine what effect the error had on the jury.
    3.. Trial — repetition of instructions. — Refusal to give an instruction fully covered by another instruction given was not error.
    Appeal from Pope Circuit Court-; J. T. Bulloch, Judge;
    reversed.

      Thos. B. Pryor and Vincent M. Miles, for appellant.

      Ward $ Cmidle, for appellee.
   McCulloch, C. J.

While appellee was driving an automobile along a public highway across the railroad track in the city of Russellville, the car collided with the engine of a freight trail!, and appellee received severe personal injuries, in addition to having his car demolished. He sued the company for damages, alleging in his complaint that the men in charge of -the engine failed to give signals by hell or whistle, and that there was also negligence in failing to keep ringing an automatic hell on a post near the crossing. Appellant in its answer denied the allegations of negligence, and pleaded contributory negligence on the part of appellee.- There was,- a trial of the issues before a jury, and the verdict-was in appellee’s favor, assessing damages in dhe sum-of $500.

Appellee testified that he was a rural ■ mail ’ carrier on a route running out from Russellville, and that, early in the-morning in question, he started to drive across the railroad track, first passing over the "sidetrack-between box-oars on each side,' and that, as he emerged from behind the box-cars, he saw the train coming, and attempted to pnt on the brakes, and, when he discovered that he could not stop the ear, he turned to the right, in the direction the train was going, but the car moved onto the • trhck and was struck by the engine. He • testified that there was a space of between twenty and twenty-five feet between the ends of the two box-oars on each side of the track at the crossing, and that he could not see up and down the track until he passed from between these box-cars.- He further testified that there was an obstruction up the track, so that the train could not be seen as he approached the crossing. He said he' was driving from six to eight miles an hour, and. also stated that the automatic bell on the pqst was not ringing, and that the-re were no signals given from the engine.

There was a conflict in the testimony as to whether or.not signals were given, and the evidence was sufficient to warrant a finding either way on that issue. The engineer testified that he saw appellee and his car as lie came from behind the box-cars, and that be threw on the emergency brake and, attempted to stop, but it was too late. The engineer testified that the bell on the engine was being constantly rung. ■

The court, over appellant’s objection, submitted the issue, not only as to negligence in failing to give the signals, but also in.failing to keep a lookout. Appellant requested the court to give an instruction excluding from the consideration of the jury the question of failure to keep a lookout, and the court refused to give the instruction, which ruling of the court is assigned as error. "We are of the opinion that the court erred in submitting the question ‘ of failure to keep a lookout. In the first place, there was no allegation in the complaint as .to negligence in that regard; and, in the next place, the uneontradioted- evidence' shows that, if there was in fact a failure to keep a lookout, it was not the cause of the injury. It is undisputed that appellant drove between the two ends of the box-cars on each side of the track, and that there were other cars on both sides which' completely obstructed the view, so that appellee could not see the approaching train until he was about to cross the main track and that the operatives of the train could not see appellee’s oar in time to prevent injury. The only negligence in the case, if there was, in fact, any negligence, was the failure to give the signal so as to warn appellee and prevent his attempting to cross at that time. Appellee passed between the box-cars, according to his' own statement, at a speed of six or eight miles an hour, and the distance was too short for him to stop his car without going on the track, hence he turned to the right and tried to escape in that way, but the car went onto the track and was struck by the engine.

The error of the court in submitting this issue necessarily calls for a reversal of the judgment, because we have no means of ascertaining what effect it had upon the jury. St. L. I. M. & S. Ry. Co. v. Kimbrell, 111 Ark. 134. There was a sharp conflict in the testimony as to the giving of the statutory signals, and the jury may have found that the signals were given. Besides that, there was a conflict as to whether or not appellee was guilty of contributory negligence and as to the comparative degree of his negligence with that of the trainmen in failing to give the signals. Therefore it was important that a correct instruction be given, and the jury may have been misled by this instruction which submitted the issue of failing to keep a lookout.

The court gave correct instructions submitting the question of appellee’s own negligence in ¡comparison with that of the trainmen. In one of those instructions the jury were told that it is the duty of a person approaching a railway crossing to “look and listen for the approach of a train, and, if the situation is such that ordinary care requires him to stop in order to effectively hear or see the train, to stop his car before going on the track.” Appellant insists that the court erred in refusing to give another instruction, on .this subject, •but we think that the instructions given were complete and fully covered the issues in the case. . However,; for. the error in submitting the issue of failure to keep a lookout, the judgment will be reversed, and the cause remanded for a new trial. It is so ordered.

HaRt . and Humphreys, JJ., dissent.


text:
    Sullivan v. Wilson Mercantile Company.
    Opinion delivered March 23, 1925.
    1. LANDLORD AND TENANT — SUFFICIENCY OF DESCRIPTION‘IN LEASE. — ' A description of pasture land in a lease held sufficient to let in parol proof, to identify the land leased.
    2. Landlord and tenant — unexecuted agreement — consideration. — A'mere unexecuted agreement of a lessee to consent'to a sale1 of the leased land by the lessor, held not to hind- the lessee, where no consideration passed to him.
    3. Vendor and purchasers — notice of lease. — A .purchaser buying land with notice of a lease and of the lessee’s actual possession at the time of purchase held not an innocent purchaser.
    4. Vendor and purchaser — occupancy of lessee. — The actual control and use by a léssee of inclosed pasture lands for any purpose at the time the land is sold by the lessor constitutes actual ' occupancy.
    5. - Injunction — effect of dismissal of suit. — The dismissal of the complaint in a suit in which a temporary injunction had been granted at plaintiff’s- request held -in effect a dissolution of the injunction.
    6. Injunction — dissolution—restitution.—In -a suit to restrain a lessee from, trespassing.on land purchased by plaintiff, in which a temporary .restraining order was granted, and a cross-bill filed alleging defendant’s right to possession and wrongful deprivation thereof, dismissal of the- cause as to -both parties, without granting restitution of possession to defendant and damages for deprivation of the 1-an’d, held error under'Crawford & Moses’Dig., §§ 5822, 5825,
    Appeal from Randolph Chancery Court; Lyman F. Reeder, Chancellor;
    reversed.

      David L. King, for appellant.

      George G. Dent, for appellee.
   McCulloch, C. J.

This appeal involves a controversy between appellant and appellee over the right of possession of certain farm land. Both parties assert the right of possession from a common source.. The land is a part of a farm in Randolph County, known as the Gross Farm, situated on Spring River, neár the town of Imboden. There is a bridge across. Spring River at Imboden, and Gloss Farm runs up to the. river at the bridge. The lands were formerly owned by J. J. Brooks and his wife, Nora, and appellant claims under a written lease, which reads as follows:

‘ ‘ This December first, 1922. Imboden, Arkansas.
“This contract entered into between J. J. and Nora V. Brooks and E. N. F. Sullivan. The parties of the first part agree to rent to E. N. F. Sullivan, the party of the second part, the described land as follows: To all of the alfalfa and Bermuda grass land, commencing on the north at the cross fence, running west to cross fence on big bank; then running south to river; thence east to bridge. E. N. F. Sullivan of the second part does agree to pay to the parties of the first part $10 (ten dollars) per acre, and land to be measured. It. is further agreed that the amount to be paid on the land note for the term of three years, 1923, ’24, and ’25, to be paid each year. This land is on what is known as the Goss land in Randolph County. Witness our hands.”

Appellee purchased the land from Brooks and wife on February 14, 1923, and instituted this action against appellant in the chancery court of Randolph County on March 28, 1923, alleging that appellant was interfering with the possession of appellee by trespassing on the land and preventing appellee from enjoying peaceable possession. The prayer of appellee’s complaint was that appellant be perpetually restrained from interfering with the possession and from trespassing on the land. Appellee obtained a temporary restraining order at the commencement of the action.

Appellant filed a cross-complaint setting up-Ms right of possession under the lease from Brooks and wife. He also filed a cross-complaint in which he alleged that he had taken possession of the-land under his lease 'prior to the alleged purchase of the land by appellee-from Brooks; that he was in possession at the time of the commencement' of this action, and had been wrongfully deprived of the possession under the injunction issued in the caise. He set folrth damages, and prayed - for a decree for the recovery of them. ' -

On the final hearing of the cause the court dismissed both the complaint of appellee and the cross-complaint of appellant, and apportioned the costs of the action between the two parties. The decree contained no. for-mial dissolution of the injunction, and there was no assessment of the damages claimed by appellant. The cause was heard upon depositions and oral testimony submitted to the court. The court found, in the first place, as the foundation for the decree dismissing the cross-complaint, that the lease contract to appellant did not contain a sufficient description of the land in controversy. We think that the court was not' correct in the conclusion reached on that' subject, for the descrip: tion in the contract, when aided by extrinsic evidence, was proper and sufficient to identify the ' land, It' describes the land as a part of ."the Goss land in Randolph County,” and refers to it as "all of the alfalfa and Bermuda grass land.” It also describes the land as "commencing on the north at the cross fence running west to cross fence on big bank; then running south to river, thence east to bridge.” The identification of the land as “all of the alfalfa and Bermuda grass land” on the Goss farm in Randolph County contiguous to the bridge and river was, we think, sufficient to let in proof as to what particular land answered this description.

It is contended by appellee, in support of the court’s decree, that appellant waived his lease by consenting to the subsequent sale of the land to appellee, but we are of the opinion that the testimony does not support this contention. There is a conflict in the testimony as to just what took place between appellant and Brooks in regard to the- subsequent sale of the land, hut, even at the utmost of Brooks’ contention in this respect, appellant only agreed that he would consent to :some arrangement and “do what was right.” Appellee knew that appellant was holding under a lease, and that Brooks was endeavoring to get the consent of appellant to a sale of the land. There was no consideration passed to appellant to support a surrender of the lease and possession of the premises, hence a mere unexecuted agreement on the part of appellant that he would consent to a sale did not bind hjm. Appellee was not in any sense an-innocent purchaser, for, as before stated, the undisputed evidence shows that it had notice of appellant’s lease and was aware that appellant was in actual possession at the time of the purchase from Brooks.

There is a conflict as to the extent of appellant’s possession, it being contended that it is not sufficient to constitute actual possession. It is true that the proof shows that appellant was only using the land at the time for pasturage purposes, but the proof shows that this part of the land covered by the lease was under fence and that appellant was using it to pasture his cows. Appellee concedes that, at the time it made the purchase from Brooks and attempted to take possession, appellee was grazing two cows on the land. The fact that the lands were actually inclosed and were being controlled and used by appellant for any purpose at all was sufficient to constitute actual occupancy. The' purchase of the land by appellee from Brooks was therefore subordinate to appellant’s rights as lessee, and the court was correct in dismissing the complaint of appellee for want of equity. No appeal has been prosecuted from that part of the decree, but appellant complains that the court erred in not awarding him damag’es for being put out of possession and kept put during the pendency of the action. The reas.on given by the court for denying this relief was that the description in appellant’s lease was insufficient, but, ás we have already seen, the court erred in that regard. If appellant’s cross-complaint had been an independent; action for damages, his remedy was complete at law, and he could not have invoked the jurisdiction of a-court of equity; but, in the present action instituted by appellee, in which an injunction was obtained and which deprived appellant of 'substantial rights, the latter was entitled, under the statute, to a restitution of the possession of which he had been deprived by the injunction and ,an assessment of damages sustained by • reason thereof.- Crawford & Moses’ Digest, §§ 5822,-5825. The effect of the dismissal of appellant’s complaint was to dissolve the injunction, and appellant wa's - entitled'to the relief afforded, under the statute. The court erred in- dismissing the cause without granting relief, for appellant’s cross-complaint was tantamount to a prayer for the restitution of possession and for. assessment of damages.

■ The decree is therefore reversed, and the cause remanded with directions to the court to make an order of restitution, and proceed to the assessment of damages in accordance with. the terms of the statute. It is so ordered. . •


text:
    Hunt v. Road Improvement District No. 12.
    Opinion delivered March 23, 1925.
    1. Highways — grounds for setting aside assessments. — Where plans were formed, benefits assessed and money borrowed for a road improvement, the fact that the anticipated benefits were not realized or'that the available funds were insuifieient to complete ' the improvement does not afford grounds for cancelling the ■assessments which were made and taxes thereon levied to pay outstanding obligations. •
    2. ■ Highways — imfrovement district — reassessment.—In a- suit by taxpayers against a, road improvement district to cancel- assessments, and eliminate plaintiffs’ lands from the district, wherein plaintiffs did not ask for a reassessment nor state facts sufficient to show the necessity for a reassessment in conformity with the statute, a decree ordering 'a reassessment of behefits held unwarranted. ■ .
    3. Highways — reassessment warranted when. — Under the statute creating a road improvement district, a reassessment ■ of the benefits assessed in a road improvement district is not justified unless it can be made without diminishing the total amount of assessments. ■ ‘ -
    Appeal from Woodruff Chancery Court, .Southern District; A. L. Hutchins, Chancellor;
    affirmed.

      Jonas F. Dyson, for appellant.

      W. J. Dungan, for appellee.
   McCulloch, C. J.

This appeal involves two consolidated actions in the chancery court of Woodruff County — one instituted by appellee road improvement district against certain delinquent taxpayers to enforce taxes on betterments, and the other instituted by certain other taxpayers to restrain the road district from attempting to enforce assessments, and praying also for a decree canceling the assessments on their lands. In both cases there is an effort to cancel the assessments of benefits on the alleged ground that the part of the road to be improved contiguous to the lands of appellants was not in fact improved at all, and that, on account of the omission to compete the improvement as originally planned, the lands of appellants will receive no benefit. The two cases were, as -before stated, consolidated, and heard by the chancery court as one . ease upon the following agreed statement of facts:

‘ That Boad Improvement District No. 12 of Wood-ruff County was created under act 402 of - the ‘ General Assembly of 1919. That, pursuant to the authority contained in the act, the board of commissioners of said road district proceeded to assess' the benefit's to the lands embraced in the district that would accrue by reason of the improvement contemplated in the act. That the lands described in the complaint are embraced in the district, and the benefits alleged in the complaint were assessed in. the amounts and for the years named in the complaint. That thereafter a tax levy was made by the county court of Woodruff County on said land, and taxes thereafter were collected as alleged in the .complaint, in the amounts, or at the rates, and for the years •as alleged. That the ■ said assessed benefits above described constitute a lien on all of the lands in the district. That, pursuant to the authority contained in act 402, the board of commissioners issued and sold'to third persons bonds of the district in the sum of $585,000, these being1 interest-bearing bonds, the interest on'same maturing semi-annually. That of said bonds $545,000 are now outstanding and unpaid. That the benefits assessed on the lands stand as security for the payment of said indebtedness. The total assessed benefits as filed by the board of commissioners in Road Improvement District No. 12 of Woodruff County is $979,590.37.
“We further agree that the board of commissioners undertook the construction of the road and laterals provided by the statute, and spent all of the money derived from the sale of the bonds above mentioned in such construction, but said board did no work toward the construction of that part of the road described in the complaint as ‘beginning at the intersection of the old military road with the St. Francis and Woodruff County lines and running in a southwesterly direction to the town of Hunter, in section 17, township 5 north, range l west,’ and agree that the construction of said part of the road is not under contemplation by the board of commissioners. That the engineer’s work was terminated and his connection with the board of commissioners ended on July 1, 1922.” •

The court found against appellants as-to the validity of the assessment of benefits, and denied relief by cancellation, and, on the contrary, decreed the enforcement of the delinquent taxes, and also decreed that the commissioners should make a reassessment of benefits in the district, pursuant-to the statute creating it. Road Acts, 1919, vol. 2, p. 1693. Appellants have duly pros- . ecuted an appeal from that part of the decree refusing to cancel the assessments and enforcing the liens for delinquent taxes, and appellee has cross-appealed from that part of the decree ordering a reassessment.

We are of the opinion that the chancellor was correct in refusing to cancel the assessments and in enforcing delinquent taxes. The only ground upon which appellants base their claim is that the funds borrowed for the construction of the road have proved insufficient to complete the improvement. This does not, however, afford legal grounds for setting aside the assessments. It is not contended that the statute was not complied with as to the formation of plans for an improvement, to cost not exceeding the amount of the benefits, but, on the contrary, it is admitted that the plans were formed and benefits were assessed and money was borrowed, and that there are outstanding bonds. The fact that''.the anticipated benefits were not realized from the improvement or the fact that the available' funds were insufficient to complete the improvement does not afford grounds for cancelling the assessments which were made and taxes thereon levied to pay outstanding obligations. Salmon v. Board of Directors, 100 Ark. 366; Road Improvement District v. Morris, 153 Ark. 635.

Counsel for appellant relies on the decisions of this court in Phillips v. Tyronza & St. Francis Road District, 145 Ark. 487, and House v. Road Improvement District, 158 Ark. 263. In the Phillips case, supra, there was an attempt to change the plan by eliminating a lateral road provided in the statute as a part of the authorized improvement, and we held that there was no authority to thus change the statutory plan and depart from it. In the House case, supra, the same principle was announced. In the present case there was no change of plan — no attempt at substantial departure from the statutory scheme — but there was merely a failure to complete the improvement according to plans. It there had been an attempted departure from the terms of the statute, .landowners 'had the right to prevent the issuance of bonds and the levy of assessment^, as-in the-Phillips, ease, supra, but'that was not done. On. the., contrary,, under the plans adopted, -assessments were, levied, money was borrowed and bonds issued. No. relief can.be afforded merely because the funds proved to bp insufficient. .

Our conclusion, however, with respect to the . other feature of-the case is that the court erred in ordering a reassessment. There .yere no sufficient .grounds shown in the pleadings or the proof for such a decree.. The sole efforts of. appellants in the present litigation were to cancel the assessments and eliminate their, lands from the district, They did not ask for a reassessment, nor did they state facts sufficient to show that a reassessment should be made in conformity with the statute.; that is to say, 'a reassessment which would not diminish the total amdunt of benefits, as originally assessed. .The statute expressly forbids.a diminishing of the total amount of assessments, and, unless there are facts stated sufficient to justify granting relief without diminishing the assessments, there are no grounds for-ordering a reassessment.

Counsel for appellants rely on the decision of this court in Road Improvement District v. Morris, supra, but we do not' think that the case supports that yiew.' In that case the action was brought for the express purpose Of compelling the bo'ard of commissioners' to ' make a reassessment pursuant to statute, and it was.'alleged that demand had been made on the commissioners for that .purpose, and refused. The question decided was whether or not the chancery court had jurisdiction to order a reassessment, and the court answered that question in the affirmative. There is -no question' here about the jurisdiction Of the court, but the difficulty is that •the court exercised jurisdiction and granted a decree .compelling a- reassessment without a -showing of sufficient facts to justify it.

That part of the decree ordering a reassessment is therefore • reversed, and the remainder, of the decree is affirmed. The; cause will be remanded, with- directions .to' enter a decree in accordance with this opinion. It.is so ordered.


text:
    Moyer v. Altheimer.
    Opinion delivered March 23, 1925.
    1. . Mandamus — compelling county court to allot road funds.— Mandamus is the remedy provided By Special'Acts 1923, p. 370, § 5, to compel the Pulaski County Court' to appropriate1 the' minimum amount per. square' yard for aid to' road improvement ., districts 'building ha,rd surface roads of concrete, or asphalt with concrete base, as the county court has no discretion, as to allowance of the minimum.
    2. Mandamus^ — legislative control over remedies. — Special Acts 1923, p. 370, § 5, providing for allotment of a portion of the road funds to road improvement districts in Pulaski County, so far as it provides for'enforcement of its provisions by mandamus, was within the power of the Legislature, which has complete control of the forms of remedies, so long as it does not invade the ;constitutional'jurisdiction of..the courts. ■ ■ '
    3. Highway&l_all6tment óf 'road "funds. — Special Acts, 1923, p. 370, requiring the Pulaski County Court to appropriate a portion . of the road funds derived from the three-mill road tqx,. the gasoline tax, the per capita tax, the automobile: tax, and. “any other tax now or that may hereafter he levied and collected' for use on the roads and highways of Pulaski County,” Held to refer only to taxes of .similar character to those enumerated, and not to the general revenue of the county, and not tó be invalid ¡as an invasion of the jurisdiction of the county court over the highways and of the- disbursement of the county revenues. ■
    4. . Highways — appropriation of funds — discrimination.—Special-Acts-, p. 370.-§§ 1, 2, requiring the ■ apportionment of, funds to road improvement districts held not void -as discriminating between rural -and urban districts and between improved roads of different types, as the control of the Legislature over the ' tax is supreme, " and the rule of uniformity of distribution does hot apply. - ' ■
    5. Highways — presumption as to character of road. — Although the’record-fails" to show the character of the road for which a- distribution of county road funds is sought, it' will be -presumed - that the improvement district was legally organized and that the . road improved is a public highway.
    Appeal from Fulasiki'-Circuit Court-, Second Division; Richard M. Maim, Judge;
    affirmed.-

      W. II. Donham and Lee Miles, for appellant.

      It. E. Wiley and Gray, Burrow & McDonnell, for appellee.
   McCulloch, C. J.

Appellees are the commissioners of a road improvement district in Pulaski County, designated .as Little Rock-Levy ■ and Park Hill Paving District No. 4, created by special act of the General Assembly, and they instituted this action in the circuit court of Pulaski County to compel 'appellant, the county court, by peremptory mandamus, to apportion to said improvement district its alleged share of road funds prescribed by statute. ' They alleged in their petition for mandamus that, they had filed an application, or petition, with the county .judge asking for a distribution of funds, and that the county judge denied the petition and refused to apportion any funds to the district. Appellant demurred to the petition of appellees, which was overruled, and then answered, and, upon-the facts stated in the pleadings, the court awarded the writ as prayed for in the petition of appellees. '

The statute which forms the basis of the proceeding was enacted by the General Assembly of 1923, and is applicable only, to Pulaski County. Special Acts 1923, p. 370, section 1 of the statute,'reads as follows:

“The county coUrt of Pulaski County shall set aside from, time to time, into what shall be' known as a ‘fund for.building permánent roads,’ a sum that shall be one-half of .all road funds of every class and kind that may •come into the hands of the county court for use by the county court on the roads of Pulaski County, which shall include 50 per cent, of the county court’s portion of any of.the following taxes.: . three-mill road tax, gasoline tax, ■pér capita tax,, automobile tax, or any other tax now or that may hereafter be levied and collected for' use on the road's and highways of Pulaski 'County. ”

Section 2 provides that an improvement district organized 'tip'on the petition of property holders “for the purpose of building roads, highways or public thoroughfares, where the improvement contemplated shall provide for a paved road surface of concrete or asphalt pavement on a concrete base, shall, on filing of plans thereof, have the right' to petition the county court of Pulaski County for aid out of said ‘funds for building permanent roads,’ in an amount that will not exceed one dollar per square yard for the pavement that the district proposes to build, as shown by plans and specifications filed,” and that “it shall be the duty of the county court to make and enter an order allowing such district such aid as the county court may deem wise and expedient, taking into consideration the importance of the road seeking aid, however, not less than fifty cents nor more than one dollar for each square yard of concrete pavement. or asphalt type pavement laid on concrete base, that the district proposes to build, shall be allotted any such district.”

There are other sections of the statute not deemed pertinent to this controversy, except the concluding sentence of § 5, which reads as follows: “Any provision of this act may be enforced by mandamus by any taxpayer of Pulaski County.”

It is further contended by counsel for appellant, as grounds for reversal, .that the remedy sought by appel-lees .is not available, and that there should have been an appeal from the judgment or ruling of the county court in refusing to make the distribution of funds. Counsel invoke the rule, often announced by this court,, that remedy by mandamus cannot be. made a substitute for an appeal or writ of error (Basham v. Carroll, 44 Ark. 284), and that the remedy cannot be adopted to control a judicial act or the exercise of discretion by a public officer, either judicial or ministerial. Rolfe v. Spybuck Drainage District, 101 Ark. 29. These principles have been often announced by this court, but there are exceptions? to the rule, equally well settled, that mandamus is available • as a remedy to compel the •' performance of purely ministerial acts hot involving discretion, and also to compel public officers, either judicial or ministerial, to act — not to control the exercise of discretion or judgment, but to compel action. Examples of this exception are fo.und in cases where the county court was compelled to -levy taxes to pay certain debts, the court having, refused to act in the matter (Lee County v. State, 36 Ark. 276; Hempstead County v. Graves, 44 Ark. 317), and in cases where the county court has refused to levy taxes oh benefits in a road district (Carl-Lee v. Road Improvement District, 157 Ark. 137), and in cases where the county judge refused to proceed with the designation of a county depository (Robertson v. Derrick, 113 Ark. 40). In the last-mentioned case it was said: “Judicial discretion, in those matters committed to the county, court, will not be controlled by writ of mandamus, but, even.in those matters where the cohrt fails or refuses to act at ail, it can be set in motion by mandamus. ” The present statute expressly confers the remedy of mandamus, and’, since the Legislature has complete powe.r in prescribing the form' of remedies which do not invade or exceed the constitutional jurisdiction of courts, there is no' reason for holding that the designation of this remedy in the present instance was beyond the power of the Legislature. Here we have a case where the lawmakers prescribe a definite action for the county court in the distribution of funds. A minimum and a maximum amount are designated, and the county court has no discretion save in fixing the amount between the minimum and maximum. The judgment of the circuit court in awarding the mandamus is that the court be compelled to allot to appellees the minimum amount prescribed by the statute, and this-is not an attempt to control the discretion of the county court, for- it has no discretion in the matter as to the allowance of the minimum prescribed by the statute. ■

It is contended that the statute providing for the distribution Of funds is unconstitutional and void,- first, for the reason-that it constitutes an invasion of the jurisdiction of the county -court: over highways and the disbursement of revenues- of the county.- ■ Prior decisions of this court settle that question against the contention of counsel. Texarkana v. Edwards, 76 Ark. 22; Sanderson v. Texarkana, 103 Ark. 529; El Dorado v. Union County, 122 Ark. 184; Adkins v. Harrington, 164 Ark. 280. In those cases it was decided that the Legislature •could control the distribution of road funds other than those derived-through the general revenues of the county. The distinction between the power to -distribute' the county general fund, fixed by the Constitution, and other funds raised for road purposes, is pointed* out in: the . ease of El Dorado v. Union County, supra. In the recent case of Adkins v. Harrington, supra, there was involved the constitutionality of a special statute which required distribution to a specified street improvement district in Little Bock of all the revenues, derived from the three-mill road tax imposed on real property situated within the district, and the court upheld the .validity of that statute. The controlling force of that decision cannot be escaped in the present controversy. , In each of the foregoing cases there was involved a legislative allotment of funds to a municipality for street purposes, but none of the decisions- turned on that feature. ' The distinction was made solely on the kind of funds to be distributed, .and not on the character of - the public agency which was to receive the funds. But’ it is contended .that the present statute does- not fall within prior decisions, and that the statute is void for the reason that it, embraces not- only the three-mill tax, the gasoline tax, the per capita tax and the automobile-tax, but also ‘•‘•any other tax now or that may hereafter be levied and collected for use on the roads and highways of Pulaski County.” It is argued that this language embraces general revenues appropriated for road purposes. We do not think the statute is fairly open to that interpretation. The 'rule of ejusdem generis is applicable, and this language only applies to taxes which may be levied of a similar character to those enumerated. Furthermore, this language does not apply to general revenues for the reason that the road funds appropriated .by .the quorum court out of the general revenue fund do not constitute taxes “levied and collected for use on the roads and highways.” The fund thus collected is not a levy for road purposes, but it constitutes a levy for general revenue purposes, and this is not altered by the fact that the quorum; court distributes it by appropriation to roads as well as to other purposes of the county. All of the taxes specified in the statute are those over which the Legislature has complete control, according to the decisions cited above, and we think .that the contention that this is an invasion of the jurisdiction of the county court is entirely unfounded.

It is contended that the views now expressed, as well as the holding of the court in the cases cited above, are in conflict with the decision in the case of State v. Berry, 158 Ark. 84. We do not think, however, that the case just cited has any bearing on the present question or that it is in conflict with prior decisions. In that case we dealt with a statute which levied a county privilege tax, pursuant to the constitutional authority delegating to counties the power to tax privileges. Such a tax, whether levied directly by the county or by the Legislature for the county, was a county tax, and the funds were necessarily general revenue funds of the county, which fell within the constitutional jurisdiction of the county court. We merely decided in that case that the Legislature could not take away from the county court jurisdiction over this fund and delegate the authority to a board composed of commissioners of the various road districts of the county. We held in the cases cited supra that the three-mill road lax is not a part of the revenues committed absolutely to the control of the county court, and it follows that other taxes levied, not as general revenue funds of the county, fall within the same category. The statute is not therefore void on the grounds stated above.

It is further contended that the ■ statute is void because it discriminates between rural road districts and districts within the city of Little Eock, and also between improved roads of different types. The answer to this contention is that the control of the Legislature over the tax is supreme, and the rule of uniformity in the distribution of revenues raised by such taxation does not apply. Sanderson v. Texarkana, 103 Ark. 534.

Finally, there is a bare suggestion in the brief of counsel for appellant, without extended argument, that the record fails to show that the road improved by the district in question was a public highway, and that it does not fall within the terms of the statute under consideration. It has been held by this court that improvement districts cannot be organized to improve roads other than public highways (Glover v. Improvement District, 89 Ark. 513), and the statute under consideration must be interpreted to refer only to roads which were public highways at the time the improvement was to be made. On examination- of the record we fail to find any reference to the character of the road as to whether or not it was a public highway at the time it was to be improved, but we must indulge the presumption,-until it appears to the contrary, that the improvement district was legally organized, and that it was a public highway.

It was a district organized by order of the county court on petition of a majority of the owners of property, and the presumption is conclusive that the road to be improved was established as a public highway.

This disposes of all the questions raised on the appeal, and, since we have reached the conclusion that the statute is valid, and that the judgment of the circuit court thereunder was correct, it follows that the judgment must be affirmed, and it is so ordered.

Wood and Hart, JJ., dissent.


author: Wood, J.

text:
    Brown v. Kammerman.
    Opinion delivered March 23, 1925.
    Logs and ' logging — sale op timber. — A contract whereby the owner of land agreed to sell the. merchantable timber thereon, to be cut and removed.by a certain date, the consideration being certain work to be done by the grantee by a certain date, and’ upon his failure to- do the work the grantee to pay $4 per acre, held to be a sale of timber, and not'á mere ■ contract of employment. • 1
    Logs and logging^-title to timber cut. — Where timber was cut under a contract of sale, and left on,the land by agreement of the owner, the title was in the purchaser, and the owner of the land had no title to convey to a purchaser of the land, though the latter had no notice of the sale of the timber.
    Evidence — market value op timber. — In replevin for logs or their value*. testimony as to their value at the nearest market was admissible upon proof that they had no -market value at the place from which they were taken.
    Replevin — market value of converted timber. — Where the owner of timber was prevented from receiving it iby the purchaser of the property on which" the timber was lying, under claim of ownership, the market" valué at’the timé the action of replevin was brought, and not at the time defendant claimed the timber was recoverable. .
    Trial — necessity of specific objection to instruction. — In replevin for timber .of ii¿s value an instruction that if the jury found for plaintiff they should find for him the value of the logs at the time the suit was brought, though not as full and accurate as it might have been, was not inherently erroneous or prejudicial in the absence of specific objection.
    Appeal from Clay Circuit Court, Western District; G. E. Keck, Judge;
    affirmed.

      G. T. Blopdworth, for appellant.

      Oliver & Oliver, for appellee.
   Wood, J.

On the 14th of January, 1922, D. Hopson and W. A. Kammerman entered into a contract whereby Hopson agreed-to sell to Kammerman-all the merchantable timber on the north half of -a certain tract of land, the timber to be cut and removed by May 1, 1922. In consideration of the contract, Kammerman agreed to slash and cut all the timber before May 1, 1922, and he was to have all of the timber so out by him. If be failed or refused to out and. slash all the timber before that date, be was to pay Hopson the sum of $4 per acre for. the timber on the land. Kammerman entered upon the. performance of the contract and cut all the timber on the tract, with the exception of a few trees, by the -26th day of April, 1922. Kammerman told Hopsdiij- the other party to the contract, that he wanted to-leave’ some- of the logs o'n the land until he could conveniently get thein off, and Hopson said, “That will be all right.” After May 1,1922, Kammerman left on the land certain cypress logs -containing 11,575 feet. On October 25, 1922, Hop-son sold to D. A. Brown the tract of land on which the cypress logs cut by Kammerman were situated. After Brown purchased the land, Kammerman undertook to remove the logs, and Brown objected, and Kammerman instituted this" action in replevin against Brown to recover the logs or their value. .

Brown denied that Kammerman was the owner and entitled to the possession of the logs. In addition to the above, there was testimony on behalf, of Kammerman tending to prove that there were 11,575 feet of cypress logs on the land, worth from fifteen to eighteen dollars per thousand feet.' There was also testimony to the effect that the logs were damaged, and that four or five dollars per thousand feet would be a reasonable market value- of the logs on the land' at the time Brown purchased the same from Hopson. Brown testified to the effect that, at the time he purchased the land from Hop-son, Hopson told him that Kammerman’s time for cut-, ting the logs was out, and exhibited to Brown the contract he had with Kammerman. (Witness told "Kammer-man that he could have all the logs that he had cut and left on -the- land, except the cypress. All the logs except the cypress were .on the land still. Witness hauled the ■cypress logs-' and: scaled them,; there being; something ••■over lQ;000.feet. At the time he bought the land from :Hopson fhere< were 35-,or '36 big.trees standing "on the land, and there was a strip that lacked 20 or 30 feet of being all slabs. Other witnesses corroborated Brown’s testimony to the effect that there was a strip left on the land that had not been slashed in the fall of 1922, abont 20 or 30 yards wide. Hopson corroborated the testimony of Kammerman to the effect that, after the time for the slashing of the timber nnder the. contract had expired, he agreed with Kammerman to extend the time. At the time he sold the land to Brown he showed Brown witness’ contract with Kammerman and told him abont the extension. Witness didn’t know, when he sold the land to Brown, that any logs were left there. If Kam-merman said anything abont logs being there, witness didn’t remember it. When Brown was negotiating with the witness to bny the land, he asked witness if he was buying everything that was there, and witness told him, “Yes.”: At. the time Brown bought the .land witness didn’t consider his contract with Kammerman had anything to do with it, except to show Brown the time that it expired. Hopson further testified that, at the time he sold the land to Brown, he didn’t claim title to the logs that had been cut on the land.

. Kammerman testified in rebuttal that Hopson’s foreman inspected the work witness had done in slashing the land, and told witness -that it was all right.

The court told the jury, in its instruction No. 4, that “if you find for the plaintiff, you find for him the value of the' cypress logs at the time the suit was brought.” The appellant duly excepted to the giving of this instruction. ,The defendant asked the court to instruct the .jiiry to the effect that, if they found for the plaintiff, they should find for him in such‘sum as they believed from a preponderance of the evidence was the fair and reasonable market value of the -logs at the time the claim Was made to them by the defendant, and that the reasonable market value would mean the value at the time of the taking as "they lay on the ground where they were claimed by the defendant, and'didn’t mean the value of the lumber which might be cut from the logs. The court refused the defendant’s prayer, to which ruling the defendant duly excepted. The jury returned a verdict in favor of the plaintiff below in the sum of $100. Judgment was entered in plaintiff’s favor against the defendant for that sum, from which is this'appeal.

The appellant contends that the contract under which the appellee claims title to the logs in controversy did not evidence a sale of timber to the appellee, but was a mere contract of employment, and therefore appellee had no title to the logs and no right to remove the same after May 1,1922. We do not agree with learned counsel in this construction of the contract. The contract expressly provides: “Hopson has agreed to sell to the said Hammerman all the merchantable timber on the north half of SW14 section 4, T. 21 N, R. 4 E., * * * such timber to be cut and removed by May 1, 1922.” True, the contract specified that the consideration for the sale was certain work to be performed by Kamm'er-man by a certain day, and, in the event the work was not performed within that time, then the grantee, Hammer-man, could pay to the grantor, Hopson, as an alternative consideration, -the sum of $4 per acre for the timber on or before the date mentioned.

The undisputed evidence in the case shows that the appellee, the grantee^ had paid the purchase price, or consideration, for the timber in controversy to- his grantor, Hopson, by his labor, and that Hopson, the grantor, had accepted this consideration before he sold, the land to the appellant Brown. The timber in controversy, as we understand the testimony, was felled by the appellee before May 1, 1922, but was not removed until after that time. , But the grantor, Hopson, agreed with the appellee to extend the time so far as the removal of the timber was concerned. Thus the contract for the sale and purchase of the timber between the grantor and the grantee was completed before the land on which the timber was situated was sold to the appellant Brown. At the time Hopson, sold the land to Brown, Hopson had • no title to the timber -in controversy which he could convey to Brown. At that time the timber had been felled-by the appellee. It was personal property, and appellee had paid the consideration, which had been accepted by the vendor of the timber, and an extension' of time granted by him to the appellee to remove the timber after May 1, 1922. ■

In Indiana & Arkansas Mfg. Co. v. Eldridge, 89 Ark. 361-367, we said: “In this case the contract of sale must be construed as an entire instrument, and. we think that the words ‘cut and-remove’ in the connection.-in which they are used, mean a severance from the soil. It necessarily follows that, when severed from the soil by the grantee, the timber becomes its personal property, and subject to the law concerning personal property.”

In Griffin v. Anderson-Tully Co., 91 Ark. 292, we held (quoting syllabus): “Under a contract fob the sale of growing timber, whereby the grantee is authorized to cut and remove timber within a certain period of time, the title to timber cut by the grantee within such period, but not removed from the land, passes to such grantee, together with a right for a' reasonable time thereafter to remove the timber.”

Here, as we have seen, the time was extended by mutual agreement between the grantor and grantee for the removal of the timber beyond the time specified in the written contract. Under the doctrine-of the above eases, the title to the timber in controversy was unquestionably in the appellee. ■

The appellant next contends that the court erred in the admission of testimony and in its rulings on prayers for instructions concerning the value of the logs in controversy. The''testimony on beljalf' of the appel-lee was to the effect that the logs in controversy had no market value at their location whén replevied: But there was testimony tending to show that they had á market value when removed from the lands and taken to the nearest market to be sawed into- lumber. The court did not err in permitting the testimony as to such market value.

In Clear Creek Oil & Gas Co. v. Bushmaier, 165 Ark. 303, we said: “If there be no market value at the place of delivery, the value of the goods or other product should be determined at the nearest place where they have :a market value, deducting the extra expense of delivering them there. The prices prevailing at the nearest place where the product can be sold, less transportation and distributing charges, show the value of .such product at the place of delivery as nearly as it is possible to show such value.” As the appellant refused to allow the appellee to remove his logs, and thus compelled the' appellee to institute'suit against him, the court did not err in instructing the jury that they should find for the appellee the value of the logs at the time of the institution of the suit, and did not err in refusing the prayer of appellant for instruction on the issue of value.

While instruction No. 4 given by the court was not as full and accurate as it should have been, yet it was not inherently erroneous, ' and there was no specific objection made to it. In the absence of such objection, there was no prejudicial error in giving it. In view of the undisputed evidence on the subject of ‘value, it could not have misled the jury. There was ample testimony to sustain the amount of the verdict as fixed by the jury.

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


author: Woon, J. McCulloch, C. J.,

text:
    Home Life & Accident Company v. Beckner.
    Opinion delivered March 23, 1925.
    1. INSURANCE — INDEMNITY POLICY — FORFEITURE.—Under a clause in an indemnity policy requiring the employer to give the insurer immediate written notice of any injury to an employee-and of any suit instituted by the latter, the giving of. such notiee is not a condition precedent, unless it is made so by express terms or by necessary implication, nor does failure to comply therewith constitute ground of forfeiture of the policy.
    2. Insurance — indemnity policy; — duty to give notice of injury. —While a clause in an indemnity policy requiring the employer to give immediate written notice of any injury to an employee is not a condition precedent, such provision is valid, and there can be no recovery against the indemnitor unless there is a compliance , therewith within a reasonable time.
    3. Insurance — indemnity policy — delay in giving notice of injury. — Where an indemnity policy required immediate written notice of an injury to or suit by an employee, notice of an injury given one year, seven months and two days after the injury and.ten months after suit brought was unreasonable delay, preventing recovery. .
    4. '.*lNSURANOBi — INDEMNITY POLICY — EXCUSE FOR FAILURE TO GIVE notice. — Where an indemnity policy required the insured employer to forward immediately any summons or other process in •any suit by an injured employee against the employer, the fact that delay of 10 months-in forwarding summons was occasioned by the advice of the employer’s attorney that the insurer was noit liable, held not to excuse the delay.
    Appeal from Dallas Circuit Court; Turner Butter, Judge;
    reversed.

      T. D. Wynne, for appellant.

      James D. Head, Jones &• Jones, McDonald & Jones, for appellee.
   Woon, J.

On October 14, 1914, the appellant, a corporation of Arkansas, issued a policy in favor of the Pine Belt Lumber Company, a corporation of Oklahoma, to idemnify .the latter, for. a term of one year against loss from liability arising out of damages not in excess of $10,000 on account of bodily injuries, fatal or non-fatal, accidentally suffered within the period covered by the policy, by any employee of the lumber company while on duty within the factory, shop, or yards of ’the lumber company. The policy contained, among others, the following provisions:

‘ * This. insurance is subject to the' following conditions :***.*
“G-. The assured, upon the occurrence of any accident, shall give immediate written notice thereof, •with the fullest information obtainable at the time, to the head office of the' company at Fordyce, Arkansas, or to the agent countersigning this policy. He shall give like notice, with fullest (particulars, of any claim that may be made on account of such accident, and shall at all times render to the company all cooperation and assistance in his power.
“H. If, thereafter, any suit is brought against this assured to enforce a claim for damages on account of an accident covered by this policy, the assured shall immediately forward to the company every summons or other process as soon as the same shall have been served on him, and the company will, at its own cost, defend it against such proceedings in the name and on behalf of the assured, unless it shall elect'to settle the same or to pay the assured the indemnity provided for in clause ‘A’ as limited herein.”

On the 25th of June, 1915, one Clifford Biggs, while in the employ of the lumber /company, received a personal injury; On March 25, 1916, Biggs instituted an action against the lumber company in the Oklahoma District Court, and recovered judgment in that court for $6,000, which judgment was afterwards 'affirmed by the Supreme Court of Oklahoma. The lumber company paid this judgment in full on the third day of January, 1921, amounting, with interest at the time of the satisfaction, to the sum of $7,368.05. The lumber company, through its trustees, the appellees, instituted this action against'the appellant to recover on'the policy above mentioned the amount of that judgment. It was alleged in the appellees ’ complaint that the lumber company had complied with all the terms and provisions of the contract, and that the appellant refused to indemnify it as provided by the terms of the policy. The appellant defended on the ground that the lumber company had not complied with the provisions of the policy set out above.

The facts on the issues .joined are substantially as follows: The injury to Biggs occurred, as above stated, on June 25,: 1915. On February 17,. 1916, Riggsattor-ney wrote to the lumber company, notifying, it that they ■ had-been employed to represent Riggs’ interest in bis claim for damages against the company. They stated-in this letter that the injuries were received as “a result of 'a train running away, over which' the lumber company had control; that Riggs was riding on the engine by virtue of a pass that the lumber company had issued to him.,permitting him to ride at his own risk.’’.

McDonald, one of the attorneys for the lumber company;-testified to the effect that, in' his opinion; under the terms of the letter received by the lumber company from Riggs’ attorneys, the insurance company was not liable because the letter showed that the relation between Riggs and the lumber company at the time of Riggs’ injury was that of passenger and carrier, and not that of employer and employee. On Jianuary 24,1917, one year, ■ seven months and two days after the injury to Riggs, McDonald & Jones, attorneys for the lumber company, wrote to the appellant, stating in effect that Riggs had instituted a suit against it on March 26, 1916, claiming that he was injured while he Was in the employ of the lumber company, and-inclosing a copy of Riggs’ complaint.- In this letter the' attorneys stated that it was' the contention of the lumber company that Riggs was an independent contractor and not an employee, but that was a matter to be -established in the court upon trial of the casé'; that, if Riggs- were found to be an employee, then the lumber company would contend that it was within the protection ■ of the insurance against liability under the terms of its policy, and therefore the lumber compány was giving- the insurance company notice of the action in order that the latter company- might come in and defend same or take-such steps as it deemed proper to protect its interests, and stating that the case- would likely be set for trial on March -5, 1917. To this- letter the-insurance company replied, stating that it had no suggestions .to make with reference to the defense - of the suit; for the reason that there was no obligation on its part to interest itself in the matter; that the injury- was not reported to the appellant insurance company,- and for that reason it declined to .interpose. The-cause, by consent, was heard by the trial court sitting as a-jury, and the court found generally-the facts and law in favor of the appellees, and rendered judgment in their favor in the sum of $7,368.05, with interest from the date of the judgment at the rate-of six per cent, per annum from -January 3, 1921. From that judgment is this appeal..

In the case of Hope Spoke Co. v. Maryland Casualty Co., 102 Ark. 1, the policy under review contained the provision that “immediate notice of any accident and of any suit resulting therefrom, with every summons or other process, must be forwarded to the home office of the company, or to its authorized representatives.” In that case the company issuing the policy received actual notice of the injury thirty-two days after it occurred, and it appeared that the company was not injured by reason of the fact that notice was not given earlier. -The company made a full investigation in due time of ’the ■injury. We held, under the facts of that case, that the language of' the policy above quoted wUs not a condition precedent to recovery on the policy, and said': “The contract of insurance does not, in express terms, -make the provision with reference to- giving notice of an accident a condition upon which liability of -the insurer depended. The absence of language indicating an intention to make compliance with that provision a condition of recovery is noticeable. It does not, in express terms, declare a forfeiture of the insured’s right to recovery upon failure to give notice, nor can it be fairly implied, from, the language of the contract, that the provision was intended as a condition precedent to the'right to recover.' On the contrary, the form of -the policy and the language employed in it indicated a contrary intention.” While the clause of the policy under review in the case of Hope Spoke Co. v. Md. Casualty Co., supra, is somewhat different from the language, of the policy under review in the case at b.ar, there is no essential difference in principle. Whatever may be the rule in other jurisdictions, this court is committed to.the doctrine that failure to give notice under a clause in a policy.similar to that under review ‘ ‘ does not operate as a forfeiture of the-right to recover, unless the policy, in express terms, or by necessary implication, makes the giving of the notice within the time specified a condition precedent to recover.” See also Shafer v. U. S. Casualty Co., 90 Wash. 687, 156 Pac. 61; Md. Cas. Co. v. Robertson & Co., (Tex.) 194 S. W. 10140. There is no such express provision in the policy under consideration and no language making the provision as to immediate notice the essence of the contract.

We therefore cannot concur in the view of the learned counsel for the appellant, that the clause of the policy for construction in the case at bar makes the failure of the assured to comply with the provisions of the policy in regard to the giving, of (immediate notice of the accident and of any suit instituted by the injured party against the assured conditions precedent and-grounds of forfeiture of the policy. We do, however, fully agree with the counsel for appellant in his contention that there must be at least a bona fide icompliance on the part of the assured with these provisions of the contract before he is entitled to a recovery. The assured, in other words, cannot wholly ignore the requirements of the policy as to notice of the-occurrence of the accident and as to the claim of the assured on account thereof, and likewise the provision requiring notice of any suit brought by the injured, party against the assured for damages on account of the accident. These.provisions in an insurance policy are valid. They are intended for the protection of the insurer, in order that he may investigate the circumstances of the injury and determine the course that he will pursue with reference to any claim that may be asserted against the assured by reason of snob injury, either before or after suit. Even though not a condition precedent and not a ground for forfeiture of the policy, the insurer has the right to insist that the insured comply with the obligations of his contract. This court did not hold, in the case of Hope Spoke Co. v. Md. Cas. Co., supra, that such provisions of the contract of insurance could be disregarded on.the part of the insured. On the contrary, we there held .that there was a compliance with such-provisions of the contract. As we view the authorities, the courts generally hold that there can be no recovery-unless there is a compliance with these provisions of . the policy. 4 Cooley’s Briefs on Insurance, p. 3571; 67 L. R. A. 275.

This brings us to the question as to whether there is -any substantial testimony tending to support-the find-, ing of the court -that the appellees had' complied with their contract to give Immediate notice of the accident; and whether the lumber company immediately forwarded to appellant the summons served on the insurance company in the suit by Riggs' against such company. • Mr. Cooley says: “The condition requiring ‘immediate notice-’ or ‘notice forthwith’ of injury to ■ employees, means written, notice within a reasonable time, under the circumstances of the case. * # * The question as to what would be a reasonable time, under the varying circumstances of each particular case, would seem primarily to be a question for the jury, under-proper instructions by the court.” Cooley’s Briefs,-ppr3572-3575,- and cases there cited. . ^:

The accident resulting in the 'injury to ' Riggs occurred on ¡June 25, 1915. The manager of the company and also its attorney knew of the accident and injury to Riggs on that day. McDonald, attorney for the lumber company, was of the-Opinion, from the statement of how the accident occurred by. the manager of the company, that the insurance company would not be liable under its policy. The lumber company did not notify the insurance company of the accident until January 24, 1917. Eiggs, through his attorneys, notified the lumber company- of his claim for damages against it on February 17-, 1916, and on the 25th of March, 1916, Eiggs instituted a suit in a district court of Oklahoma against the lumber company to recover damages for his injury. But the lumber company did not notify the appellant insurance company of the filing of this suit until January 24,- 1917. These facts are undisputed, and there is therefore no testimony to sustain a finding of the court that the appellant had- notice of the accident and of the suit within a reasonable time. The court should have declared as a matter of law, upon the undisputed testimony, that the lumber company did not comply with the provisions of the contract concerning the notice to 'be given appellant of the occurrence of the accident and of the institution of the suit by Eiggs against the-lumber company. --The failure of the lumber company to notify the appellant of the occurrence of the injury for a-period of one year, .seven months and two-days after its date, is an unreasonable and inexcusable delay. - Likewise, the failure on the part of the lumber company to forward the summons against it, thus notifying' the insurance company-of the suit that had been instituted against the lumber company by Eiggs, for a period of ten months, was an unreasonable delay within the terms of the contract of insurance. The appellant ■ is in no manner bound- by the opinion: of the lumber, company’s attorneys to the effect that the appellant,.under the circumstances of the injury, wás not liable to the lumber company under the policy. This opinion .of the attorneys was not. sufficient in law to justify it in. failing,. for a period of ten months,, to- forward notice to-the appellant, of the suit that had been filed against it.

Mr. Cooley says: “The courts, without regard to the question whether reasonableness of the time is a matter for the court or the jury,- have held unexcused delays of varying length-unreasonable per se,” and several-cases are cited- in support of the text, where failure to give notice for a less time than ten months was held to be unreasonable delay. 4 Cooley's Briefs on Law of Insurance, p. 3573.

The trial court erred in failing to find as a matter of law that the lumber company had not complied with its contract, and that it was therefore not entitled to recover. The judgment is therefore reversed, and the cause will be dismissed.

McCulloch, C. J.,

‘(concurring). My concurrence in the reversal of this case is based entirely on other grounds than those -stated in the -opinion of the majority, for I think that a double mistake has been made by the majority in holding that the giving of immediate notice of injury and of the'-commencement of an action' was not a condition' precedent to the performance of which operated as a forfeiture, and in holding that failure to comply with these requirements operated as -a forfeiture without the -same being treated -as conditions precedent. My view of the case is that the requirements with -respect to notice were conditions precedent, and that there was a forfeiture on -account -of failure -to perform those -conditions. It seems to me that the majority have misconceived and misapplied the decision of our court in Hope Spoke Co. v. Maryland Casualty Co., 102 Ark. 1. The policies involved in the two cases are radically different. The policy in the case cited did not, either in express words or by necessary implication, declare the requirement with respect to notice to be a condition. The policy merely stated the requirement, but did'not make it a condition, nor -declare that a forfeiture would result from non-compliance. On the other hand, the policy in -the case now before us states that it “is subject to the following conditions,” and then proceeds to state the requirements in regard to notice. It does not state the requirement as -a condition precedent, but does state it as a condition, and the necessary result is that it is a condition precedent. Tn the opinion in the case cited we recognized that the question involved wa-s a very close one, and that the tennis of- the policy came very close to- the line of distinction in the authorities on the subject. We. followed'the line-of authorities holding that ‘ ‘failure to give notice within a specified time, in accordance, with the terms of the. policy, does not operate as a forfeiture of the right to .reooyer unless the policy in express terms or. 'by necessary, implication makes .the-giving of notice, within the specified time a condition precedent to recovery. ’ ’ In the present case the policy does, in express terms, declare the giving of notice within the time specified to be a condition. If it is a condition at all, it. is a condition precedent to the right of recovery on the policy.

The majority is also in error-, I think, in holding that, if the requirement was not. a condition- precedent, the failure to give notice in this case worked a forfeiture. The correct rule is .that, unless the requirements of the policy constitute conditions precedent to recovery, or al-1'rights .under the policy are forfeited by failure to comply with the requirements, then the omission is. not a defense.to a suit on the policy unless-some injury resulted from -such omission. That is precisely what we decided in Hope Spoke Co. v. Maryland Casualty Co., supra. In that case we held that the requirement of notice was not a condition precedent, and that failure to strictly comply with the requirement was not a defense because no injury was shown to. have resulted. See also Frank Parmelee Co. v. Aetna Life Insurance Co., 166 Fed. 741, where the court said: “In contracts of this kind, to escape liability, the insurer must show that the breach is something more than amere technical departure from the letter.of the bond — that is, a departure that results in -substantial prejudice and injury to its position in the matter.”

In- the- present case there was no attempt to show that any injury resulted to appellant from the failure of appellee to give notice of the injury and of the institution of the action by- the injured employee. But, for the reasons stated above, I concur, in the reversal.

Mr. Justice Smith agrees with me in the views here expressed.


text:
    Kusin v. Chicago, Rock Island & Pacific Railway Company.
    Opinion delivered March 23, 1925.
    Carrier — pilinq claim op loss within stipulated time. — A 'Requirement'in á bill of lading that claims for loss, damage or ■ delay should be presented within ■ a stipulated time is not complied with nor waived, where the shipper notified the carrier of the loss of; goods, to which the carrier responded that it was doing everything possible to bring the claim to a settlement.
    (Appeal from Pulaski Circuit Courts Second Division; Richard M.j Mann, Judge;
    affirmed.-

      ■-■Jean S Jones, LittleRock; Geo. J. Ginsberg, Alexandria, La., »o'f counsel, for' appellant.

      •George B. Pugh, Little Rock, for appellee.
   Wood, J.

This action was instituted by the appellant'against-the appellee for the loss of a shipment of machinery shipped by -the appellant to Smith & Purbush Machine- Company-at Philadelphia, Pennsylvania, over appellee’s line of railway and connecting carriers. The shipment was delivered to the appellee’s local agent at Little Rock,. Arkansas, on March 23,1920, on which date the agent delivered to appellant a bill of lading evidencing the'contract'<jf shipment. The appellant alleged that the machinery had never been delivered- by the appellee and its connecting carriers- to the consignee, and that same .was lost/- The appellant specified the articles shipped and their value, amounting in the aggregate to ■the sum of $1,010.85,‘for which-he prayed judgment.

The-appellee denied the material allegations of the complaint, und set up,- among other things, in defense the following clause in the bill of lading: “As a condition precedent to recovery, claims must be made in writing to the originating, or delivering, carrier within six months after delivery-of the property; or, in case of failure-to make délivery; then within six months after a reasonable time for delivery has elapsed. Where claims- for loss, damage or delay -are not filed, or suits not instituted thereon, in accordance with the foregoing provisions, the carriers, will not be liable, and such claims will not be paid.”

The testimony on behalf of the appellant tended to show that the machinery was delivered to the appel-lee at Little Rock, Arkansas, for shipment to Smith & Furbush Machine Company at Philadelphia, on March 23, 1920. Under the testimony,- the shipment should have 'been delivered not later than June 23, 1920. On June 24,' 1920, the appellant notified the local agent of appellee at -Little Rock, by letter, that the machinery had not been delivered to the consignee. The letter to the local agent .gave the description of the machinery, the names of the consignor, and consignee,, the point of delivery, and stated that tlie appellant was' very much in need of the goods. Again, on October 25, appellant wrote the local -agent a similar letter. On October 29, 1920, at the appellee’s request, the bill of lading was forwarded to appellee’s local freight agent. On November 6, 1920,- the appellee’s local freight agent wrote the appellant to the effect that the shipment had gone forward-over the appellee’s connecting carrier at Memphis. Inclosed in. the letter was the freight, bill showing the delivery to the. connecting carrier. • The appellant also wrote, before December 23, 1920, a letter to the connect-. ing carrier’s local freight agent at Memphis, concerning the shipment; and again, on January 17, 1921, appellant wrote a letter to the local freight agent of the connecting, carrier at Memphis. The purport of- these letters was to- notify the local agent that the- machinery had not been delivered and that the appellant was needing the same, and. urging -the railway companies to see that the machinery was delivered. The appellee did not file a written demand-or claim for the loss of the machinery, giving the items and the value thereof, until February 7,1922. On that day appellant did file its claim showing, tlie value of each article of machinery lost, amounting in the aggregate to $1,010.85. On April 13,-1922, appel-lee’s superintendent, of freight claims wrote the appellant a letter in which he stated: “In reply to yonr favor of April 6, 1922, relative to yonl claim,, amounting to $1,010.85, * * * we assure you that we are doing everything possible to bring same to a speedy .close;” and again, a similar letter on May 23, 1922, in which the appellee, among other things, stated: “We assure you that we are doing everything possible to bring this claim to a prompt settlement, and would thank you to wait just a little longer until the papers are returned.”

On February 3, 1923, appellee wrote appellant a letter as follows: “With furtheir reference to your claim, dated February 7, 1922, amount $1,010.85. * * * After a lengthy investigation we find that the shipment was delivered to the consignee at destination, they acknowledging receiving the entire shipment in six boxes, although the bill of lading called for seven; * * # therefore we are returning all papers in support of your claim, respectfully declined.”

The appellant asked the court to instruct the jury in effect that the correspondence constituted proper notice provided for in the bill of lading, and that the appellee was estopped by its correspondence from setting up in defense the insufficiency of the .alleged notice or claim or the mode or manner in giving same; that it should be presumed that the appellee had waiyed the stipulation in the bill of lading sued on. respecting the notice of, or claim for, the alleged lost shipment. The court refused to so instruct the jury, ,to which . ruling the appellant duly excepted. The appellee asked .the court to instruct the jury to return a verdict in its favor, which request the court granted, and to which, ruling the.appellant duly excepted.. The jury returned a verdict, as directed, and from a judgment-rendered in favor of the appellee is this appeal.

In Chicago, Rock Island Ry. Co. v. Williams, 101 Ark. 436, this court had under consideration a provision in a bill of lading similar in- all -essential particulars to-that under review here., .In that, case-we saidc. “In. the present ease the. requirement is not merely for 'notice to the carrier that damage has .resulted, but it; is that .the • claim for the ‘loss, damage or delay’, shalpbe'presented within the stipulated time. The purpose of the requirement is to give the carrier timely opportunity tu investir gate the claim for damage after the sanie has been presented. This involves the right to investigate the. con-, tents of lost packages and the value of lost articles, as well as the facts bearing upon the question of its liability.. The distinction is clearly pointed out by Judge Riddick in the opinion of the court in Western Union Tel. Co. v. Moxley, 80 Ark. 554, and’we are of the opinion that that decision is conclusive'of the present? case. It was'held in that case that, where the contract requiréd. the presentation of claim for daniages‘within a specified time, this requirement was not satisfied merely by‘ giving notice of the negligence of the company’s servants. This court' has in several cases held'that a provision of-this kind is reasonable and enforceable where sufficient time is given for presenting the claim or notice.”

In the recent case'of Davis v. Henderson, 266 U. S. 92 (Arkansas case), the Supreme Court of .the United Stat’es held .(quoting syllabus)’: “A tariff rule,' approved by the Interstate Commerce Commission) providing that orders for cars given.' the' carrier’s local agent must be in writing, cannot be waived’by the carrier through the agent’s acceptance of‘oral notice ‘from’ the' shipper:In the opinion the count said: ' “There is ho" claim that; the rule requiring written' notice wias void. Tlie contention is that the'rule wás1 waived. It could not be. The transportation'‘service to be performed'1 was' that of' common carrier under published tariffs; The' rule was a part of the tariff.’’" 'See cases there cited. Also, C. P. Blackburn & Co. et al v. Ann Arbor Railway Co. et al, 56 I. C. C. Reports 439; Traffic Law, Service Series 1921, § 2019, p. 317-318; Consolidated Freight Classification No. 4, p. 87.

The judgment, is therefore-correct, and it is affrmed.

      Reporter’s Note:
      *The case of Adams Express Company v. Van Pelt was decided ¡by the Supreme Court of the United States on April' 13-, 1925, subsequent ito the rendition, of the decision in the present case; and the question of validity of the stipulation in the bill of lading concerning claim for damages was hot raised in the present'case.