author: Wood, J.

text:
    Knight v. American Insurance Union.
    Opinion delivered December 6, 1926.
    1. Insurance — benefit society — limit of liability. — Where, in assuming to pay the benefits provided for members of a mutual aid society, the defendant society expressly limited its liability to the net amount to’ be realized from one assessment of the members of the roll of which he was a member after deducting his proportionate share of the expense of collecting it, and the assured assented thereto, such limitation was binding on his beneficiary.
    2.' Evidence — copy of writing. — Testimony of one in charge of the records of a mutual aid society held competent to prove its by-laws and the merger contract under which it consolidated with defendant, where he testified that the copy of the by-laws was true and correct and that the copy of the merger contract was examined and compared with the original.
    3. Evidence — delivery of mail matter. — In the absence of proof to the contrary, it will be presumed that matter properly mailed was received by the addressee.
    4. Insurance — acceptance of contract. — Evidence held to support a finding that the insured, a member of a mutual benefit society, received a copy of the contract whereby the insurer was consolidated with another insurance society, and that he accepted and became bound by its provisions.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      Chew & Ford, for appellant.

      Evans & Evcms, for appellee.
   Wood, J.

Tbe Home Protective Association of Springdale, Arkansas, hereafter called Association, is a mutual aid society organized and doing an insurance business in this State for tbe protection of its members on the assessment plan. On tbe 24th of March, 1919, tbe association issued its “cooperative graduating certificate” insuring the life of Horace Knight of Van Burén, Arkansas, in favor of Joe Knight. By the terms of the certificate, the association, in consideration of the application of Horace Knight, undertakes to pay Joe Knight, the beneficiary in the certificate, on proof of the death of the assured, the sum of $100 should the death of the assured occur within the first six months, and thereafter to be increased at the rate of $12.50' per month during 72 months, until it reaches the maximum of $1,000. The payment of the amount stated in the certificate was conditioned only upon the prompt payment of the assessments under the rules set forth in the application for the certificate and by-laws of the association. The application, among other things, provides: “The assessments shall begin at 43 cents, and graduate one cent per month for the first eighty-four months of the life of the certificate, when it reaches $1.27, which is named as the maximum amount which can be assessed against this applicant on any one death loss or accident benefit; provided, if the proceeds of said assessment, together with funds on hand, are not sufficient to provide for the maximum death benefit, a sufficient pro rata assessment shall be levied on all members to provide sufficient funds for such maximum ' death benefit. # * * It is understood and agreed that the applicant shall become a member of a roll not exceeding one thousand (1,000) members, and certificate shall be issued accordingly, each roll to be given a distinct number by which it shall be known and designated; and assessments for the redemption of certificates shall be made numerically on said rolls as deaths occur, to the end that each roll of certificate holders shall share equally the burden. The value and condition of the certificate for membership to be issued on this application shall be as follows: Should the death of the applicant occur within the-first six months from the date of the application, the beneficiary shall receive the minimum certificate value of $100. Value of certificate to increase thence $12.50 per calendar month up to and including the seventy-two months of the life of the certificate, when it reaches its maximum value of $1,000. * * * It is hereby understood that this certificate is a part of the contract and a warranty by the member, ’ ’ etc.

This action was instituted in July, 1925, by Joe Knight, the beneficiary in the certificate, against the American Insurance Union, hereafter called union, on the certificate as above set forth, to recover the sum of $800 which Knight alleged had accrued and was due under the certificate. He alleged, that all the provisions of the contract had been complied with on the part of the assured at the time of his death, that the union had assumed all the debts of the association, that all the provisions of the certificate had been complied with by the plaintiff since the death of the assured, and he prayed for judgment against the union in the sum of $800, together with 12 per cent, interest and reasonable attorney’s fees. The union answered, and set up that, according to the by-laws of the association in force at the time the certificate was issued, the association: was only bound to pay to the beneficiary,'on the death of the assured, the proceeds of one assessment on the members of the roll to which the assured belonged, less .the actual cost of making and collecting such assessment and paying out the proceeds thereof. It alleged that the association was consolidated with the union on November 1,1918, under a contract which, among other things, provides as follows: “The American Insurance Union shall not be legally obligated to pay the claims arising among the membership hereby consolidated in any amount in excess of the amount due the member or his beneficiary or beneficiaries under the by-laws of the Home Protective Association and the by-laws of the board of directors thereof.” And further: “The American Insurance Union will pay the benefits provided for members of the association hereby consolidated as provided for under the by-laws of the Home Protective Association and the by-laws of the hoard of directors thereof, but in no case shall the association be liable in excess of the amount provided therein, it being expressly agreed and understood that the American Insurance Union shall not be liable to the holder of the attached certificate in excess of the net amount realized from one assessment to the members of the roll of which he was a member in the Home Protective Association, after deducting his proportionate share of the expense of operation.” The union further alleged that, after the consolidation, it sent a copy of the merger contract to Horace Knight, to be attached to and become a part of the contract of insurance. It alleged that, in compliance with the by-laws of the association, the union levied an assessment on the members of the roll to which Horace Knight belonged for the month of May, 1924, the month in which he died, and that such assessment produced the sum of $79.82, from which, after deducting the sum'of' $13.30 to cover the expense of levying, collecting and paying out said assessment, there remained the sum of $66.52, which amount the union tendered to the plaintiff, and paid the sum into court, and prayed that it have judgment for its costs. When the cause was called for trial, and before the testimony was adduced, the union paid into the court the sum of $66.52, together with costs of the action to that time. The plaintiff then introduced in evidence the certificate containing the provisions as above set forth. Thereupon the defendant union admitted that the assessments had all been paid and that the certificate was in full force and effect at the date of the death of the assured, and that the plaintiff had complied with the terms of the contract of insurance as to proof of death of the assured. The defendant read in evidence, the deposition of Dr. George Hoglan, over the objection of the appellant that this testimony was irrelevant and incompetent. This witness testified, among other things, that the union and the association entered into a contract on November 1, 1918, the original of which was on file at the home office of the union. He attached to his deposition, as Exhibit No..2, “a duly examined and compared copy of the merger contract,” which was submitted to the insurance, departments of the States of Arkansas and of Ohio and approved by them before it became effective. The union sent a copy of this contract with a memorandum to each member of the association, with a receipt attached to the rider, for acknowledgment by .the member. His Exhibit No. 3 was a copy of that instrument. The union sent one to Horace Knight. He became a member of the union. The witness then stated that he was familiar with the by-laws of the association. The original records of these^ by-laws were kept in the files of the home office of the union. He attached to his deposition, as Exhibit No. 4, “a duly examined and compared copy” of the by-laws of the association that were in force at the time of the consolidation of the association and the union. The union tendered to Joe Knight the sum of $66.52 as the amount due on the certificate, which he refused to receive. One assessment was levied on the entire membership of the roll to which Horace Knight belonged. The records show that this assessment produced $79.82. The full amount was not-tendered because § 113 of the by-laws of the union and the merger contract provided that one-sixth of the amount collected should be deducted, leaving the amount of $66.52, which was tendered. The' witness testified that he had personal knowledge of the records of the union, and that the records referred to were the original records. He kept the original minutes of the constitution of the union when the same was adopted. They were signed by the witness, and were permanent records of the union. The witness was not present when the constitution and by-laws of the association were adopted, but he was present when copies were made from the original constitution and by-laws when same were turned over by the association to the union in 1918, and witness knew that these were true and correct copies. The assessment levied for the month of May, 1924, the month in which the assured died, were levied on seventy-four members, and the assessments were paid during the month June, 1924. According to § 113 of the constitution and by-laws of the union and the merger contract, one-sixth is deducted for expenses. Exhibit 1 to witness ’ deposition was § 113 of the constitution and by-laws of the union, which provided, among other things, that the expense and extension fund of the society shall receive one-sixth of all premiums collected for the expenses of levying, collecting and paying out the same. The documentary evidence referred to in the answer and by this witness wás all introduced and read to the jury.

In addition to the testimony of this witness there was further testimony to tíre effect that Horace Knight was entered on the records of the union as a certificate . holder, that his death occurred on May 28, 1924, and that, on that day, an assessment was levied on the entire membership roll'to which he belonged, which resulted in a collection of $79.82, and that, according to the constitution and by-laws- of the union and the merger contract, on-e-sixth was deducted for expenses. This levy was made under the supervision of the witness, whose duty it was to make the levies-and collections.

In addition to the above, the merger contract also contained the following provision: “It is hereby understood and agreed that the members hereby consolidated shall be subject to the constitution and laws of the American Insurance Union now in force or that may hereafter be in force, except as herein otherwise provided. ”

The plaintiff asked the court to direct the jury to return a verdict in his favor, in the sum of $800, which the court refused to do. The court, instead, instructed the .jury that, upon the only issue here, according to the undisputed proof and contract in "the case, they should return a verdict in favor of the plaintiff ill the sum of $79.82, less the actual expense of collecting the same., The plaintiff excepted to the above ruling of the court. The jury returned a verdict in favor of the plaintiff in the sum of $77.52. Judgment was entered for that sum, from which the plaintiff duly prosecutes this appeal.

1. The appellant has no right to recover the sum of $800, which he claimed was due undef the certificate issued by the association, unless the contract by which the association was consolidated with, the union gives him such right. The appellant alleged that the appellee, for a valuable consideration, assumed all the debts and liabilities of the association. The appellant thus bottoms his. right to recover of the appellee upon the contract by which the appellee union and the association were consolidated.

It will be observed, from the provisions of the merger contract set out above, that the appellee is not obligated to pay the claims of the members of the protective association in any amount in excess of the amount due the member of such association under the by-laws; that it is not liable in excess of the net amount realized from one assessment of the members of the roll of which he was a member in the association and after deducting his proportionate share of the expense of operation. The by-laws of the association provide “in no event shall any beneficiary receive more than the face value of such certificate, nor more than the proceeds of one assessment, less the actual cost of making and collecting such assessment and payment of the proceeds thereof.” The amount to be paid the beneficiary, less the cost of making; collecting, and paying’ the proceeds, is that produced by one assessment on the entire membership of the roll to which the deceased member belonged. Learned counsel for the appellee contend that there is no competent testimony in the record to establish the above provisions of the contract of merger and that there is likewise no competent testimony to prove the above provisions of the by-laws of the association. They rely upon the general rule of practice in the production of evidence, as announced by this court through Judge Lacey, in Brown v. Hicks, 1 Ark. 232, at page 243, as follows:

“It is a universal rule of practice that a party will never be permitted to resort to secondary or inferior evidence^ while it is in his power to adduce a higher grade, or more conclusive testimony. The best attainable evidence shall be adduced to prove every disputed fact. This rule of evidence is founded upon a supposition of fraud, and its operation is every way highly salutary and important. ’ ’

And counsel for appellant cite other Arkansas cases, to-wit: McNeill v. Arnold, 17 Ark. 154; Supreme Lodge K. of P. v. Robbins, 70 Ark. 364, 67 S. W. 758; Rural Home Lodge No. 1720 v. Sea, 143 Ark. 167, 220 S. W. 305; and 10 R. C. L. “Evidence,” § 66 et seq.; Mandel v. Swan Land & Cattle Co., 154 Ill. 177, 40 N. E. 462, 27 L. R. A. 313. But we have examined these authorities, and there is nothing in any of them to contravene the well established rule that, whenever a copy of a record or document is itself made original or primary evidence, it must 'be a copy made directly from or compared with the original. For instance, Judge Lacey, in the case cited above, from which .the excerpt is quoted, says: “It does not appear that the subscribing witness ever compared or examined the supposed copy with the original, nor did he pretend to say that he knew it to be an exact or sworn copy. All he states is that he believes the contents of the two instruments are • substantially the same, but he has not seen the original for many years.”

In Supreme Lodge K. of P. v. Robbins, supra, Judge Eiddiok, speaking for the court, recognized the rule as to certain books, papers and documentary evidence, when he says: “It appears from the evidence, we think, that these laws of the order were matters of record on the books of the order. It follows that they could not be proved by parol. As it would have been inconvenient to produce the original books, they should have been proved by an examined or authenticated copy. It was therefore not proper to have witness state his opinion of what the law was. He should have produced a copy of the law or record. * * * The witness should have stated that he had compared it with a record of these laws, and that it was a true copy of the same.” See also Miller v. Johnson, 71 Ark. 174, 72 S. W. 371.

■ In Rural Home Lodge No. 1720 v. Sea, supra, we merely held that the authority to try a member of a benefit society and to suspend him should have been shown by producing the rule, regulation or by-law conferring such authority. So that case is not in point.

And in McNeill v. Arnold, supra, we held that the statute law of another State can be proved only by the production of the statute,' and not by parol. So likewise that case is not in point.

Now, an examination of the testimony of Dr. Hoglan discloses that, according to the rule recognized in Brown v. Hicks, supra, and in Supreme Lodge K. of P. v. Robbins, supra, the by-laws of the association and merger contract were proved by competent testimony. Dr. Hoglan’s testimony shows that he had charge of these records and documents. Concerning the merger contract, among other things, he said: “I am familiar with such contract and with the terms thereof. The original contract is on file at the home office of the American Insurance Union. I am attaching, as Exhibit No. 2, a duly examined and compared copy of the merger contract,” etc. Concerning the proof of the by-laws of the association he said: “I was present when the copies were made from the original constitution and laws which were turned over by the Home Protective Association in 1918, and I know the copy to be a true and correct copy.” Therefore we conclude that the by-laws of the association and the consolidation contract were proved by competent testimony. Under the terms of the merger agreement and the by-laws of the association, as above set forth, the appellant was only entitled to recover the net amount realized from one assessment of the members of the roll to which the deceased member belonged, after deducting his propor-. tionate share of the expense of making, collecting, and distributing the assessment. Such is the holding of this court in the cases of mutual benefit insurance societies having by-laws containing similar provisions to that under review here. Home Mutual Benefit Association v. Roland, 155 Ark. 450, 244 S. W. 719; Home Mutual Benefit Assn. v. Rownd, 157 Ark. 597, 249 S. W. 3; Fayetteville Mutual Benefit Assn. v. Tate, 164 Ark. 317, 261 S. W. 634.

2. As we have seen, the by-laws of the association provide that each beneficiary shall receive the proceeds of one assessment of the entire membership of the roll to which the deceased member belonged, and no more than one assessment, less the cost of making and collecting such assessment and paying out the proceeds thereof. The undisputed testimony in the record shows that the assessment made under the provisions of this by-law yielded $79.82. The court instructed the jury to return a verdict for such amount, less the actual expense of the collection, and the jury returned a verdict in the sum of $77.52. There is no contention by the appellant that the verdict, under the instructions of the court, was excessive, and appellant’s only contention is that the court erred in directing the verdict, and that the verdict was not supported by legal testimony. It follows from what we have said that the instruction of the court was correct, and the verdict of the jury was responsive to the undisputed testimony.

3. The case of American Insurance Union v. Robinson, 170 Ark. 767, 281 S. W. 393, is not in conflict with our decision herein holding that the appellee is not liable for the full amount claimed by the appellant. In that case the plaintiff’s action was predicated upon a certificate of insurance precisely similar to the foundation of the action in the case at bar, and the American Insurance Union, the defendant in that case, defended on the same grounds as it interposes here, to-wit, that the contract of consolidation limited the amount of its liability to such amount as should be collected from the membership roll to which the deceased member belonged, less one-sixth of the amount collected as expenses for collecting the same. We held, under the 'facts adduced in that case, That the defendant, the appellant, was liable for the full amount of the face value of the certificate. But the facts of that case were entirely different from the facts in the case at bar. For instance, the notification of the merger contract ■ to be attached as a rider to the certificate or contract of insurance, as is said in the opinion, “did not attempt to change her membership or the terms of the original contract. It contained no provision requiring her to accept the rules and by-laws of the Home Protective Association of Springdale, nor did it contain a notification that her certificate would be Controlled or governed by it. * * * It is true that appellant introduced testimony tending to show that it mailed a rider to Mrs. Kobinson to be attached to her certificate of insurance, embodying the substance of its contract with the Home Protective Association of Springdale limiting its liability in the payment of death losses, but appellee introduced testimony to the effect that Mrs. Robinson never received or heard of such rider. This question of disputed fact was determined against the appellant in the trial, and it is bound by the finding. ’ ’

The undisputed facts here are entirely different. The undisputed evidence shows that the assured was notified of the terms of the merger contract, to be attached as a rider to his certificate of insurance. The undisputed testimony is that the American Insurance Union, at the time of the merger, sent a copy of the contract with a memorandum to each and every member of the Home Protective Association, with a receipt attached to the rider for acknowledgment by the member. The American Insurance Union sent one of these to Horace Knight by mail. There is no testimony in the record to the effect that Knight did not receive the above rider. The presumption would be, since the same was properly mailed to him, in the absence of proof to the contrary, that he did receive the same. But, aside from this presumption, the conclusion is irresistible that the assured member did receive the rider, for he continued, after the merger contract until his death, to pay the assessments to the appellee. The undisputed testimony therefore justified the trial court in finding that Horace Knight, the assured member, received a copy of the consolidation contract and accepted its provisions. The appellant predicated his cause of action upon such contract, and, having accepted the same, he is bound by its terms.

The record presents no error, and the judgment of the trial court is therefore affirmed.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Davis v. Falls.
    Opinion delivered December 6, 1926.
    1. Evidence — letters as against interest. — In an action on rent notes, letters of the tenant’s husband in which he admitted her liability on the notes, are admissible as declarations against interest, and to show that she recog’nized her liability after she knew of alleged fraudulent representations in procuring the lease.
    2. Evidence — authentication of letters. — Letters may be authenticated by a witness familiar with the signature of the writer.
    3. Evidence — self-serving declaration. — In an action on rent notes, where the defense was that the landlord had fraudulently represented that the land was free of Johnson grass, evidence that, after the lease was executed, the tenant’s husband told a third person that the landlord’s agent had said that there was no Johnson grass on the land was properly excluded as a self-serving deelaraation.
    4. Appeal and error — conclusiveness of verdict. — The verdict of a jury is conclusive on appeal where there is any testimony of a substantial character to support it.
    Appeal from Mississippi Circuit Court, Osceola District; G. E. Kevlc, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    Mary C. Falls sued Elizabeth T. Davis to recover the balance alleged to be clue her on two promissory notes given for the rent of her plantation in Mississippi County, Arkansas. The suit was defended on the ground that the lease contract had been secured through fraudulent representations. Eugene Davis, husband of E. T. Davis, acted as her agent throughout the transaction. According to his testimony, he rented for his wife the farm of Mary C. Falls, in Mississippi County, Arkansas, for the years 1921-23, for a rental of $1,200 the first year, $1,500 the second year, and $2,000 the third year. The lease contract was signed through the fraudulent representation of the agent of the plaintiff that the land was free of Johnson grass. It subsequently was ascertained by the defendant that the land was full of Johnson grass, and this rendered it unfit for cultivation. The defendant paid the first year's rent, and subsequently ascertained that the land was unfit to cultivate because of the Johnson grass on it, and refused to pay the rent for the last two years, and sought to rescind the lease contract.
    A. B. Falls, a son of Mary C. Falls, was the principal witness for her. According to his testimony, Eugene Davis was upon the land before he leased it for his wife, and examined it. He knew that Johnson grass was on the land, and that feature of it was discussed between the parties before the lease was executed. Davis said that he was going to raise onions on the place, and that he would cultivate it so as to get rid of the Johnson grass.
    The jury returned a' verdict for the plaintiff, and from the judgment rendered’ the defendant has duly prosecuted an appeal to this court.

      Bruce Ivy and 8. B. Simpson, for appellant.

      J. T. Goston, for appellee.
   Hart, J.,

(after stating the facts). The first assignment of error urged for reversal of the judgment is that the court-erred in admitting certain letters, purporting to have been written by Eugene Davis, to be read to the .jury. These letters were written in the fall of 1923, and the lease contract was executed in the fall of 1921. In both of the letters Davis recognized that his wife was liable on the rent notes. The letters were admissible as a declaration against the interest of Mrs. Davis. Jefferson v. Souter, 150 Ark. 55, 233 S. W. 804. They were also admissible as tending to show that Mrs. Davis recognized her liability under the contract after she had been informed of the alleged fraudulent misrepresentation in procuring it. It will be remembered that the contract was executed in the fall of 1921, and these letters were written in the fall of 1923, long after the alleged fraudulent misrepresentation had been made and long-after the agent of Mrs. Davis claims that he had knowledge of it. Hightower v. Sholes, 128 Ark. 88, 193 S. W. 257.

The letters were authenticated by proving the genuineness of the signature of the writer, and this was sufficient to warrant their reception in evidence. Barham v. Bank of Delight, 94 Ark. 158, 126 S. W. 394. Joe Young testified that he was familiar with the signature of Eugene Davis, and that the signature to the letters introduced in evidence was the genuine signature of Eugene Davis. Therefore the letters were sufficiently identified to warrant their admission in evidence. Taylor v. State, 113 Ark. 520, 169 S. W. 341.

The next assignment of error is that the court erred in refusing to allow the defendant to prove by Joe Young that Davis had told him, over the telephone, after the contract had been executed, that Falls had said there was no Johnson grass on the land. The court was correct in refusing to allow this evidence to go to the jury. It was nothing more than a self-serving declaration, and was therefore inadmissible. Brotherhood of Railroad Trainmen v. Fountaine, 155 Ark. 578, 245 S. W. 17; Black v. Hogsett, 145 Ark. 178, 224 S. W. 439; and Arkmo Lumber Co. v. Cantrell, 159 Ark. 445, 252 S. W. 901.

The next assignment of error is that the evidence is not legally sufficient to warrant the verdict. The respective theories with regard to the fraudulent representation, that the agent of Mrs. Fall represented that the land was not infested with Johnson grass, and thereby secured the execution of the lease contract, and the theory of the plaintiff, that no such representation was made, were fully and fairly presented to the jury in accordance with the principles of law decided in Neely v. Rembert, 71 Ark. 91, 71 S. W. 259. The testimony of the parties on this phase of the case was in direct conflict, and, under our familiar rule of practice, upon appeal we must accept the verdict of the jury where there is any testimony of a substantial character to support it. St. L. Sw. Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S. W. 768. The jury was the judge of the credibility of the witnesses, and, by accepting the testimony of A. B. Falls, found that he, as agent for his mother, did not represent that the farm in question was not infested with Johnson grass in order to induce the defendant to sign the lease contract. On the contrary, according to Ms testimony, the agent of the defendant had been upon the land and was fully aware of the extent to which it was covered with Johnson grass.

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


author: Hart, J.

text:
    Cairo, Truman & Southern Railroad Co. v. Arkansas Short Line.
    Opinion delivered December 6, 1926.
    1. Eminent Domain — issue as to right to condemn. — As the condemnation statute provides for no issue on the right to condemn, the only remedy of a railroad company desiring to prevent condemnation of a crossing- over its right-of-way by another railroad is in a court of equity, to which the case should be transferred if the facts alleged in the answer justify equitable relief.
    2. Eminent domain — exercise by de facto railroad. — A de facto railroad corporation can exercise the power of eminent domain.
    3. Corporations — right to challenge existence. — When a corporation is organized as the statute requires, neither its purpose nor its validity is questionable, and any proceeding which challenges its right to exist must be instituted and maintained by the State under whose laws it is organized.
    4. Eminent domain — power of de facto corporation. — The fact that a railroad company’s articles of incorporation recite that the purpose of its incorporation is to operate as a carrier of freight only does not prevent it from being a de facto railroad exercising the power of eminent domain.
    5. Eminent Domain — elimination of damages by stipulation.— Where a railroad company seeks to condemn a right-of-way across the right-of-way of another company, the former may eliminate the element of damages for maintenance of such crossing by stipulating to maintain same at its own expense.
    6. Eminent Domain — cost of maintaining flagman. — A railroad company cannot claim, as compensation for taking its land for right-of-way of another company over its tracks, the cost of maintaining a flagman or the cost of stopping and starting trains at such crossing, as statutes requiring a flagman and the starting and stopping of trains at crossings are police regulations.
    7. Eminent Domain — damages—police regulation. — Neither a natural person nor a corporation can claim damages on account of being compelled to obey a police regulation designed to secure the common good.
    8. Eminent Domain — crossing of railroad. — Every railroad corporation takes its right-of-way subject to the rights of the public to Have other highways constructed across it when necessary.
    Appeal from Poinsett Circuit Court; W. W. Bandy, Judge;
    affirmed.

      Gautney $ Dudley, for appellant.

      N. F. Lamb and Allen Hughes, for appellee.
   Hart, J.

This is an appeal from a judgment of the circuit court fixing the compensation to he paid by the appellee, Arkansas Short Line, to the appellant, Cairo, Truman & Southern Railroad Company, for a railroad crossing over its right-of-way. It appears from the record that both appellant and appellee are railroad corporations duly organized to construct railroads between points within the State of Arkansas.

Article 17-, § 1, of our Constitution provides that every railroad company shall have the right with its road to intersect, connect with or cross any other road. In pursuance of the provision of this section of the Constitution, the Legislature of 1883 passed an act giving every railroad corporation created and organized under the laws of this State, or created and organized under the laws of any other State or the United States and operating a railroad in this State, the power to cross, intersect or unite its railroad with any other railroad. The act further provides that every railroad company whose railroad shall be crossed by any new railroad shall unite with the corporate owners of such new railroad in forming such crossing, and shall grant to such railroad all the necessary facilities for that purpose. Crawford & Moses’ Digest, § 8489.

Section 8490 provides that, if the two corporations cannot agree upon the amount of compensation to be made for the purpose set forth in the preceding section, or the points or manner of such crossing, the same shall be ascertained and determined by a court of competent jurisdiction in the same manner as provided for the ascertainment of damages for right-of-way for railroads.

It is contended, however, that, inasmuch as no provision is made in our condemnation statute for an issue upon the right .to condemn, the only remedy is in a court of equity to which the case should have been transferred upon the facts alleged in the answer of appellant. Niemeyer & Darraqh v. Little Rock Junction Ry., 43 Ark. 111; and St. L. I. M. & S. R. Co. v. F. S. & V. R. Ry. Co., 104 Ark. 344, 148 S. W. 531. Counsel for appellants are right in this contention, provided the facts alleged by appellants are sufficient to justify the equitable relief.

It is first contended that appellee is not a de jure railroad corporation, because nearly all of its stock was subscribed by a corporation which had no power to subscribe to the stock of another corporation, and that, not being a corporation de jure, it had no right to condemn a crossing over the right-of-way of appellant. In short, it. is contended that a de facto corporation cannot exercise the power of eminent domain. This is contrary to the weight of authority on the question.

In Natural Docks R. Co. v. Central R. Co., 32 N. J. Eq. 755, it was held that a court of chancery would not, on a motion for a preliminary injunction to restrain the Natural Docks Bailwav Company from constructing its railroad across the Central Bailroad Company’s land, inquire into the de jure existence of the former company as long as it had complied with all formal requirements and was a de facto corporation. It was said that there was no jurisdiction in a court of chancery to determine the legality of the existence of such a corporation.

The general rule is that, when a corporation is organized as the statute requires, neither its purpose nor its validity is questionable, and any proceeding which challenges its right to exist must be instituted and maintained by the State under whose laws it is organized. Most of the decisions in support of the rule say that it would produce manifest confusion and hardship if the right of the corporation to exist could be called into question by every litigant with whom it came in contact during its business career, and that therefore the principle is' wisely established that, after a corporation is organized as by law required, no adverse litigant can, in a collateral proceeding, challenge its right to exist. Calor Oil & Gas Co. v. Franzell, 128 Ky. 715, 109 S. W. 328, 36 L. R. A. (N. S.) 456; Central of Georgia Ry. Co. v. U. S. & N. Ry. Co., 144 Ala. 639, 39 So. 473, 2 L. R. A. (N. S.) 144; Sisters of Charity v. Morris R. Co., 84 N. J. L. 310, 86 Atl. 954, 50 L. R. A. (N. S.) 236; Chicago & W. Ind. R. Co. v. Heidenreich, 254 Ill. 231, 98 N. E. 567, Ann. Cas. 1913C, p. 266; and Morrison v. Indianapolis, etc., R. Co., 166 Ind. 511, 9 Ann. Cas. 587.

In Cumberland Tel. & Tel. Co. v. Louisville Home Tel. Co., 114 Ky. 892, 72 S. W. 4, the court said that the reason for the rule is that it would produce endless confusion, and destroy the corporation, if the legality of its existence could be drawn in question in every suit to which it was a party, for then no judgment could be rendered which would finally settle the question.

This holding is in accordance with our own decisions. Brown v. Wyandotte c& Southeastern Ry. Co., 68 Ark. 134, 56 S. W. 862, and Jones v. Dodge, 97 Ark. 248, 133 S. W. 828. In Niemeyer & Darragh v. Little Roch Junction Ry., 43 Ark. 111, it was recognized that, under a statutory proceeding to condemn land for right-of-way for railroads, no provision is made for any issue upon the .right to condemn, and the owner cannot in that proceeding question the legality of the corporation. In discussing the question the court said:

“To attack its existence collaterally is not permissible. (See cases cited in Abbot’s Dig. of Law of Corp., pp. 365 et seq.). A plea in the nature of nul tiel corporation would not be safe in the face of complete articles of association. If the objection were made on the ground of fraud in obtaining* the frauchise, it would still be true that the jurisdiction and proceedings in chancery to relieve such fraud are more complete and effective than at law..’ ’

Neither will the fact that the articles of association of appellee recite that the purpose of its incorporation is to operate as a carrier of freight only prevent it being a de facto corporation. Everything necessary to constitute it a corporation has been done, colorably at least. The act of the Legislature providing for the incorporation of railroad companies was followed. The question of whether the State could compel it to perform all the duties required by statute is not before us.

It follows that the right of eminent domain may be exercised by a de facto corporation, and, even under the allegation made by appellant, appellee was organized as a railroad corporation according to the forms of law, and was at least a de facto corporation. In this view of the matter, no useful purpose could have been served by transferring the case t'o chancery, for the result should have been that the chancery court would have dismissed the complaint of appellant to enjoin appellee from proceeding to condemn a crossing over its right-of-way, for the reason that appellee was a de facto railroad corporation, and, under our Constitution and laws, had the right to cross the railroad of appellant.

This brings us to the real question in the case, which is, did the circuit court adopt the correct rule as to the measure of damages?

One element of damages was eliminated by a stipulation to the effect that appellee obligated itself to maintain in suitable- and proper repair, at its own expense, the entire crossing at the junction point between the two railroads. Kansas City S. & G. R. Co. v. Louisiana. W. R. Co., 116 La. 178, 40 So. 627, 5 L. R. A. (N. S.) 512.

In this and other cases it has been held that, when the land of a railroad company is taken for a right-of-way of another company for a crossing, under the condemnation proceedings provided by law, the measure of damages to which the owner is entitled is the value of the land, and in addition thereto any additional expense created in the ordinary use of its road, and any other injury or damage to its track or right-of-way occasioned by the crossing, and which may be properly considered as the natural, necessary and proximate cause thereof. Toledo, A. A. & N. M. Ry. Co. v. Detroit L. & N. R. Co. 62 Mich. 564, 29 N. W. 500; K. C. Suburban Belt E. Co. v. K. C. St. L. & C. R. Co. 118 Mo. 599, 24 S. W. 478; Chicago & Alton R. Co. v. Joliet, L. & A. R. Co., 105 Ill. 388, 44 Am. Rep. 799; Old Colony Fall River R. Co. v. County of Plymouth, 14 Gray (Mass.), 155; Mass. Central R. Co. v. Boston, C. & F. R. Co., 121 Mass. 124; and Lake Shore & Mich. So. Ry. Co. v. Cincinnati, S. & C. Ry. Co., 30 Ohio St. 604.

Under the principles of law decided in these cases, appellant was not entitled to claim as compensation the cost of maintaining a flagman at the crossing or the cost of stopping and starting trains The statute requiring trains to stop at crossings is a police regulation, and so would be the cost of keeping a flagman there. Both railroad companies were'subject to police regulations, and compensation cannot be demanded for observance of statutes to promote the public good. Neither a natural person nor a corporation can claim damages on account of being compelled to render obedience to a police regulation designed to secure the common good.

The reason for the application of this rule in cases like the one at bar is well stated in Lake Shore & Mich. So. Ry. Co. v. Cincinnati, S. & C. Ry. Co., 30 Ohio St. 604. In that case the court said: “While the elder road can demand compensation for its property to the extent of the appropriation, it had no right to demand tribute from the junior road for the enjoyment of the same corporate franchises that it possesses. Each owes its authority to operate its road to the same source, the State, and neither has the right to tax the other for the enjoyment of these mutual privileges. It is true that the crossing imposes a new burden, but it is one to which it is subject by the nature of the case and the terms of its charter.

“Every railroad corporation line takes its right-of-way subject to the rights of the public to have constructed other highways across it, when necessary, in the same manner as it is the subject of future taxation or to reasonable regulation in the mode of using its property.”

To the same effect see 10 R. C. L. 150; 2 Lewis on Eminent Domain, 3d ed., § 729; and 3 Elliott on Railroads, 3d ed., § 1607 (1127).

The result of our views is that the court allowed appellant all proper elements of damages proved by it. It follows that the judgment will be affirmed.


text:
    Arkansas Mining Company v. Eaton.
    Opinion delivered December 6, 1926.
    1. Appeal and Error — sufficiency of evidence to sustain verdict. —In testing the legal sufficiency of evidence to sustain a verdict, the evidence must he viewed in the light most favorable to plaintiff.
    2. Master and servant — duty to adopt rules. — Where the conduct of a business is complicated or dangerous or where it is obvious that the safety and protection of employees depend upon the adoption and enforcement of proper rules, failure to adopt such rules constitutes negligence.
    3. Master and servant — failure to adopt rules — burden of proof. — In an action by a servant for personal injuries, the burden of showing the master’s negligence in failing to adopt or enforce proper rules rests upon the servant; the presumption being that the master has adopted and enforced all rules necessary to the operation of the business.
    4. Master and servant — negligence—sufficiency of evidence.— In an action for injuries to a servant operating a coal-cutting machine in a mine, caused by the failure of a fellow-servant to give notice of placing a defective coal-car in the entry of the room used by the plaintiff, where no rule requiring notice thereof to be given was shown and no such rule was necessary, it being plaintiff’s duty to look out for such cars, evidence held, insufficient to sustain recovery.
    Appeal from Johnson 'Circuit Court; J. T. Bulloch, Judge;
    reversed.
    STATEMENT BY THE COURT.
    G-eorge Eaton sued the Arkansas Mining Company and R, A. Blackwood, trustee, to recover damages for persona! injuries received while working in the mine of the defendants.
    George: Eaton was a witness for himself. According to his testimony, on the 14th day of August, 1924, he was running a Sullivant coal-cutting machine for the defendants in their coal mine in Johnson County, Arkansas. The machine was operated by electricity, which ran from a cable extending from the main entry of the mine into the room where the machine was operated. The cutting machine weighed several tons, and was carried into the room where it was operated on a truck on the mine tracks. It was moved from one place to another on steel tracks in the mine. After Eaton had worked for an hour and a half and had finished cutting the coal in the room, he and his assistant started to back the machine out of the room. He had a carlbide light on his head, and faced the machine in operating it. The cutting machine is twelve feet long and three feet wide. Eaton had to kneel on a platform on the machine in operating it. On backing’ out, his right side was towards the machine and his face was to the side watching the cable which carried the electricity. His assistant also carried a carbide light, and it was his duty to follow the machine and watch the cable so that the machine would not be dragged over it. Eaton had been operating such a machine for ten or twelve years at the time he was injured. As he was backing the car into the neck or tunnel which extended from the room where he had been cutting coal to one of the main entries of the mine, he backed against a coal-car, and hit it before he noticed the car being there. At once he applied the brake on his machine, and, Avhen he took his hand off the brake, the machine jumped, and this caused his hand to be caught betAveen the cutting machine and the coal-car. His finger was broken and permanently injured by the accident.
    At one place in his direct examination Eaton testified that he had not been notified that the coal-car had been set in there. In this connection we quote from his testimony the folloAving:

      “Q. State whether or -not it is customary to put those cars in an entry that way behind a coal cutting machine. A. It isn’t practical, for, whenever they do, they generally notify us.”
    Again we quote from his testimony the following:
    “Q. Hadn’t the driver the right, under your mining regulations, to put the car in there without saying a word to you or anybody else? A. Yes, he has a perfect right to put a car in there. Q. Isn’t it your duty to watch and see when cars are put there? A. Yes. Q. As a matter of safety to yourself, it is your duty. A. It was; but if the ear had been in the right condition, them hearings hadn’t been there, he would not have put the car there the first time, because he couldn’t get any further. Q. You mean the mine car was broken down? A. It was.”
    Again we quote from his testimony the following:
    “Q. You say whenever they put a car in there behind one of those machines the custom is to notify you? A. Walker does; yes sir.”
    Norman Gardner was the helper of Eaton, and corroborated his testimony as to the manner in which he was injured as he was hacking the cutting machine out through the neck or entry of the room where it had been cutting coal.
    Earnest Walker was also a witness for the plaintiff. He was the driver who left the .defective coal-car in the entry or neck of the room where Eaton had been cutting coal with the machine. According to his testimony, he set the car in the entry because it was defective, and testified that he did not notify Eaton that he had set the car in there. We quote from his direct examination the following:
    “Q. Is it customary to set a car in a room, behind one of those rooms, without notifying the machine runner? A. Well, I don’t know as it is customarily or not customarily. I always try to work to the advantage of anything that way, to keep any one from getting hurt or anything, hut I always generally notify the people, or digger, Q. You notify them that the car is in that sitúation? A. Yes sir. Q. And you ordinarily do that for the purpose of preventing an injury to them, is that it? A. I do. I try to keep any one from getting hurt.”
    We also quote from his cross-examination as follows :
    “Q. You’ve been there four years? A. Yes sir. Something like that. Q. You stated to Mr. Patterson that you did not notify Eaton that you had placed the car there? A. I didn’t that time. At times, why, if it is handy and such like, I hollo, ‘Here is a car’. Or ‘Watch out, George,’ I generally say, ‘Here is a car here’, or something like that. But, if it was handy for me to put in on other switches, I do so on account of not having to handle no cable. Q. There is no rule requiring you to give him notice? A. I haven’t had any notice served on me to do that at all. Q. You never had any orders to serve notice on him? A. No sir. I just taken it for granted on myself. Q. Just do it yourself ? A. In order to keep any one from getting hurt or anything like that. ’ ’
    Again, we quote from his direct examination:
    “Q. You didn’t notify Mr. Eaton that you had put it in there? A. No sir. Not that time I didn’t. Q. You ordinarily do that to prevent a fellow getting hurt? That is your custom? A. Yes sir. I take that on myself to hollo at them. ’ ’
    According to the evidence for the defendants, there was no rule or regulation requiring Eaton to be notified that a coal-car, whether defective or otherwise, had been set in the entry of the room where an employee was operating the cutting machine. It was also shown by the defendants that one of their servants notified the plaintiff that the car was in the entry room and directed him to switch it. The plaintiff was injured while engaged in switching the car. It was also proved by the defendants that it was the duty of the operator of the cutting machine to keep a watchout to see whether there were any obstructions on the track when he started to move his machine out of the room where he had been cutting coal.

      The jury returned a verdict for the plaintiff in the sum of $225, and from the judgment rendered the defendants have duly prosecuted an appeal to this court.

      James B. McDonough, for appellant.

      G. 0. Patterson, for appellee.
   Hart, J.,

(after stating the facts). It is earnestly insisted by counsel for the defendants that the evidence is not legally sufficient to support the verdict, and in this contention we think counsel is correct. Counsel for the plaintiff asked a recovery upon the theory that the defendants were negligent in failing to notify the plaintiff that one of their servants had placed a defective coal-car in the neck or entry of the room where the plaintiff had been engaged in operating a coal-cutting machine.

In testing the legal sufficiency of the evidence to sustain a verdict in favor of the plaintiff on the ground of the negligent failure of the defendant to notify him that the coal-car had been placed in the entry, the evidence must be viewed in the light most favorable to the plaintiff. When this is done, however, we are of the opinion that the plaintiff, by his own testimony, has precluded himself from recovery. It failed to establish the fact that it was a rule or regulation of the company to notify him that a defective or other coal-car had been set in the entry of the room where he had been operating the cutting machine. He says in one place that they generally notified him, but this falls short of establishing a regulation to that effect. We have quoted from his cross-examination upon the question of notice. In this the plaintiff admitted that, under the mining regulations, the driver of the coal-ear had a perfect right to put the coal-car in the neck or entry of the room where he was operating the cutting machine, and that it was his duty to watch and see when cars were put in there. His only excuse is that, if the coal-car had not been defective, Walker would not have put it there. Thus it will be seen that, under the plaintiff’s own testimony, there was no duty upon the part of Walker to notify him that the defective car had been placed in the entry.

On the other hand, the plaintiff expressly admitted that it was his duty to watch out for himself and see when coal-cars were placed in the entry. Once more, in his testimony, the plaintiff was asked if it was not the custom to notify him when a car was placed in the entry, and he answered, “Walker does, yes sir.” This merely shows that it was the practice of Walker to notify the operators of cutting machines when he- placed coal-cars in the entries of the rooms in which they were working, but it does not establish that there was any rule or regulation to that effect.

Indeed, the testimony of Walker himself shows that, while he generally notified his fellow-servants that he was leaving a car in the entry, he did that to prevent them from getting hurt, and not because of any rule or regulation requiring him to do so. He was expressly asked if there was a rule requiring him to give such notice, and answered that he was not required to give the notice by the company, but he just did it himself in order to keep any one from getting hurt. As he expressed it, he took it for granted, and gave the notice usually by holloing at his fellow-workmen that he had placed a car there. Thus it will be seen that no duty devolved upon Walker to notify Eaton that the defective coal-car had been placed in the entry.

There being no rule or regulation requiring such notice to be given, no recovery could be had against the defendants because of their failure to do something which, under their rules and regulations, they were not required to do.

In this connection it may [be stated that rules are important and necessary where the conduct of the business is' complicated or dangerous, or where it is obvious that the safety and protection of the employees depend upon their adoption and enforcement, the failure to adopt and enforce proper rules or regulations for the proper management of the business in such eases is negligence. Ft. Smith Lbr. Co. v. Shackleford, 115 Ark. 273, 171 S. W. 99; Evans v. B. L. & A. S. R. Co., 147 Ark. 28, 227 S. W. 257; and Arkansas Natural Gas Co. v. Sealy, 167 Ark. 1, 267 S. W. 569.

In snch case, however, the burden of showing an omission of duty in these respects, if they existed, is upon the plaintiff; and, in the absence of any evidence to the contrary, the presumption is that the defendants adopted and enforced all rules and regulations reasonably necessary to the management of their business. In the case at bar, no proof that the business was so dangerous or complex that a rule requiring notice to be given that defective or other coal-cars had been set in an entry of the mines was necessary for the protection of those operating the coal-cutting machines. On the other hand, the undisputed, testimony shows that no such- rules or regulations are necessary. Two men are engaged in operating a coal-cutting machine, which is run into the room where it is used, on tracks extending into the room from the main entry, and the cutting machine is backed out on the same tracks. The operator of the machine, by looking behind him for an instant, before he backed his machine into the neck or entry of the room, could tell whether or not there was a coal-car on the track. It is true that, for their own convenience and safety, drivers of coal-cars generally told operators of cutting machines when they placed a coal-car in the entry, but this they were not required to do, under the rules and regulations of the company, and such practice was not necessary for the safety of the operators of the cutting machines. Hence negligence could not be predicated upon the failure of the driver of the coal-ear to give notice to the operator of the cutting machine that he had deposited a coal-car in the entry of the room. •

It follows that the court erred in not directing a verdict for the defendants, and, for that error, the judgment will be reversed; and, inasmuch as the case on the facts-seems to have been fully developed, the cause of action will be dismissed.


author: ■Smith, J.

text:
    United Order of Good Samaritans v. Lomax.
    Opinion delivered December 6, 1926.
    1. Evidence — declarations as to birth. — In a suit by a beneficiary to recover insurance on her father’s life, her testimony that her father told her that he was born in 1870, held admissible to establish her father’s age at the time of his application for the insurance.
    2. Evidence — 'Hearsay.—In a suit on a life insurance policy, testimony of a witness as to insured’s age, as stated on certain applications sent in by various representatives of the insurer and not signed by the insured nor acquiesced in by him, held properly excluded as hearsay.
    3. Evidence — hearsay.—In a suit on a life insurance policy, testimony of a witness as to insured’s age, as stated on certain insurance premium receipts found by him among insured’s papers, held properly excluded as hearsay where the witness did not know when or by whom they had been issued or by what authority insured’s age was therein stated.
    4. Trial — improper argument of counsel — prejudice.—In a suit on an insurance policy, a statement to the jury by plaintiff’s counsel that “these negro insurance companies always want to hold back and never want to pay claims against them” was improper, but its prejudicial effect was removed by the court’s statement that the remark was improper, and by counsel’s admission that he had departed from the record.
    5. Trial — improper argument — discretion of court. — Where counsel has gone beyond the bounds of legitimate argument, large discretion is vested in the trial court in determining the action appropriate to eliminating its prejudicial effect.
    Appeal from Miller Circuit Court; James if. McCollum, Judge;
    affirmed.

      Louis Josephs, for appellant.

      William H. Arnold, Jr., for appellee.
   ■Smith, J.

Appellee, who was the plaintiff below, alleged in her complaint that, about July 30, 1920, her father, Isaac "Williams, became a member of the United Order of Good Samaritans, hereinafter referred to as the order, which order issued to her father a certificate of membership, or policy of insurance, in which she was named as the beneficiary, in the sum of $350; that her father died December 23, 1923, and, at the time of his death, the policy was in full force; that proof of death was duly made, whereupon the order paid her the sum of $175, but has refused to pay the balance, wherefore she sues.

The order filed its answer, admitting it had issued to the insured, Williams, a policy in the sum of $300, with funeral benefits in the sum of $50. The answer admitted the policy was in force at the death of the insured, but alleged that it contained the following clause: “Provided, however, that only one-half the amounts will be paid to the beneficiary of the deceased who was between the ages of 51 and 60 on the date of the issuance of this policy. ’ ’

The answer alleged that, at the time the policy of insurance was issued, the insured was between the ages of 51 and 60, and it was alleged therefore that only $175 was due on the certificate sued on, and, as that sum had been paid, it was denied that anything further was due appellee.

It appears therefore that the only question properly raised by the pleadings and the admissions of respective counsel in open court was the one of fact, whether the insured was over fifty-one years of age at the time the policy or certificate .was issued, and, when the cause was submitted to the jury, the order asked instructions reciting that the constitution and by-laws of the order, which had been introduced in evidence, were a part of the contract, and declaring what the effect of the constitution and by-laws was. The court refused all the instructions requested for the order, and submitted the case under two instructions, in one of which the jury was told, if the insured was under fifty-one years of age at the time the certificate was issued, to find for the plaintiff.

The other instruction reads as follows: “You are instructed that, if you find from the evidence in this case that the deceased, Ike Williams, was between the age of 51 and 60 years at the time the certificate was issued to him, then, under the contract and the law governing it, the plaintiff is not entitled to recover further, and your verdict will be for the defendant.”

The instruction quoted interprets the provisions of the certificate and those of the constitution and by-laws correctly and submits the only issue of fact in the case to the jury. There was therefore no error in refusing to elaborate the purpose and meaning of the constitution and by-laws, as the instructions given told the jury to find for appellee if the insured was not over fifty-one years of age when the certificate was issued, and to find for the order if the insured was over fifty-one at that time, there being no question as to the amount of the recovery if appellee were entitled to recover at all.

A verdict was returned for the plaintiff for $175, and judgment was rendered accordingly, and the order has appealed.

Appellee was called as a witness in her own behalf, and testified that her father, the insured, told her he was born in 1870. This testimony was objected to as hearsay, and the refusal of the court to exclude it is one of the errors assigned for the reversal of the .judgment of the court below.

No error was committed in this ruling. In the case of Lincoln Reserve Life Ins. Co. v. Morgan, 126 Ark. 615, 191 S. W. 236, it was said: “Besides, it is well settled that the date of a person’s birth may be testified to by himself or by members ‘of his family, although he must, and they may, know the fact only by hearsay based on family tradition. This falls within the rule admitting such hearsay evidence in matters of ‘pedigree,’ which term embraces not only descent and relationship, but also the facts of birth, marriage and death, and the times when this occurred.” (Citing cases).

In support of the defense that the insured was over fifty-one years of age when the certificate was issued, W. 0. Hill testified that he was the secretary of the order and the custodian of its records. He testified that he had a record, made up from applications sent in by various representatives of the order, and he would have testified, had he been permitted to do so, that the records of the order showed the insured was fifty-six years old when the certificate of membership was issued to him.

It appears from the preliminary examination of the witness, that the applicant for the insurance did not sign an application for membership, hut the applications for membership were sent in and signed by the soliciting representatives of the order, and it was these applications which contained the age of the applicants. However, Hill did not offer to introduce these applications. The record before him was one which he said was made up from these applications. In other words, the witness proposed to testify what was shown by a record made up from reports sent in by its own representatives, which were not signed by the insured, and which were not shown to have been acquiesced in by insured. We are of the opinion that this was hearsay testimony, and that no error was committed in excluding it.

H. A. Williams was called as a witness for the order, and was asked to testify concerning the age of the insured Williams, as shown on certain insurance receipts which were found among the insured’s papers after, his death. This witness testified that he was present at deceased’s home when search was being made for the certificate of insurance here sued on, and that there were found among deceased’s papers certain receipts for insurance premiums dated in 1908 and 1910, which contained a statement of the insured’s age at those times, Avhich, if true, would have made the insured’s age greater than fifty-one when the certificate sued on was issued. This witness knew nothing about these premium receipts, except that he had seen them and remembered the age of insured as there given. The receipts were not produced, and the witness did not know when or by whom they had been issued or by what authority insured’s age was there stated. We conclude therefore that this testimony was properly excluded as hearsay.

During the closing argument, counsel for appellee made the following statement to the jury: ‘ ‘ These negro insurance companies always want to hold back, and never want to pay the claims against them. I have had several similar suits against other negro insurance companies, and I have had the same trouble with them. ’

Counsel for appellee seeks to excuse this statement by saying that it was made in response to an argument by counsel for appellant. That argument does not appear in the bill of exceptions, but it is difficult, if not impossible, to conceive of an argument which would excuse a statement of this character. It was improper, and should not have been made.

It appears, however, that, when the statement was made, counsel for appellant objected and asked the court to admonish and reprimand counsel for making it, whereupon the court, addressing the jury, said: “Gentlemen, no; Mr. Arnold, this is not proper; you will not consider anything except what was in the evidence. ’ ’ The record recites that, after this statement was made by the court, counsel for appellant objected and excepted to the remark, and he now insists that the ruling made and the remarks of the court in making the ruling were not sufficient to remove the prejudicial effect of the statement. As we have said, the remark of counsel was improper and should not have been made, but the court so ruled, and directed the jury not to consider it. In resuming his argument, counsel for appellee conceded that he had departed from the record. Under these circumstances we think the prejudicial effect of the argument was removed:

Necessarily, a large discretion must be exercised by the trial court in determining the action to be taken where counsel has gone beyond the bounds of legitimate argument, the action in each case being such as is deemed .appropriate to eliminate the prejudicial effect of the improper argument. We think that was done here.

Upon the whole ease we find no prejudicial error, so the judgment is affirmed.


author: Smith, J.

text:
    Ford v. Wilson.
    Opinion delivered December 6, 1926.
    1. Attachment — denial of allegations of affidavit. — Though the allegations of an affidavit for attachment must be denied under oath, this may be done by a verified answer, under Crawford & Moses’ Dig., § 568, though the usual and better practice is to file a controverting affidavit as provided in § 570, Id.

    2. Attachment — liability of sureties on discharging bond.— Upon the dissolution of an attachment, the court properly refused to render judgment against the sureties on a discharging bond, under Acts 1891, p. 56.
    3. Attachment — questions for jury. — Where an attachment was issued as incident to an action to recover for work and labor performed, defendant’s liability for the debt sued on was for the jury, 'but the question of discharging or sustaining the attachment was for the court.
    4. Attachment — grounds—evidence.—Evidence held to support a finding that plaintiff did not establish the grounds of attachment alleged in his affidavit.
    5. Evidence — weight and sufficiency — testimony of party. — The testimony of a party to an action interested in the result cannot be regarded as undisputed in testing the legal sufficiency of evidence.
    Appeal from Union 'Circuit Court, Second Division; W. A. Speer, Judge;
    affirmed.

      Steivart & Oliver, for appellant.
   Smith, J.

Appellant, who was the plaintiff below, instituted this action to recover $775 alleged to be due him for work and labor performed for appellee, and, as an incident to the suit, caused an attachment to be issued.

As ground of attachment it was alleged that appellee had sold and was selling and disposing of his property with the fraudulent intent of cheating, hindering and delaying his creditors in the collection of their just demands against him.

Appellee filed what is designated as a controverting affidavit, in which it was denied that he was indebted to appellant in any sum, but it contained no reference to the grounds of attachment. Appellee filed, however, an answer and cross-complaint, in which all the grounds for attachment were categorically denied, and this pleading was duly verified. Appellee gave a discharging bond, which was conditioned that he should perform the judgment of the court in the cause.

The cause came on for trial, and appellee was not present, and no witness testified in his behalf. Appellant and other witnesses testified touching the demand sued on, and this issue was submitted to the jury, and a verdict was returned in appellant’s favor for the full amount sued for. Upon the coming in of this verdict, appellant moved the court to render summary judgment against the sureties on the discharging bond for the amount of the debt; but this motion was denied, and the court refused to sustain the attachment, the attachment being* dissolved for the reason “that there was not sufficient evidence to establish the grounds of attachment alleged in plaintiff’s affidavit,” and judgment was rendered accordingly. Appellant filed a motion for a new trial, and alleged, as ground therefor, the refusal of the court to render summary judgment against the sureties on the discharging* bond. For the reversal of the judgment of the court below appellant insists: (a) that the undisputed testimony shows that the attachment should have been sustained; (b) that appellant having* recovered judgment, the attachment should have been sustained under either § 542 or § 525, C. & M. Digest; and (c) that there was no issue as to the ground of attachment, in that no controverting affidavit had been filed by appellee.

Considering* these questions in reverse order, it may be first said that, while what is called the controverting affidavit does not deny the alleged grounds of attachment, the answer does'do so, and, as has been said, the answer was duly verified.

Appellant’s argument is that the grounds of attachment must be denied, and can only be put in issue by complying* with § 570, C. & M. Digest. This section provides that the defendant in an attachment may file an affidavit denying* all the material statements of the affidavit upon which the attachment is issued, and that thereupon the attachment shall be considered as contested, and that the affidavits of the plaintiff and the defendant shall be regarded as the pleadings in the attachment, and shall have no other effect. This section further provides that, when the attachment is obtained at the commencement of an action, the defendant may file his controverting affidavit in such time as is given by law for filing his defense, and that that period may be extended by the court for sufficient cause. This section of the statute first appears as § 280 of the Civil Code as a part of article 4 of the chapter on Attachments.

It is the usual, and, no doubt, the better, practice for a defendant who wishes to controvert the grounds of attachment against his property to put the right to an attachment in issue by filing a controverting affidavit, in compliance with this statute, but this is not the sole and only way of raising that issue.

Section 568, C. & M. Digest, provides: “If judgment is rendered in favor of the plaintiff, and no affidavit or answer, verified by oath, by the defendant filed, denying the statements of the affidavit upon which the attachment was issued, or motion made to discharge it, the court shall sustain the attachment.” This section of the statute appears as $ 278 of the Civil Code, and is a part of the same chapter from which § 280 of the Code was taken.

In the case of Weibel v. Beakley, 90 Ark. 454, 119 S. W. 657, an answer was filed denying two, but not all, of the grounds of the attachment alleged, and, upon the trial, judgment was rendered against the defendant, but the attachment was dissolved. On the appeal from that judgment the same was reversed, and the cause remanded with directions to sustain the attachment for the reason, among others, that § 414 of Kirby’s Digest, which was there quoted, had not been complied with. This section of Kirby’s Digest lias been carried forward, and appears as § 568, C. & M. Digest, as quoted above.

It thus appears that, while the allegations of an affidavit for an attachment must be denied under oath to make an issue as to the attachment, this may he done in a verified answer as well as by a controverting affidavit.

In the case of Nelson v. Munch, 23 Minn. 229, the Supreme 'Court of Minnesota said: “Upon a motion to dissolve an attachment a defendant may properly use his ■verified answer as an affidavit, so far as its contents are pertinent.” See also Sannoner v. Jacobson & Co., 47 Ark. 31, 14 S. W. 458; Ballard v. Hunter, 74 Ark. 174, 85 S. W. 252.

Upon the proposition that the attachment should have been sustained when judgment was awarded in plaintiff’s favor, appellant cites § 525, C. & M. Digest. It is, however, pointed out in the case Burgener v. Spooner, 167 Ark. 316, 268 S. W. 6, that the digester had failed to include the amendment to this section found in the act of March 6, 1891 (Acts 1891, p. 56), adding a proviso as follows: “Provided, that the giving of this bond by the defendant shall not preclude his right to controvert the existence of the grounds stated by the plaintiff in his affidavit for the order of attachment.” It was also pointed out in that case that the amendatory act of 1891 had, by implication, also amended § 542, C. & M. Digest, upon which appellant relies.

In the case of Swift & Co. v. Cox, 138 Ark. 606, 212 S. W. 83, it was held that liability on an attachment bond was discharged by the dissolution of the attachment.

It follows therefore that, having dissolved the attachment, the court was correct in refusing to render judgment against the sureties on the discharging bond, and therefore only the question remains to be considered whether the court erred in dissolving the attachment.

The court submitted the question of the liability of appellee for the debt sued on to the jury, but reserved to itself the question of discharging or sustaining the attachment. This has been held not only a proper, but the better, practice. Von Berg v. Goodman, 85 Ark. 605, 109 S. W. 1006; Bank of Wynne & Trust Co. v. Stafford & Wimmer, 129 Ark. 172, 195 S. W. 397; Webber v. Rodgers, 128 Ark. 27, 193 S. W. 87.

As lias been, said, the court found the fact to be “that there was not sufficient evidence to establish the grounds of attachment alleged in plaintiff’s affidavit.” It is earnestly insisted that this finding is contrary to the undisputed evidence.

It appears that no witness testified concerning the existence of the grounds for attachment except appellant himself, and the only testimony of this witness bearing directly upon this question is as follows:' The witness, after testifying how appellee had become indebted to him, was asked the following questions: “Q. You allege in your complaint that, at the time you brought this suit and secured an attachment, the defendant was selling and disposing of his property. Tell the jury what you know about that.” Appellant replied: “A. He sold everything he had left on the lease — standard rig— and disposed of everything.” Appellant also testified that this sale was made before the suit was brought, and after appellee had promised to pay him and had failed to do so.

This is an indefinite and somewhat ambiguous answer, and more than one inference- might be drawn from it. The property sold may have embraced only the property left on the lease. It does not necessarily or certainly show that appellee had removed or was about to remove his property, or a material part thereof, out of the State, not leaving enough therein to satisfy the-plaintiff’s claim or the claims of defendant’s creditors, or that he had sold, conveyed, or otherwise disposed of his property, with the fraudulent intent to cheat, hinder or delay his creditors, these being the grounds of attachment alleged.

In the case of Kansas City Sou. Ry. Co. v. Cockrell, 169 Ark. 698, 277 S. W. 7, it was said: “* * * The rule established by our court is that the testimony of a party to an action, interested in the result, cannot be regarded as undisputed in testing the legal sufficiency of the evidence. Skillern v. Baker, 82 Ark. 86, 100. S. W. 764.” See also Brotherhood of R. R. Trainmen v. Foun taine, 155 Ark. 578, 245 S. W. 17; Gist v. Scantland, 151 Ark. 594, 237 S. W. 98; Paxton v. State, 114 Ark. 393, 170 S. W. 80.

We conduele therefore, in view of this rule and the nature of the testimony quoted, that the court was warranted in the finding made.

As no error appears, the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Driver v. Road Improvement District No. 1.
    Opinion delivered December 6, 1926.
    Eminent domain — compensation—enhancement in value. — The general rule that, where the public use for which a man’s land is taken so enhances the value of the remainder as to make it of greater value than the whole was before the taking, the owner has received compensation, has no application to a taking by a road improvement district, for the reason that he pays for his benefits in taxes, the same as other property owners.
    Appeal from Mississippi Circuit Court, Osceola District; G. E. Keck, Judge;
    reversed.

      E. S. Driver and J. T. Coston, for appellant.

      Harrison, Smith & Taylor, for appellee.
   Humphreys, J.

This suit originated in the county court of Mississippi County, under §'4 of act 380 of the Acts of 1919 of the General Assembly of Arkansas, creating Road Improvement District No. 1 in said county. The section referred to is as follows:

“Should the board of directors find it necessary or desirable to change the location of the road described in § 2 of this act, or to widen the right-of-way of said road, they shall file a petition, signed by a majority of the members of said board, with the clerk of the county court of Mississippi County, describing the nature of the alteration or change, the point of beginning and terminus of said change, the width and description of any property that may be taken or damaged by reason of said change. Said court shall cause an order to be entered of record in accordance with its findings, and establish said record, if it deems best, and any landowner aggrieved may present his claim for damages to the county court, and any such claim not presented within twelve months shall be barred. All damages so awarded shall be paid by said road district. The said directors shall have the right to open such road so established.”

The road designated in § 2 of said act, to be improved, extended from the Missouri State line through the town of Osceola, in Mississippi County, to the Crittenden County line. The original route through Osceola pass,ed down Pecan Street, one block east of the Frisco Railroad to Keiser Avenue, thence west across the railroad tracks and along the south boundary line of a twenty-six acre tract of land belonging to appellant, situated in the southwest corner of the corporate limits of Osceola, thence, continuing on west. The road was to be constructed out of concrete, with a warrenite surface. The road was constructed in accordance with the plans along the south side of the twenty-six acre tract in question. After constructing the road to this point, the route through Osceola was changed so as to run down Walnut Street, through said twenty-six acre tract, one and a-half blocks west of the Frisco Railroad, taking 1.93 acres. The effect of the change was to make a spur out of the original road constructed along the south side of said tract. The new route and the original route were two and one-half blocks apart, and were so close together that a new assessment of benefits was not assessed against the property in the district on account of the change in route. The plans for changing the road were filed with the board of directors in February, 1924. Appellant filed her petition or claim for damages under § 4 of said act, on March 2, 1925, for the value of the strip of land occupied by the new road resulting from the change in the route.

On the trial of the cause in the county court, appellant was awarded damages in the sum of $800, from which award 'both parties appealed to the circuit court of Mississippi County, Osceola District, where the case was tried de novo, resulting in a judgment of $300- against appellee, from which is this appeal.

The case was tried in the circuit court upon conflicting testimony as to the value of the strip of land actually taken for the new road out of the twenty-six acre tract, less the enhanced value to the balance of the tract on account of the construction of the concrete road with warrenite surface through it.

During the trial of the cause the court excluded testimony offered by appellant, over her objection and exception, to the effect that special benefits in the sum of $1,610 had been assessed and levied as a tax against said twenty-six acre tract on account of the construction of the proposed improvements. The testimony was excluded upon the theory that the market value of the strip of land taken should be offset by the enhanced value of the balance of the tract by reason of the construction of the road.

The trial court instructed the jury, over the objection and exception of appellant, as follows: “You are instructed that your verdict in this case will be for the plaintiff for the market value of the land taken by the defendant at the time same was taken, less any sum you may find from the evidence the rest of the land has been enhanced in value, if you find it has been enhanced in value, by the construction of this road through that land. ’ ’

Appellant contends for a reversal of the judgment on account of the exclusion of said testimony and the declaration of law announced by the court as to the measure of damages. In excluding the evidence and formulating the rule for the measure of damages, the trial court was governed by the rule announced in the case of Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707, and reaffirmed in the case of Paragould v. Milner, 114 Ark. 334, 170 S. W. 78, to the effect that “where the public use for which a portion of a man’s land is taken so enhances the value of the remainder as to make it of greater value than the whole was before the taking, the owner in such case has received just compensation in benefits.”

The rule announced in those cases is not applicable in the instant case. The twenty-six acre tract out of which the strip of land was appropriated 'by the district to make the change in route was assessed according to the benefits it would receive from the improvements, to help pay for same. If the benefits accruing to the tract of land on account of the construction of the improvements should be deducted from the market value of the strip actually taken, in arriving at appellant’s damage, he would be compelled to pay twice for the benefits — once in taxes and once in land.

The instant case is governed by the rule announced in the case of Gregg v. Sanders, 149 Ark. 15, 231 S. W. 190, to the effect that “there can be no deduction of any part of the damages from the compensation to be allowed to a property owner for that portion of his property which is taken and used in the construction of the improvement, for the reason that he pays for his benefit in taxes, the same as other property owners, and it would destroy the rule of equality to require him to contribute to the common use any part of his property without compensation.” The eminent domain portions of our Constitution guarantee just compensation to the owner of private property taken for public use. Article 2, § 22, of the Constitution of Arkansas of 1874.

On account of the erroneous classification of this case the judgment is reversed, and the cause is remanded for a new trial.


author: McCulloch, C. J.

text:
    Rhodes v. United States Casualty Company.
    Opinion delivered December 13, 1926.
    Insurance — accident policy — death by drowning. — An accident policy which limits the insurer’s liability to injuries caused in manner therein specified held not to cover the death of insured by accidental drowning, where that was not one of the specified accidents.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      Rogers, Barber & Henry and 8am M. Wassell, for appellant.

      Malcolm W. Gannaiuay and A. Carlyle Gannaway, for appellee.
   McCulloch, C. J.

Appellant instituted this action against appellee on a policy of accident insurance issued to H. B. Rhodes, the benefit under the policy being payable to appellant.

H. B. Rhodes came to his death by accidental drowning at a swimming beach near Little Rock, and his death occurred during the existence of a policy of insurance issued’ to him by appellee. The case was tried by the court, sitting as a jury, and the facts were undisputed. The court rendered judgment against appellant, and an appeal has been prosecuted.

The parts of the policy which are deemed material to this controversy read as follows:

“This is a limited policy, and provides indemnity for loss of life, limb, sight or time, by accidental means, only to the extent herein provided.
“Policy No.................. Series No. ‘600A’
“United States Casualty Company “80 Maiden Lane, New York.
“In consideration of the payment of the premium and subject to the terms, conditions and limitations con tained herein, the United States Casualty Company of New York, heroin called the company, does hereby insure the owner of this policy, herein called the insured, against loss caused by bodily injuries as hereinafter provided and in the sums hereafter specified:
“Section A.”
(Here follows a list of injuries to different parts of the body covered by the policy, and the respective amounts).
“ * * * provided such injuries are not caused or contributed to by voluntary exposure to unnecessary danger, or by violation of the law on the part of the insured, and are effected exclusively by external, violent and accidental means, which shall, independently of all other causes, immediately, continuously and wholly disable the insured or be the sole cause of the death of the insured within one month of the date of the event causing such injury, and said injuries to the insured shall occur:
“While actually riding as a passenger and not being a railroad employee on duty, in a place regularly provided for the transportation of passengers within a surface or elevated railroad or subway car, steamboat or other public conveyance provided by a common carrier, for passenger service only, and while not being upon the step or steps, or getting on or off such conveyance; or
“While riding as a passenger in a passenger elevator used for passenger service only in a place regularly provided for the sole use of passengers.”

•Section B of the policy provides indemnity for loss of time resulting from certain accidental injuries not specified in the f oregoing section, but this does not include death_ by accidental drowning. Section C provides indemnity against loss of life occurring within a month after certain accidental injuries, and the clause is restricted to certain kinds of injuries and does not include the loss of life by drowning. The policy ran for a term of one year, and the annual premium was fifty cents.

The contention of appellant is that there is liability under section A of the policy, and the argument in the brief is devoted to the contention that death by accidental drowning comes within the definitions contained in that section. Conceding that accidental death by drowning is one ‘‘ effected exclusively toy external, violent and accidental means,” as contended by counsel, it does not follow that such an injury comes within the -terms of the policy, for the indemnity is, in express terms, limited to injuries which occur while the insured is riding as a passenger “within a surface or elevated railroad or subway car, steamboat or other public conveyance provided by a common carrier,” or while riding “in a passenger elevator used for passenger service only.” The policy is declared on its face to be a limited one and only to apply to the extent therein provided. This is further shown by the fact that the premium is Only fifty cents per annum, and the strict limitations in the policy are expressly stated in clear language. It is not a general accident policy, but one confined to particular injuries accurately described.

We think the court was correct in holding that death by accidental drowning did not come within the terms of the policy, therefore the judgment of the trial court is affirmed.