author: Hart, J.,

text:
    Matheny v. Independence County.
    Opinion delivered November 23, 1925.
    1. Constitutional law — amendment authorizing county bonds.— Constitutional amendment- No. 11, authorizing county courts to issue bonds to secure indebtedness outstanding at the time of its adoption, is self-executing, and the county court need not await the passage of an enabling act to order a sale of the bonds.;
    2. Constitutional law — adoption op amendment. — Under Constitution, Arndt. 11, § 2, providing that such amendment shall take • effect and be in operation 60 days after its approval1 and adop- ... ;tion by the people of the State, the amendment does not depend upon the declaration of the speaker of the House of Representatives, as it is the vote of the people which gives force and effect to the amendment.
    3. Constitutional law — construction op amendment. — In construing an amendment to the Constitution, the court must keep in view the Constitution as it stood at the time the amendment was made, the evil to be remedied by the amendment, and the proposed amendment by which the evil is to be remedied.
    4. Constitutional law — construction op constitution. — In construing the Constitution, words should be given their plain and ■ - common sense meaning, unless the context furnishes some ground to control, qualify or enlarge them.
    5. Constitutional law — time -of :adoption -of amendment. — The phrase-“time of the adoption of the amendment” used in amendment 11, declaring that counties, cities and incorporated towns may issue bonds to secure indebtedness outstanding at the time of adoption of the amendment, means 60 days after its approval : at election- time when the amendment by its terms became a part of the Constitution. • =
    6. Constitutional law — adoption and approval op amendment.— The term “approval and adoption,” as used in amendment No. 11 to the Constitution, § 2, providing that such amendment shall take effect 60 days after its approval and adoption, means 60 days after the election.
    Appeal from Independence Circuit Court; Dene H. Coleman, Judge;
    reversed.
    STATEMENT BY THE COURT.
    On the 16th day of October, 1925, the county court of Independence County entered into a contract with J. W. Williamson to sell him bonds of Independence County at par with interest at five and a half per cent, per annum to the amount of $47,765.46, which was the amount of indebtedness incurred by said county from the 7th day of October, 1924, to February 16, 1925. Of this amount, $20,530.24 was the amount of indebtedness incurred by the county between October 7, 1924, and December 7, 1924, '
    I. J. Matheny, a citizen and taxpayer of Independence County, protested against the action of the county court and was allowed to file an intervention in the case, and appeal from the action of the county court in making the contract as above stated.
    The circuit court found that the contract made by the county with J. ¡W. Williamson was valid, and judgment was rendered accordingly. The case is here on appeal.

      I. J. Matheny, for appellant.

      8. M. Casey, for appellee.
   Hart, J.,

(after stating the facts). The correctness of the decision of the circuit court depends upon the construction to be given to amendment No. 11, which has been declared adopted under the decision of this court in Brickhouse v. Hill, 167 Ark. 513. This court has held that Amendment No. 11 to the 'Constitution, authorizing county courts to issue bonds under certain conditions, is self executing, and that a county judge need not await the passage of an enabling act to order a sale of bonds. Cumnock v. Little Rock, 168 Ark. 777, and Lucas v. Reynolds, 168 Ark. 1084.

Amendment No. 11 was proposed by the Legislature of 1923, and its provisions may be found in the General Acts of 1923, p. 797, and Acts of 1925, p. 1086. • Section 1 contains a proviso as follows:

“Provided, however, to secure funds to pay indebtedness outstandingat the time of the adoption of this amendment, counties, cities and'incorporated towns may issue interest-bearing certificates of indebtedness or ¡bonds with interest coupons for the payment of which' a county or city tax, in addition to that now authorized, not exceeding three mills, may be levied for the time as provided by law until such indebtedness is paid. ’ ’

The action of the county court in making the contract, and the judgment of the circuit court affirming it, evidently proceeded upon the theory that the amendment was not adopted until the 16th day of February, 1925, the date bn which the speaker of the House of Representatives declared it to be adopted in accordance with .the provisions' of § 1482 of Crawford & Moses’ Digest. The amendment in question was proposed by- the General Assembly of 1923, and was voted on at the general election held on October 7, 1924. This was the date of the general election for senators and representatives and the time fixed-by the Constitution for the submission of the amendment to the electors of the State for approval or rejection.

The Constitution provides that, if a majority of the electors voting at such election- adopts such amendment, the same shall become a part of the Constitution. Constitution of1 1874, art. 19, § 22.

Section 2 of the amendment-provides that it shall ■take effect and be- in operation sixty days after its approval and adoption by the. people of the State of Arkansas..

It will be noted that the Constitution itself provides that, if a majority of the electors voting at the election at which the amendment is submitted adopt it, the amendment shall become a part of the Constitution. Hence its adoption does not depend upon the ’ declaration of the Speaker ofr the House of Representatives or the publication by the governor of his proclamation to that effect as provided in § 1482 of the Digest. If the Speaker and the Governor were to neglect or refuse to discharge their duties under the statute, the amendment would nevertheless be a part of the Constitution of the State, because it is the will of the people expressed in the mode prescribed in the Constitution. Our construction of the Constitution quoted above is that it is the ascertained majority of the vote of the people, and not the declaration of the Speaker and the proclamation of the Governor, which gives force, and effect, to the amendment. See Wilson v. State, 15 Tex. Ct. of App. Repts. 150.

It follows- that the amendment was adopted by the people, on :th'e '7th day of October, 1924, but did not take effect until sixty days thereafter, which was on the 7th day of December, 1924. Such, as we have, already seen, is the provision of the proposed amendment. It expressly provides that it shall take effect and be in operation sixty days after its approval and adoption by the people - of the State of Arkansas.

This view is in accord with our previous decisions bearing on the question. In State v. Johnson, 17 Ark. 407, the court held that a commission is simply the evidence of the right to hold an office, but invests the incumbent with no right to the office. In discussing the question the court said that the office of the proclamation of the Governor was to inform the parties concerned of the result of the election, and that the certificate and abstract required to be made by the officers holding the . election, and to be sent to the Governor, were to furnish him with evidence whereon he might proceed to issue a commission to the person so appearing to him to have been elected. To the same effect, see State v. Askew, 48 Ark. 82, and Wheat v. Smith, 50 Ark. 266; see also, Grant v. Hardage, 106 Ark. 506, where it was held that whether an amendment has been adopted according to the requirements of the existing Constitution is a judicial question.

¡We are of the opinion that § 1482 belongs to the same. class of legislation, and is but a means of informing the people of the passage of the amendment. Neither the certificate directed to be signed by the speaker of the House and the president of the Senate, to be filed in the office of the Secretary of State, nor the proclamation issued by the Governor, affects in any manner the adoption of the amendment. These acts are merely directory in order to give the necessary information to the people that an amendment has been adopted. The necessity of acting in the premises ¡arises from the- inconvenience which might result to the public by their non-compliance with the statute. But it is the will of the people as expressed under the direction of the Constitution which makes the amendment a part of the Constitution.

Under the proviso above quoted, to secure funds to pay the indebtedness outstanding at the time of the adoption of the amendment, counties, cities, and towns may issue bonds. This makes it necessary for us to construe , what was meant by the words, ‘ ‘ at the time of the adoption of the amendment.”

In determining* the intention of the framers of the amendment, we must keep in view the Constitution as it stood at the time the amendment was made, the evil to be remedied by the amendment, and the amendment proposed, by which the evil is to be remedied. State v. Scott, 9 Ark. 270, and Ferrell v. Keel, 105 Ark. 380.

In the case first cited the court quoted with approval the language of Judge iStoby to the effect that every ^ word in the Constitution is to be expounded in its plain and common sense meaning, unless the context furnishes some ground to control, qualify, or enlarge it, and that constitutions are instruments of a practical nature, founded on the common business of human life, adapted to common wants, and designed for common use.

The second Initiative and Referendum Amendment known as Amendment No. 13, became a part of our Constitution under the decision of Brickhouse v. Hill, supra. It provides that any measure submitted to the people as therein provided shall take effect and become a law when approved by a majority of the votes cast upon such measure.

It provides further that such measures shall be operative on and after thirty days after the election at which it is approved unless otherwise specified in the act.

Amendment No. 11 under consideration provides that it shall take effect and be in operation sixty days after its approval and adoption by the people of the State of Arkansas. These words, when interpreted with reference to the language of amendment No. 13 above referred to, evidently mean sixty days after the election on the question.

Now it is insisted that the words, “at the time of the adoption of this amendment,” as used in the proviso, also mean the date of the election.

Under the cardinal rules of construction above referred to, we think these words refer to- the completed adoption. The election is not deemed complete until the returns are canvassed by the judges and clerks of the election and certified by them to the county election commissioners. Then the election statutes give a further period of time for the county election commissioners to canvass the returns sent to them and to forward the same to the Secretary of State to be filed in his office and tabulated by him.

Now the words “approval and adoption” used in § 2 are used as the equivalent of election as used in amendment No. 13. The words “time of the adoption” as used in the proviso were used for a different purpose. They fixed the time up to which the existing indebtedness might be bonded, and, to carry out the object and purpose of the amendment in allowing existing indebtedness to be bonded, evidently refer to the time when the amendment should be fully and completely adopted as a part of the Constitution. .

It is evident that the framers of it intended that thereafter counties, cities, and towns should confine their expenses for any fiscal year to the revenues received for that year. By the language of the amendment it operates prospectively, and we think the words, “at the time of the adoption,” as used in the proviso, should be given a liberal construction, in order to effectuate the intention of the framers of it, and that they mean at the time the amendment went into operation and thereby became a part of the Constitution.

The result of our views is that the -amendment became a part of the Constitution on the 7th day of December, 3 924, and under its terms the county court was prohibited from making a contract for bonding tbe indebtedness of tbe county incurred after that date.

Therefore, the judgment will be reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion.


source: Caselaw Access Project

author: Haet, J.,

license: Public Domain

text:
    Davis v. State.
    Opinion delivered November 23, 1925.
    1. Criminal law — power to- suspend execution of sentence.— Although at common law the courts have the. power to suspend sentence temporarily or for a reasonable time to consider motions for new trial and the like, they have no authority to suspend execution of their sentences indefinitely; such power being vested in the Governor.
    2. Criminal law — power to suspend execution of sentence.— Acts 1923, p. 40, held not to give the circuit court power to suspend execution of a sentence pronounced before the act was passed.
    3. Criminal law — suspension of sentence — construction of act. — -Acts 1923, p. 40, gives the court authority to postpone pronouncement of sentence only, and not to stay execution of sentence already pronounced.
    4. Criminal law — order committing accused. — An order of the circuit court committing defendant, sentenced to one year in the penitentiary and at large under a void order granting a stay of execution, to serve his sentence, held valid, though more than a year had elapsed since the sentence was imposed, since the sentence is satisfied, not by lapse of time after it is pronounced, but by actual suffering of the punishment imposed.
    Appeal from Saline 'Circuit Court; Thomas E. Toler, Judge;
    affirmed.
    STATEMENT OF FACTS.
    Tobe Davis was indicted by the grand jury of Saline County for the crime of selling intoxicating liquors in violation of the statute and pleaded guilty to the charge. The judgment in the case is as follows:
    “On this day, Wednesday, September 6, 1922, comes the State of Arkansas by her prosecuting attorney, J. M. Smith, Esqr., comes also the defendant in proper person and enters his plea of guilty to the charge in the indictment herein and pleads the mercy of the court, whereupon the court fixed his punishment at one year in the Arkansas State Penitentiary.
    “It is therefore considered, ordered and adjudged by the court that the said defendant be remanded into the custody of the sheriff of Saline County to be by him safely and speedily transported to the penitentiary house, or convict camp or the State farm of the State of Arkansas and there confined at hard labor for a period of one year, and that the State of Arkansas have and recover of said defendant all the costs of this prosecution and have execution therefor.
    • “On motion and by consent of the prosecuting attorney it is further ordered and adjudged that this judgment and sentence be stayed, so far as pertaining to imprisonment of defendant, provided said defendant does not in any manner or form whatever violate any of the liquor laws of the State of Arkansas, but, should he at any time violate any of the liquor laws of this State, then his judgment and sentence is to be in full force and effect from and after 'any violation by 'him.
    (Signed) “W. H. Evans, Judge.”
    Judge Thomas E. Toler succeeded Judg’e W. H. Evans, and at an adjourned term of the Saline Circuit Court held on the 13th day of July, 1923, caused an order to be entered of record wherein it was adjudged that the suspension of the execution of the judgment of conviction in the case of Tobe Davis against the State of Arkansas was without authority, and the court then proceeded to enter a judgment of its own suspending the execution of the sentence in said case indefinitely.
    Qn September 8, 1925, a motion was filed in said circuit court to revoke the order suspending the execution of the sentence in said case on the ground that Tobe Davis was again violating the liquor laws. On September 16, 1925, the circuit court found that Tobe Davis had violated the previous orders of the court in the premises, and that the suspension of the execution of his sentence should'be revoked. '
    Tt was therefore ordered and adjudged that the suspension of the execution- of the sentence should be revoked, and a commitment was ordered to be issued for the defendant to be transported to the penitentiary to serve one year under the original sentence.
    To reverse the last judgment, Tobe Davis has duly prosecuted an appeal to this court.
    ■ J. B. Milham, for appellant.

      H. W. Applegate, Attorney General, and Jolm L. Carter, Assistant, for appellee.
   Haet, J.,

(after stating the facts). It will be noted that in the original judgment Tobe Davis pleaded guilty to the charge of selling intoxicating liquors in violation of law, and the court fixed his punishment at one year in the State penitentiary. Tt was ordered that Davis be remanded to the custody of the sheriff, and by him transported to the' State penitentiary to be there confined for a period of one year. By agreement with the prosecuting attorney, it was ordered that the judgment and sentence be stayed, as far as the imprisonment was concerned, provided the defendant did not in any maimer subsequently violate the liquor laws of the State.

The - effect of this judgment was that the circuit court granted a stay of execution of the sentence against the defendant during* good behavior, and thereby suspended the execution of the sentence against him indefinitely. The successor of the circuit judge, who made this order,, was of the opinion that the order was illegal and void, and set it aside; but made an order the practical effect of which was also to grant a suspension of the execution of the sentence ag*ainst the defendant for an indefinite time.

For cause shown the circuit court subsequently revoked this order and issued a commitment for the defendant. This appeal is prosecuted for the purpose of reversing that judgment, and raises the issue of whether the court had the power to suspend the execution of the sentence against the defendant for an indefinite time.

No power to suspend the execution of its sentence has been conferred upon the circuit courts of this .State by our Constitution, and no such power was conferred by our statutes, in so far as the proceedings in £his case are concerned. Consequently, if such power existed, it must come from the common law or be one of the inherent powers of the court. It cannot be said that power to suspend the execution of a sentence is necessary for the due administration of justice. It is true that a court has the inherent power to enforce its own orders; but this does not give it the discretion to permanently refuse to do so. At the common law a court has power to suspend sentence temporarily or for a reasonable time in order to afford time to consider motions for new trials on the ground of newly discovered evidence and the like, and ft) enable the court to inform itself as to the severity of the sentence to be pronounced, and such is the effect of our former decisions on the question. Thurman v. State, 54 Ark. 120; Greene v. State, 88 Ark. 290; Joiner v. State, 94 Ark. 198, and Cox v. State, 114 Ark. 234.

In Ex parte United States, 242 U. S. 27, it was held that under the Constitution courts are possessed of an inherent discretionary authority in the wise performance of their duties in trying offenses and imposing the penalties provided by law; but they have no inherent power to mitigate or avert those penalties by refusing to inflict them in individual cases.

It was further' held that, while at common law the courts exercised a discretion to suspend either the imposition or execution of a sentence temporarily for purposes and in ways consistent with the due enforcement of the penal laws, so as to facilitate action by the pardoning power and avoid miscarriages of justice , they neither possessed nor claimed the power of permanent refusal to enforce them.

The opinion in the case was delivered by Chief Justice White, and the subject was ably and thoroughly reviewed by him.

In a case note to 26 A. L. R., at p. 400, it is said that, by the weight of authority, a statute is not unconstitutional because it confers on a court the power to suspendía sentence indefinitely in the discretion of the court. The case of Ex parte United States, supra, is first cited, and reference is also made to a report of that case in L. R. A. 1917E, p. 1178 and Ann. Cas. 1917B, 355, both of which contain a list of authorities on both sides of the question under consideration, and cite earlier case notes thereon.

According to the annotation in these reports, the weight of authority is that, in the absence of a statute conferring it, courts have no power to suspend the execution of their sentences indefinitely. To the same effect, see 16 C. J. 1333. Be that as it may, after considering the leading opinions of the courts on both sides of the question, we are convinced that the opinion of Chief Justice White contains the better reasoning on the subject. Indeed, this is the effect of our holding in Holden v. State, 156 Ark. 521.

It is evident that when a court undertakes on its own motion to suspend a sentence indefinitely, it really refuses to enforce the punishment provided by statute, unless it shall at some future time conclude that it is proper to do so. The power to exercise discretion as to the enforcement of the punishment provided by law and pronounced by the court is vested in the Governor.

We are therefore of the opinion that the circuit court in each instance erred in holding that it had inherent power or any power at all to suspend the execution of the sentence during the good behavior of the defendant. In reaching this conclusion we are not unmindful that the Legislature of 1923 passed an act authorizing. circuit judges to suspend sentences upon certain conditions. General Acts of 1923, p. 40.

Section 1 of that act provides in effect that whenever, in criminal trials in a circuit court, a plea of guilty shall have been accepted, or a verdict of guilty shall have been rendered, the circuit judge shall have authority to postpone the pronouncement of final sentence upon- such conditions as he shall deem proper.

It is apparent from the language of this act that it was intended to operate prospectively only. "While Judge Toler undertook to suspend the execution of the sentence after the passage of this act, yet it was in a case where sentence had been pronounced prior to the passage of the act. Consequently the act did not apply; and the'circuit judge could not make an order of suspension under the act. Indeed, the act only gives the circuit court -authority to postpone the pronouncement of final sentence and -does not give it authority to stay the execution of a sentence already pronounced.

The result of our views is that the circuit judge in each instance exceeded his power, and the stay of execution of the sentence was void. This being so, the circuit court had the right to order that Davis be taken into custody, to the end that he might serve his sentence. The postponement of his imprisonment was with his consent, and he can not now object to being called upon to serve it. It does not make any difference that more than a year has elapsed since the sentence of one year’s imprisonment in the penitentiary was imposed. While at large under the void orders of the circuit court, to which he assented, the defendant was in the same situation that he would have been had he escaped from custody. A sentence of imprisonment is satisfied, not by lapse of time after it is pronounced, but by actual suffering of the imprisonment imposed by it. The reason is that the time at which a sentence shall be carried into execution is not provided by statute and forms no part of the judgment of the court. Massey v. Cunningham, ante p. 410.

As sustaining this view in addition to the authorities used in that case we cite the following: Miller v. Evans, (Iowa) 56 L. R. A. 101; Gray v. State, (Ind.) 8 N. E. 16 ; State v. Abbott, (S. C.) 70 S. E. 6, 33 L. R. A. (N. S.) 112, Ann. Cas. 1912B, 1189; Fuller v. State, (Miss.) 39 L. R. A. (N. S.) 242, 52 So. 6; Ex parte Lujan, (N. M.) 137 Pac. 587; Ex parte Bates, (N. M.) 151 Pac. 698; L. R. A. 1916A, 1285; Ex parte Bugg, (Mo. Ct. of Appls.) 145 S. W. 831, and Brabandt v. Commonwealth, 162 S. W. 786.

It follows that the judgment must be affirmed.


author: Smith, J.

text:
    School District No. 21 v. Hudson.
    Opinion delivered November 23, 1925.
    1. Appeal and error — conclusiveness op verdict. — In a suit to recover a teacher’s salary, the verdict of the jury in her favor held conclusive that the teacher quit, not voluntarily, but because she was required to teach classes which her contract did not require her to teach, and which she could not have taught without neglecting other classes.
    2. Appeal and error — conclusiveness op verdict. — In a suit to recover a teacher’s salary, where plaintiff testified that she agreed to teach the ninth grade only temporarily, while defendant’s testimony was that she agreed to teach that grade permanently, on a finding in h.er favor it will be presumed that the jury found that her contention was corrects
    3. Schools and school districts — teacher’s salary — deduction por illness. — In a suit to recover a teacher’s salary, where plaintiff testified that after the school district breached its contract with her she became ill by reason of her failure to obtain other employment, an instruction that she was not entitled to recover for a period of time when she was unable to teach by reason of illness was properly refused as being too remote and speculative.
    Appeal from Lafayette Circuit Court; James H. Mc-Collum, Judge;
    affirmed.

      King & Whatley, for appellant.

      Kitchens & Upton, for appellee.
   Smith, J.

Oil July 14, 1923, Miss Nellie Hudson entered into a written contract with the directors of School District No. 21 of Lafayette County to teach “a common school” in said district at a salary of $112.50 per month for a period of six months, the school to open October 5, 1923. Pursuant to this contract, Miss Hudson began teaching the school, and taught it until December 10,1923, at which time a meeting of the directors was held to consider her protest against being required to teach a ninth grade in the school.

There is some conflict in the testimony as to just what was said and done at this directors’ meeting, but we must assume that the jury accepted Miss Hudson’s testimony, as the issues of fact were submitted to the jury, and there was a verdict in her favor in the suit which she brought to recover the sum alleged to be due her upon the breach of the contract by the district in refusing to allow her to teach the school for the period of time covered by the contract.

The contract was offered in evidence, and it recited that Miss Hudson was to teach “a common school in said district.” The testimony shows that the common school grades are grades from 1 to 8, inclusive, and.that grades higher than the eighth grade constitute high school work. Section 9066, C. & M. Digest.

Miss Hudson testified that it was not contemplated or agreed that she should be required to teach classes of a higher grade than the eighth, but that when the school was first opened the attendance was small, and she then consented to teach classes in the ninth grade until there was a full attendance of the pupils of the district, and that she would thereafter continue to do so, provided the directors would arrange for some one of the more advanced pupils to teach some of the lower grades. Miss Hudson further testified that by the time the directors met to consider the question stated there were classes in all the grades from 1 to 8, and it was impossible for her to teach additional classes. The proposition was made that a young lady pupil teach enough of the lower grades to allow Miss Hudson time to teach the ninth grade, and it was proposed that Miss Hudson pay the pupil $20 per month of her salary for so doing. Miss Hudson would not consent to this arrangement, and the pupil would not teach without being compensated for so doing. When this situation developed, the directors told Miss Hudson that she would have to teach her class in the ninth grade or give up the school, and she gave it up.

Two of the directors testified that Miss Hudson voluntarily gave up the school. But, as we have said,, this disputed question was submitted to the jury under an instruction which told the jury that, if Miss Hudson “voluntarily quit or abandoned 'the school,” she could not recover, and the jury’s verdict must therefore be accepted as conclusive of the fact that Miss Hudson quit only because she was required to teach classes which her contract did not compel her to teach, and which, according to her testimony, she could not have taught without neglecting other classes.

There was testimony on the part of the school district to the effect that it was understood by the parties that the contract required Miss Hudson to teach classes in the ninth grade, and that pursuant to this understanding she taught ninth grade classes without objection for two months, and an instruction given on behalf of the district told the jury that if they found the fact so to be Miss Hudson had no right to refuse to continue teaching for the reason that the directors required her to teach the ninth grade. In view of the jury’s finding, it will be conclusively presumed by us that the jury accepted as true Miss Hudson’s testimony that she had agreed to teach the ninth grade only temporarily and conditionally, and that she had performed her undertaking in this respect.

An instruction numbered 2 was asked by the defendant school district, which reads as follows: “You are instructed that if the evidence shows that plaintiff became ill after she quit teaching the school in question, and was thereby unable to have continued her school work, tlxeu she ’would xxot be entitled to recover for whatever period of time during the life of the contract that she was unable to teach, by reason of such illness.”

The refusal to give this instruction is assigned as error.

This instruction was predicated on the following testimony given by Miss Hudson. After being discharged, because she would not and could not teach the ninth grade, she made diligent .and continued effort to secure other employment, but without success, and largely as a result of this failure she became ill, and there was a period of time within the six months covered by the contract when she was too ill to teach, and during the period of her illness she could not have taught.

Instruction numbered 2, if given, would have re-. quired the jury to deduct from any recovery in Miss Hudson’s favor the compensation she would have earned had she taught during the period of her illness. ■

No error was committed in refusing this instruction. Miss Hudson was xiot ill when the school was closed, axxd her illness had nothing to do with closing it. It was, of course, her duty to minimize her damages by securing similar employment, if she could do so, but she testified that she made this effort. ' The instruction .asked a credit that is too remote and speculative. Miss Hudsoxx might or might not have become ill if she had not been required to change her situation. If, in fact, the loss of the school caused the illness, the question might arise, about the expenses of her illness. ■ These questions are all speculative and conjectural, and such damages could not be held to have been within the contemplation of the parties when the contract was breached, and the court was therefore correct in refusing the instruction.

No error appears, and the judgment is affirmed.


text:
    Davis and Smith v. State.
    Opinion delivered November 23, 1925.
    1. Intoxicating liquors — evidence.—Evidence held sufficient to warrant conviction of possessing a still.
    2. Witnesses — impeachment on cross-examination. — In a prose-' cution for malting mash fit for distillation and for possessing a still, accused was properly asked on cross-examination as to what had ¡been found in a cold dr.ink stand which he operated, and whether he had not paid a fine for possessing liquors.
    Appeal from Union Circuit Court; L. S. Britt, Judge;
    affirmed.

      Id. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Smith, J.

Appellants Davis and Smith were tried .under an indictment containing two counts, the first of which charged them with making a mash fit for distillation, and the second with possessing a still. They were convicted on the second count, and have appealed.

We have not been favored by appellants with a brief on their appeal, but it appears from the motion for a new trial that the only errors assigned for the reversal of the judgment .are that the verdict is contrary to the law and the evidence, and that the court erred in the admission of certain testimony.

Clyde Duck, a witness for the State, testified that he found a still near Smackover in the woods. There were twelve barrels of mash near the still and a number of fruit jars, several of which had contained liquor. The coil and still were disconnected, but the drum in which the mash was boiled was still warm. The witness found the still about three o’clock in the afternoon, and he returned to it the next morning at two o’clock, and remained there until eleven o ’clock in the morning, but no one showed up. The following morning witness went back to the still between five and seven o’clock, and he saw appellants come down a trail through a thicket to the still. They came to within a quarter of a mile of the still in a Ford ear, and walked the remainder of the distance.

There was an indistinct trail leading through the underbrush from the car to the still, and appellants followed this trail directly to the still. Witness was accompanied by George Lee and two other companions, who were on opposite sides of the still. Witness saw appellant Davis walk up to the barrels of mash and look into them, and appellant Smith walked near Lee, who arrested Smith, and witness arrested appellant Davis.

Lee corroborated Duck, and they testified that there were automobile tracks leading to the path which led to the still, and these tracks were made by the same kind of casing as the one on the car appellants were driving.

Appellant Davis testified that he knew where the still was, as he had run across it one day while hunting squirrels, and that he found a. man named Kennedy in charge, who gave him a drink of whiskey, and that he and Smith had gone to the still for the purpose of buying whiskey from Kennedy when they were arrested.

The State offered testimony in rebuttal to the effect that appellants had said that the still belonged to one O’Neal, and Kennedy testified that while he was in jail with appellants they had attempted to induce him to swear that the still did belong to one O’Neal, and he denied that he had anything to do with the still, or that appellants had seen him there, or that he had sold them any whiskey.

We think the testimony set out above warranted the jury in finding that appellants were in possession of the stili.

During the cross-examination of appellant Davis, who had testified in his own behalf, he was asked what had been found in a cold drink stand which he operated, and if he had not paid a fine for possessing intoxicating liquor. Upon being required to answer these questions, appellant admitted that he had paid a fine for possessing intoxicating liquor. These were proper questions on the cross-examination. Holden v. State, 156 Ark. 521.

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


author: Wood, J.

text:
    Smith v. Mullen.
    Opinion delivered November 30, 1925.
    Executors and administrators — claim op administrator against estate. — An administrator who is personally liable as surety on notes of deceased is entitled to pay off such, notes and present his authenticated claim therefor against the estate.
    Appeal from Lawrence Circuit Court, Eastern District; Dene II. Coleman, Judge;
    affirmed.

      E. H. Tharp, for appellant.

      Smith & Blackford, for appellee.
   Wood, J.

The appellee, John Mullen, as administrator of the estate of F. M. Smith, deceased, presented an account in favor of himself individually against the estate of Smith in the sum of $2,206.28. The account was duly verified, and was by Mullen allowed as administrator and classed as a fourth class claim. The claim was presented to the probate court by the appellee, Mullen, for allowance, and was contested by the widow and heirs of Smith. The probate court allowed the claim in the sum of $898.02, and rejected the claim for the balance. Mullen appealed to the circuit court.

The cause was submitted to a jury in the circuit court, and at the conclusion of the testimony the court directed the jury to return the following verdict: “We, the jury, find that the interest of John Mullen in the policy of insurance introduced is the face of the policy.” The verdict was returned as directed, and the court thereupon entered a judgment in favor of Mullen in the sum of $2,000 and such accumulations as amounted on the policy. From that judgment is this appeal.

Mullen testified that he insured F. M. Smith’s life in the sum of $2,000, on which he kept the premiums paid until the death of Smith. He identified his account filed for allowance by the probate court and testified that he had made a mistake as to the interest, but that with that exception the items were correct; that he had furnished the articles shown by the itemized account. Smith had a policy in some company in which his widow was the beneficiary, and on that policy Mullen paid the premium for Smith for two years. Smith was a tenant on Mullen’s place for three years. The first year Smith made arrangements with Jones & Green to furnish him, and Mullen signed Smith’s note as security for the amount. Mullen did not know exactly what the amount was for the year 1920.

The effect of Mullen’s testimony, without setting the same out in detail, was' that the items of his account were correct, except as to the interest. He testified that he and 'Smith were to divide the proceeds of the crop half and half. Mullen was asked why there were no credits of any cotton raised and grown by Smith during the years he was a tenant on witness’ place, and witness replied that he was not buying cotton. He stated that when Smith went to the store to pay his account he arranged the same with the merchants, and for whatever balance Smith would make a note he (Mullen) signed the same as security for Smith. The only credit Smith-got on his account during those years was for some hay witness got from him. Mullen testified that the note for $900, executed to Jones & Green and signed by the witness, was for supplies furnished Smith. This note was paid by witness on the date on which same is marked paid. Wit ness testified also that he furnished Smith the items of the supplies set out in his account. The policy of life insurance for $2,000 on the life of Smith in favor of Mullen as the creditor of Smith was identified 'and introduced in evidence.

The testimony on behalf of the appellee by three witnesses was to the effect that Smith told them that he had insured his life for the benefit of Mullen, and two of these witnesses testified that Smith stated that he ow;ed Mullen enough to cover the amount of the policy, or more, for supplies furnished him for which Mullen had paid.

Mrs. Smith testified in her own behalf in substance that her husband owed Mullen at the time of 'his death $104.03, and that he owed Jones & Green $100. and a little over. She stated that Jones came to their house while her .husband was sick, and he signed a blank note, but they did not settle that night. She knew that her husband did not owe Jones & Green $900. Her husband made a note to Jones & Green the last year. She identified the signature of her husband on three notes, but did not think he signed the $900 note. The signature on that -note did not look like her husband’s. She was asked: “Will you say that you didn’t testify and admit in the probate court that it was his signature,” and she replied, ‘ ‘ That question was not asked me. ’ ’ She stated that she didn’t remember that her attorney made such admission before the probate court.

Witness John Green testified for the appellant that ■he was a member of the firm of Jones & Green during the years that Smith traded with his firm. He identified notes that had been executed to his firm by Smith, including all the notes referred to in the testimony of appellee, and among them the note for $900.

In rebuttal W. P. Smith, attorney for appellee, testified that on the trial of appellee’s claim before the probate court Mrs. ¡Smith and her attorney both admitted that all the signatures' on the notes were signed by F. M. Smith.

There is nothing in the testimony of the appellant or of her witness Green which tends to contradict the testimony of the witnesses for the appellee. This testimony for appellee shows conclusively that Smith had his life insured in favor of the appellee in the sum of $2,000. He stated that he owed appellee that amount or more and insured his life to protect the appellee against the loss of this indebtedness.

The appellant contends that the notes of F. M. Smith to the firm of Jones & Green for $900 and $132.67 should not have been paid by the appellee without due authentication. But these notes were the notes also of the appellee, and the appellee was bound to pay the- same, and had the right to pay the same without the necessity of a presentation to him as the administrator of the estate of Smith. After paying the same, the appellee as the holder of the notes and owner thereof, had the right to present his claim including these notes to the probate court for allowance against the estate of Smith. The appellee’s claim against the estate of Smith was duly authenticated.

The appellant next contends that the court erred in directing the jury to return a verdict finding that the interest of appellee in the policy of insurance introduced is the face value of the policy. The evidence is set forth, and-it speaks for itself. We are convinced that the undisputed evidence shows that the estate of Smith at the time of his death was indebted to the appellee in a sum greater than the value of the policy on Smith’s life. This policy was issued naming the appellee as the beneficiary for the purpose of protecting him as the creditor of Smith for the amount of Smith’s,indebtedness to the appellee. The testimony of Mrs. Smith was of a negative character, and did not tend to contradict the testimony on behalf of the appellee. The testimony on behalf of the -appellee positively identified the notes as the notes of Smith, and established the correctness of his account, and also established the fact that Smith, during his life, admitted that he owed appellee more than the face value of the policy, and had obtained insurance- on his life to protect the appellee.

The judgment is in all things correct, and it is therefore affirmed.


text:
    Langless v. McCarthy.
    Opinion delivered November 23, 1925.
    1. Appeal,’ and error — directed verdict. — Where a verdict was directed against appellant, the testimony will be viewed on appeal in the light most favorable to her.
    2. Yendor and purchaser — possession as notice. — Where possession óf land was in one who claimed title under contract with the owner, another who took deed from the owner’s heir at law which such possession continued took subject to the former's claim of title. ' •
    3. Estoppel — effect of letter. — 'One in possession and claiming .the .fee to land under a contract whereby the owner was to make 'conveyance to her in consideration of supporting the owner will not bé estopped from making such claim iby a letter to one who subsequently took a deed from the owner’s heir, in which she stated that at her death the heir would receive the property.
    4. Specific performance — oral 'contract to convey land. — -In an' action at law to confirm title to property bought by the grantee of the title-owner’s heir at law, an intervener in' possession, claiming title under an oral contract whereby the owner was to- convey the property to her in consideration of support, may ask for a transfer to equity in order to have the contract specifically performed. - '
    5. Quieting title — jury question. — In an action to confirm title brought by .one claiming under deed from the -title-owner’s heir at law, where an intervener claimed equitable title under an ■oral contract with such owner, - whereby she was to receive a conveyance in consideration of support of the owner, evidence held sufficient to make a question for the jury as ‘to her right of possession.
    Appeal from Independence Circuit Court; Dene H. Coleman, Judge;
    reversed.

      I. J. Matheny, for appellant.

      J. Paul Ward, for appellee.
   Smith, J.

Appellee J. V. McCarthy filed a petition in the chancery court of Independence County to confirm his title to a 160 acre tract of land in that county. Appellant Mrs. Langless intervened in the case, and was made a party thereto’, and the cause was transferred to-the circuit court, where there was a trial before a jury. At the conclusion of the testimony the court directed the jury to return, a verdict in favor of appellee, and this was done. In view of the fact that the verdict was directed ¡by the court against appellant we must view the testimony in the light most favorable to her, and when this is done it may be summarized as follows:

A. C. Hannas owned a small hill farm, of which about fifty acres were under fence, and about twenty acres in cultivation. Hannas and his wife had an only child, a son, who left home in 1902, and he had not thereafter returned, and he wrote to his parents at rare and irregular intervals.

On September 13, 1905, Hannas conveyed the farm to his wife, and Mr. Hannas died soon after executing this conveyance.

Appellant Mrs. Langless was a sister-in-law of Mrs. Hannas, and she and her husband lived on a farm adjoining the one owned by the Hannas. A portion of the Lang-less farm had been purchased iby them from the Hannas.

Upon the death of Mr. Hannas his wife proposed to Mr. and Mrs. Langless that they sell their farm and move to the Hannas place and take charge of it and of her, and agreed.that, if this was done and Mrs. Hannas was furnished a home during the remainder of her life, and was taken care of by Mr. and Mrs. Langless, they could have the farm on Mrs. Hannas’ death.

Pursuant to this proposition, Mr. and Mrs. Langless sold their own farm, and moved to the Hannas place the day after Mr. Hannas died and took charge of it, and thereafter furnished Mrs. Hannas a home, and took care of her until the time of her death, which occurred April 5, 19Í4. After the death of Mrs. Hannas, Mrs. Lang-less caused the Hannas farm to be assessed in his name, and he paid the taxes thereon in his own name until his death, which occurred in 1918, and after the death of Mr. Langless, Mrs. Langless caused the land to be assessed in her name, and she paid the taxes thereon continuously until 1922.

In. 1921 Mrs., Langless put a tenant in possession named Bishop, who paid her rent for that year. Bishop remained in possession during the year 1922 but refused to pay the rent to her and attorned to appellee. Bishop continued in possession during the year 1923, and has not paid the rent to anyone for that year.

Mrs. Langless testified that Mrs. Hannas agreed Mrs..Langless “should have the land,” and that on the day before she died, she asked that a neighbor, who was a justice of .the peace, be sent for to prepare the deed, but Mrs. Hannas’ direction in this matter was not complied with on account of her condition.

On her cross-examination by counsel for appellee, Mrs. Langless was asked the question: “Q. Wasn't it your understanding, and isn’t it your understanding now, that you were to have the home to live in as long- as you lived?”, and Mrs. Langless answered: “A. No, sir; it was my understanding that I should have a deed, to it.”

Mrs. Langless was corroborated by several neighbors as 'to the circumstances under which she and her husband moved to and took possession of the Hannas place, and it was shown by legally sufficient testimony, if not the undisputed testimony, that Mrs. Langless 'fully-performed her agreement in regard to furnishing Mrs.’ Hannas a home and caring for her until her death.

On October 11,1922, Mark Hannas, who was the only child of Mr. and Mrs. Hannas, and who never returned home after leaving it in 1902, executed a warranty deed to appellee for a consideration recited to foe $500 cash in hand paid, and it was upon this deed that appellee predicated his suit to confirm his title, and the cause was transferred to the circuit .court -when it developed that there was an occupant in possession claiming title to the land.

There was introduced in evidence a letter from appellant to appellee, which reads as follows:

‘ ‘ Hutchinson, Aug. 21, 1922.
“Lawyer McCarthy,
“Dear Sir : I understand that some one has written to you about, this place that I am living on.' They are trying to make trouble for me. I should like to know who wrote to you if you will be so kind as to tell me, as I am sixty-five years old, and no one to help me in any way. As far as the place is concerned, I think it is mine, as I let my home be sold to help take care of Mark Hannas ’ father and mother as he would not stay and take care of them. Now they are all dead and also my husband, which leaves me no one to take care of me; which, if any one tries to take this place, I can show what I have done for them all. When I am through, it will go to Mark Hannas. Now, if you are a gentleman, which I think you are, you will let me know who it is. Please answer and oblige.
“Mrs. Annie Langless.
Hutchinson, Ark.”

It is insisted that the statement contained in this letter, that “When I am through, it will go to Mark Hannas, ” is a recognition of .the title of Mark Hannas, and an admission by Mrs. Langless that she did not own the land. It appears, however, that Mrs. Langless was a woman without business experience or legal knowledge, and she explained that, although the farm had been given her, she supposed, in view of the fact that she was “alone in the world,” as she expressed it, and had no heirs, that the land would revert to Mark Hannas on that account at her death, and that she did not mean to admit that the land did not belong to her pursuant to her contract for the title.

It was the theory of the court that Mrs. .Langless had a. permissive possession only, which had not ripened into title by adverse possession, and in directing the verdict the court said: “There is no evidence in this case that the deed was ever made. There is evidence that they said they would make it, but it was never made.' They were there by permission. Gentlemen of the jury, as a matter of law in this case, it is your duty to return a verdict for the plaintiff. ’ ’

As we understand the case, viewing it in the light most favorable to appellant, her right to recover is not dependent on an adverse possession, although the testimony shows a possession of a portion of the land for a longer period than seven years after the death of Mrs. Hannas. The real source of Mrs. Langless’ title is the contract under which she sold her own farm, and moved to the Hannas farm. All the proper parties to enforce this contract are not before the court, and if a specific performance thereof is asked toy the execution of a deed the cause should be transferred back to the chancery court, where that relief could be granted, if the-testimony, in its entirety, warrants that relief.

The case of Williams v. Williams, 128 Ark. 1, is -sufficiently like this case^ — from the standpoint of Mrs. Langr less — to entitle her to affirmative relief if it be adjudged that the testimony has established her contention. The syllabus in that case reads as follows: “Deceased agreed to give certain lands to plaintiff if he would come to deceased’s home, live with him and take care of him; plaintiff left his employment in a nearby town, and removed to deceased’s home, and performed his part of the undertaking. Held, after deceased’s death, that equity would enforce the agreement, although the same was only orally made. ’ ’

It is recited in the opinion in that case that there was some doubt whether the agreement was that the owner of the land was to convey to the claimant during his lifetime, or was to convey it by last will. The basis of the claim in that case was that there was a.contract whereby claimant was to get the property in considera.tion of his services, and we -said: “It is entirely unimportant as to the particular method in which the property was to toe conveyed. The proof having established the contract and a performance of its terms by the plaintiff, it follows that a court of equity should grant him relief.”

■ The deed to appellee from the heir-at-law was made while Mrs. Langless was in possession, and appellee therefore took his deed subject to Mrs. Langless’ claim of title, whatever it- might be. Her possession was an assertion of whatever title she had, and should have put appellee upon inquiry. First Nat. Bank of Paris v. Gray, 168 Ark. 12.

The letter from Mrs. Langless to appellee is, of course, evidence as to what this title was, but we think there is nothing in it which estops Mrs. Langless from claiming the title, and she has the right to explain any ambiguity in the letter. This letter was written to appellee before he received his deed from the son and heir-at-law of Mrs. Hannas, and in this letter. Mrs. Langless stated that she thought the land was hers. She did say that when she was “through” it (the land) would “go to Mark Hannas.” 'She did not explain whether this would be done by a conveyance from her, or by operation of law, and appellee took his deed -without asking any explanation of this ambiguous statement, and Mrs. Lang-less has the right to explain the letter, as it contains nothing which estops her from asserting a present right of possession.

Flor the error in directing a verdict in appellee’s favor, the judgment will be reversed, and, if appellant ■asks the affirmative relief of specific performance and brings the proper parties before the court to obtain that relief, it would be proper to transfer the cause back to the chancery court, where this issue could be properly disposed of. But, whether this is done or not, appellant has the right to assert her equitable title in this suit at law; and the testimony offered in her behalf is sufficient to make a question for the jury, as to her right of possession, in opposition to appellee’s claim to a present right of possession.Trulock v. Taylor, 26 Ark. 54; Sledge-Norfleet Co. v. Matkins, 154 Ark. 509; Marsh v. Erwin, 155 Ark. 371; Nichols v. Shearon, 49 Ark. 75; Gates v. Gray, 85 Ark. 25; Natlin v. Riley, 54 Ark. 30; Reeve v. Jackson, 46 Ark. 272; Moore v. McCloy, 70 Ark. 505; Daniel v. Gavner, 71 Ark. 454; Crawford County Bank v. Batton, 87 Ark. 142. • .

Judgment reversed and cause remanded.


author: .-McCulloch, C. J.

text:
    McConnon & Company v. Brown.
    Opinion delivered November 30, 1925.
    i; Payment — sufficiency of answer. — In an action on a written guaranty an answer alleging the execution and delivery of a note by a grantor as payment in full, and that it constituted a new indebtedness in full settlement of the original debt, sufficiently alleges that it was accepted in full satisfaction, as- against a demurrer, although subject to a motion to make it more definite and certain.
    2. , Alteration of instruments — recourse to original obligation. — Where a note is executed and accepted in discharge of an antecedent obligation, a material alteration thereof destroying , the validity of the note will not bar a right of action on the original1 obligation unless the alteration was made with fraudulent intent.
    Appeal from Woodruff Circuit Court, Southern District; E. D. Robertson, Judge;
    reversed.

      Cooley, Adams & Ruhr, for'appellant.

      Ross Mathis, for appellee.
   .-McCulloch, C. J.

Appellant (a corporation) instituted this action at law against appellee to recover on a written contract of guaranty executed by appellee and another person to appellant, whereby appellee undertook to guarantee the account of one Sarle-s. Appellee answered, alleging in substance that he and his co-guarantor,' Tarkington, had executed to appellant their promissory note for the amount of Sarles ’ account with appellant, that they had delivered said • note to appellant in full satisfaction of the debt, and that appellant had surrendered to them the contract of guaranty; that appellant, or its agent, had materially altered the note, and that, on an action instituted by appellant on the note, there had been a verdict and judgment in favor of appellee. Appellant demurred to the complaint, but the court overruled the demurrer, and appellant refused to proceed further, and suffered final judgment to be rendered against it.

It is first contended that the answer is insufficient because it is not specifically alleged therein that the note executed by appellee and Tarkington. was accepted, by appellant in full satisfaction of the original debt now sued on. This is important, for, if the note, was not accepted in satisfaction of the original debt, there was no extinguishment of the latter, and suit may be maintained thereon, even though the note became void by the alleged alteration. Our conclusion, however, is that the allegations of the answer were sufficient in substance to constitute a charge that the note was accepted in satisfaction of the debt. It is alleged in the answer that the note was executed and delivered to appellant “as payment in full,” and that.it constituted “a new indebtedness, and was delivered in full settlement of the elaim: of the appellant, ’ ’ and that the original contract of guaranty ■ was surrendered to appellee. It is a necessary inference from this language that the note was accepted in full, and it constitutes an imperfect allegation to that effect, which should have been met by a motion to make more definite and certain.

It is next contended thiat the answer is insufficient because it contains no statement that the alleged alteration was fraudulently made. The allegations in the answer on this subject are that, after the execution of said note, appellant instituted an action thereon against defendant, and that at the trial of the action “a verdict in favor of the defendant was rendered by the jury trying ■said cause for the reason that the said note had been 'altered after its delivery to the plaintiff by the insertion of a provision binding the defendant to pay interest, which- said alteration was made by the plaintiff or its agent. ’ ’

The authorities seem to be unanimous that where a written obligation to pay has been delivered and accepted in discharge of an antecedent debt and is fraudulently altered to a material extent by the obligee, so as to render the obligation void, suit cannot be maintained on the original debt. The reason stated in some of the authorities is that, since the original debt was extinguished by a new and valid obligation and became merged into and extinguished by the new obligation, it cannot be revived by the fraudulent act of the obligee in making a material alteration. The distinction between the effect of an innocent and fraudulent alteration is not recognized in all of the authorities, but we think that, according to the weight of authority, there is such a distinction, and that the true rule is that, unless the alteration' was fraudulently made, the obligee is not barred from his right of action on the original debt. Note to Pollak Bros. v. Niall-Herin Co., 35 L. R. A. (N. S.) 76, 2 C. J. 1183; Wheelock v. Freeman, 13 Pick. (Mass.) 165; Maguire v. Eichmeier, 109 Iowa 301; Eckert v. Pickel, 59 Iowa 545; Warder v. Willyard, 46 Minn. 531; Hocknell v. Sheley, 66 Kas. 357; White v. Hass, 32 Ala. 430; Green v. Sneed, 101 Ala. 205.

The trial court should have sustained the demurrer with leave to appellee to amend the answer if so desired.

For the error in overruling the demurrer, the judgment is reversed, and the cause remanded for further proceedings in accordance with this opiuion.


text:
    Missouri Pacific Railroad Company v. Robertson.
    Opinion delivered November 30, 1925.
    1. Railroads — negligence in crossing accident — jury questions.— Evidence in an action for personal injuries in a railroad crossing accident held to justify submission of the issues of negligence and of contributory and comparative negligence to the jury.
    2. Railroads — failure to keep lookout jury question. — Evidence held to justify submission to the jury of the question whether the testimony of the fireman to the effect that hq .kept a lookout was reasonable, self-consistent and uncontradicted.
    3. Railroads — failure to whistle for ■ crossing — instruction.— An instruction that if the defendant’s employees failed to whistle • for the crossing, but did whistle for the station, and that such station was a long blast, and nearer to the station than would have been the crossing whistle, failure to give the crossing whistle was not the proximate cause of the accident, held properly refused as argumentative and erroneous, since the failure to- give the crossing signal is negligence, and it' is for the jury to say whether such failure was the proximate cause of the injury.
    4. Railroads — contributory negligence — instructions—It was not error, in an action for personal injuries received at a railroad crossing, to charge the jury that, if it appeared to this plaintiff as a reasonable person that greater danger was to bé apprehended from one end of the track than the other, plaintiff might, give more attention to that end, where the court further charged that plaintiff would not be guilty of contributory negligence unless he failed to look both ways and to listen for approaching trains or to use ordinary care to avoid injury, such as stopping, if necessary, that he might better look and listen.
    5. Railroads — comparative negligence — instructions.—Instructions given by the court, in a personal injury action, when taken together, held to require that plaintiff’s negligence be less than defendant’s before the jury would be justified in returning a verdict in plaintiff’s favor.
    6'. Railroads — injury at crossing — instruction as to Presumption. — In an action for personal injuries received at a railroad crossing, an instruction that “if plaintiff was injured by the ' running of .a railroad train at a public crossing,- the law presumes that the injury was negligently done; but the railroad, to avoid liability, may show by a preponderance of the evidence that the injury was not the result of the negligence of the railroad,” — was not open to a' general objection when read in connection with instructions properly submitting the issue as to contributory negligence.

      Appeal from Greene Circuit Court; W. W, Bandy, Judge;
    affirmed.

      Thos. B. Pryor and Gordon Frierson, for appellant.

      Huddleston <& Little, and R. P. Taylor, for appellee.
   Wood, J.

This is an action by the appellee against the appellant to recover damages for persona! injuries growing out of the alleged negligence of the servants of appellant in the operation of its train. The appellee alleged that, while he was driving1 a truck over the track of appellant on a public crossing, appellee and his truck were struck through the negligence of the servants of appellant, operating its train, in failing to give the statutory signals, and in failing to keep a lookout, and in running said train at an excessive rate of speed.

The appellant, in its answer, denied the material allegations of the complaint and set up the affirmative defense of contributory negligence on the part of the appellee. The verdict and judgment were in favor of the appellee, and the appellant duly prosecutes this appeal. We will dispose of the appellant’s contentions in the order presented in brief of its counsel.

Appellant contends that the court erred in refusing its prayer for instruction No. 1, as follows: “You are instructed to return a verdict for the defendant.” Learned counsel for appellant argue, first, that the undisputed testimony shows that the appellant’s servants, in operating its train, were not negligent; and,,'second, if counsel be mistaken in this, that the undisputed testimony shows that the appellee was guilty of contributory negligence, and that his contributory negligence was much greater than any negligence of appellant’s servants, and that in either event the appellant is not liable. There was testimony on behalf of the appellee tending to prove that, while the appellee was traveling on the highway approaching’ the crossing, -and about the time appellee reached the point where he would turn south on the highway, and where he could see as far as 400 feet to tbe north, the direction from which the train was coming that injured him, he looked both to the north and the south, and did not see or hear the train. From the time he made the turn he was traveling south toward the crossing with his back in the direction from which the train was coming that struck him at the crossing. The train that struck the appellee was due at the station at 8:30, but it was shown by one of the witnesses for the appellee that the train was an hour late. Appellee’s testimony tended to show that about the time he usually arrived at Laf e in the morning, a train from the south — from Paragould— also arrived, and the appellee was expecting that train, and giving more attention to that direction. It was a cold, cloudy day, and appellee had the curtains up on his truck. Witnesses testified to the effect that they did not hear the bell ring or the whistle sound. Under the above testimony the issues of negligence, contributory and comparative negligence were for the jury.

The appellant next contends that the court erred in submitting to the jury the question as to whether or not the appellant’s fireman failed to keep a lookout. The fireman testified that he was keeping a lookout, and that he saw the appellee as soon as he came out from behind the obstructions. It would.unduly extend this opinion and could serve no useful purpose to set out and discuss in detail the testimony of the fireman to determine whether or not the court erred in submitting the question of a failure to keep a lookout to the jury. We have examined the testimony, and have concluded that the court did not err in submitting this issue. In other words, it was for the jury to say whether or not the testimony of the fireman, to the effect that he kept a lookout, was reasonable, self-consistent, and uncontradicted. The court’s instructions on this issue were correct.

Counsel for appellant next contend that the court erred in refusing to give its prayer for instruction No. 5 as follows: “You are instructed that, if you find from the evidence that the defendant’s employees failed to whistle for the crossing, but did whistle for the station, and that such station whistle was a long blast, and nearer the station than would have been the crossing* whistle, failure to give the crossing whistle under such circumsi anees would not be the proximate cause of the accident. ’ ’ The appellant concedes that there was testimony sufficient to warrant the court in submitting to the jury the issue as to whether or hot the statutory signals were given as required by § 8568 of C. & M. Digest. That statute requires the bell to be rung or whistle to' be sounded at a distance of eighty rods from the railroad crossing, and to be kept ringing or whistling until the train shall have crosséd the said road or street.

It is manifest, even though the-whistle for the station would be tantamount likewise to sounding the whistle for the crossing, nevertheless one long blast sounded for the station or for the crossing would not be a compliance with the statute, for the statute requires that the signal be given at a distance of at least eighty rods, and that the same be kept up until the crossing is passed. The failure to give the statutory signals is evidence of negligence, and where the testimony shows that such signals were not given, it is for the jury to say, under the evidence, whether the negligence in failing to give such signals was the proximate cause of the injury. See Mo. Pac. Ry. Co. v. Bode, 168 Ark. 157. Therefore,' the appellant’s prayer for instruction No. 5 was argumentative, and the court did not err in refusing to grant the same.

The appellant urges, reversal on the ground that the court erred in giving appellee’s prayer for instruction No. 6 to the effect that, if it appeared to the appellee before crossing, as a reasonably prudent person under the surrounding circumstances, that greater danger was to be apprehended from one end of the track than the other, appellee might give more attention to that end of the track from which he apprehended the greater danger. The court had granted appellee’s prayer for instruction No. 5, which in effect told the jury that the appellee would not be guilty of contributory negligence unless “he failed to look both ways, and to listen for approaching trains, or to use ordinary care to avoid injury, such as stopping, if necessary, that he might better look and listen.’! ÍWhen the.two instructions are considered together, it is clear that there is no reversible error- in giving ^appellee’s prayer for instruction No. 6.

-It is argued- that the court erred in granting appellee’s prayer for instruction No. 8 as' follows: “If you find that the plaintiff was guilty of contributory negligence, you will, if you find for the plaintiff, diminish the amount of the verdict in proportion to such contributory negligence. ’ ’ This instruction did not correctly set forth the doctrine of comparative negligence as prescribed in § 8575 of C. & M. Digest, but appellee’s prayer for instruction No. 14, which the court granted, correctly set forth the statutory rule of comparative negligence, and, when the two are read together, there is no conflict between them, and no prejudicial error resulted to the appellant in granting instruction No. 8. A similar situation arosein the-case of St. L. I. M. & S. Ry. Co. v. Kilpatrick, 155 Ark. 632-638, where we said, speaking of an instruction precisely in the same language as that of appellee’s prayer for instruction No. 8 in the case at bar: “This instruction will not be incorrect when other instructions are given conforming to the views herein expressed. It will not then, as counsel for appellant insist, permit a recovery, even though the contributory negligence of appellee is greater than that of the negligent employees of the railroad, for, when conformed to the views here expressed, the instruction will not permit a recovery unless appellee’s contributory negligence is of a less degree than the negligence of the railroad employees, in which event -it will be proper, as the instruction directs, to diminish the amount of the verdict in proportion to such contributory negligence.’ ” Appellee’s prayers for instruction Nos. 8 and 14, on the doctrine of comparative negligence, when taken together, certainly required the jury to find that appellee’s negligence was less than that of the appellant’s before they were justified in returning a verdict-in appellee’s favor.

Counsel insists in the last place that the court erred in granting appellee’s prayer for instruction No. 9, as follows: “If plaintiff was injured by the running of a railroad train at a public crossing, the law presumes that the injury was negligently done; but the railroad, to -avoid liability for such injury, may show by a preponderance of the evidence that the injury was not the result of the negligence of the railroad.” Appellant made only a general objection to the instruction, and, when read in connection - with the other instructions which the court granted, submitting the issue as to contributory negligence, it cannot be said that the instruction is susceptible of the construction that it limited the appellant to proving the absence of negligence on its part. On the contrary, when the instructions are read together, it occurs to us that the court’s charge plainly told the jury that contributory negligence on the part of the appellee was a complete defense to the action unless such contributory negligence was of a less degree than the negligence, if any, on the part of the appellant. Where persons or property, are injured by the running of trains in this State, a presumption of negligence still obtains, notwithstanding the statutory doctrine of comparative negligence. See Davis v. Scott, 151 Ark. 34.

There being no reversible errors, the judgment is affirmed.


text:
    Moose v. Bartlett.
    Opinion delivered November 30, 1925.
    1. Taxation — sheriff as ex-officio collector. — Under Const., art. 7, § 46, and Crawford & Moses’ Dig., § 10026, the sheriff is ex-officio the collector of all taxes until otherwise provided by law.
    2. ■ Highway — duty to collect highway improvement assessments. —In the absence of a statute, it is not the duty of the sheriff as - collector to. collect installments of benefits assessed in road and bridge districts; such assessments not being within the purview of Const., art. 7, § 46, or of Crawford & Moses’ Dig., § 10026.
    3. Taxation — liability of collector’s sureties. — Under act 71 of 1917, § 11, and act 245 of Koad Laws of 1919, §§ 29' and 30, the collection of assessments of taxes of bridge and road districts created by those acts is made one of the duties of the county collector, and-the.sureties signing his bond after the. passage of the above acts are liable for the collector’s failure to account for such taxes.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Strait & Strait, for appellant.

      Edward Gordon, Moore, Smith, Moore $ Tricher, Galvin Sellers, J. W. Johnston and Owens S Ehrman, for appellee.
   Wood, J.

This action was instituted by the appellants- They alleged thiat they are sureties on the collector’s bond of R. E.- Bartlett, who was the duly elected sheriff and collector of Conway County; that in the year 1924 Bartlett was indebted to various improvement districts for the amount of collections in his hands on the assessments of .benefits in those districts, the amount being set forth in the complaint and agreed upon by counsel for the respective parties. The appellants alleg’ed that they are not liable on the collector’s bond for any assessments or taxes collected by him during the year 1923, for certain road districts, naming them by number, and- bridge and drainage districts. The appellants prayed that the court decree that they are not liable for the amounts claimed-to have been collected by Bartlett, or for annual installments on the assessments of benefits collected by him in these districts, and that the districts and their officers be enjoined and restrained from instituting any suit or proceeding to recover the same, etc. There were demurrers, answers, cross-complaints and counterclaims filed. The cause was heard upon demurrers, and the court held as a matter of law that the sureties upon the collector’s bond were liable for “any and all funds coming into the hands' of'said collector,” and sustained the demurrers to the complaint. The appellants stood upon their complaint, and refused to plead further- The court thereupon entered a decree dismissing the complaint and entered decrees for certain sums in favor of appellees, from which is this appeal. ‘

It is unnecessary to set forth in detail the pleadings, for it is conceded' that the only issue raised by the pleadings and presented by this appeal is whether or not the appellants are liable as sureties on the general bond of B. E. Bartlett as collector for the amounts of assessments or taxes on benefits collected by him for various improvement districts and which he failed to account for and pay over in his report and settlement to the county court. The parties agree upon the facts. The bond of the collector, Bartlett and appellants as sureties, ■was executed by them on the 30th day of November, 1923, and approved by’the county judge of Conway County on December 22, 1923. Bartlett, as the principal, and the appellants as sureties “are jointly and separately bound unto the State of Arkansas for the use and benefit of the State of Arkansas, and unto the State of Arkansas for the use and benefit of Conway County, of the State of Arkansas, in/the sum of $390,000,” conditioned that “if the said B. E„ Bartlett shall faithfully perform the duties of collector of revenue for the county aforesaid for the year 1923, and shall, well and truly pay over within the time prescribed by law to the proper Officer designated by the law to receive the' same all moneys collected by him by virtue of his said office,' according .to law, then this bond to be void; otherwise to be and remain in full force and effect,” etc. The road districts for which the collector made collections were created under act 245 of the Acts of 1919, and the bridge district was created by. act 71 of the Acts of 1917. Section 11 of act 71 of the Acts of 1917 provides as follows: “The amount of taxes herein provided for shall be annually extended upon the tax books of the county, and collected by the collector of Conway County, along-with other taxes, and for his services in making such collections he shall receive a commission of one per cent.; and the same 'shall by the collector be paid over to the depository of the district at tbe same time that he pays over the county funds. If any collector shall fail to collect the bridge tax along with the other taxes, he shall be subject to a penalty of one hundred dollars for each instance in which he shall collect from an individual the other taxes and omit the bridge tax, unless the bridge tax has been enjoined by a court of competent jurisdiction, to 'be recovered in a suit brought by the commissioners to th© use of district; and the county clerk shall be subjected to a like penalty for each case in which he shall fail to enter the bridge tax upon the tax books.”

■Section 29 and 30 of act 245 of 1919, creating .the road districts provide as follows:

‘ ‘ Section '29. The county clerk shall annually show on his tax books the amount of the installments of assessments of benefits levied against each tract of land * # *.”
‘ ‘ Section 30. The county collector shall collect the several installments of the assessments of benefits during each year at the time he collects the general taxes. ’ ’

Under our 'Constitution and statutes the sheriff is the ex-officio collector of all taxes until otherwise provided by law. See § 46, art. 7, of the Constitution; § 10026, C. & M. Digest. Unquestionably, the above provisions of the Constitution and statutes have reference to taxes that are ithe public revenue of the State and county. Installments or. taxes on the assessments of benefits in improvement districts, are not taxes, within the purview of the above provisions of the Constitution and statutes; and, in the absence of a statute, it would not be the duty of the collector to make such collections, and he and his bondsmen would not be liable for a failure to make such collections- But the above statutes creating improvement districts, it will be observed, superimposed the duty of making the collection of improvement district' assessments or taxes upon the county collector, the same as the duty of collecting the general revenue. The collection of these improvement district assessments or taxes is thus made one of the duties of the collector. 'Section 10029, C. & M. Digest, provides that the condition of the collector’s bond shall be “for the faithful performance of the duties of his office, and for well and truly accounting for and paying over all moneys collected by him by virtue of his office.” The provisions of the bond executed by the collector as above set forth are that “he shall faithfully perform the duties of collector of revenue for the county aforesaid for the year 1923, and shall well and truly pay over within the time prescribed by law to the proper officer designated by law to receive the same all moneys collected by him by virtue of. 'his said office, according to law, etc.” This bond was executed after the above statutes were enacted making’ it the duty of the collector of the county to collect improvement district assessments or taxes. It was within the province of the Legislature to impose this duty upon the collector’s office, and the collector and the sureties on his bond were bound to take notice of the law, and must be held to have executed the bond fully cognizant that it.was the duty of the collector under the law to make collection of improvement district taxes as Well as the general revenue- Therefore, it occurs to. us that- it is impossible to escape the conclusion that the collector, Bartlett, and his bondsmen, the appellants, are liable for his failure, in his settlement with the county court, to account for the taxes or assessments collected by him for the various' improvement districts.

Counsel for appellants rely upon the following from 22 Ruling Case Law p. 519: “It is a hornbook principle that sureties are persons favored by tbe law, and that their obligations are not to be extended by implication or construction, but are to be construed strictissimi juris. This principle applies to official bonds. The sureties on such bonds ar.e bound to the extent, in the manner, land under the circumstances pointed out in their obligations. The bonds themselves should be given in all cases a reasonable construction. The terms of a bond cannot be extended beyond their reasonable meaning, when construed with reference to the purposes contemplated by the law requiring the. bond, for the surety is entitled to stand on the very terms of his undertaking. ” To be sure, the above principle is sound law, and, when-applied to the facts of this record, it establishes the liability of the appellants. If the bond, under review here had been executed before the passage of the acts imposing upon the collector’s office the duty of collecting improvement district assessments or taxes, there would be- some plausibility in counsel’s contention. But it must be held, in view of these statutes, that it was' contemplated by the collector and the appellants as sureties on his bond that it was the duty of the collector to collect the installments on the special improvement district assessments of benefits, as well as the general revenue of the county and State. It will be noted that the bond requires the collector, not only to faithfully perform the duties of collector of revenue for the county for the year 1923, but also “to well and truly pay over within the time prescribed by law to the proper officers designated by law to receive the same, all moneys collected by him by virtue-of his said office, according to law, etc.” It follows that the court did not err in entering a decree dismissing the appellants’ complaint, and in entering decrees in favor of the appellees for the respective amounts therein set forth, and these decrees are in all things affirmed.