author: Hart, C. J.,

text:
    Warren Cotton Oil & Manufacturing Company v. Sullivan.
    Opinion delivered October 14, 1929.

      D. A. Bradham and Duval L. Purkins, for appellant.

      Clary ■& Ball, W. D. Jones, John E. Hooker and T. M. Hooker, for appellee.
   Hart, C. J.,

(áfter stating the facts). The record shows that appellant obtained judgment against appellee L. L. Sullivan, before a justice of the peace, and, after a return of nulla bona on an execution issued by the justice, the transcript of the judgment was filed in the office of the circuit clerk in the county where ,the lands in controversy are situated. The judgment obtained before the justice of the peace, and filed in the office of the circuit clerk, was a junior lien to a mortgage executed by the owner, of the lands to the Bank of Bison. An execution was issued by the circuit clerk upon the transcript of the justice judgment, and levied on the lands in controversy. The lands were sold by the sheriff, and bid in by appellant. When appellant purchased the lands at the execution sale, he acquired title thereto subject to the mortgage which appellee had executed on said lands to the Bank of Bison. In other words, appellant acquired the equity of redemption in the lands purchased at the execution sale, and held the lands subject to the-mortgage, of the Bank of Bison. The judgment of appellant was a junior lien, and therefore subject to the mortgage of the Bank of Bison. Having purchased the lands at the execution sale, appellant became the owner of the equity of redemption and succeeded to the rights of appellees to redeem the lands from the mortgage of the Bank of Bison. Turner v. Watkins, 31 Ark. 429; Cohn v. Hoffman, 56 Ark. 119, 19 S. W. 233; and Dalton v. Brown, 130 Ark. 200, 197 S. W. 32.

The same principle was decided in Smith v. Simpson, 129 Ark. 275, 195 S. W. 1067, where the court held that the purchaser under foreclosure- proceedings instituted by the junior mortgagee has the right to redeem from the first mortgage.

As we have already seen, appellant became the owner of the equity of redemption by purchase at the sheriff’s sale; and, not having been made a party to the foreclosure proceedings against appellee instituted by the Bank of Bison, it is difficult to see how its right 1o redeem could be affected by the foreclosure proceedings. In Cohn v. Hoffman, 56 Ark. 119, 19 S. W. 233, -it was held that an execution purchaser of a mortgagor’s interest in land is entitled to redeem upon payment of the mortgage debt, and cannot be required to pay any other debts of the mortgagor not a charge upon the premises when the judgment lien attached.

This is in application of the general rule laid down in Jackson v. Wearner, 138 Ind. 539, 38 N. E. 166, so that, when appellant became the owner of the equitj^ of redemption of appellees by purchase at the sheriff’s- sale, not having been a party to the suit of the bank to foreclose its mortgage, the decree in that case in no wise affected its rights. Its title could not be divested in a foreclosure proceeding to which it was not a party.

In 42 C. J. 361, it is said that, where lands subject to a mortgage are sold in execution against the mortgagor, the purchaser succeeds to the rights of the mortgagor in such sense as to be entitled to redeem from the mortgage, unaffected by any transaction between the mortgagor and the mortgagee subsequent to the judgment. The case of Cowling v. Britt, 114 Ark. 175, 169 S. W. 783, is cited in support of the text.

The reason for the rule is that, if the purchaser of the equity of redemption of the mortgagor could be compelled to pay all subsequent liens without his consent, the mortgagee could deprive him of the value of his judgment lien by extending credit to the mortgagor, and judgment debtor after the lien of the judgment had attached. This would greatly lessen the value of a judgment lien, and would necessarily impair the rights of the judgment creditor and the purchaser at the execution sale.

In 19 R. C. L., par. 456, page 640, it is said that the purchaser of the equity of redemption sold under execution has the right to redeem, and, where real estate is sold on execution and is afterwards sold on the foreclosure of a prior mortgage, the purchaser at the execution sale, if not made a party to the foreclosure proceedings, may redeem and treat the deed made on foreclosure as a mortgage, and ,the purchaser on foreclosure sale as the mortgagee in possession. Among the cases cited in support of the rule is that of Insley v. United States, 150 U. S. 512.

In the application of this general rule to the undisputed facts in the present case, it is clear that the Bank of Rison and appellees, as the mortgagors, could not, by any action or agreement, affect the rights of appellant by foreclosure proceedings had subsequent to the purchase at the execution sale by appellant of the equity of redemption of appellee L. L. Sullivan in the lands in question. Otherwise, as we have already seen,-the'Bank of Rison, as mortgagee, and appellees as mortgagors could, by agreement, deprive appellant of a valuable right which it had secured by purchase at the execution sale. If the value of the equity of redemption which had become vested in appellant could be lessened or impaired by subsequent foreclosure proceedings to which appellant was not a party, it is very clear that it would thus be'deprived of a valuable property right. 'By its purchase at the execution sale, appellant acquired the title to the lands in controversy, subject to the mortgage of the Bank of Bison. It had the right to redeem from this mortgage; and, when the mortgage was assigned to it by the Bank of Bison, appellant acquired a complete title to the lands in controversy, and was entitled to the possession thereof. The Bank of Bison could not have executed a quitclaim deed to appellee divesting appellant out of the title which it had already acquired.

In this view of the matter it does not make any difference whether the case was tried in law or in equity. The facts are undisputed, and the decision must be the same in either court. Shapard v. Lesser, 127 Ark. 590, 193 S. W. 262, 3 A. L. R. 247. Therefore the decree will be reversed, and the cause will be remanded with directions to grant the prayer of appellant for possession of the lands, and for such other relief as in equity it is entitled to. It is so ordered.


source: Caselaw Access Project

license: Public Domain

text:
    Merchants’ Transfer & Warehouse Company v. Gates.
    Opinion delivered October 14, 1929.

      Robinson, House i& Moses and Harry E. Meek, for appellant.

      Hal L. Norwood, Attorney General, and Walter L. Pope, Assistant, for appellee.
   Hart, C. J.,

(after stating the facts). The correctness of the decree of the chancery court depends upon the construction to be given act No. 62, passed by the Legislature of 1929, to amend an act of the Legislature of 1927 providing for the regulation, supervision and control of motor vehicles used,in the transportation of persons or property for hire, and act No. 65, passed by the Legislature of 1929, for the purpose of amending and codifying the laws relating* to State highways. Acts of 1929, vol. 1, pp. 137 and 264.

In the case of State v. Haynes, 175 Ark. 645, 300 S. W. 380, we had under consideration the act of 1927 providing for the regulation, supervision and control of motor vehicles used in the transportation of persons or property for compensation in the State of Arkansas. The particular part of the statute to be construed in that case was the proviso in subdivision (d) of § 1 of the act, which reads as follows;

“Provided the terms ‘motor vehicle’ or ‘motor-propelled vehicle,’ as used in this act, shall only include motor vehicles operating a service between cities or towns.” See Acts of 1927, p. 257 et seq.

The court held that the Legislature only intended to place within the jurisdiction of the Arkansas Railroad Commission common carriers operating motor vehicles over a fixed route between cities or towns. .It was said that the cities or towns were required to be the termini of the route, but that stations at the termini might be established within the cities or towns, or at reasonable distances without the limits of said cities and towns, for the purpose of receiving and discharging* passengers or loading or unloading freight.

In the ease of Duncan v. Jonesboro, 175 Ark. 650, 1 S. W. (2d) 58, it was held that taxicab operators, operating motor vehicles as common carriers between cities or towns under the provisions of the act, which had secured a permit from the Railroad Commission, were not required to have a license from a city which was one of the termini of their fixed route, although most of the revenue was derived from passengers within the corporate limits of such city.

The Legislature of 1929 passed an act to amend the statute of 1927 just referred to, Acts of 1929, vol. l, p. 137. That act, just as the original act passed in 1927, provided that the terms “improved public hig'hways,” wherever used in the act, means every improved public highway in this State, which is or may hereafter be declared to be a part of the State highway system, or a part of any county highway system, or the streets of any city or town. This clause is subdivision (f) of each act.

Subdivision (d) of § 1 of the amendatory act of 1929 reads as follows:

“The term ‘motor vehicle carrier,’ wherever used in this act, means every corporation or person, or their lessees, trustees or receivers, owning, controlling, operating or managing any motor-propelled vehicle used in .the business of transporting persons or property for compensation over any improved public highway in this State. The terms ‘motor vehicle’ or ‘motor-propelled vehicle’ as used in this act shall apply to all motor vehicles engaged in transporting passengers or property for compensation over improved public highways of this State.”

It will be noted that the amendatory act provides that the term “motor vehicle,” as used in the act, shall apply to all motor vehicles engaged in transporting persons or property for compensation over the improved public highways in this State, instead of the proviso in the act of 1927, that a motor vehicle shall only include a motor vehicle operating a service between cities and towns.

This court has uniformly held that acts passed upon the same subject must be taken and construed together, but the obvious import of the language cannot be disregarded. The intention of the Legislature must, if possible, be carried into effect; but it must be derived from the language used in the act, if it be clear and unambiguous. Ex parte Trapnall, 6 Ark. 9; In re Burrow, 55 Ark. 275, 18 S. W. 170; and Miller v. Yell & Pope Bridge District, 175 Ark. 314, 299 S. W. 15.

When the court construed the act of 1927 in question, such construction became as much a part of the statute as if written in it. It is a fundamental rule of construction that the Legislature is presumed to have enacted a statute in the light of all judicial decisions relating to the same subject. Thus the Legislature is presumed to have passed the act of 1929 under consideration with the full knowledge that this court had construed, the act of 1927 relating to the same subject to give the Arkansas Railroad Commission jurisdiction over common carriers operating motor vehicles over fixed routes between cities and towns. The court said that the act required the cities or towns, as the case might be, to be the termini of the route.

Another necessary presumption that follows is that the Legislature of 1929, when it amended the act of 1927, intended for the amendatory act to change the original act when read in the light of the decision of the court construing’ it. Since the Legislature knew that the act of 1927 only gave jurisdiction to the commission over motor carriers operating between cities and towns, if it had intended the amendatory act to have the same meaning, it would have used the words which had been construed by this court. As stated, by the use of other and different language it evidently meant to give the commission jurisdiction over motor carriers operating over the public highways of this State.

Streets in cities and towns may, by legislative enactment, be made a part of the public highways of the State, the same as rural highways. The court has repeatedly held that the public streets of a city or incorporated town may by the Legislature be made a part of the public highways of the State. They belong to the people of the State, and the Legislature may delegate to municipal corporations and other governmental agencies the power to regulate and control traffic on them. Adkins v. Harrington, 164 Ark. 281, 261 S. W. 626; Pine Bluff v. Arkansas Traveler Bus Co., 171 Ark. 727, 285 S. W. 375; and Hester v. Arkansas Railroad Commission, 172 Ark. 90, 287 S. W. 763.

Each of the appellant carriers held itself out to the public as ready to undertake for hire the transportation of goods or passengers from place to place in the city of Little Rock, or from points in the city of Little Rock to places in the city of North Little Rock, or to places along the public highways in the country, and thus solicited the patronage of the public, although it claimed the right to reject customers for cause. Its general business was with the public, and each solicited customers from the general public. The same was true of the undertaking establishment. It operated ambulances carrying sick and injured persons to hospitals, homes, and railway stations, at uniform charges. Each of the appellants solicited business from the general public by advertisement. Hence we are of the opinion that the court did not err in holding that appellant came within the regulatory provisions of the statutes. Arkadelphia Milling Co. v. Smoker Merchandise Co., 100 Ark. 37, 139 S. W. 680, and Lloyd v. Haugh & Keenan Transfer & Storage Co., 223 Pa. 148, 72 Atl. 516, 21 L. R. A. (N. S.) 188.

It is argued with much force that the statute will be burdensome on small operators of motor busses. We cannot consider this argument, for the reason that it would be an invasion by the judiciary of the province of the legislative department of the State. When acting within constitutional limitations in the passage of a statute upon a given subject, the Legislature is the sole judge of the wisdom, expedience and necessity of its enactment, and its action is not the subject of review by the courts. The action of the Legislature is declaratory of the public policy of the State. Sims v. Ahrens, 167 Ark. 557, 271 S. W. 720. This rule is of such universal application that a further citation of authorities is unnecessary. As quoted from an earlier decision of the Supreme Court of Pennsylvania, in Busser v. Snyder, 282 Pa. 440, 128 Atl. 80, 37 A. L. R. 1515, the judiciary “cannot run a race of opinions upon points' of right, reason and expediency with the lawmaking power.”

It is next contended that the chancellor erred in holding that appellants are required to pay four per cent, excise or privilege tax under the provisions of § 67 of act 65, instead of three per cent, under § 6 of act 62, both of which acts were passed by the Legislature of 1929. There is no direct repeal of the former act by the later one, but if is claimed by the State that there is a.n implied repeal. Section 6 of act 62 amends § 6 of act 99, passed by the Legislature of 1927. It provides for the levying of an excise or privilege tax on the business of each person or corporation operating any motor vehicle for compensation, in the sum of three per cent, on the gross amount received by such carrier of all fares and charges collected for the transportation of persons, property, freight, either or both. The section further provides that said tax shall be paid monthly to the Commissioner of Eevenue, and that, if it is not paid within fifteen days after the same is due, a penalty of ten per cent, is added. Acts of 1929, vol. 1, p. 137. This act was approved February '27, 1929. Section 67 of act 65 provides for a levy and collection of four per cent, by the Commissioner of Eevenues, and imposes a penalty of twenty per cent, if the tax is not paid within fifteen days after date. 'Acts of 1929, vol. 1, p. 264. This act was approved February 28, 1929.

It is true that repeals by implication are not favored, and the repeal will not be allowed unless the implication is clear and irresistible. Massey v. State, 168 Ark. 174, 269 S. W. 567, Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649; and State v. White, 170 Ark. 880, 281 S. W. 678.

Another cardinal rule of construction is that, where two acts were under consideration by the Legislature at the same time, and were passed at the same session, this strengthens the presumption that there was no intention to repeal one by the other. Mays v. Phillips County, 168 Ark. 829, 275 S. W. 5; and Standley v. County Board of Education, 170 Ark. 1, 277 S. W. 550.

In order that a later act upon the same subject may operate as a repeal of a former act passed at the same session, there must be an invincible repugnancy between the two, and the implied repeal operates only so far as the conflicting provisions are concerned. In the application of this cardinal rule of construction, it is clear that there is invincible repugnancy or irreconcilable conflict in the two sections of the statute under construction. They both operate upon the same class of persons and corporations, and the tax levied and collected under the two sections are for the same purpose, and payable to the same officer. They both cannot stand, and we must hold that § 67 of act'65, the later act, repeals § 6 of act 62, the earlier one, both of which acts were passed by the Legislature of 1929. Hence the chancellor did not err in so holding.

In this connection it may be stated that no proof was taken as to whether the amount of the tax was so great as to be excessive, arbitrary and discriminatory or confiscatory in its nature. Hence we will not pass upon that question, but leave it open for further consideration in a ease where the question is properly raised and argued.

It follows that the decree of the chancery court was correct, and it will therefore be affirmed.


author: 'Smith, J.

text:
    Pine Bluff Compress & Warehouse Company v. Andrews.
    Opinion delivered October 14, 1929.

      Colemant d Gantt, for appellant.

      Wooldridge <& Wooldridge, for appellee.
   'Smith, J.

Appellant company is engaged in the business of compressing and storing cotton for hire a,h its compress and warehouse in the eastern portion of the city of Pine Bluff, and in the month of April, 1927, appellee had several hundred bales of cotton stored in one of the warehouses. The plamt was in two parts, each having a capacity of about twenty thousand bales of unpressed cotton. One of these, known as the upper warehouse, was designed for the reception of cotton shipped over railroads, and its floors were on a higher level than those of the other, which was known as the lower warehouse. Each plant consisted of several different sheds, having separate numbers. There were about eight thousand bales of cotton in the lower warehouse, and something less than that number in the upper.

In April of the year mentioned there began what later proved to be the most disastrous flood known in that section, and on April 13 flood warnings were sent out by the United States Weather Bureau. The Federal Government maintains at Little Bock a weather bureau, in charge of H. S. Cole, who has general supervision of the meteorological, climatological and river work in the State of Arkansas, where records are made and kept of the rainfall, and the rise and fall of the rivers, and other related subjects. There is a substation at Pine Bluff and at other places in the State, which make daily reports to the Little Bock office, and receive daily reports from it. A Miss Scheu was in charge of the Pine Bluff office. The reports to which we have referred were made by wire, or were made in that manner during the time herein referred to, and were so made for the obvious purpose of communicating the information without delay.

Gn April 13, 1927, at 10 a. m., flood warnings for the Arkansas River, on which Pine Bluff is situated, were telegraphed to Miss Scheu for dissemination in the territory served by that office. This warning meant simply that the crest of the river would exceed the flood stage, which was defined to be the flood level, at which the river left its banks, and began to do some damage. It' is an annual event for the river to exceed its flood stage, which of itself causes no apprehension, as most of the territory subject to this damage had what was supposed to be protection by levees. Other .territory was supposed to be above the reach of the floods, and such was the land upon which appellant’s warehouses were located. No overflow had ever reached them prior to 1927. These flood warnings were renewed during the succeeding days, and accompanying them were reports on the stage of the river at points higher up than Pine Bluff, which excited general alarm, but the managing officers of appellant company thought the elevation of the ground upon which their plant was located was such that a sufficient margin of safety was assured. Prior to 1927 the highest flood stage of the river at Pine Bluff had been 29.6 feet, but on the 21st of April a stage of 32.4 feet was reached. A stage of 31 feet was reached on Monday, April 18, and this flood level was high enough to put water in the lower warehouse, and the cotton which had not been removed from it prior to that time was damaged on that account. Appellee had 137 bales of cotton in this warehouse, which was damaged, and this suit was brought to recover damages to compénsate this loss. A judgment was recovered, from which is this appeal. No question is made as to the amount of the recovery if there is liability, but it is very earnestly insisted that appellant is not liable at all, for the reason that the loss was occasioned by an act of God, which could not have been averted by ordinary care and diligence on appellant’s part.

Prom what we have said it is apparent that the flood did not come suddenly and unexpectedly, as in the case of a break of a levee which was thought to be secure. There were repeated warnings, and the question of fact in the case is whether, after such warnings were given as must have apprised appellant that its warehouse was in danger, proper diligence was thereafter used to remove the cotton to the upper warehouse, a place of safety.

The court gaye elaborate instructions defining the duty of the appellant under the circumstances, which are conceded to be substantially correct, and which we find to be so, although it is claimed that one of these instructions should have been modified in the manner hereafter discussed, and that another instruction, numbered 4, should not have been given, because it left out of consideration the question of time in which to remove the cotton after knowing it was in danger. It is also insisted that error was committed in refusing* to exclude certain parts of a deposition taken in appellee’s 'behalf. These assignments of error will be considered in the order stated.

In regard to the assignment of error that the testimony does not show any negligence on the part of appellant, the following facts may be stated in addition to those already recited:

Miss Scheu testified that upon receipt of the reports from Little Rock she furnished copies thereof to the daily papers in Pine Bluff, which published them, and that these reports excited the widest interest, and her telephone rang continuously for three days, and she was kept busy answering inquiries concerning the river. It is not contended that appellant was unaware of the situation; oax the contrary, it is stipulated that the officials of the company kept up with the stage of the river every day from the 11th of April to the 21st, inclusive. The insistence is that it was not until Friday, the 15th, that these reports became sufficiently ominous to suggest that such an unprecedented stage would be reached as would put water in the lower warehouse; and it is further insisted that, when this report was received, appellant exercised the greatest diligence to remove the cotton to the upper warehouse.

Appellee testified that on April 11 he discussed the river reports with Mr. Roane, the secretary of the appellant company, and advised him that if the river reached the stage at Pine Bluff which the reports from points higher up the river indicated it would do, the cotton in the lower warehouse would be flooded, and that Mr. Roane replied that he would notify Mr. Grant, the superintendent in charge of the plant. Mr. Roane denied that this conversation occurred.

The testimony is to the effect that the predictions of the weather bureau were not always verified, but that they were generally approximately correct; sometimes the predicted stages were exceeded, while in other years they were not. The factor entering into this equation was the continuance or cessation of rainfall; but a rainfall of 4.2 inches at Pine Bluff on April 15 gave no promise that the predictions would not be verified as to the maximum stages. The rise at Pine Bluff from the 12th to the 21st was rapid and constant, and on the 15th the river went above the flood stage at Pine Bluff, which is 25 feet.

Hale, a civil engineer, testified on behalf of appellant. This witness was familiar with the surface levels at the warehouses, and of the flood levels of the river. He, with many others, was observing the reports concerning the river, and he testified that Friday, the 15th, was the earliest day on which there was any occasion to be alarmed at Pine Bluff, but he admitted that between the 13th and 14th the river rose 6 feet at Dardanelle, and reached a stage of 26.4 at that place on the 14th, and was continuing to rise there. He also testified that at that stage from three to four days were required for the water to flow from Dardanelle to Pine Bluff.

The testimony is conflicting as to the time when appellant began moving the cotton. It was necessary that the cotton in the upper warehouse be rearranged to receive that from the lower, and this was first done. The testimony on the part of appellant is to the effect that the work was begun on Friday, while on appellee’s behalf it is to the effect that the work was not begun until Saturday. When the work was first begun, from twenty to thirty men were employed, but the number was increased until finally about one hundred men were engaged when the work was suspended about 4 e. m. Sunday. An abundance of labor was available. After the work of removing the cotton started, it was prosecuted diligently until it was suspended Sunday afternoon. The testimony is conflicting as to why it was then suspended, that on the part of appellee being to the effect that Mr. Grant, the superintendent, said the crest of the flood had been reached, and that an additional rise was not anticipated. The gauge then stood at 29.5 feet, and there was a rise of a foot and a half that night, and during the night the water entered the lower warehouse. On behalf of appellant it was denied that the work was suspended, because it was thought the crest of the flood had passed, and appellant’s officers stated that the reason for so doing was that the men had become exhausted, and it was thought that a suspension would renew the efficiency of the laborers, and that the work was resumed very early Monday morning and continued without interruption until about 3 p. m. Tuesday, when the water had become so deep, and the current so swift, that it was not then safe to attempt to even float the cotton. A large number of witnesses gave testimony elaborating the facts herein recited, which we do not further review, as we have stated the salient points. These, we think, show that there was a question for the jury as to whether appellant began removing the cotton as early as ordinary care would have suggested, and employed from the beginning the necessary help to accomplish that purpose. When the work was suspended Sunday afternoon the cotton was being moved at the rate of from 160 to 200 bales per hour, and when the work was finally suspended only 200 :or 300 bales remained in the lower warehouse, and appellee’s cotton was a part of that number.

The court gave, at appellee’s request, an instruction numbered 2, which reads as follows:

“If you believe from a preponderance of the evidence in this case that the flood waters from the Arkansas Biver, which reached the defendant’s warehouse in the eastern part of the city of Pine Bluff, during the month of April, 1927, and damaged any cotton which plaintiff had stored therein, was the result of an act of God, still this would not relieve the defendant of liability, if you further find from a preponderance of the evidence that the damage to plaintiff’s cotton, if any, was caused by the combined effect of an act of God, and the concurring negligence, if any, of the defendant.”

Appellant requested that this instruction be modified by adding the following words: ‘ ‘ and that without such negligence said damage would not have occurred.”

This modification might well have been made, as it is, of course, the law that appellant wo.uld not be liable unless it were negligent, and this negligence was an efficient cause of the damage, without which the loss would not have been sustained. .But the instruction does not ignore or controvert that proposition. It required that the finding that the damage was caused by the. combined effect of an act of God, and the concurring negligence of appellant, before any recovery could be had. Other instructions given at the request of appellant as well as those on behalf of appellee elaborated this requirement to the extent that the jury could have been under no misapprehension on this subject. Indeed, the court gave, at appellant’s request, an instruction numbered 9, dealing with this phase of the case alone, which reads as follows:

“Unless you find that the defendant was negligent, and that such negligence was the direct cause of the injury and damage to plaintiff’s cotton, the burden of proving which rests upon the plaintiff, you will find for the defendant.”

Instruction numbered 4, which was objected to as leaving out of consideration the question of time within which to remove the cotton, reads as follows :

‘ ‘Even though you may find from the evidence in this case that the flood waters from the Arkansas River which reached 'the defendant’s warehouse in the eastern part of the city of Pine Bluff, during the month of April, 1927, resulted from an act of God, this would not relieve the defendant of responsibility if, by the exercise of ordinary care and diligence, it could have removed the cotton which plaintiff had stored in defendant’s warehouse to a place where it would not have been reached by the flood waters, and if you find that defendant failed to exercise such care and the plaintiff’s cotton was thereby damaged, you will find for the plaintiff. ’ ’

We do not think the instruction is open to the objection made. It deals wi'th the separate ground of alleged negligence that, even when it was certainly known that the water would enter the lower warehouse, there was negligence in failing to promptly remove the cotton. Liability might have been predicated upon that issue, and we think the instruction a correct declaration of the law on that subject.

The deposition of A. R. Stone was read at the trial. Stone had been the plant foreman, and as such had supervision of the moving of the cotton. He resided in Texas at the time of the trial, and his deposition was taken on interrogatories. In answer to interrogatory No. 11 he made the following response:

“A. 11. No, the flood waters of the Arkansas River did not reach into the upper warehouses of the plant during the 1927 flood. I am sure that it was apparent to the officials of the Pme Bluff Compress & Warehouse Company that these flood waters were going to reach the plant-, and especially all of the lower warehouses, a/nd damage or carry away the cotton which we had stored there, if it ivere not removed; because Mr. Grant, the manager of the warehouse company, discussed with me the matter several days prior to Easter Sunday, and had told me it was necessary that we clear the lower warehouses ; and on Saturday, part of Saturday night, and on Easter Sunday, the day following that Saturday, we were busy, with extra help, moving the cotton out of the lower warehouses into the upper warehouses. The flood warnings which had been issued, as well as the conditions and the information we had with reference to the river, were discussed by Mr. Grant and myself several times, and we had every reason to believe that the flood waters would reach into our lower warehouses. We of course also knew that, if the waters of the river came in contact’ with the cotton which we had stored there, it would be lost, destroyed or damaged. ’ ’

A motion was made to strike out the portion of the answer appearing in italics, upon the ground that this part of the answer was argumentative and opinionative, and undertook, not only to state the opinion of the witness himself, but that of Mr. G-rant as well.

We do not think the answer is open to the objection made to it. Appellee was endeavoring to show, as a ground upon which to predicate the charge of negligence, that the managing officers of the appellant company, a corporation, knew, or should have known, that the flood waters were going to reach the plant, and, having this knowledge, failed to exercise due care to protect the cotton. That they finally had this knowledge is an undisputed fact; hut to support a recovery of damages it was necessary to show that these officers had, or, in the exercise of ordinary care, should have had, this information in time thereafter, by due diligence, to have removed the cotton. It was competent therefore for appellee to show that Mr. Grant had this information, and the time when he obtained it. The effect of the answer set out above is to show that Grant had this information, and the wiüness so stated, not as a matter of opinion hut as a matter of fact, known so to be by the witness' after discussing this very question with Mr. Grant. We think therefore, that no error was committed in refusing to exclude this testimony.

As no error appears from a consideration of the record in its entirety, the judgment is affirmed. •


author: Smith, J.

text:
    St. Louis Southwestern Railway Company v. Ledbetter.
    Opinion delivered October 14, 1929.

      J. R. Turney, A. TL. KisTcaddon and Wooldridge <& Wooldridge, for appellant.

      Geo. F. Brown and Geo. H. Holmes, for appellee.
   Smith, J.

Appellee brought two suits against the appellant railway company, which were consolidated, and tried as a single case. In the first of these suits he alleged that on October 3, 1927, one of appellant’s passenger trains had negligently lulled orne of his cows; and in the second suit he alleged the negligent killing of his dog on October 13,1927.

The railway company admitted killing each of these animals, and no question was made as to their value, but it was alleged that the killing was unavoidable in each instance, and was mot caused by any negligence on the part of any employee of the railway company.

It was disclosed that both animals were killed by an engine which was being operated by the same engineer and fireman in each instance. The testimony in regard to the cow was that it came on the track on the engineer’s side at a point so near the engine, that it was impossible to stop the train after the presence and peril of the cow was discovered, although an efficient lookout had been maintained. The cow came out of an alley, and the engineer testified, that when he saw that she was about to come on the track ‘ ‘ the only thing I could do was to kick the cylinder cocks open, and blow the whistle. What I mean by kick cylinder cocks , open, we have a lever right at our feet, in case of stock or anything like that. It’s put there to try to scare them away. I did not use that until the animal was approaching towards the engine; if the animal had stayed right where it was, it would have been all rig'ht. You understand that I did not kick the cylinder cocks open to scare the animal until she started approaching the engine. Then I did what I thought was best. There was no way for me to have stopped the train within seventy to eighty feet, and I did what I thought was the next best thing to do.” The jury evidently accepted this testimony as true, and returned a verdict in favor of the railway company in the suit for the cow.

The testimony in regard to the dog was that it came upon the track from the fireman’s side, and was first seen at a distance of about 125 feet. The train consisted of seven or eight coaches, and was running at a speed of about forty miles per hour. The engineer did not see the dog, and could not have seen it from his side of the engine, and did not know it had been killed until he was told of that fact when the train stopped at the next station. The fireman testified, however, that there was nothing which could have been done to avoid striking the dog after he discovered that it was coming on the track.

The fireman did not testify in the dog case — as the engineer did in the cow case — that he had opened the cylinder cocks, and the jury evidently concluded that this was a precaution which, if taken, might have stopped the dog from coming on the track. Of course, the dog might have continued as the cow did, even though this precaution had been taken. Nevertheless, here was an agency provided for just such an emergency, and it was hot employed. The noise and sight of escaping steam which would have followed the opening of the cylinder cooks might have checked the dog in his mad career, although the cow was heedless of her fate. The dog may have had more sense than the cow, and may have prized its life more highly. At any rate, there was at hand an agency which, as we understand the testimony, was available to the fireman as well as to the engineer, which was used in one case, and not employed in the other, and we think this testimony is sufficient to support the finding of the jury that the railway company did not overcome the statutory presumption of negligence which arose when it was shown that the train had killed the dog. It was the duty of the fireman to do what a reasonably prudent man would have done, and the failure to do this was negligence.

What we have just said explains the modification which the court made of defendant’s instruction numbered 3. All the other instructions asked by the defendant, except that a verdict be directed in its favor, were given by the court. Instruction numbered 3, as asked by the defendant, reads as follows:

“The mere fact that the fireman on the defendant’s train which struck and killed plaintiff’s dog saw the dog as he jumped on the trestle ahead of the approaching train, about 125 feet in front of the engine, would not justify you in finding for the plaintiff, if you believe from the evidence that at the time the defendant’s fireman saw plaintiff’s dog it was then too late for him to cause the engineer to do anything that would bring’ his engine to a stop, and thus avoid the killing of the dog.”

This instruction was modified by adding the words:

“or otherwise prevent the injury.” This modification permitted the jury to determine whether the failuré of the fireman “to cause the engineer to do anything that would bring his engine to a stop, and thus avoid the killing of the dog,” was the full measure of the fireman’s duty under the circumstances. Under the facts stated we think the modification was proper, and that the jury was warranted in finding, that the fireman did not do all that a reasonably prudent man would have done.

The testimony is sufficient to support the verdict,, and, as the instructions correctly declared the law, no error appears, and the judgment must be affirmed. It is so ordered.

Butler, J., disqualified, and not participating.


author: Humphreys, J.

text:
    United States Fidelity & Guaranty Company v. Hicks.
    Opinion delivered October 14, 1929.

      O. A. Featherston and Alfred Featherston, for appellant.

      Pimñx i & Pimñx, Feasel S Steel and McMillaA^ S McMillan, for appellee.
   Humphreys, J.

On the 18th of November, 1918, La-visa A. Mitchell was appointed guardian of her minor daughter, Ruby May Ozment, by the Pike County Probate Court, and appellant became surety on her bond. In 1919 Mrs. Mitchell and her husband, V. B. Mitchell, bought a farm in said county from R. D. Stewart, paid down $350, and executed their notes in the sum of $2,650 for the balance of the purchase money. He left the notes in the Bank of Amity for collection. The bank collected partial payments on them from time to time, as a matter of accommodation. The bank did not know, until after it purchased the notes in December, 1921, from R. D. Stewart, that Mrs. Mitchell had been appointed guardian for her minor child, nor the source from which she received the money with which she made payments upon the notes. As a matter of fact, the money was paid to Mrs. Mitchell by the United States Government, on account of the father of the minor child being killed during the World War while serving as a soldier. She received altogether monthly payments in the sum of $45, $20 of which was allowed her by the Veterans’ Bureau and $25 by the War Insurance Bureau. The monthly payments came in the form of checks payable to Mrs. Mitchell, as legal guardian for Ruby May Ozment. On April 12,1920, the probate court of Pike County made an order allowing Mrs. Mitchell, as guardian, $25 a month for the care and maintenance of the ward. The bank purchased the land notes against the Mitchells on December 21, 1921, and prior to that time had collected thereon for R. D. Stewart $1,450. The money was paid to the bank in cash, and credited upon the notes. After the bank purchased the notes on December 21, 1921, Mrs. Mitchell paid it the total sum of $1,295 upon the land notes in cash. All the payments, both before and after December 21,1921, were made by Mrs. Mitchell out of the funds she received from the government after she collected the checks. None of the checks themselves were indorsed over to the bank as payments upon the land notes, and none of the proceeds of the government checks were deposited in the Bank of Amity. It cashed many olf the checks for her, but the money was not deposited in its bank. The Mitchells never paid all that was due upon the land notes, and the bank foreclosed its lien for the balance due thereon, and the proceeds from the sale of the land under the fore closure proceedings were credited upon the judgment lien. During tlie continuation of the guardianship Mrs. Mitchell filed annual settlements, which were approved by the probate court of said county.

Mrs. Mitchell married a Mr. Hicks, and her daughter married a Mr. Copelin. After these marriages, Ruby May Ozment Copelin brought a suit in the chancery court to set aside the guardianship settlements for fraud, and upon the trial of the cause obtained a judgment against her mother for $1,669.53. She then sued her mother and her bondsman, appellant herein, for the amount found due by the probate court, and on March 20,1928, obtained a judgment in said court against her guardian and said bondsman for $1,829.53. The bondsman, appellant herein, paid this judgment March 31, 1928, and immediately filed the present suit against the guardian and the Bank of Amity for the amount it had paid, upon the theory that it was entitled to be subrogated to the rights of the ward, Ruby Ozment Copelin. In addition to making said judgment the basis of this suit, it alleged that the judgment was obtained against the guardian, and it is as the guardian’s surety under the allegation and upon the ground that the guardian had used her ward’s funds in payment of her individual debts in the amount of the judgment, said amount having been paid to the Bank of Amity, and that said bank received the same knowing it was trust funds in the hands of the guardian (for said ward. The prayer of the complaint was for judgment against both the appellees for the amount of the judgment it had paid to the ward.

The guardian filed a separate answer, denying that she paid the Bank of Amity or that it received any trust funds held by her for her ward,'or that she was indebted to appellant in any sum. She interposed other defenses which it is unnecessary to mention.

The Bank of Amity filed an answer, also denying that the guardian paid it or that it received any trust or guardianship funds, and in the alternative pleading- “that, should it appear that an alleged trust came into its possession, that said funds were used by the said Lavisa Mitchell Hicks as guardian for said minor for the use, maintenance and benefit of said minor, and that this defendant, the Bank of Amity, had no knowledge of the ■trust character of said funds, and received no benefit therefrom. ’ ’

The chancery court heard the cause upon the pleadings and testimony adduced by the respective parties, which reflected, in substance, the facts stated above. The judgment rendered in the chancery court canceling the annual settlements of the guardian and surcharging the account, and the judgment rendered in the circuit court in favor of the ward against the guardian, appellant here, were introduced in evidence. All the checks from the gwernment to the guardian were also introduced in evidence. The guardian was permitted to testify, over the objection and exception of appellant, that the monthly allowance of $20 allowed to her by the Veterans’ Bureau was for the care and maintenance of her ward. The objection to this piece of evidence was that it contradicted the written checks, which stated that they were paid to her as the legal guardian of her ward. The purpose of the allowance did not contradict the checks. The checks did not undertake to state the purpose for which the allowance was made by the government. Irrespective of the purpose for which it was allowed, it necessarily had to be paid to the legal guardian for the ward.' The ward was an infant, and could not transact business except through her legal representative. The evidence was therefore admissible.

The trial court rendered judgment in favor of appellant against the guardian, Lavisa Mitchell Hicks; for the amount it paid in satisfaction of the judgment in favor of the ward, Ruby Ozment Copelin, against them; from which no appeal has been prosecuted, and dismissed appellant’s complaint against the Bank of Amity, basing the dismissal upon a finding that the Bank of Amity did not receive the guardianship funds from the guardian, Lavisa Mitchell Hicks, and apply them in payment of an individual debt due it by her, knowing the funds, to be trust funds, from which finding and consequent judgment of dismissal is this appeal.

The finding and judgment of the trial court was correct. A knowledg-e on the part of the officers of the Bank of Amity of the 'Source from which the funds came and that, after cashing the government checks, Mrs. Lavisa Mitchell Hicks used the money to pay her individual land notes to it, did not render said bank liable for receiving and misapplying the trust funds. According to the weight of the testimony the money, although received by Lavisa Mitchell Hicks from the United States Government in her capacity as legal g-uardian for her ward, Ruby Ozment Copelin, was allowed to her for the support and maintenance of said ward. The government itself allowed her the monthly payment of $20 for that purpose, and the probate court of Pike County allowed her $25 for said purpose. The testimony reveals that after these allowances were made the guardian supported and maintained her ward, and sent her away to school a part of the time, and also that she spent more than the allowance upon her ward.

It is argued that the judgment surcharging the accounts of the guardian is res judicata of the question involved. It clearly was not res judicata as to the Bank of Amity, for it was not a party to that proceeding.

No error appearing, the judgment is affirmed.

Kirby, J., dissents.


text:
    Rigsby v. Ruraldale Consolidated School District No. 64.
    Opinion delivered October 14, 1929.

      Houston Hmory and B. H. Randolph, for appellant.

      C. T. Gotham, for appellee.
   Humphreys, J.

This suit was brought by appellant in the chancery court of Garland County, for the benefit of himself and others, to enjoin appellees from constructing a school building upon the site purchased by the directors of Ruraldale Consolidated District No. 64, for the alleged reasons:

(1) That the bonds authorized to be issued to raise a fund to make said improvements were sold below par, contrary to § 8984 of Crawford & Moses’ Digest; and, (2) that the directors and officers of the district were about to proceed to build the school building upon a site in said consolidated district not first authorized by an election held, in accordance with law.

A number of defenses were interposed, but it will only be necessary, in our view of the case, to set out the defense of res judicata interposed by appellees, which is as follows:

“ Further answering, these defendants state that this is the second suit in this court for the purpose of enjoining the issuance of said bonds, and the selection of said school site, and the building of a schoolhouse for said district on said school site. That on the 9th day of January, 1929, in a certain cause pending in this court, numbered 9740 on the chancery docket, wherein R. M. Johnson was plaintiff, and the directors of Ruraldale Consolidated School District No. 64 et al. were defendants, this court rendered a final order or decree, finding that the site selected by the board of directors of said district is approximately in the center of the school population of said district; that said board had a right to borrow money and issue bonds for the building of said schoolhouse, and had a right and did exercise the right to select a site for the building, having purchased the real property upon which to build the same. These defendants therefore state that the matters now sought to be litigated in this action by the plaintiff have already been determined by this court adverse to plaintiff, and they state the decree rendered by this court in said action, numbered 9740 on the chancery docket, and found of record in chancery record book W at page 534, is res judicata as to all matters involved in this suit. That, in said suit lately determined in this court, notice was given of an appeal to the Supreme Court of the State of Arkansas, and that said appeal is still pending and undetermined.”

In support of the plea of res judicata set out above appellees introduced the pleadings and decree rendered upon them, and the evidence in the Johnson case by the Garland Chancery Court.

The trial court in the instant case dismissed appellant’s complaint for the want of equity, from which is this appeal.

The action of the trial court in dismissing appellant’s complaint was proper. The plea of res judicata and testimony introduced in support thereof justified the court’s action.

Appellant contends for a reversal here because the plea of res judicata in no wise affected the right of appellant, C. J. Rigsby, as he was not a party to the former action. In this they are mistaken. The only authority he had to bring the suit was under § 13, article 16, of our State Constitution, which reads as follows :

“Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement óf any illegal exactions whatever.”

C. J. Rigsby instituted the instant case under the same authority, and all citizens in the district were bound by the result of the suit brought against appellees by R. M. Johnson upon all issues presented by the pleadings and testimony in the Johnson case. 15 R. C. L., pp. 1026 and 1035.

Appellant also contends for a reversal here because the court in the former case did not pass upon the issue of whether an election had been held for the purpose of locating the site, and directing the construction of the building thereon. The complaint in the R. M. Johnson case sufficiently presented that issue, and in rendering the judgment in that case the court made the following finding and adjudication:

‘ ‘ The court further finds that the site selected by the board of directors is approximately in the center of the school population of said district; that said board has a right to borrow money and issue bonds for the building of said schoolhouse, and had a right and did exercise the right to select a site for the building, having purchased the real property upon which to build the same. ’ ’

No error appearing, the judgment is affirmed.


text:
    Singer Sewing Machine Company v. Waggoner.
    Opinion delivered October 14, 1929.

      John S. Gatewood, for appellant.

      Joe P. Melton and Bogle <& Sharp, for appellee.
   Humphreys, J.

This suit in replevin was brought by appellant agiainst appellees, in the court of W. J. Beard, a justice of the peace in Lonoke Township, Lonoke County, to recover the possession of two electric sewing machines, valued at $300, claiming title thereto. Appellees claimed title to the machines under sale and purchase thereof, evidenced by a bill of sale executed to them by appellant’s agent, Harvey O. Brasfield, for a cash consideration of $100. The cause was tried on the issue joined in the court off common pleas of Lonoke County, on change of venue from the justice of the peace, resulting in an adverse judgment to appellant, from which an appeal was prosecuted to the circuit court. The cause was tried to a .jury in the circuit court upon the pleadings, testimony and instructions of the court, with the same result, from which is this appeal.

At the conclusion of the testimony appellant asked the trial court to instruct a verdict in its favor, which the court refused to do, over its objection and exception. The undisputed evidence in the ease warranted the request, and the court erred in not giving it.

Appellant employed Harvey O. Brasfield to sell sewing machines for it at Lonoke. He had been in its employment for quite a while in that vicinity. On December 7, 1927, he was fined $100' in the municipal court at North Little Rock for transporting liquor. Being without money to pay his fine, he requested the officer in whose custody he was to take him to appellant’s office in Little Rook, where he applied for assistance. The manager refused to grant his request, and demanded that he turn over the machines stored at Lonoke, and to pay it what money he had on hand belonging to appellant. After Brasfield did this, the manager of appellant discharged him. Brasfield then prevailed upon the officer to take him to Lonoke for the purpose of raising money to pay his fine. After reaching Lonoke, some hour and a half after his discharge, he applied to Joe P. Melton to borrow money upon his insurance policy to pay the fine, and, when Melton refused to lend him any money, he offered to sell him the two sewing machines in question, which machines had been listed and constructively delivered to the manager by Brasfield before he left Little Rock. Melton declined to buy them. About that time appellees came in, and, after some negotiation with Brasfield, in the presence of Melton and the officer, they purchased the machines for $50 each, about one-third of their value. No examination or inspection was made of the machines by appellees. They were stored at some other place in Lonoke. Appellees-took a bill of sale to the machines, and, after receiving- same, laid the $100 on the table, which the officer picked up, and released Brasfield. Brasfield was not seen again by the manager of appellant.

The substance of the testimony, above detailed, discloses, beyond cavil or question, that Brasfield disposed of appellant’s sewing-machines for the purpose of paying his individual fine, and that appellees purchased the property with knowledge of the purpose for which it was to be used. The sale was not in due course. On the contrary, the machines were sold without inspection or examination, for one-third of the sales price, by an agent, while under arrest, for the purpose of paying his fine, and obtaining his release.

The law is that every one who deals with an agent must take notice of the want of authority on the part of the agent to use the proceeds arising- from the deal for the agent’s individual purposes. The proceeds could only be used or appropriated to the use and benefit of the principal, the employer. Smith v. Janes, 53 Ark. 135, 13 S. W. 701; Groom v. Neff H. Co., 79 Ark. 401, 96 S. W. 135; Bank of Hoxie v. Hadley Milling Co., 119 Ark. 53, 177 S. W. 891; Briggs v. Collins, 113 Ark. 190, 167 S. W. 1114, L. R. A. 1915A, 686.

The rule of law peculiarly applicable to the undisputed facts in the instant case is aptly stated in the case of F. & T. Lumber Co. v. Devine, 50 Cal. App. 102, 194 Pac. 754, 21 R. C. L. 913, in the following language: “A person who knowingly receives money or property of a principal from an agent, in payment of the latter’s debt, does so at his peril, and if the agent acted without authority, the principal may recover.’’

On account of the error indicated the judgment is reversed, and the cause is remanded with instructions to the trial court to render judgment in favor of appellants for the return of the machines, or their value in the sum of $275.

Kirby, J., dissents.


author: Kirby, J.

text:
    Stephens v. Harris.
    Opinion delivered October 14, 1929.

      E;F. McFaddm and U. A. Gentry, for appellant.
   Kirby, J.

Appellees brought this suit against appellant to quiet the title to 80 acres of land in Hempstead County (east half southeast! quarter, section 35, township 10 south, range 24 west). J. H. Harris disappeared from Hempstead County sometime in 1923 and had not been heard from since to the filing of this complaint by Maggie Harris, his wife, and the other appellees, their children.

Defendant denied allegations of the complaint, alleged his own chain of title, pleaded as res judicata a judgment rendered against Margaret Harris, Chester Woodberry, Cherry Harris and Charlie Harris for possession of the lands, and, upon judgment being rendered against him, appealed.

It appeared from the testimony that John Harris, husband and father of appellees, left home in 1923, and had never returned or been heard from by his family; that he had lived on the lands since 1898, and raised a family on these lands since their purchase from the Missouri Trust Company, under contract and conveyance thereof by deed in December, 1904, which was lost, and not recorded. That the successor to his grantor and owner oif its assets, the Missouri-Lincoln Trust Company, executed and delivered its substitute deed “to the heirs and legal representatives of the said John Harris, in lieu of the lost or destroyed deed theretofore executed by the Missouri Trust Company conveying said lands.” Tax receipts were exhibited for the years 1907-1913,1915-1918, 1922, 1927. Maggie Harris testified that her husband had paid the taxes on the lands every year since her marriage in 1898, except one year. The county clerk testified from the records that J. H. Harris paid the taxes on these lands for 1914. Several witnesses, one a justice of the peace, testified that John and Maggie Harris had lived on the lands from the time he had known them for years and until John Harris disappeared; that no one else had, to his knowledge, lived on or been in possession of it while he knew Harris. One witness stated he had lived on the adjoining farm to Harris, helped him to move on the place, where he lived for 25 or 30 years under claim of ownership, until he disappeared about four years ago. .Another on an adjoining farm said Harris lived there for 24 years until he disappeared, another for 20 years, and one had known of his possession for 15 years. Summons was served in this case on December 22, 1924.

The court held that J. H. Harris acquired title by adverse possession, which inured to his widow and children, appellees, and that the decree against Cherry Harris and Charley Harris, minors, was void.

It is insisted first that the court erred in refusing to consider the testimony of one of the attorneys of the defendant, appellant herein, that, in the fall of 1923, Chambless, grantor of Stephens, appellant, and John Harris were in his office, and had a discussion and argu • ment about the title to the lands while Harris was living on them, and shortly before his disappearance. Chambless stated he had bought the lands years before from ,the same company and sold it to Harris by oral contract, agreeing to deed it when paid for; that Harris said he couldn’t pay for it, and agreed to surrender it to Chambless, with some personal property on which Chambless had a claim, which was taken into possession. Harris agreed to pay rent on the property for the previous year, to a settlement for rent accrued, and, a short time later, disappeared.

The record shows the court, after objection, said:

“I think it is admissible. Go ahead and state it into the record.” After the statement was made, and upon further objection that it was improper, since one man was dead and the other gone, and the conversation had occurred more than five or six years before, the attorney admitted that Chambless, his client, was dead, and said there was no way of proving- the fact otherwise, the agreement made in his presence. He said he wanted “to make a record of it.” The court said, “I doubt if it is admissible.”

This is not a sufficient showing that the court held the testimony inadmissible or refused to consider it. He only expressed a doubt of its admissibility, after holding it admissible and hearing it, which is not sufficient to show it was disregarded. This statement is out of harmony with and contradictory of the evidence showing the purchase of the lands by Harris from the Missouri Trust Company, their occupancy by him and his family for years, and payment of taxes thereon, and the conveyance thereof by the successor of his grantor to his widow and children by a substitute deed for the lost deed, etc.

Neither did the court err in not holding the plea of res judicata a bar to appellees’ right to recover. That suit was not against John H. Harris, owner of the legal title to the lands, and the minors sued therein were not represented in court, had no guardian, guardian or attorney ad litem, to defend for them, but made default, as did also their mother, appellee herein, >whose title, since acquired by the substitute deed, was not adjudicated therein, and could not have been, and, without regard to the judgment, the widow and minor children were entitled to hold the lands as a homestead, the husband and father having deserted them, and such judgment, had it been regularly rendered against John H. Harris, their father, would not have barred the right of the minors to possession of the homestead, nor their right to claim same after such judgment rendered.

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


text:
    Sibley v. Patrick.
    Opinion delivered October 14, 1929.

      John M. Parker & Son and Carmichael & Hendricks, for appellant.

      A. S. Hays, J. B. Ward and F. W. Majors, for appellee.
   Kirby, J.

Appellant brought this suit to establish as a lost will a soldier’s letter, alleged to be a holographic will, devising the entire estate to him as sole beneficiary, and from the finding that the soldier died intestate, and the decree dismissing his cause for want of equity, the appeal is prosecuted.

Appellant alleged that Alston K. Wilson, a soldier in the A. E. F., who died in France in 1918, had given him all his estate by a letter alleged to be a holographic will, written to him from the army camp at Chattanooga, Tennessee, before’ going overseas. Tbe letter reads as follows:

“I am sailing for Prance in a few days, and feel that 1 will never return, and I am leaving you my property. 1 .have not seen my father for several years, as we had a misunderstanding, and I have been told that he went to Texas in the cattle business.”

The petition alleged the loss or destruction of the will, and prayed that same be established and declared to be the last will and testament of Alston K. Wilson, etc.

The amendment to th,e complaint alleged that the will was either in existence at the time of the death of Alston K. Wilson or had been fraudulently destroyed in the lifetime of the testator; that he was the owner of certain real estate in the Dardanelle District of Yell County, describing- it, and that Lalla Wilson Patrick and Park A. Patrick were wrongfully claiming said real estate by virtue of a forged deed filed for record July 29, 1913, and October 13, 1920, and that said parties had been in the unlawful possession of the said property; prayed an accounting for rents, and the cancellation of ,the deed.

The second amendment alleged that his mother, Mrs. Mattie Hughes, was an aunt of deceased, and entitled to inherit an undivided one-third interest in the land described in the complaint, if Alston K. Wilson died intestate; that since the filing- of the amendment he had acquired his mother’s interest by deed, and was now the owner thereof.

Appellee denied that Alston K. Wilson made a will devising his property to appellant; denied that the letter or purported will was in the handwriting of Alston K. Wilson, that it was in words or signature as alleged, and that same had been lost or destroyed; alleged that Wilson died intestate, and admitted that he died in Prance, leaving certain personal property, but denied that he possessed any real estate in the county of Yell, and alleged that appellant knew from the date of Alston K. Wilson’s death that he had a war risk policy of $5,000, and had made no effort to collect it, and made no claim to any part of it, notwithstanding he knew the other heirs of Wilson were making proof of their claims for such interest, and that he acquiesced therein.

There was a great deal of testimony introduced, the testimony on the part of appellant going chiefly to the form and contents of the letter alleged to be the will, while the experts in testifying confined their statements to the genuineness of the signature of the letter. None of the witnesses claimed to have been especially familiar with the handwriting of Wilson, nor did they relate any facts from which such knowledge of it could be inferred. The experts themselves did not testify that the whole instrument, the body of the letter and the signature thereto, were in the same handwriting, nor did any three disinterested witnesses testify to such fact. Appellant himself testified about the loss of the letter, charging one of the appellees with having wrongfully taken and concealed it, but in stating its contents said it read: “I am sailing for France, and don’t think I will ever return, and I want you to have my property,” and on cross-examination said: “I am sailing for France in a few days, and don’t think I will return. I want you to have my property. ’ ’ He also introduced in evidence a second letter he claimed to have received from Alston K. Wilson in France, in which he said that he could not do the thing requested, and had not time, and that he had already given him his property before leaving here. Experts testified that the signature to this letter was genuine, and they and others that the entire letter was in the handwriting of the deceased.

There was testimony about the alleged forgery of a contract for conveyance of the lands by the soldier and his father and his aunt, Mrs. Patrick, for the sale of the lands, some olf the experts and others testifying that the deed was a forgery, while the other testimony tended to show it was genuine; and there is no question, but that Mrs. Patrick had paid $2,700 upon a draft for the purchase money of the lands, and that $50 had been paid upon the execution of the contract of sale by the parties. This was slightly less than the greatest amount some of the witnesses placed as the value of the property.

The statute, § 10495, part 5, provides:

“Fifth. Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator or testatrix, such will may be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of each testator or testatrix, notwithstanding there may be no attesting witnesses to such will; but no will without such subscribing witnesses shall be pleaded in bar of a will subscribed in due form as prescribed in this act.”

For the establishment of lost wills, § 10545 provides:

“No will of any testator shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by at least two witnesses, a correct copy or draft being deemed equivalent to one witness. ’ ’

. This last section, however, only relates to the establishment of a lost or destroyed will, ánd does not relieve against the necessity of proving that the entire body and signature of the unwitnessed instrument or letter offered as a holographic will is in the proper handwriting of the testator, by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of the testator. In other words, such an unwitnessed instrument, testamentary in character, can only be proved to be a will by compliance with the said statute relating to the proof of wills in the proper handwriting of the testator. Murphy v. Murphy, 144 Ark. 429, 222 S. W. 721; Cartwright v. Cartwright, 158 Ark. 279, 250 S. W. 11.

After a careful examination of the testimony we are not able to say that the finding of the chancellor that the instrument or letter offered as a will was not proved as the statute requires it should be done, and that the testator died intestate, is against the preponderance of the evidence. Appellant, in stating the words of the will or letter, stated it neither on his direct or cross-examination as he had alleged it to be, “I am leaving you my property,” but only, “I want you to have my property.” The other witnesses testified, those who claimed to have seen the letter, that in form and meaning it was about as alleged. The construction of the language as alleged to have been used in the letter, “I am-leaving you my property,” and as stated by appellant and his witnesses, “I want you to have my property,” might be different, the one expression indicating certainly more clearly a testamentary intention than the other, which might be held to indicate that the writer was only expressing his desire in the matter and indicating what might thereafter be done, while the other indicates the matter is finished.

We do not regard it necessary, however, to hold whether this proof meets the requirements of the statute (§ 10545) relating to the establishment and proof of lost or destroyed wills, since we do not find that the chancellor erred in not holding the letter proved as a holographic will, and that the writer thereof died intestate.

No good purpose would be served by a more extended analysis of the testimony in this ease, and, having upheld, as we do, the decree of the chancellor, it becomes unimportant. The decree is accordingly affirmed.


author: Mehaffy, J.

text:
    Blume v. Lightle.
    Opinion delivered October 14, 1929.

      John E. Miller, for appellant.

      Brmdidge é Neelly, for appellee.
   Mehaffy, J.

This is an action for $100 per month damages for the rental value of property in Searcy, Arkansas, belonging- to the appellees. Appellees, who were plaintiffs below, 'allege that the appellants were indebted to them in the sum of $1,090, balance of rent due on the theater building in Searcy, for the months of February, March, April, May, June, July, August, September, October aaid November.

The appellees had brought suit in the White Circuit Court in January, 1928, to recover the possession of the theater building, and damages for the unlawful detention of same. The appellants filed bond, and retained possession. The cause was tried, and resulted in a judgment for appellees for the possession of the property, and $150 for the retention of the possession of the property for the month of January, 192(3. There was an appeal prosecuted to this court, and the judgment of the circuit court was affirmed. Blume v. Lightle, 177 Art. 1134, 10 S. W. (2d) 45.

The facts are stated in the opinion above referred to, and it is not necessary to restate them here, but only the facts that have developed since the affirmance of the case in this court need be stated here.

After the affirmance of the case referred tq by this equrt, the present case was tried, and it was agreed that the appellants had paid $150 a mcnth fcr all the time that the theater building had been detained, but it is the contenticn ef the appellees that they were entitled to $250 a month, and the case was tried before the circuit judge sitting as a jury, and the court found that the appellees were entitled to $250 a month during the time the building was detained by appellants; and, as they had only received $150, judgment was given for $100 a month during the time the building was wrongfully detained.

There are but two questions in the case. First, whether the judgment for possession and $150 a month for the property during January is a bar to plaintiff’s right to recover in this case. In other words, the appellants contend that the identical question was determined in the trial of the former suit that is involved here. That is, the amount of damages per month that appellees were entitled to. And the second question is, if the appellees were entitled to recover here, whether they recover up to the time possession was delivered to them, which was on the 12th of the month, or recover for that entire month.

Bes judicata is a doctrine of peace and the foundation principle upon which the doctrine rests is that parties ought not to be permitted to litigate the same issue more than once; that when a right has been judicially determined by a court of competent jurisdiction, or if an opportunity for such trial has. been given, the judgment of the court should be conclusive upon the parties. Public policy and the interest of litigants alike require that there should be an end to litigation, and the peace and order of society demand that matters distinctly put in issue and determined by a court of competent jurisdiction shall not be retried between the same parties in a subsequent suit. 15 R. O. L. 953.

It has been said that the doctrine of res judicata is not to be applied to a denial of justice or to deprive a party of a righteous defense. E. Souther Iron Co. v. Woodruff Realty Co., 175 Mo. App. 246, 158 S. W. 69.

But where the parties are the same and the issues are the same, it is not the verdict that may be pleaded as estoppel, but the judgment rendered by the court. In this case the judgment rendered was not for $150 per month, but the court rendered judgment for $150 for the month of January.

The question of rent or the amount of rent subsequent to January was not in issue and was not litigated. If the question of the monthly rent subsequent to that time had been litigated, then the judgment in the former case would be a bar.

Where an issue sought to be litigated in a pending action has already been litigated and decided in a former action the issue is res judicata. Bowman v. Sims, 135 Ark. 450, 205 S. W. 820; Davis v. Cook, 189 Ark. 85, 251 S. W. 691.

The real controversy in the original suit was whether or not appellees were entitled to the possession of the property. The matter of damages from the time they were entitled to its possession up to judgment was incidental, only involved the rent for the month of January, and it was not intended to settle, and did not settle the controversy -about the -amount of the rent thereafter. There might have been many things that would have changed the rental value of the property. The property might have been more valuable, and, after the judgment, appellees might have been able to rent it for $500 a month. On the other hand, it might have depreciated in value so that it would not have been worth $150 a month, and we do not think that the question of the rental value of the property subsequent to the month of January, for which a judgment was given, was involved in the former suit.

When the f ormer judgment was rendered, appellants could have delivered possession of the property and paid the rent up to that time, and would not have been liable for anything further, but they did not do this. They not only appealed to this court, but gave a supersedeas bond, and retained possession of the property, and, in doing that, they made themselves liable for all the damages suffered by the appellees by reason of their detention of the property, and the undisputed proof shows that this was $250 a month, and, $150 only having been paid, they were entitled to a judgment for the $100 a month additional.

We do not think that the appellees were entitled to the $90 rent, which was the amount claimed for the balance of the month after possession was delivered to them, for the reason that there is no question of rental from month to month involved. It might as well be said that it was a rental from year to year, and that if they kept possession by reason of the supersedeas bond and delivered it in the middle of the year, they would be liable for the balance of the year’s rent. We think that when they gave the bond and kept the property they were liable for the rental value up to the time that possession was delivered to the appellees.

The judgment of the circuit court, therefore, will be modified by disallowing the $90, and the case will be affirmed for $940'. It is so ordered.

Hart, C. J., and. Smith, J., think the judgment should be affirmed.


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    Fowler v. Unionaid Life Insurance Company.
    Opinion delivered October 14, 1929.

      E. M. Fowler, for appellant.

      J. V. Walicer, W. B. Sorrels, Creed Caldwell, Bullion & Harrison and Duty & Duty, for appellee.
   Mehaffy, J.

On the first day of October, 1914, the appellant, L. W. Fowler, made application for membership in the Mutual Aid Union, and was issued a certificate hy said company. The application stated that it was understood that the value and conditions of the certificate for membership to be issued on this application shall be as follows: The application then states that, if death should occur within the first six months, the benfioiary shall receive $75, and that the value of the certificate would then increase $12.50 per calendar month until the value of the certificate was $1,000; provided that prompt and due payment be made of all assessments as provided by the by-laws and regulations of the Mutual Aid Union. The assessment was to begin at 38 cents and reach its maximum at $1.18.

This was a mutual assessment company, and the appellant paid Ms assessments from 1914 up until December, 1926, when the Mutual Aid Union entered into a reinsurance contract with the appellee.

The application also contained the provision that it should he considered a part of the contract for membership, and that, if the application was accepted and certificate issued, the applicant accepted the by-laws and regulations with all amendments governing the Mutual Aid Union, and appointed and constituted J. W. Walker, R. H. Whitlow and J. E. Pelker, the officers of the Mutual Aid Union, jointly, and their successors, to be his lawful attorney in fact to east his vote at the annual election on the first Tuesday in January of each year, not only on the question of the election of the directors, but any other question arising for consideration. This power of attorney was never revoked by appellant, and this application was a part of the contract and a warranty by the member.

From the application there was issued to appellant a certificate in 'Circle No. 3, certificate No. 822. It provided for the payment of the amounts mentioned in the application within thirty days after the receipt at the home office of satisfactory proof of the death of the applicant.

After the reinsurance contract was entered into between appellant and the Mutual Aid Union, the appellee wrote appellant a letter, and enclosed him a notice of the reinsurance agreement. It expressly stated in the letter that it assumed the liabilities of the Mutual Aid Union to its members and certificate holders, and would carry out the agreement of the Mutual Aid Union with the members, subject to the terms of the transfer.

The letter also stated: “Kindly attach the enclosed certificate of assumption to your membership, certificate, which is all that is necessary, and hereafter address all communications and make your remittances for assessments to the Unionaid Life Insurance Company, Rogers, Arkansas.”

The certificate of assumption accompanying said letter reinsured and assumed all liability under certificate No. 822, but expressly stated that this contract is made in conformity with the reinsurance contract between the Unionaid Life Insurance Company and the Mutual Aid Union, filed with and approved by the Commissioner of Insurance and Revenues of the State of Arkansas, etc.

Appellee sent appellant a notice on June 17, 1928, advising him that his rate for the month of June under the certificate that he held would be $1.92, and stated certain options that he might have.

The reinsurance contract provided that the payment of the premium or assessment should be determined by the acceptance of the terms and provisions.

The appellant in his application, as we have already said, provided that the application and certificate, together with the by-laws, are taken and construed as a part of the agreement. In other words, appellant’s contract was not simply the certificate, but it was the application, the certificate and the by-laws of the company. This was the agreement of the parties. This was the contract.

The articles of incorporation of the Mutual Aid Union provided: “The board of directors shall have power to adopt and execute such plans and systems of insurance as they may deem for the best interests of the corporation; to fix and, determine the amount for which the policy or certificate shall be issued, rates and amounts of assessments or premiums, and the terms and manner of payment thereof; to make, alter or repeal by-laws, rules and regulations for the transaction of the business of t'he corporation, and as they may deem expedient. ’ ’

At the time that appellant made his application and received a certificate in 1914, one of the by-laws in force provided: “.Any amendment, alteration or addition to this instrument must be proposed by one of the directors, and must have the unanimous support of the board of directors before being accepted.”

It further states: “The association retains the right and privilege to call increased, additional or extra assessments for those members belonging to circles or in the step-rate divisions, as is necessary or deemed expedient by the board of directors.”

The appellant first contends that the lower court committed reversible error in finding that appellee had a right to adjust the rate of insurance premiums which appellant had been paying, and he bases this contention on the fact that the application and certificate fixed the amount of assessments, the minimum being 38 cents and the maximum $1.18, and contends that this was a written contract between the appellant and the Mutual Aid Union, and that appellant had no right to change this written contract without his consent.

If the certificate and application constituted the whole contract, appellant’s contention would be correct. But the certificate and application did not constitute the whole contract. It was expressly agreed by the parties that the by-laws of the association should’be a part of the contract, and the by-laws authorized the increase of rates.

Appellant first cites and relies on the case of American Insurance Union v. Rowland, 177 Ark. 875, 8 S. W. (2d) 452. In that case, among other things, we said:

“In the instant case the undisputed proof is that the appellant did not send to the insured a copy of the merger contract, and that it was not attached to the policy, but the letter sent stated that the appellant assumed the original contract, and that contract had the disability clause, and the insured was never notified until two years after the maximum assessment had been reached, and in the instant case the suit was based on the original certificate. In the Knight case it was based on the merger contract. * * * Mrs. Robinson never received the merger contract, and never heard of it. In the instant case, Mrs. Vandment never received it, and the only thing she ever heard about it was that the letter stated it was on file with the Insurance Department. ’ ’

But we also said in that case: “Both parties to the contract are bound by it, but they are bound by all the provisions. The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and give effect to that intention, if it can be done consistently with leg'al principles. ’ ’ American Ins. Union v. Rowland, 177 Ark. 875, 8 S. W. (2d) 452.

Policies of insurance should receive a liberal and reasonable construction in favor of the beneficiaries. 'But that does not mean you can select the certificate or the application alone in cases where both parties have agreed that the application, certificate and by-laws shall constitute the contract. The intention of the parties manifestly was that the by-laws constituted a part of the contract, and the parties were bound to know that the bylaws authorized a change in the assessments. If any doubt existed as to the construction of the contract, it should be interpreted against the party who has drawn the contract, that is, the insurance company. But in this case there can be no doubt about the meaning of the contract.

It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement. In fact, it may be said to be a settled rule in the construction of contracts that the interpretation must be upon the entire instrument, and not merely on disjointed or particular parts of it. The whole context is to be considered in ascertaining the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated clause. Every word in the agreement must be taken to have been used for a purpose, and no word should be rejected as mere surplusage if the court can discover any reasonable purpose thereof which can be gathered from the whole instrument. The contract must be viewed from beginning to end, and all its terms must pass in review, for one clause may modify, limit or illuminate the other. Taking its words in their ordinary and usual meaning, no substantive clause must be allowed to perish by construction, unless insurmountable obstacles stand in the way of any other course. Seeming contradictions must be harmonized, if that course is reasonably possible. Each of its provisions must be considered in connection with the others, and, if possible, effect' must be given to all. A construction which entirely neutralizes one provision should not be adopted if the contract is susceptible of another which gives effect to all of its provisions. American Ins. Union v. Rowland, 177 Ark. 875, 8 S. W. (2d) 452; 6 R. C. L. 837-8.

And in the instant case, if the entire contract is considered, there can be no doubt that the right to change or raise the rates was agreed to, and that the appellant authorized the officers of the company to act as his attorney in fact and oast any vote that he might oast.

The appellant next calls attention to American Insurance Union v. Robinson, 170 Ark. 767, 281 S. W. 393. In that case the court said:

“The rider which the Home Protective Association of Springdale, Arkansas, attached to the certificate of insurance issued to Mary S. Robinson by the American Mutual Benefit Association of Jonesboro was an absolute assumption of liability under certificate No. 908, class 4, issued 'by the latter fraternal organization to Mrs. Robinson. Her certificate and roll numbers were changed for the purposes of designation and reference, but the rider did not attempt to change her membership or the terms of her 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 them. ’ ’

This contract is made in conformity with the reinsurance contract between the Unionaid Life Insurance Company of Rogers, Arkansas, and the Mutual Aid Union of Rogers, Arkansas, of date December 14, 1926, filed with and approved by the Commissioner of Insurance and Revenues of the State of Arkansas, and certified to by him as fully protecting the interest of all the certificate holders of the Mutual Aid Union of Rogers, Arkansas. The notice also provided that liabilities were assumed, and would be carried out subject to the terms of the transfer.

We agree with the appellant that appellee had no rights which the Mutual Aid Union did not have at the time the reinsurance agreement was entered into, but we do not agree that the Mutual Aid Union could not raise the rates. This, as we have already stated-, was expressly provided for in the by-laws which were a part of appellant’s contract.

Appellant calls attention next to the case in 173 Ark. where an attempt was made to adjust rates. In that case we said:

“These contracts provided that, when the assured became a member or policyholder of the association, he should pay an initial assessment, which thereafter should increase and be payable at the rate of one cent per month during the membership until the 78th month from the date of the policy, when the maximum assessment would be reached.” Mutual Relief Association v. Ray, 173 Ark. 9, 292 S. W. 396.

And we also said in that case: “Section 5 of the by-laws provides, in part, as follows: ‘The revenue of this association shall be derived from a policy or incidental fee, the amount of which shall be fixed by the board of directors, and may be raised or lowered at any time as necessity may require. This fee shall be paid when the application is made for membership, and shall be used in defraying expenses incurred in the completion of a company in this association.’

“A mere glance at this section shows that it has no reference whatever to the assessments or premiums which the members had to pay in order to keep alive the policies of insurance. There is no provision in the policy or in the by-laws of the association which binds the policyholder to any by-laws of the association that might-thereafter be adopted or any rules or regulations that it might become necessary for the association to adopt thereafter in order to conform to any future laws enacted for the government of mutual assessment benefit associations. Therefore it is manifest that the appellant had no authority, under the contract and by-laws of the association in existence at the time the policies in controversy were issued, and the laws governing assessment associations at that time, to increase the premium rates beyond those specified in the contracts of insurance. ’ ’

The difference between that case and this is that the authority given there was to raise the incidental fee, and, as the court held, had no reference whatever to assessments. In that case there was nothing to bind the policyholder to any by-laws or any rules or regulations. In the instant case the appellant contracted that the bylaws should be a part of the contract of insurance, and agreed for a change of rates; agreed to be bound by the by-laws of the association, and designated the officers as his attorneys in fact to vote for him at the annual election.

We therefore conclude that there was no violation of the contract by the appellee. Since we hold that the appellee had a right to change the rates nnder the contract, and that there was no violation of the contract by it, it becomes unnecessary to discuss or decide the other questions discussed by the attorneys.

The chancellor’s finding is supported by the evidence, and the decree is therefore affirmed.