author: Smith, J. Smith, J.,

text:
    Burton v. Miller.
    Opinion delivered November 2, 1925.
    1. Mines and minerals — escape op oil prom well. — Oil which escapes from a well running wild is personal property and subject to reclamation after its involuntary escape from the owner’s possession.
    2. Mines and minerals — right to recover escaping oil. — Where the oil well of plaintiffs’ ran wild, as did another well belonging to a third party, and the oil from each well flowed into defendant’s pick-up station, where he impounded the oil, plaintiffs were entitled to recover the value of so much of the impounded oil as could be shown with reasonable certainty to have come from their well into defendant’s possession.
    3. Mines and minerals — right to recover escaping oil. — -Where plaintiffs’ oil well ran wild as did a well1 of another, and the oil from each well flowed toward defendant’s pick-up station, where he impounded the escaping oil, the mere difficulty of determining what quantity of the oil came from plaintiffs’ well did not preclude plaintiffs from recovering if proof can be made with such reasonable certainty as to form the basis of calculation.
    Appeal from Union Circuit Court; L. 8. Britt, Judge;
    reversed.

      Patterson & Rector, for appellant.

      Mahony, Yocum S Saye and Marsh S Marlin, for appellee.
   Smith, J.

Mrs. Janet Hughes owned a forty-acre tract of land, which she leased to W. U. Burton, trustee, to explore for oil and gas. A well was drilled, and a gusher came in, its capacity being estimated as high as seventy to one hundred thousand barrels of oil per day. The well blew its connections loose and “ran wild,” as witnesses expressed it, for something over three days. While the well was running wild, M. M. Miller, as trustee for certain persons, erected what is known as a “pickup station.” This consisted of a dam across a small creek, the object being to impound the waters coming down the creek together with such oil as might float on the top thereof and to remove the oil by steam pumps to storage pits, where it could be sold.

When the Burton well broke loose, a large body of men were employed by him to build dams and levees on the lower side of the well to collect the oil which was escaping from the casings. Two large dams and a firewall were constructed by Burton, and he had impounded behind these levees a large quantity of oil, which witnesses in his behalf estimated at from one hundred to one hundred and twenty-five thousand barrels. On the night of March 13, 1923, the dams gave way and all of this oil escaped and ran down the creek to Miller’s pickup station. A quantity of oil, estimated at thirty-five thousand barrels, was collected by Miller and sold by him to the Standard Oil Company of Louisiana for $30,-031.85, but when that company was advised that the oil was claimed by Burton the company refused to pay Miller, whereupon he brought suit to enforce payment. Burton, as owner of the lease, and Mrs. Hughes, as owner of the land having a royalty interest in the oil, became parties to this litigation.

The Burton well was located on the southeast quarter of the northwest quarter of section 28, township 15 south, range 16 west, in Ouachita County, and there was another well located on the southeast quarter of the southwest quarter of the same section, known as the Vitek well, and there is a well-defined small creek running through section 28, entering that section about the center of the north line thereof, and leaving it near the center of the southeast quarter thereof, where it empties into Smackover Creek, which flows into Ouachita Elver. There is a branch or small tributary of the ciPek heading in the northwest portion of the southeast quarter of the northwest quarter of section 28, and running southeast of the Burton well and emptying into the main creek. There is another branch heading in the southeast corner of the northwest quarter of the southwest quarter of section 28, flowing east and just north of the Vitek well and emptying into the main creek just above the pick-up station which Miller erected.

The Burton well “ran wild” on Saturday morning, and Miller began the construction of his pick-up station on the following Monday morning and completed it about one o’clock that night, and the oil was coming down the creek towards the pick-up station in a stream which the witnesses said was about knee-deep to a mule. On the following Tuesday or Wednesday the Vitek well also blew out its connections and “ran wild” for several days.

There is a conflict in the testimony as to where the oil from the Vitek well ran, and it is insisted on behalf of Miller that the oil from the Vitek well united in the creek with oil from the Burton well and the commingled oil from the two wells flowed into the pick-up station. On behalf of Burton and Mrs. Hughes it is insisted that the oil from the Vitek well flowed in another direction and did not flow into Miller’s pick-up station. The owners of the Vitek well did not join in the suit against Miller.

At the conclusion of all the testimony the court directed a verdict in favor of Miller, after refusing all the instructions asked in behalf of Burton and Mrs.. Hughes, and they have appealed.

It ‘appears from the facts stated that the case is substantially identical with the recent case of Crosson v. Lion Oil & Refining Co., ante p. 561, except for the testimony here that oil belonging to more than one person flowed into the pick-up station. In the Crosson case, supra, we said: ‘‘In the case at bar the undisputed facts show that the oil was not voluntarily allowed to escape, and that the owner asserted its claim to it as soon as it ascertained that the oil. had escaped and was in the possession of the defendants. There are no facts or circumstances in the record from which it might be inferred that the plaintiff in this case is estopped from claiming the oil. As soon as it was found out that the oil was escaping, the pipe-line was repaired, and the plaintiff asserted title to the oil which was impounded.by the defendants in their mud-pit.”

What was there said is applicable here. The oil was not voluntarily allowed to escape, and Burton and Mrs. Hughes asserted their title to the oil at once. The oil had become personal property and subject to be reclaimed after it had involuntarily escaped from the owner’s possession.

The jury might have found, had the case been submitted to them, that all of the oil impounded at Miller’s pick-up station did not flow from the Burton well and that some of it did in fact flow from the Vitek well. Such a finding would make it difficult to determine the quantity of oil for which a recovery might have been had. The burden would be on Burton and Mrs. Hughes to show the quantity of oil from their well which had been picked up by Miller, and they could not recover for a larger quantity than was shown with reasonable certainty to have come from their well. But they were entitled to recover the value of such oil as could be shown with reasonable certainty to have come from their well into Miller’s possession.

The case of Blair v. Clear Creek Oil & Gas Co., 148 Ark. 301, involved a recovery of damages for permitting gas to be drained by an adjacent owner, the suit being brought against a lessee whose duty it was to have developed a lease on land from which the gas was being drained. It was there contended that no recovery could be had because it was not possible to determine the quantity of gas drawn from the plaintiff’s land. We recognized this difficulty, but we there said: “What is the measure of damages recoverable for drainage through wells operated by defendants on their lands near the plaintiff’s boundary line may be difficult of determination and troublesome to ascertain, but that is no bar to relief in such cases.”

. ' So here it may be difficult to determine what quantity of oil came from the Burton well, as distinguished from the Vitek well, 'but this difficulty will not prevent a recovery if the proof can he made with such reasonable certainty as to form the basis of calculation.

In the case made Burton and Mrs. Hughes were the owners of the oil which came from their well, and they were entitled to recover the value of so much of the oil as could with reasonable certainty be shown to have come from their well into Miller’s possession.

It follows, from what we have said, that the court erred in directing a verdict in Miller’s favor, and the judgment of the court below will be reversed, and the cause remanded with directions to submit the case to the jury under instructions conforming to what we have here said. Of course, as was pointed out in the Crosson case, supra, Miller would have the right to offset against any recovery the necessary and reasonable expenses incurred by him in impounding and preserving the oil.

Smith, J.,

(on rehearing). In the petition for rehearing it is insisted that the facts in the instant case are not sufficiently like those in the case of Crosson v. Lion Oil & Refining Co. to be entirely controlled by it. It is pointed out that in the former case the oil had escaped from a pipe-line, thus indicating that it had previously been reduced to possession, while here only a portion of the oil had been impounded by the dam or levee which the owner of the well had built, whereas the larger part of the oil escaping from plaintiffs ’ well was never impounded by the levee but was spread over a large territory by the force of the gas in the well which caused it to run wild.

It is the opinion of the majority — in which the writer does not concur — that no distinction is to be made between the oil that was impounded by the levee and the balance of it which escaped from plaintiffs’ well without being impounded. It was all plaintiffs ’ oil, and they had the right to recover it from any one found in possession thereof, or to sue for its conversion anyone who had appropriated it. This is true because plaintiffs by their efforts had brought the oil to the surface and had not abandoned it, but; on the contrary, asserted their title at all times to it, and they therefore have the right to recover the value of so much of the oil escaping from their well as they can show was converted by appellees.

The petition for rehearing is therefore denied. ■


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Fitch v. Walls.
    Opinion delivered November 2, 1925.
    1. Justices op the peace — sufficiency op complaint. — A complaint in a justice’s court, in conjunction with an entry on the justice’s docket, held sufficient, under Crawford & Moses’ Dig., §§ 6412, 6427, to state a cause of action for damages to an automobile by reckless driving.
    2. Pleading — construction.—In determining whether a pleading states a cause of action or defense, every fair and reasonable intendment must be indulged in to support such pleading; and incomplete, ambiguous and defective averments should be corrected by motion to make more definite and certain.
    3. Pleading — construction of complaint — omission op word.- — An allegation in a complaint in a justice’s court for a damage to plaintiff’s automobile that “his was recklessly struck” should by fair intendment be read as alleging that his car, previously mentioned, was recklessly struck.
    4. Appeal and error — failure to treat demurrer as motion.— While the court mig-ht very well have treated a demurrer to the complaint as a motion to make it more definite, defendant cannot complain of the failure to so treat the demurrer, since he should have filed a proper motion.
    Appeal from Woodruff Circuit Court, Central District; E. D. Robertson, Judge;
    affirmed.

      E. M. CarlLee, for appellant.

      Jonas F. Dyson, for appellee.
   Smith, J.

Appellee filed in the court of a justice of the peace the following complaint: “Comes plaintiff and for his cause of action herein says that on the 18th day of December, 1923, he was driving- his car on the public highway of No. 12, about four miles north of Cotton Plant, and his was recklessly struck by this defendant by his south on- said road and at a rapid and reckless rate of speed and damaging in the sum of $75, for which this plaintiff has right of action against defendant- Wherefore, plaintiff prays judgment against defendant in damages for said sum of money and all costs in this action expended, with all other proper relief.”

On the filing of this complaint the justice of the peace made the following notation on his docket: “On the 20th day of December, 1923, the plaintiff filed before me a complaint, cause of action against the defendant for $75, as follows, damaging Ford car, caused by recklessly driving. Therefore, a writ of summons was issued against the defendant, returnable on the 31st day of December, 1923.”

Judgment was rendered by default in the justice’s court, and the defendant appealed to the circuit court, and when the cause came on there for trial the defendant filed a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and the defendant elected to stand on his demurrer, whereupon judgment was rendered for the plaintiff, and the defendant has appealed.

This appeal questions the sufficiency of the complaint, set out above, and the action of the trial court in overruling the demurrer thereto.

We think the complaint, in conjunction with the entry on the docket of the justice of the peace, met the requirements of §§ 6412 and 6427, C. & M. Digest. By the first of these sections it is provided that ordinary actions before justices of the peace shall be commenced by summons, but before the summons is issued the plaintiff shall file with the justice the account, or the written contract, or a short written statement of the facts on which the action is founded.

By § 6427 it is provided that the pleadings. in an action before a justice of the peace may be written or oral, and without verification, but, if oral, the justice shall write down the substance of the cause of action in his do.cket, and that all cross-demands or set-offs shall be ■ made, if at all, at the time the answer is put in.,

In the case of Morrison v. St. Louis & S. F. R. Co., 87 Ark. 424, a suit was brought in the court of a justice of the peace, in which the plaintiff alleged that the railroad company “was indebted to him in the sum of $38 for one cow killed by one of its east-bound mixed trains, on April 16, 1907, about 2 o’clock p. m.” _ _

_ _ In reversing the action of the trial court in sustaining a demurrer to the complaint, it was said: “Formal pleadings are not required before a justice of the peace, and on appeal to the circuit court a demurrer should not be sustained to the complaint. Chowning v. Barnett, 30 Ark. 560.” ' ■

In the case of Dickerson v. Hamby, 96 Ark. 163, which was a suit begun in the circuit court, it was said: “In determining whether a pleading, complaint or answer makes sufficient allegations to constitute a cause of action or to state a defense, every fair and reasonable intendment must be indulged in to support such pleading. If the averments are incomplete, ambiguous or defective, the proper mode to obtain correction is by motion to make the allegations more definite and certain. If the facts stated in the answer, with every reasonable inference that may be drawn therefrom, constitute a good defense, the demurrer thereto should be overruled. Cazort & McGehee Co. v. Dunbar, 91 Ark. 400 ; Cox v. Smith, 93 Ark. 371.”

See also the recent case of Harnwell v. Arkansas Rice Growers Co-Operative Assn., ante p. 622.

When these liberal rules for the construction of pleadings which are being considered on demurrer are applied, and especially- to a pleading originating in a justice’s court, we think the demurrer was properly overruled. By fair intendment the alleg-ation that “his was recklessly struck” should be read as alleging that “his car was recklessly struck,” for immediately preceding these words the possessive pronoun “his” had been employed in connection with the noun “car.”

Appellant says that his demurrer should have been treated as a motion to make the complaint definite and certain, and should have been sustained as such. The court might very well have treated the demurrer as a motion to make definite, had it been asked to do so, but this motion was not made, and appellant is in no position to complain that the count did not sustain a motion which he did not make. The judgment is therefore affirmed.


text:
    Power Manufacturing Company v. Saunders.
    Opinion delivered November 2, 1925.
    t. Corporations — venue op action against foreign corporation. —Crawford & Moses’ Dig., § 1829, held not invalid ais imposing a condition, precedent on which a foreign corporation may have access to the courts of the State, as it merely prescribes the venue of actions brought against such corporations.
    2. Constitutional law — venue of action against foreign corporation. — Crawford & Moses’ Dig., § 1829, providing that service of process upon an agent of a foreign corporation designated in § 1826 for service of process may be had in ■ any county in the State, is not unconstitutional as violating Const. Ark., art. 12, § 11, or Const. U. S., art. 1, § 10, or Amendment 14.
    3. Masti® and servant — assumed risk — jury question. — Where plaintiff was injured when his heel caught in a crack in a loading platform while he was assisting in loading machinery in a car, though he had been in defendant’s employ for 11 months as field man, but had never helped load machinery before, it cannot be said as a matter of law that he assumed the risk from the defective platform.
    4. Appeal and error — invited error. — Where appellant requested an instruction on assumption of risk, he could not complain on appeal that there was no evidence on such issue to go to the jury.
    5. Master and servant — negligence of fellow servants — jury question. — In an action for injuries received when a flywheel, which plaintiff and two fellow servants were loading in a car became overbalanced and fell on plaintiff, evidence as to the action of such fellow servants in pushing on the wheel held to make a case for the jury.
    6. Release of damages — validity.—Where plaintiff signed a release of his damages by reason of personal injuries at a time when his fever was 103 and when because of pain he had not slept for 19 days, and then had 11 drainage tubes in his leg, it was a jury question whether he had capacity, to make a. binding contract of release.
    Appeal from Saline Circuit 'Court; Thomas E. Toler, Judge;
    affirmed.

      Geo. G. Lewis and Busbee, Pugh & Harrison, for appellant.

      W. R. Donham, for appellee.
   Smith, J.

Appellee, who was the plaintiff below, was, at the time of the institution of this suit, a resident and citizen of Cincinnati, Ohio, and appellant, the defendant below, is a corporation organized under the laws of that State and having its principal place of business in Marion, Ohio.

Appellant has been duly authorized to do business in this State, and operates at Stuttgart, in Arkansas County, Arkansas, a warehouse, from which it delivers machinery to the purchasers thereof. On March 27,1922, plaintiff was employed by the defendant at its warehouse in -Stuttgart, in conjunction with two other employees of defendant, in rolling a heavy fly-wheel, weighing about four thousand pounds, and about six feet in diameter, on the floor of the warehouse for the purpose of loading the wheel into a railroad oar, to be shipped to a party who had purchased the wheel, and, while so engaged, the wheel became overbalanced and fell on plaintiff, and inflicted a very serious injury. This suit was brought to recover damages to compensate this injury.

Defendant moved the court to quash the service of summons and to dismiss the complaint for the want of jurisdiction, for the reason that the plaintiff, at the time of the accident, was a resident and citizen of Arkansas County, where the injury occurred, and where the defendant conducted its business in this 'State. Defendant did not maintain an office or conduct business in any other county in this State. The suit was brought in Saline County, Arkansas, and it was alleged, in the motion to dismiss,, that neither of the parties to this suit, nor any of the witnesses in the ease, resided in Saline County, and that it would involve the expenditure of a large sum of money for the defendant to arrange for the attendance of its witnesses in that county. It was therefore alleged in the motion to dismiss that it would.be a discrimination against the defendant to require it to defend the suit in Saline 'County, and that § 1829, C. & M. Digest of the statutes of the State, which permitted the suit to be brought in any county in the State, violated that part of article 12, § 11, of the Constitution of the State, which provides that foreign corporations shall be subject, as to contracts made or business done in this State, to the same regulations, limitations, and liabilities as like corporations of this State, and that said section of the statutes of the State impaired the obligation of the contract created by the Constitution of the State, and is therefore void under § 10, article 1, of the Federal Constitution, and it was further insisted that tlie statute is in violation of the provisions of the Fourteenth Amendment to the Constitution of the United 'States, prohibiting a State from depriving any person within the State of his or its property without due process of law, or denying to any person within its jurisdiction the equal protection of the law.

The motion to quash the summons and to dismiss the action for want of jurisdiction was overruled, and this ruling of the court is assigned as error.

Appellant concedes that the motion to dismiss was properly overruled if § 1829, C. & M. Digest, is valid and constitutional, but, a& was set forth in the 'motion, the constitutionality of that statute is challenged as violative of both the State and Federal Constitutions. The section of the statute in question reads as follows: “Section 1829. Service of summons and other process upon the agent designated-under the provisions of § 1826 at any place in this State shall be sufficient service to give jurisdiction over such foreign corporation to any of the courts' óf this Státe, whether the service was had upon said agent mthin thé county where the suit is brought or is pending or not. ” • '

The question -presented is an interesting one, but was decided adversely to appellant’s contention in the case of Pekin Cooperage Co. v. Duty, 140 Ark. 135. The points here raised were there presented, and we there said that the statute provided a method, of procedure-whereby foreign corporations which-had complied with the laws-of the State authorizing them to -do business'in the State might be sued, and that a local or county residence had not been given such corporations, and that the statute did not impair any constitutional rights of foreign corporations or discriminate against them, but had only provided the forum in which they might be sued, as they had been given no local residence in the )State.

It is earnestly insisted, however, that this case should be reconsidered and overruled, in view of the decision of the Supreme Court of the United States in the case of Kentucky Finance Corporation v. Paramount Auto Exchange Corporation, 262 U. S. 544. In that case there was involved the validity of a statute of the ’State of Wisconsin, which provided that a foreign corporation not domesticated or doing business in that -State or having property there other than that sought to be recovered in the particular action may be compelled, as a condition to the maintenance o’f its action, to send an officer of the corporation, with its books and papers bearing on the matter in controversy, from its domicile to the State of Wisconsin, where the action was brought, in order to submit to an adversary examination before the party sugd should be required to answer. The statute did not subject nonresident individuals to such examination except when served with notice within the State, and then only in the county where service was had, and limited the examination, in the case of residents of the State, individual or corporate, to the county of their residence.

The statute was upheld by the Supreme Court of Wisconsin (171 Wis. 586), on the ground that it amounted to no more than a reasonable exercise of the authority of the 'State over a nonresident corporation coming voluntarily into the State to seek a remedy in the courts of that State against a resident defendant.

The case was appealed to the Supreme Court of the United States, where the view of the Supreme Court of the State of Wisconsin was disapproved, and Mr. Justice Vandevanter, speaking for the Supreme Court of the United States, said the statute violated the equal protection clause of the Federal Constitution by imposing a rule more onerous on foreign corporations than was applicable to nonresident individuals in like situation, and was also more onerous than that applicable to resident suitors, whether individuals or corporations.

Our' statute, under our interpretation of it in the cases herein cited, is not one imposing burdens as a condition precedent upon which foreign corporations may have access to the courts of the State, but is one of procedure, prescribing the venue where actions may be brought against foreign corporations by any one, resident or nonresident. .

We adhere, therefore, to our former interpretation of the statute and approve the action of the trial court in overruling the motion to dismiss. American Hardwood Lbr. Co. v. Ellis & Co., 115 Ark. 524; Pekin Cooperage Co. v. Duty, supra; Missouri State Life Ins. Co. v. Witt, 165 Ark. 604.

It is next insisted that the court erred in submitting to the jury the question of the defective condition of the floor of the warehouse on which the wheel was being rolled as constituting actionable negligence. The testimony shows that the floor of the platform was constructed of two-inch planks, laid with open cracks, and that, as the wheel was being loaded into a car, it became overbalanced and started to fall, and as plaintiff attempted to get out of the way the heel of his shoe caught in one of the cracks, which was about three inches wide, and while he was thus entrapped the wheel fell over on him.

It is insisted that the alleged defect was structural in its nature, and that the plaintiff had been employed by defendant for about eleven months and should have been charged, as a matter of law, with the assumption of the risk of an injury from a danger so obvious. It is true that plaintiff had been employed by the defendant for about eleven months, but it is also true that he had been employed as a field man or “trouble shooter” in the rice fields, where the machinery sold by defendant was installed, and it was the business of plaintiff to install the machinery and to report and remedy any defects which developed in the machinery so installed, and plaintiff testified that he had never before assisted in loading a wheel or other machinery from the warehouse into a car. We are unwilling to say, as a matter of law, that plaintiff assumed the risk of injury from the defective condition of the platform. Moreover, defendant requested instructions submitting this issue to the jury, and it cannot, therefore, complain that this was done.

The case was submitted to the jury also on the question of the negligence of appellee’s fellow-servants. The instructions on this issue are- not' questioned as correct declarations of law, but it is insisted -that the testimony did not warrant the submission of the issue to the jury. The testimony of appellee touching the cause of his injury was to the following effect. He and two other employees had loaded the base of the engine and the boxed parts thereof into a car, and were proceeding to load the fly-wheel. In rolling the fly-wheel from the platform, which joins the warehouse, they had it on a plank laid crosswise on the floor, and the plank rested on the top of the ear floor, and, in order to get down to the level of the car floor, so as not to have a drop, plaintiff laid another plank by the side of the one extending into the car. They had turned the wheel crosswise to roll it on to the second plank. Plaintiff was on the' side next to the warehouse, and the other two men were on the opposite side of the wheel, and in rolling it these two men pushed the wheel beyond the balancing point, and when they did so they released their hold on the wheel and yelled to plaintiff to get out of the way. Plaintiff attempted to hold the wheel until he could get out of the way, and while endeavoring so to do his heel caught in one of the cracks in the floor of the platform. Plaintiff alone could not restore the wheel to a balance, and it fell over on his leg and crushed it.

The case is not unlike the recent case of Texas Pipe Line Co. v. Johnson, ante p. 235, and is controlled by the principles there announced. In that case an employee, in conjunction with four other employees, was engaged in laying a pipe line for running oil into a main pipe line. The pipe was being carried with carrying-irons, and one of the employees released his hold on the carrying-iron; thus throwing, unexpectedly, the weight of the pipe on the plaintiff in that case. We said the jury was warranted in finding that this action of the fellow-servant was negligence. 'So here we think the jury was warranted in finding that the action of plaintiff’s fellow-servants in so pushing on the wheel as to overturn it was negligence.

It is finally insisted that the jury should have been instructed to return a verdict for the defendant upon the ground that, for a valuable consideration, the plaintiff had released defendant from further liability. Appellee responds to this insistence by saying, first, that the release should be so construed as applying only to certain specific items of damage therein referred to. Appellee further insists that the testimony warranted the jury in finding that at the time the release was signed he was incapacitated to contract because of his suffering from his injury. This question was submitted to the jury under correct instructions, and the finding of the jury is conclusive of this issue of fact. We do not, therefore, review the language of the release itself.

Appellee testified that he had discussed with appellant’s adjuster -only the payment of hospital bills and doctor’s fees and -certain other items. That, while he glanced over the release before signing it, he did not understand that it attempted to release his claim for damages. That he had not slept for nineteen days except a few minutes at a -time, and then only when under the influence of an opiate, and at the .time he signed the writing there were eleven drainage tubes in his leg and he had a temperature running as high as 103.

" Under these circumstances it was a question for the jury to determine whether plaintiff had the capacity to make a binding contract of release.. St. L. I. M. & S. R. Co. v. Brown, 73 Ark. 42; Bearden v. St. L. I. M. & S. R. Co., 103 Ark. 341; St. L. I. M. & S. R. Co. v. Reilly, 110 Ark. 182; Harris Lbr. Co. v. Morris, 80 Ark. 260; Trumann Cooperage Co. v. Crye, 137 Ark. 293; St. L. I. M. & S. R. Co. v. Sandidge, 81 Ark. 264; Poinsett Lbr. & Mfg. Co. v. Longino, 139 Ark. 69..

•What we have said -disposes of appellant’s contention that a verdict should have been directed in its favor under the undisputed evidence.

It is not insisted that the verdict is excessive, and, as we find no prejudicial error in the judgment, it is affirmed.


author: Tom W. Campbell, Special Justice.

text:
    Southern Surety Company v. Dardanelle Road Improvement District No. 1.
    Opinion delivered November 2, 1925.
    1. Statutes — construction.—When the language - of a -statute is • plain and unambiguous,- and conveys a clear and definite meaning, there is no occasion for resorting to -the rules of statutory interpretation and construction.
    2. Highways — recovery op premiums on surety bond — failure of consideration. — -Premiums paid by a road district for a surety bond on a construction contract may be recovered where the contract was illegally entered into before the assessments of benefits became final; the benefits being- finally determined to be less than the cost of the improvement.
    3. Highways — provision as to revision op assessments. — Acts of Special Session 1920, No. 63, § 2, amending- Road Laws 1919, No. 244, in providing- that the assessment of benefits was to stand “until revised as provided in said act” of 1919, referred to ■ the entire act of 1919, and intended to leave to the commissioners all the powers and duties to revise the assessments that were delegated to them in Road Laws 1919, No. 244.
    4. Highways — validity op construction contract and bond.— Where Acts Special Session 1920, No. 63, enacted after a construction contract and surety bond were executed, made material changes in the roads to be improved, the construction company could not be bound by such changes, and no liability accrued upon the bond securing performance of such contract.
    5. Highways — recovery op premiums on surety bond. — Where a road district was obligee in a surety bond and the construction contract which required the district to advance premiums for such bond was made part of the bond, and the road district actually advanced money for premiums which was paid to the surety company, there was sufficient privity between the district and the surety company entitling the district to recover the premiums paid upon abandonment of -the project.
    6. Appeal and error — nonjoinder of party — waiver.—Where, on the abandonment of a road project, a road district sued the contractor’s surety to recover premiums advanced, -objection that the contractor should have been made a party was waived by failure to raise it in the tri-a-l court.
    7. Highways — suit to recover premiums advanced — defense.—In an action by a road district, on abandonment of a road project, to recover premiums paid by it to the contractor’s surety, it is no defense that the road district was a party to an illegal contract, since it is not the fault of the district, but of the commissioners, that the contract wa-s entered into.
    8. Contracts — illegality—recovery.—The rule that parties in pari delicto may not recover upon an illegal contract has no application to -contracts of a corporation void merely because malum proMbitum or ultra vires.

    9. Principal and surety — liability of surety company. — The total amount of premiums illegally paid to the agent of a surety company by a road district may be recovered where the agent acted within his apparent authority in collecting them, though the company did not receive all the. premiums.

      Appeal from Yell Chancery Court, Dardanelle District; W. E. Atkinson, Chancellor;
    affirmed.

      Samp Jennings and Buebee, Pugh & Harrison, for appellant.

      Ben Ward, Hays, Priddy do Hays, and Coleman, Robin-son, House & Riddick, for appellee.
   Tom W. Campbell, Special Justice.

This suit was brought in the Yell Chancery Court, for the Dardanelle District, by appellee against appellant, to recover money alleged to have been paid appellant by appellee as premium on certain construction bonds executed by appellant as surety for Rich Construction Company in which bonds appellee was obligee.

Rich Construction Company was not made a party to the suit. Appellant interposed a general demurrer to the complaint, but did not raise any objection, by demurrer or answer, to the failure of appellee to make Rich Construction Company a party, nor did appellant ask to have said construction company made a party.

The facts disclosed by ¡the record in this case are substantially as follows: The Dardanelle Road District of Yell County was created by act 244, passed by the regular session of the 1919 Legislature, and approved March 11, 1919. The roads to be improved by said district, as described in that act, were as follows: “A road starting at the pontoon bridge in the town of Dardanelle and running on streets to be selected by the commissioners and southwesterly to Mosely and Chickalah.

“A road beginning on the western border of section seven (7), township seven (7) north, range twenty-one (21) west, and running southeasterly through Dardanelle on streets to be selected by the commissioners, and thence south on the west line of sections five (5) and eight (8), township ¡six (6) north, range twenty (20) west, to the southwest corner of section eight (8), and thence to the southeast corner of said section, thence south to the southeast corner of section'thirty-two (32), of said township and range; thence southeasterly and easterly and northeasterly through. Neely and Fowler to the southeast corner of section twenty-three (23), township six (6) north, range nineteen (19) west, thence north to the northeast corner of said section.

“A road leaving the last-named road on the outskirts of Dardanelle and running southwesterly and southerly to the center of section thirty (30), township six (6) north, range twenty (20) west.

“A road starting from some point in the town of Dardanelle to be selected'by the commissioners and running west to the top of Mt. Nebo; and said district shall consist of the following territory in Yell County, and shall include 'all towns within the territory.”

On January 21, 1920, the board of commissioners of said -district entered into a contract with Rich Construction Company for the construction of the roads within the district for the total sum of $792,278.<50. On January 26, 1920, the assessment of benefits was filed in the office of the county clerk. The amount of benefits assessed, as shown by the assessment filed on said date, was $1,716,910. ■

On February 6, 1920, act 63 of the 1920 Special Session of the General Assembly was approved. This act 63 amended the original act 244 by making substantial changes in the roads to be improved by the district, the roads to be improved being described in said amendatory act as follows:

“A road beginning on the western border of section 7, township 7 north, range 21 west, at a point where the present Dardanelle and Paris road crosses the west line ■of said section 7, and running southeasterly along established highways through Dardanelle on streets to be selected by the commissioners to the northeast corner section '5, in township 6 north, range 20 west, thence in southerly, southeasterly, and easterly direction to the southeast corner of section 8, in township 6 north, range 20.west, thence in a southerly direction to a point at or near the southeast corner of section 32 of said township and range; thence southeasterly and easterly 'and north easterly through Neely and Fowler to- the southeast corner of section 23, township 6 north, range 19 west, thence north and to the northeast corner of said section, section 23 of said township and range; a road beginning at a point in the above described route where the present' Centerville and Neely road intersects the above described road and running in a general westerly direction to a point on the west line of section 5, township 5 north, range 20 west, where the present Centerville and Neely road crosses the said west line of said section 5.”

■Said amendatory act also purported to ratify and confirm all the official acts of the commissioners of said district up to its enactment, including the contract with Rich Construction Company; and § 2 of said amendatory act further provided as follows:

“The assessment of benefits against each tract and parcel of real estate, railroad right-of-way, and tram-roads heretofore made by the commissioners of said district on the basis of the improvement contemplated in said act, as hereby amended and filed with the county clerk of Yell County, is hereby ratified and confirmed and declared to be just, equal, and proportionate and the same shall stand as the assessment of benefits of said district until revised as provided in said, act.”

On March 25, April 1, and April 8, 1920', notice of the filing of the assessment of benefits in said district with the county clerk was published in a newspaper having general circulation in the district, setting April 23, 1920, as the day for hearing on said assessments before the commissioners of said district in the court house at Dardanelle.

On April 23, 1920, a large number of the landowners of said road district met at the court house at Dardanelle for the purpose of protesting against the assessment of benefits of said district. The meeting was adjourned to May 20. 1920, when two of the commissioners resigned and their successors were appointed, after which, the board of commissioners heard and considered the protests which had been filed against the assessment of benefits and reduced all benefits which had been assessed against the property of said district 75 per cent. At said meeting the board of commissioners also adopted the following resolution:

“Whereas, the board of commissioners of Dardanelle Road Improvement District of Yell County, after an investigation, is of the opinion that the cost of constructing the improvement contemplated largely exceeds the benefits which would be derived by the lands, lots and improvements of the district from said construction, and,
“Whereas, the board is unwilling to impose the burden upon the landowners of the district.
“Now, therefore, be it resolved: That it is the sense of the board that the proposed improvement ought to be abandoned, and that the same is hereby abandoned; that the secretary is hereby directed to advertise, by inserting a notice in some paper having a general circulation in the district, once a week for two consecutive weeks, calling upon all persons having claims against the district to file same with the secretary, at his office in Dardanelle, Arkansas, within thirty days.”

The contract between the commissioners of the road district and Rich Construction Company provided that said company should “cover the entire contract with satisfactory surety bonds on ten-mile sections,” and the road district agreed in said contract to advance the premiums on the surety bonds, such advances to be repaid to the district out of the 15 per cent, retained on the monthly estimates under said construction contract.

On February 3, 1920, the commissioners of the road district issued certificates of indebtedness aggregating $17,800, and sold them to E. J. Hahn for that amount of cash.

On February 11, 1920, the district issued its check payable to Rich Construction Company for $17,800, being tlie amount the attorne}^ for the district was told would be required to pay the premiums on the surety bonds wbicli were to support the construction contract. This check was delivered by the commissioners of the district to the attorney for the district, who took it to Louis Rich of Rich Construction Company, who indorsed it, and the attorney for the road district then took the ’ check to the office of appellant in Little Rock, gave it to appellant’s agent in charge of said office and informed said agent what the check was for. Appellant’s said agent told said attorney for the district the bonds would be sent up, which was later done.

Copies of the construction contract were attached to and made a part of the surety. bonds executed by appellant.

No work was ever done under the construction contract.

The Legislature of 1921, by act 275, approved March 17, 1921, repealed act 244, which created said road district, and also amendatory act 63, and conferred jurisdiction on the chancery court -of Yell County for the Dardanelle District to wind up the affairs of said district.

Demand was made on appellant to pay back the $17,800 which had been paid to its agent, from the fimds of said district, which demand was refused, and hence this suit was brought.

It is contended by counsel for appellee that the construction contract, in support of which the surety bonds were executed, was not legally effective when entered into because the assessment of benefits had not then been filed, so that it had not been determined that the benefits would exceed the cost of the improvements; and that said construction contract never became legally effective, because, when final action was taken by the commissioners of said district upon the assessment of benefits, the benefits were found to be much less than the cost of the improvements to be made; that therefore the surety bonds never became effective, that no liability ever accrued thereon, and that, the purpose for which the $17;800 was paid to appellant having failed, appellant should refund said money to appellee.

Counsel for appellant contended that act 63, approved February 6, 1920, confirmed and made final the assessment of benefits filed January 26, 1920; and, since the benefits as shown by said assessment exceeded the .cost of the - improvement, the construction contract, and the surety bonds in support thereof, became legal and binding, and that the premium's on said bonds were then earned; and, further, that said act 63 confirmed and legalized s'aid construction contract and thereby made said surety bonds effective. Appellant’s counsel further contend that, even if said construction contract was never effective, appellee cannot recover from appellant the money paid as premium on said bonds, first, because they contend there is no privity between appellant and appellee, and, second, because they contend that, if the transaction in which the money belonging to the road, district was paid to appellant was illegal, then appellee would be m pari delicto and cannot invoice the aid of the courts to recover the money so paid. And appellant contends that in no event can appellee recover that portion of .the $17,800 which was in excess of the actual amount of the premiums on said bonds, which is shown by the proof to have been only $11,888.64.

The construction contract, having been .entered into before the assessment of benefits had become final, .was not. effective when made. Had it been finally determined that the benefits exceeded the cost of the improvement, the contract might have become binding. But, when the commissioners heard the protests, they reduced the benefits until they were far below the cost of the improvements to be made.

Section 7 of act 244, which created this district, is as.follows: •

'“The assessment of benefits of said district shall be filed with the county clerk of Tell County, and the secretary of the -board- shall thereupon give notice of its filing by publication for two weeks in a newspaper published and having* a bona fide circulation in that county. This notice may be in- the following’ form:
“The Dardanelle Road Improvement District of’ Yell County.
“Notice is hereby given that assessment of benefits and damages of the above district has been filed in the office of the county clerk of Yell County, where it is open to inspection. The following lands, not in the district as originally laid out, have been assessed for the improvement: (Here will follow description of the lands beyond the borders of the district which have been assessed).
“All persons washing to be heard on said assessment will be heard by the commissioners of -said district at the county court room at Dardanelle, in Yell County, on the......day of......192.....................................Secretary.”
‘ ‘ On the day named in said notice it shall be the duty of the commissioners to meet at the place named, and to hear all complaints against said assessment, and to equalize and adjust the same, and their ■ determination shall be final, unless suit is brought in the chancery court of the county where-the lands lie within thirty days thereafter to set aside their finding.”

Section 8 of said act 244 is as follows: “The commissioners may, not oftener than once a year, reassess the benefits in said district; but in the event the district shall have incurred an indebtedness or issued bonds the total amount of assessed benefits shall never be diminished. ”

It is contended by counsel for appellee that the phrase “until revised as provided in said act,” at the end of ■§ 2 of act 63, amendatory of said act 244, refers to the revision of the assessment -of benefits authorized in § 7 of said act 244; and that said act 63 did not make final- the assessment of benefits as filed, but left the commissioners empowered to hear protests and to revise the assessment, as was done later.

It is the contention of counsel for appellant, however, that this concluding phrase “until revised as provided in said act,” refers only to the annual reassessment provided for in § 8- of act 244.

The following well known rule for construing statutes is applicable here: “The intention and meaning of the Legislature must primarily be determined from the language of the statute itself, and not from conjectures aHimde. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning. This principle is to be adhered to, notwithstanding thef act that the court may be convinced by extraneous circumstances that the Legislature intended to enact something very different from that which it did enact. The current of authority at the present day is in favor of reading statutes according to the natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending their operation. If the words of the act are plain and the legislative purpose manifest, a contrary conception of it, however produced, cannot legitimately be permitted to create an obscurity to be cleared up by construction, influenced by the history of the legislative labors which constructed the law. No motive, purpose, or intent can be imputed to the Legislature in the enactment of a law other than such as are apparent upon the face and to be gathered from the terms of the law itself. A secret intention of the lawmaking body cannot be legally interpreted into a statute which is plain and unambiguous, and which does not express or imply it. Seeking hidden meaning at variance with the language used is a perilous undertaking which is quite as apt to lead to an amendment of a law by judicial construction as it is to arrive at the actual thought in the legislative mind.” 25 R. C. L. p. 961, § 217.

The language of this statute is plain and unambiguous. The assessment of benefits as filed were to stand “until revised as provided in said act,” not as provided in § 7 of said.'act or in § 8 thereof, but ‘ ‘ as provided in said act.” To limit the application of this phrase to anyone section of act 244, it is necessary to read into it words of limitation not written therein by the legislators.

The fact that the concluding phrase of the section of said act 63, which deals with the confirmation of assessments, is couched in language substantially different from that used in corresponding sections of other curative acts, shows that the Legislature did rot intend the confirmation in said act 63 to have the same effect as in other cura-, ti ve acts.

In act 115 of the 1917 Legislature, passed upon by this court in Faver v. Wayne, 134 Ark. 30, the assessments, is couched in language substantially different from be ordered according to law.”

Identically the same language is used in act 43, approved February 4,1920, construed in Gibson v Spikes, 143 Ark. 274.

In act 398 of 1921, construed in Road Imp. Dist. No. 6 v. St. L. S. F. R. Co., 164 Ark. 444, it was provided that the assessments should stand “until a new assessment may be made as provided by law.” And in Western Lawrence Road Dist. v. Friedman-D’Oench Bond Co., 162 Ark. 362, the language was “until a new assessment is ordered by the board in the manner provided by the law by which said district was created.”

But in the curative and amendatory act, No. 63 involved in the instant case, the assessments were to stand, not until a new assessment was made, but “until revised as provided in said act” creating the district. Had it been intended by said act to cut off the power of the commissioners to revise the assessments as provided in § 7 of the creative act, and leave only the power to make the annual re-assessments provided for in § 8 of said creative act, the Legislature would, doubtless, have used language clearly conveying that meaning, as was done in the other curative acts above referred to. But, since the assessments here were' to stand only “ until _ revised,” and not until new assessments were made, it is obvious the Legislature intended only to relieve the necessity of making a.new'assessment to meet the modifications of the improvements provided for in act 63, and to' leave to the commissioners all the powers and duties to revise the assessments that were delegated td them in the creative act.

Moreover, act 63 made very substantial changes in the roads tha/t were to be improved. This fact .should, be considered in determining whether the Legislature meant, by act 63, to make final the assessment of benefits filed before the passage of said act, or to leave the commissioners empowered to revise them to conform to the routes of the roads as modified by said act 63. It is not probable that the General Assembly intended’ to cut off the power of the commissioners to revise the assessments by the very act which, by making material changes in the improvements to be made, increased the probability that such revision would be necessary. . .

We construe the concluding phrase of § 2 of act 63 as preserving .to the commissioners of said district all the power and duty conferred upon them in act 244 to revise the assessment of benefits, both as provided in § 7 and in § 8 of said act. We therefore hold that the act of the commissioners in reducing 75 per cent, of the assessment of benefits as filed, was legal. It. follows that the benefits, as finally determined, were less than the co.st of the improvements to be made, and that the construction contract and the surety bonds in. support thereof were never legally effective, and that no liability on said surety bonds ever attached, and that the payment' of the bond premiums by the commissioners was illegal.

We hold that said contract and bonds were never' legally binding or effective for another reason: Act 63 was enacted after this construction contract-was entered into. As has already been said,- act -63 substantially changed the roads to be improved. 'Certain laterals were omitted, and one additional lateral was added. While the Legislature might bind the road district, a creature of the Legislature, by such a material chango in the subject-matter of the contract, it could not bind the construction company to such change.

In Western Randolph County Rd. Imp. Dist. v. Clifford, 150 Ark. 94, it was held: “Where H agreed in writing to purchase the entire anticipated bond issue of a road improvement district created by a special act, and deposited a-certified check ‘ to. guarantee .compliance with the terms of the contract,;’ the check to be held in trust until the bonds were tendered in compliance with the contract, and subsequently the Legislature materially changed the act creating the district, and thereby substantially altered .the contract itself, II’s estate- was absolved, from liability .on the certified check.” .

We think (the principle -announced in that case controls this one. The bonds for which appellee paid- the premiums never having become binding or effective, and the. purpose for which said money-was paid'having failed, it remains to be determined whether appellee has the right to recover said money from appellant. We think the execution and delivery of the bonds-by appellant, making appellee the obligee therein and making the construction contract between appellee and the construction company a part of each bond, carrying a clause to the effect that appellee was to advance the-premiums oh the -bonds, coupled with the actual payment of the - money by appellee to appellant,- establishes privity betweemappellant and appellee; and, so holding, it is hot necessary for ,us to decide whether privity -between the parties is essential to recovery of money fr'oimtheper-son into, whose hands it has been traced,- by .the party paying it, where the purpose for which it is paid has failed.

It- is contended by appellant that, if it is held liable to appellee for this money, it might in some future action be held liable for the same money to Rich Construction Company, and that, in the event of any such action against it by Rich Construction Company, the judgment in this case could not be pleaded as a defense, said construction company not being a party to this suit. But the parties to this suit are entitled to have it determined according to their respective rights and equities in the subject-matter thereof, without regard to any claims that might be later asserted against either of them in respect to said matter; and, if either felt that any other party was essential to this litigation, that objection should have been raised in the trial court. There having been no objection raised in the lower court on account of defect of parties, that objection must be held to have been waived. Less v. English, 75 Ark. 288.

Counsel for appellant contend that, if it be held that the contract was illegal, the road district was equally at fault in being a party thereto, and cannot invoke the aid of the courts to recover the money paid out by it in pursuance of such illegal contract -; and cite the ease of Security Mutual Life Ins. Co. v. Little, 119 Ark. 498, in support of their contention-

But it was no fault of the district itself — the tax payers — that an illegal contract was entered into and money unlawfully expended. That was the fault of the commissioners. It is to protect the taxpayers against harmful acts of their commissioners that such contracts are held to be illegal. If. the beneficiaries of such contracts could defeat the recovery of the taxpayers’ funds paid them by the commissioners by setting up' as a defense the very fault of the commissioners that caused the loss of funds, then it would afford the district no protection to deny the commissioners the power to make such contracts.

In Security Mutual Life Ins. Co. v. Little, supra, it was not the school district that was suing for the recovery of the money, but the directors of the district suing personally for their own private funds which they had expended in pursuance of the contracts held to be against public policy.

It has been generally held that the rule that the courts will not enforce illegal or immoral contracts where the parties are in pari delicto has no application to contracts of a corporation void merely because malum prohibitum, or ultra vires. In re Citizens’ Mutual Fire Ins. Co., 162 Mich. 466.

It is finally contended by counsel for appellant that, since the proof shows the actual premiums on the bonds aggregated only $11,888.64, appellee should not be permitted to recover the excess above that amount.

But the attorney for the district testified that he delivered the $17,800 check to the agent of appellant and informed him that it was to pay the premium on these bonds. This agent of appellant testified that he cashed the check, deducted his commission,, and turned the balance over to another agent of appellant, who is now dead.

There is evidence to show that the net amount left out of a total premium of $11,888.64 after deducting the agent’s commission of 15 per cent, is all that was sent by the agent to the home office of appellant. But there is no evidence as to what became of the residue of the $17,800 over and above the $11,888.64 accounted for by appellant’s agent. This agent in accepting this money was acting within his apparent authority.

Appellee having traced the entire $17,800 into the ' hands of appellant’s agent and having informed said agent that it was to pay the premium on these bonds, we think it devolved upon appellant to prove that this excess passed out of its hands. Payment of this money to appellant’s agent was, in legal effect, payment to appellant. If appellant’s agent failed to account to appellant properly or misappropriated some of the money, it is a matter between such agent 'and appellant.

A¥e think the decree of tlie chancery court, awarding appellee judgment against appellant for $17,800 with lawful interest, is correct, and it is therefore affirmed.

Smith, J., concurs, except as to recovery of excess over the actual premium of the bonds.

Hart, J., disqualified.


author: McCulloch, C. J.

text:
    Brooks and Gregory v. State.
    Opinion delivered November 9, 1925.
    1. Conspiracy — night riding — sufficiency of indictment. — Under Crawford & Moses Dig., § 2795, an indictment for confederating and banding together for the unlawful purpose of doing an unlawful act ¡by destroying a certain dipping vat is not defective in failing to allege that pursuant to the act of banding together the accused went forth in the night time and then and there destroyed the vat.
    2. Criminal law — corroboration of accomplice. — An accomplice’s testimony that defendants engaged him to join with them in blowing up a certain dipping vat and were near by when he went to the vat to execute such purpose was sufficiently corroborated to sustain a conviction of night riding by proof aliunde as to defendants’ threatening attitude concerning the operation of the vat three days previously and ;by other testimony as to the close proximity of other persons when the accomplice was apprehended in the act of blowing up the vat.
    3. Criminal law — reading statute to jury. — Reading an inapplicable portion of the statute as to corroboration of accomplices was harmless where the court admonished the jury that such portion was inapplicable.
    4. Criminal law — instruction—general objection. — An instruction that testimony corroborating an accomplice need not be sufficient to convict, and that “if you find that there is enough corroboration, either by direct proof or circumstantial evidence, to convince you beyond a reasonable doubt that the defendants or either of them is guilty, you should convict; otherwise you should acquit” — held not open to a general objection.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      Starbird <& Starbird and Rowell & Baughman, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   McCulloch, C. J.

Appellants were convicted of the crime of night riding, the charging part of the indictment being as follows:

“The said Logan Bowers, Joe Brooks and Lee Gregory in the county and State aforesaid, on the 13th day of April, A. D. 1925, being more than two persons, did wilfully, unlawfully and feloniously unite, confederate and band themselves together for the wilful and unlawful purpose of doing an unlawful act in the night time by then and there, wilfully, unlawfully, maliciously and feloniously injuring and destroying the dipping vat known as the Graham vat, situated in Crawford County, Arkansas, and against the peace and dignity of the State of Arkansas.”

There was a demurrer to the indictment, which was overruled, and the ruling of the court in that regard is the basis of the first assignment of error presented on this appeal. It is contended that the indictment is defective in failing to allege that, pursuant to the act of banding together, the persons named went forth in the night time and then and there destroyed the vat. This was ruled against the contention of appellants in the case of Scott v. State, 114 Ark. 38, where the statute was analyzed, and it was held that the first section thereof (Crawford & Moses’ Digest, § 2795) made it unlawful for two or more persons to unite, confederate or band themselves together for the purpose of “doing an unlawful act in the night time. ’ ’ We held that this constituted an offense, even though there was no consummation of the conspiratorial act.

It is next contended that there was no testimony corroborating that of the accomplice who testified in the case, and that for this reason the evidence is not sufficient to sustain the verdict. According to the testimony in the case, P. B. Graham operated, near Graphic, in Crawford County, a dipping vat known as the Graham vat. Graham testified that on the night of April 13,1925, he had reason to 'believe that the vat would be dynamited, that he went down into the approach to the vat to watch for intruders, and that, after waiting a while, Bowers approached, and he arrested Bowers and found that he had three sticks of dynamite in his hand. He stated that he heard voices, and other witnesses testified about discovering two tracks near the vat, which led away from that point. Bowers made a confession and implicated the two appellants. He testified that he had been living in the community only a few days and had arranged with a brother of appellant Gregory to work on a farm, and that the two appellants engaged him to join with them .in blowing up the Graham vat and agreed to pay him five dollars for doing- the work. Bowers testified that he and the .two appellants went to the vat that night and stopped near by while he went in with the dynamite to blow up the vat. Graham’s wife testified that immediately after her husband took Bowers in charge she heard voices a short distance away which sounded like the persons calling to each other through their cupped hands. This occurred- on Sunday night, and Graham testified that on the Thursday before that date the two appellants, a brother of appellant Gregory and a -man named Butler came to the vat to-protest against having to dip their cattle. He testified to the following conversation with appellant Brooks in the presence of the two Gregorys: “Brooks was lacking about having to dip the cattle. He said it was not right to have to pay for dipping. I said, ‘Joe, do you believe that a man ought to pay seventy-five dollars for making a vat and then pay a man to haul water and -then not get anything for dipping-?’ He said that he knowed it was not right. Then I said that any man who is not willing to pay for dipping his .cattle is a son-of-a-bitch. ” He testified that appellant Brooks had a club in his hand, and that, as the men walked away together, Brooks said, “This winds up the little ball. ’ ’ The jury could have construed this testimony to be a threat and a protest against the operation of the vat. The substance of the witness’ testimony was that these parties came to his vat that day in a belligerent mood, protesting against being compelled to dip their cattle, and that the last word uttered as they went away was, ‘ ‘ This winds up the little ball. ’ ’ The fact that two other persons accompanied Bowers to the vat and were in close proximity when he was about to use the dynamite in blowing up the vat was established by the testimony of witnesses other than Bowers, the accomplice, and we are of the opinion that the threatening attitude of appellants with respect to the operation of the vat and the close connection of 'that incident with the overt act of the accomplice in attempting to commit the offense was sufficient corroboration to afford evidence legally sufficient to sustain the verdict. The weight of the testimony was a question for the jury, as it was suf- ■ ficient to connect appellants with the commission of the offense which had been proved by other witnesses.

It is contended that the instruction of the court on the subject of corroboration of the accomplice was erroneous in reading the statute with reference to misdemeanors, but we think that there was no prejudicial error for the reason that the court stated to the jury that that part of the statute had no application.

The court gave the following instruction-,' which was objected to, and the ruling of the court is assigned as error:

“3. The court tells you that as a matter of law the witness Logan Bowers is an accomplice. Now, it is not necessary that the corroborating testimony be sufficient to convict the defendants or either of them without the testimony of an accomplice or of some circumstantial evidence, or both. But, if you find that there is enough corroboration, either by direct proof or circumstantial evidence, to convince you beyond a reasonable doubt that the defendants or either of them is guilty, you should convict. Otherwise you should acquit. ’ ’

There was only a general objection to this instruction. The substance of the instruction was that it was not essential'that the corroborating testimony be sufficient of itself to justify a conviction. The last sentence of the instruction is not in apt form, but it should have been met with a specific abjection.

There are other objections to the instructions, which we do not consider of sufficient importance to discuss. We are of the opinion that the evidence was legally sufficient, and that there was no error in the court’s charge.

Judgment affirmed.


text:
    Roberts v. Hass.
    Opinion delivered November 9, 1925.
    1. Bailment — agreement to pay for use of machinery. — An agreement by plaintiff to pay defendant “whatever was right” for the use of defendant’s boiler and engine is tantamont to an agreement to pay a reasonable price, which could be established by testimony if the parties were unable to agree, and the testimony sufficiently definite to constitute a consideration.
    2. Contract — instruction—meeting of minds. — An instruction that, “to make a valid contract, there must be a meeting of the minds of the parties thereto, that is, that both parties must understand the material terms thereof,” is not objectionable, as stating that the contract was complete if the parties “understood the material terms thereof,” without agreeing thereto.
    Appeal from Polk Circuit Court; B. E. Isbell, Judge;
    affirmed.

      Norwood & Alley, for appellant.

      Pole McPhetrige and Duke Frederick,. for appellee.
   McCulloch, C. J.

Appellee instituted this action against appellant to recover damages for alleged breach of a contract for the rental by appellant to appellee of an engine and boiler and an acre of land on which it stood. Appellant denied that such a contract was entered into between him and appellee, but on the trial of the cause the jury returned a verdict in favor of appellee assessing damages in an amount not claimed to be excessive.

Appellant was the owner of a tract of land on Which were located a mill-house and shed, an engine and boiler and a sawmill outfit. Appellant owned the engine and boiler, but was not the owner of the sawmill outfit. He had sold his property conditionally to one Cotton, who put in the sawmill outfit. Cotton failed to perform the terms of his contract of purchase from appellant, and the property was turned back to the latter, and Cotton sold the sawmill outfit to appellee. Appellee testified that while he was negotiating for the purchase of the sawmill outfit, appellant entered into an oral contract with him for the use of the engine and boiler in operating the mill until appellant could find a purchaser for the property, and that pursuant to this agreement he purchased the sawmill outfit and also purchased timber to use in operating the mill. Appellee testified that his agreement with appellant was that he was to pay “whatever Was right” for the use of the engine and boiler. He testified that he informed appellant at the time of the agreement that he was preparing to buy a certain cut of .timber, and that he did buy the timber and had it cut and hauled to the mill, when appellant broke the contract and stopped him from sawing.

The principal contention made here is that the contract was unenforceable for the reason that there, was no consideration. We are of the opinion that this contention is not sound. Appellant testified that he was to pay “whatever was right” for the use of the engine and boiler and the premises on which it was located during the time that he used it, which was until appellant could ' find a purchaser; that appellant did not find a purchaser, but, on the contrary, stopped him from using the property after he had made his preparations for operation of the mill by hauling a quantity of timber there.

The agreement to pay “whatever was right” was tantamount to an agreement to pay a reasonable price, wliieli could, be established by testimony if the parties were, unable to agree upon the prices at settling time. The agreement to pay a reasonable price was sufficiently definite to constitute a consideration.

Error of the court is assigned in giving the following instruction:

“The jury are instructed that to make a valid contract there must be a meeting of the minds of the parties thereto; that is, that both parties must understand the material terms thereof.”

This instruction is criticised on the ground that it told the jury in substance that the contract was complete if the parties “understand the material terms thereof,” without telling the jury that they must also have agreed upon the material features of the contract. This criticism of the instruction is unfounded, for the court told the jury that “to make a valid contract there must be a meeting of the minds of the parties thereto.”

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


author: McCulloch, C. J.,

text:
    Guthrie v. Few.
    Opinion delivered November 9, 1925.
    1. Master and servant — negligence of servant causing damage to goods. — In an action for negligent injury to plaintiff’s goods from overflow of water from defendant’s hotel situated above plaintiff’s store, where there was evidence that the hotel .clerk was notified that the water was running over about 6 a. m., Sunday, and he ordered the porter to mop it up, but plaintiff knew nothing about the water until 2.30 p. m., it was error to give a peremptory instruction to find for defendants, as the evidence was sufficient to warrant submission of the case to the jury, who might have found that the damage was caused by the negligence of the porter in mopping up the water or of the clerk in failing to notify plaintiff.
    2. Master and servant — liability for negligence op servant.— Uncontradicted testimony of plaintiff that both defendants were operating the hotel was sufficient to make a case against defendants for the negligence of their employees causing injury to plaintiff’s goods by water from the room above plaintiff’s store.
    Appeal from Lawrence -Circuit Court, Eastern District; Beane II. Coleman, Judge;
    reversed.

      Smith & Blackford, for appellant.

      G. M. Gibson, for appellee.
   McCulloch, C. J.,

Appellant, Mrs. Fannie Guthrie, instituted this action against appellees, E. A. Few and wife, to recover damages alleged to have accrued by-reason of the negligence of appellees in the operation of a hotel at Walnut Ridge. The answer of appellees contained appropriate denials of the allegations of negligence, and on t'he trial of the cause, at the conclusion of the introduction of testimony by appellant, the court gave a peremptory instruction in-favor of appellees. The question presented on this appeal is, therefore, whether or not there was evidence legally sufficient to sustain a verdict in favor of appellant.

Appellant was operating a millinery store in a room on the ground floor of a certain building in Walnut Ridge, and had a stock of goods consisting of ladies ’ wear, such as hats, caps, waists, jackets, sweaters, veiling, furs, etc. Appellees were operating a hotel on the second floor of the 'building. Early in the morning of Sunday, January 6, 1924, a guest in one of the rooms above appellant’s store room left the water running in a basin, and the basin overflowed and flooded -the room. The water went through the floor, falling upon appellant’s goods, and, according to the testimony, damaged them to the extent of several hundred dollars. Appellant testified that the goods were damaged to the extent of $712.75.

Babcock, a witness for appellant, testified that he occupied a room across the hall from the room in which the water escaped, and that about 4:45 o’clock on Sunday morning the occupant of the room arose to catch an early train. Tie testified that when he heard the guest in -the other room he arose with the intention of dressing and found that there was no water running in the building, and lie laid down again and dozed off, but woke up about 5:45 o’clock, and heard the water running in the room across the hall. He testified that, after hearing tide water splashing as if the basin were overflowing, he went into the room and found both faucets of the basin open, and that he turned the water off. He testified that the floor was flooded at that time, and that he went down to the office at once and notified the clerk in the office. He testified that, as soon as he notified the clerk, the latter sent a negro porter up to the room to mop up the water, and 'that he (witness) met appellee E. A. Few about twelve o ’clock and told him about the incident of the guest leaving the water running-. Appellant testified that she did not receive any information about the escape of the water until about 2:30 o’clock in the afternoon.

Appellant called the night clerk of the hotel as a witness, and he testified about Babcock notifying him about 6:15 o’clock that morning that the water was running, and that he sent the negro porter to the room to mop up the water, but that he did not notify anybody of the incident.

According to the .testimony, the appellees did not arise until about noon on Sunday, and knew nothing about the incident until they were told about it by appellant.

We are of the opinion that the evidence was legally sufficient to warrant a submission of the issues to the jury, and that the court erred in giving a peremptory instruction. Even though neither of the appellees were aware of the escape of the water until after the damage had been done, they are responsible in law for any damage caused by the negligence of their employees. The jury might have found that the negro porter was guilty of negligence in failing to sufficiently mop up the water so as to prevent it from flooding the room beneath, and that the night clerk was guilty of negligence, when informed of the escape of the water, in failing to notify appellant, so that she could rescue her property from injury. According to the testimony, the night clerk did nothing but send a porter to mop up the water. He did not notify either the appellant or the appellees. If he had acted promptly in notifying appellant, or if the porter had sufficiently mopped up the room, the damage to appellant’s property might have been lessened or altogether averted by preventing any considerable amount of water descending upon the goods below.

It is also contended that there was negligence on the part of appellees themselves in failing to provide a basin with a safety escape so that it would not overflow. This feature of the case, however, was not sufficiently developed, and we express no opinion at this time as to whether or not that constituted negligence.

Appellant testified that both of the appellees were engaged in operating the hotel. This was sufficient to malee a prima facie case against them for the negligent act of their employees, and appellees introduced no testimony tending to show which one of them was the proprietor of the hotel, whether one or both. There was therefore legally sufficient evidence introduced to make a case against both of the appellees, and the court erred in giving the instruction favorable to each of them.

Reversed and remanded for a new trial.


text:
    Merritt v. Gravenmier.
    Opinion delivered November 9, 1925.
    1. Statutes — validity.—'Where Special Acts 1919, p. 177, was declared valid in a prior decision of this court, it was error to hold that the statute was invalidated by reason of an amendment thereof by Special Acts ,1921, p. 94, § 1, since, if latter act is invalid, it left the former act unimpaired.
    2. Fish and game — license pees — validity op special act. — Where Special Acts 1919, p. 177, regulating the catching of non-game fish in certain lakes and streams, provided certain license fees which were not excessive at the time the statute was enacted, the fact that the license fees subsequently collected under the act are more than sufficient to enforce it affords no reason for declaring the act unconstitutional.

      3. Fish and game — validity of act regulating taking of fish.— Special Acts 1921, p. 94, extending- the provisions of a former statute regulating the catching of fish to ¡all waters of the county, is not invalid as 'arbitrary ^nd unreasonable, in that some bodies of water in the county do not require such regulation, since such matter is for the consideration of the Legislature.
    4. . Licenses — revenue act. — Special Acts 1923, p. 1057, regulating the catching of fish, and providing for paying iby licenses of a percentage of the gross receipts to the county for expenses of enforcement and of the surplus to the road fund, is not invalid as a revenue gtatute, since the fact that a surplus exists does not make the statute one for revenue only, and since the Legislature has the power to provide for the distribution of the surplus revenue in carrying out the act.
    5. Licenses — validity of revenue statute. — Special Acts 1923, p. 1771, regulating the ¡catching of fish and providing that all funds accruing to the county from license fees shall be distributed, 75 per cent, for expenses of enforcement, and 25 per cent, for school fund, is a revenue statute, hut is not invalid, since,the right to take fish and game is a privilege which may be taxed under the powers delegated to counties, under Const., art. 2, § 23.
    6. Taxation — bower delegated to local agency. — The power to delegate the right to tax, under Const., art. 2, § 23, authorizes the Legislature to exercise the delegated power for the benefit of local political agencies, and the fact that funds from taxation are for benefit of the locality affected does not render the statute invalid, where there is no discrimination in favor of local citizens, since the delegation of power necessarily implies authority to exercise it solely for local benefit.
    7. Licenses — exemption of minors — Special Acts 1923, p. 1771, regulating catching of fish and exempting minors under age of 16 from its provisions, is not discriminatory.
    8. Injunction — criminal prosecution — jurisdiction of chancery.. — The chancery court has no jurisdiction to enjoin a criminal prosecution, but has jurisdiction to relieve against unlawful exactions.
    Appeal from Chicot Chancery Court; E. G. Ilcmp mock, Chancellor;
    reversed.

      B. F. Merritt and James R. Yerger, for appellant.

      J. M. Golden, A. Z. Golden, and N. B. Scott, for appellee; J. T. Gheairs, amicus curiae.

   McCulloch, C. J.

This litigation involves the question of the validity of local fish laws in Chicot County. Tlie General Assembly of 1919 ('Special Acts 1919, p. 177) enacted a statute authorizing the county court of Chicot County or the judge in vacation to issue a license, upon competitive bidding, to some person for the purpose of catching cat fish, gar and buffalo fish by seine • in the waters-of Lake Chicot, Grand Lake, Macon Lake and Boeuf River. The statute specifies that the seining must be done with a seine not less than three hundred feet long, with meshes not less than four inches; that license granted by the county court or judge shall extend for a period of two .years and be let upon a competitive bidding basis after advertisement in a county newspaper; that said bids shall be based upon the percentage of the gross receipts from the sale of fish caught and sold, and that, the licensee shall execute a bond conditioned that the licensee shall regularly -and promptly make quarterly settlements in payment of the percentage of gross receipts.. It is provided in the statute that the money arising from such license shall be paid into the treasury of the county, “to the credit of such fund as the county judg*e may determine to reimburse said county for expenses incurred in the proper enforcement of the provisions of this act.” And the section containing* the above quotation also contains a declaration of the purposes of the act to be, “for the propagation, protection and increasing of the game fish in said waters, the 'County court of Chicot County shall undertake to procure from proper authority ample supplies of game fish to replace the waters of said county.” Section 3 of the statute makes it unlawful for any person to seine or catch any fish otherwise than as authorized by law, and imposes a fine of not less than twénty-five nor more than one hundred dollars, and also a prison- sentence of not less than one month nor more than six months in the county jail.

In the ¡ease of State v. Adams, 142 Ark. 411, this court construed the statute as one designed to protect game fish in the waters named by providing for the extermination of non-game fish, and upheld the validity of the statute.

The General Assembly of 1921 (Special Acts 1921, p. 94) enacted another special statute amending § 3 of the act of 1919, supra, so as to make it unlawful to catch cat fish, gar or buffalo fish or other non-game fish in any • of the waters of 'Chicot County except under license issued pursuant to § 1 of the act of 1919.

The General Assembly of 1923 enacted still another local statute (Special Acts 1923, p. 1057) prohibiting the taking of oat fish, .gar, buffalo and other non-game fish in any of the waters of Chicot County other than Macon Lake, Chicot Lake and Grand Lake without a license from the county court, and that court was authorized to grant a license for the purpose. This statute provides that “do license or permit shall b.e granted except where the licensee agrees to pay to the county, for the benefit of the roads funds thereof, a given percentage of the gross receipts therefrom, and in addition thereto agrees to pay the salary of an inspector to be named and appointed by the county judge or county court; the said inspector shall witness all hauls of said nets or seines, be present at all visits thereto, shall weigh and inspect the fish caught therefrom and make accurate weekly reports thereof to the county court of said county.” The last section of this statute contains an express declaration that the act of 1919, supra, and the act of 1921, supra, “where not in direct conflict herewith, are hereby expressly preserved, and this act shall be cumulative thereto, and the provisions thereof shall cover the subject here treated.”

The General Assembly of 1923 enacted still another local statute (Acts 1923, p. 1771) covering Chicot, Desha and Phillips counties, and providing a complete game and fish law for these three counties, with six game commissioners, two from each county, to enforce its provisions. This statute contains a complete scheme for the protection of game and fish and the regulation of taking the same, similar to the general statutes of the State creating the Fish and Game Commission. This statute provides for license fees similar to the general law for taking game and fish, prescribes open seasons and closed seasons, a daily bag limit and catch, and requires all persons fishing or hunting to pay a license except persons under sixteen years of age. Section 9 of this statute provides that the license fees collected in each county shall be distributed, seventy-five per cent, “for the employment of wardens for the enforcement of this act and other game laws of the State in said counties, and the remaining twenty-five per cent, into the common school fund of the county for apportionment by the proper authorities as other school funds are now apportioned.”

Appellees G-ravenmier and Yates are residents of Chicot County, engaged in fishing for commercial purposes, and they were arrested by the officers of the county under a charge of seining’ without a license in waters lying between the levee and the Mississippi River. They instituted this action in the chancery court of Chicot County against the deputy prosecuting attorney of that county, the county judge, the sheriff, the. game warden and the justice of the peace before whom the prosecution was pending to restrain those officers from prosecuting them and to have the exactions prescribed under various statutes referred to declared to be illegal. Appellee R. L. 'Sims is a resident of Drew County and was permitted, without objection, to join in the action for the purpose of attacking the validity of the. act of 1.923, supra, applicable to the three counties mentioned. The chancery court in its final decree declared the statutes to be invalid and restrained the officers from enforcing the same. The court took 'cognizance of the fact that this court had upheld the act of 1919 in the Adams case, supra, but decided that that statute had been rendered invalid by the amendment to § 3 b}^ the act of 1921, supra. This conclusion was erroneous for the reason that, if the act of 1921 was invalid, it left the former statute unimpaired. The act of 1919, however, is not involved in the present litigation, for that statute only prohibited the seining of fish in certain waters, namely, Lake Chicot, Grand Lake, Macon Lake and Boeuf River, and appellees Gravenmier and Yates have not attempted to seine for fish in those bodies of water; their operations have been confined to other waters of Lake Chicot lying in front of the Mississippi River levee. It is argued in the brief for appellees, however, that the invalidity of the act of 1919, supra, has been demonstrated since our decision in the Adams case, supra, by the fact that the license fees collected under that act have, in later years, reached the sum of more than seven thousand dollars per annum, which is more than sufficient to enforce the provisions of the statute. This affords no reason why the statute should now be declared to be unconstitutional, for, if the statute was valid at the time of its enactment, the fact that the fees collected under it are subsequently found to be excessive would not render it invalid. This is a matter which addresses itself to the Legislature, for, as before stated, if the exactions were apparently not arbitrary at the time of the enactment of the statute, they could not subsequently become so and render the statute invalid. If the enforcement of the statute affords an amount o.f funds in excess of that which is necessary to enforce the statute, it is within the power of the Legislature to provide for the disposition of those funds.

It is contended that the act of 1921, supra, was invalid in extending the provisions of the former statute to all of the waters of Chicot County. The argument is that this act is arbitrary and unreasonable on its face, for the reason that there are numerous bodies of water in Chicot County other than what are termed the major bodies of water mentioned in the act of 1919, and particularly those bodies of water lying in front of the Mississippi River Levee that are the natural habitat of cat fish, gar and buffalo, but that no game fish abound in those waters, and therefore there is no need for exterminating the former in order to protect the latter. This argument might well Ije addressed to the Legislature, but we think that it is a matter for the determination of the lawmakers, and not t'he courts, and that they had the power to pass such a regulation. It is true that the bodies of water in- front of the levee are subject to inundation, but this might afford a special. reason why the non-game fish should be exterminated, instead of being carried by the high waters of the overflow to other bodies of water where game fish abound. In other words, we think that all these matters were for the consideration of the lawmakers, and we can not say that their action in- the matter is arbitrary.

The validity of each of the statutes enacted in 1923, supra, is challenged on the ground that they must be characterized -as revenue statutes because the first one contains a provision for paying a percentage of the gross receipts into the road fund of Chicot County, and that the last one contains a provision- for paying twenty-five per cent, of the gross receipts into the school fund of each of the three counties mentioned in the statute. The first one of these statutes is not, we think, open to the objection that it is a revenue measure. It contains a provision requiring the licensee to pay the expenses of enforcement, and whatever surplus funds are paid under the statute go into the road fund. The primary purpose of the statute, as declared by this court in the Adams case, was to destroy the non-game fish as a protection to the game fish, and if surplus revenue arise in carrying out that scheme, the Legislature had the power to provide for the distribution of the fund, and the fact that a surplus is thus raised does not characterize the scheme as one. for the raising of revenue; in other words, the revenue comes in merely as an incident. The last of the statutes of 1923, supra, must, however, be characterized as a revenue statute because it expressly provides that all of the funds accruing from license fees must be distributed, partly to the expense fund and partly to the school fund. A definite percentage of the revenues is assigned to the school fund, and this necessarily makes it a revenue measure. But, even if we so view the effect of the statute, does that render it invalid? We think not. Fish and game belong to the -State for the benefit of the citizens thereof, and the privilege of taking- fish must he extended equally to all citizens. But the right to take fish and game is a privilege, which may be taxed under the powers delegated to- 'counties and other subordinate governmental agencies of the State. Constitution of 1874, art. 2, § 23; Little Rock v. Prather, 46 Ark. 471; Pine Bluff Transfer Co. v. Nichol, 140 Ark. 320; Davies v. Hot Springs, 141 Ark. 521. The power to delegate conferred by the Constitution authorizes the Legislature to exercise the delegated power for the benefit of the local political agencies, and the fact that funds arising from the taxation are for the benefit of the locality affected does not render the statute invalid as being discriminatory against citizens of other localities. Taxation for local purposes exercised under the delegated power does not operate as a discrimination against other localities, for the delegation of the power necessarily implies authority to exercise it solely for local benefit. It will be observed that none of these statutes confers any special benefits on citizens of the counties mentioned, and there is no discrimination against non-residents, so far as the right to exercise the privilege on the same terms as they may be exercised by citizens of the locality is concerned. The statutes involved in Lewis v. State, 110 Ark. 204, and J. L. C. & E. R. Co. v. Adams, 117 Ark. 54, contained provisions discriminating in favor of local residents and against non-residents of the locality. For that reason in each case the statute was declared invalid; but, as before stated, there is no such provision involved in either1 of the statutes now under consideration.

It is further contended that the last one of the acts of 1923, supra, is discriminatory and void on account of the exemption in favor of persons under sixteen years of age. This, we think, is not an unreasonable exemption or classification. Minors under that age are fit subjects for exemption from such regulatory laws.

We find no grounds for declaring these statutes invalid.

Appellants challenge the jurisdiction of the chancery court, on the ground that it has no power to enjoin criminal prosecution. It is true that the court possesses no such jurisdiction, hut it does have jurisdiction to relieve against unlawful exactions. Cleveland & Co. v. Pine Bluff, 34 Ark. 603; Dreyfus v. Boone, 88 Ark. 353.

The decree is therefore reversed, and the cause remanded with directions to dismiss the complaint for want of equity.