text:
    Weidemeyer v. Little Rock.
    Opinion delivered January 29, 1923.
    Eminent domain — condemnation for street — benefits exceeding DAMAGES. — Where, after taking a strip of defendant’s lands for a proposed street, the remaining portion would be more valuable in city lots than it would bring on the market if sold in its present condition, and the benefit accruing to the remaining portion exceeded the value of the strip taken, compensation is properly denied.

      Appeal from Pulaski Circuit Court, Third Division; A. F. House, Judge;
    affirmed.

      Isgrig & Dillon, for appellant.
    There being a material conflict in the testimony, it was error to direct a verdict. 62 Ark. 94; 77 Ark. 556; 120 Ark. 446; 174 S. W. 225; 37 Ark. 164; 37 Ark. 580; 36 Ark. 451. The mere fact that there was a preponderance of evidence in favor of appellee did not justify a directed verdict; the matter was a question for the jury. 39 Ark. 413; 117 S. W. 563; 39 Ark. 491; 131 Ark. 411; 136 Ark. 84.
    ■ John F. Clifford, for appellee.
    Where, by the taking of private property for public use, the part remaining to the owner is so increased in value as to be worth more than the whole tract in its original condition, the owner has received just compensation in benefits. 64 Ark. 556; 114 Ark. 334.
    The measure of the owner’s compensation is the market value at the time of the taking, for all purposes comprehending its availability for any use to which it is plainly adapted, as well-as the most valuable for which it can be used and will bring the most in the market. 103 Ark. 412.
   Wood, J.

This action was instituted by the appellee against. C. E. Ferguson, H. A. Bowman and appellant, Weidemeyer, to condemn for street purposes a strip of land. The city engineer testified that the street which the appellee was seeking to open on the land of appellant and others was sixty feet wide and 330 long. The land of appellant taken by it would be a little over .45 of an acre, not quite a half acre. On the west side of the street there would be .2272 of an acre, or thirty feet by three hundred thirty feet, a little under a quarter of an acre. On the west side of the street the entire tract of appellant contained 2½ acres and on the east side a little over half an acre. The acreage taken out of both tracts, measured in lots of the usual dimension of 50 x 140, would be one and two-thirds lots. When this acreage is taken out, appellant would have a trifle over 2¾ ajares left. After the proposed land is taken out for street purposes, it will leave appellant close to eight lots. It will leave him six lots on the west side, and on the east side a fraction over one lot. The opening up of the street would take one and two-thirds lots .and leave appellant seven and a fifth lots on Broadway Street. The land taken would cut off the back end of appellant’s home site to an amount equal of one and two-third lots. This witness exhibited and introduced a plat showing the location of the street as it affected appellant’s land.

Witnesses who were familiar with the property, and who were engaged in the real estate business and -had knowledge of property values in the vicinity, testified. One of them stated that “after the street or extension of the street is made the value of the land caused by the proposed improvement would be about $1,500 per lot. * * * The lots would be worth $1,500 when the street was open, and would sell at $2,500 if the street was fixed up.” In witness’ judgment the benefit derived from the extension is nearly une hundred per cent, of its present value. What he has left would be worth twice as much as it is now. Another testified that “the value of the lots on the east side as they stand today would be worth from twelve to fifteen hundred dollars per lot. Those on the other side from eighteen hundred to two thousand. * * * After the street was opened up the'value of the land would be about $500 a lot more.”

The appellant testified that he owned a block of ground on which was his home. It was a piece of ground more than 330 feet square. His home fronts on Arch Street. The proposed street will take off of his property a piece of ground 30 x 330 feet and also a piece 30 x 60 feet, approximately one and two-thirds lots. Appellant has about twelve lots in the tract. Appellant had owned it all of his life practically, it being given him by .his father. Appellant had been living there for forty years, and had ample opportunities to notice land values out there. Appellant was asked the following question: “I will ask if running* this street through and taking off of this part of your property will increase the value of what you have left?” Appellant answered, “Not a cent.”

On cross-examination appellant was asked this question :• “What is that worth at the present time in acreage ? ’ ’ Appellant answered, ‘ ‘ It has no value. I haven’t it on the market. I have had an opportunity to sell it if I wanted to. The Jews wanted to make a New Jerusalem out there, and I wouldn’t let them have it. That is my home site, and it is going down to posterity and to my children as long as I can hold it. Some of you gentlemen didn’t think I can hold it, hut I think I can.” In response to a question as to whether appellant thought he was competent to place a value on it after it was platted and turned into lots, the appellant answered, “I haven’t gone into it. There is no use. of asking a question if the street is there and if I want to plat it. It is worth more, but I haven’t got it there for that purpose. I don’t want to, but nobody can keep me from doing it if I wanted to do it. ’ ’ He further testified that the figures of the city engineer were about correct. The land as acreage has no value because it is not on the market. It is worth more if it be platted, but appellant did not have it there for that purpose, because it was his home and he wanted to keep it as such, and it was not going to increase it in dollars and cents by having a strip taken off of it.

Another witness, Davis, who was in the horseshoeing business, and who had never been in the real estate business, but whose wife owned a piece of property out there, testified that he knew the value of the land in that community, and if the proposed street would open up Broadway Street to the railroad, the value would be very handsome, but they are not opening it up to the railroad. It goes to the south line of Ferguson’s property, giving no outlet to town, and does not increase the value of the property to Mr. Weidemeyer.

The court instructed the jury to return the following verdict: “We, the jury, find that the benefit to be derived by the improvement to be made by each of the defendants exceeds the value of the property taken for such improvement.” The court rendered a judgment which, in substance, recites that by reason of the fact that the benefits accruing to the remainder of the tracts of said defendants were in excess of the value of the tracts so taken, the appellant should recover nothing from the appellee. Prom that judgment is this appeal.

The question for decision on this record is whether or not the court erred in directing the verdict and entering a judgment in favor of the appellee. In Cribbs v. Benedict, 64 Ark. 556-559, we said: “The view which seems to us to accord with reason, and which is supported by high authority, is that where the public use for which a portion of a man’s land is taken so enhances the value of the remainder as to make it of greater value than the whole was before the taking, the owner in such case has received just compensation in benefits. And the benefits which will be thus considered must be those which are local, peculiar and special to the owner’s land, who has been required to yield a portion pro bono publico.” This doctrine has since been steadily adhered to, and was reannounced in the comparatively recent ease of Paragould v. Milner, 114 Ark. 334-337. The undisputed testimony shows that the condemnation of appellant’s land as a street for city purposes would make the remaining property of appellant more valuable than it was before the taking. The case on the facts is thus brought directly within the doctrine of the above cases.

While the appellant, at one place in his testimony, says that “the taking will not increase the value of this property one cent,” and again that “it is not going to increase it in dollars and cents by having the strip taken off,” yet, when his whole testimony is considered together, it i$ manifest, and must be conceded as uncontrover ted, that the opinion of the appellant thus expressed was grounded entirely upon the fact that the appellant was holding and using the property as his home, and did not intend to use it in any other way, and therefore he didn’t consider that it had any market value. He concedes that if the street is opened up and a market value placed upon the property afterwards, it would be worth more than in its present condition, for he says, “There is no use asking a question if the street is there and I wanted to plat it. It is worth more, but I haven’t got it there for that purpose. I don’t want to, but nobody can keep me from doing it if I wanted to.” Likewise the testimony of the witness Davis, considered as a whole, shows that if the property were his and a street were opened through it, he wouldn’t know what value to put upon the lots. It occurs to us that a close analysis of the testimony of the appellant and Davis shows that the opening of the street would in fact render the remaining property more valuable if the same were platted and valued as city lots, than the whole property is worth in its present condition. The testimony of Davis, on cross-examination, shows that in his opinion the property in that neighborhood was worth three or four thousand dollars per acre without any street or road touching it, but if a street were opened up it would be worth three to four thousand dollars a lot, provided the street went on to the railroad. Davis did not know and did not testify as to the value of appellant’s land if it were platted and sold in lots after the proposed condemnation.

In Fort Smith & Van Buren Bridge District v. Scott, 103 Ark. 405-412, we said: “The measure of the owner’s compensation for the land condemned is the market value thereof at the time of the taking for. all purposes comprehending its availability for any use to which it is plainly adapted, as well as the most valuable purpose for which it can be used and will bring the most in the market.” No issue is raised here as to the right of the appellee to condemn the property for street purposes. Such fight being conceded by the appellant, we find that there is really no conflict' in the evidence that the land, after the taking of the strip proposed, would he more valuable in city lots, for which it would he plainly adapted, than it would be on the market if sold in its present condition and to be used in its entirety perpetually as a home, and for no other purpose.

The court did not err in directing the verdict of the jury. The judgment is correct, and it is therefore affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Douglas v. Lamb.
    Opinion delivered January 29, 1923.
    1. Landlord and tenant — share-cropper.—One who cultivates land for a specified portion of the crop, the landlord furnishing the land, teams and tools, is not a tenant but a laborer.
    2. Forcible entry and detainer — possession of plaintiffs — Evidence tending to establish that plaintiffs were in possession of land through a share-cropper held sufficient to sustain a finding that plaintiffs were in possession of the land when the sharecropper was dispossessed by defendant.
    3. Forcible entry and detainer — evidence of possession by force. — In an action to recover possession of land upon the ground that defendant had turned out plaintiff’s share-cropper “by force, fighting, by threats and other circumstances,” evidence that defendant, a white woman, came to the house on the land occupied by such share-cropper, who was a negro, and told him to get his things out of the house, that she was going to take possession, and did not want him to give her any trouble, and proceeded to put his household goods out of the house, and he moved away because he was afraid to stay there, held to sustain an action of forcible entry and detainer.
    Appeal from Mississippi Circuit Court, Osceola District; W. W. Bandy, Judge;
    affirmed.

      T. E. Allyn, for appellant.
    Plaintiffs had no right to maintain the suit. Where a tenant is unlawfully evicted by a third party, the tenant and not the landlord can maintain the action of forcible entry and detainer. R. C. L., p. 1148; 42 Wash. 560; 62 Ark. 588; 25 W. Va. 404. The evidence does not support a finding that there was any force used or any evidence of a threat. 13 Ark. 488; 41 Ark. 535; 38 Ark. 257; 4 Ark. 147; 105 Ark. 630. A verdict cannot be based on surmise or .conjecture. 114 Ark. 112. Under the evidence the relation of landlord and tenant was created, and instruction No. 1 was therefore incorrect. 70 Ark. 79; 54 Ark. 346; 34 Am. Dec. 388; 37 Am. Dec. 309; 46 Ark. 254; 108 Ark. 36. The relation of landlord and tenant exists where one agrees to furnish another with a house, land, tools, and to accept one-half the crop in payment. 76 Miss. 487. One having title and right may get possession peaceably and defend by force, if necessary, and will not be guilty of forcible entry and detainer. 69 Ark. 34; 105 Ark. 630.

      Davis, Costen & Harrison, for appellee.
    George Smith was a laborer under the following decisions. 39 Ark. 280; 48 Ark. 264; 130 Ark. 431. At the time this action was brought plaintiffs had exclusive possession of the property. 11 R. C. L. 1146, § 12. No greater force to obtain possession from Smith was necessary than is shown under the circumstances here. 11 R. C. L. 1160, § 33.
   Wood, J.

This is an action by the appellees against the appellant to recover possession of a certain tract of land in Mississippi County. The appellees, among other things, alleged in their complaint that they were the owners and entitled to the possession of the lands, and that the lands were in possession of a negro tenant, and that appellant “turned said tenant out by force, fighting, by threats and other circumstances;” that she thus obtained possession and holds the same, without right or claim of title to the lands. They alleged and prayed for damages in the sum of $1,000 and for rents in the sum of $2,000.

The appellant answered denying; all material allegations of the complaint, and alleged that she was in lawful possession of the property, and had made valuable improvements on the same, and claimed she was the owner thereof. After the conclusion of the testimony the court instructed the jury, and there was a verdict in favor of the appellee for possession of the lands, but without damages. The court rendered a judgment, based on the verdict, in favor of the appellees against the appellant for possession of the lands and for their costs, from which is this appeal.

The appellant contends, first, that the appellees are not the real parties in interest and therefore cannot maintain this action. Under this head the appellant contends that there was no testimony tending to prove that the appellees, at the time the appellant took possession of the property, were in possession thereof; that the undisputed testimony proved that the party through which appellees claimed to have possession was their tenant, and that such tenant alone, and not the landlord, can maintain the action. Citing King v. Duncan, 62 Ark. 588, and other cases.

There was testimony on behalf of the appellees tending to prove that at the time the appellant took possession of the land in controversy the same was occupied by one George Smith, a negro. While one of the witnesses for the appellee states that the plaintiffs were in possession through their tenant, the witness further testified as to the nature of the contract with Smith as follows: “He had a contract with plaintiffs to farm practically all of the land in 1920.” This witness further testified: “The plaintiffs had charge of the possession of the property — had it in charge the year before— and the only trade that was made was made with George Smith.” The testimony tended to prove that the arrangement made by appellees through their agent with George Smith was that the latter should cultivate the land as a share-cropper. Smith himself testified that he had possession of the land that year, and was making a share-crop. Another witness stated that the lands were rented partly to Goforth and partly to George Smith, a share-cropper. One of the witnesses, explaining the contract which he made on behalf of the appellees, stated, “I was to furnish the mules, team, seed, mule feed and provisions, and he was to get one-half of the crop, and I was to get one-half.” At the time appellant entered into possession of the land in controversy he (Smith) was the only man on the place.

The above testimony was at least sufficient to justify the court in submitting to the jury the issue as to whether George Smith held the land as a tenant, or a mere laborer, or share-cropper. The testimony was sufficient to justify the court in refusing appellant’s prayer for instruction No. 8 for a directed verdict in her favor, and to warrant the court in giving appellees’ prayer for instruction No. 1 as follows: “One who cultivates lands under a contract by which the landlord furnishes land, teams and tools to make crop, and he works the land, and makes the crop for a specified portion thereof, is not a tenant, but a laborer.” See Gardenhire v. Smith, 39 Ark. 280; Hammond v. Creekmore, 48 Ark. 264; Rand v. Walton, 130 Ark. 431; 11 R. C. L. 1146, sec. 12. The testimony was sufficient to warrant a finding that the appellees were in possession of the land in controversy through George Smith; that Smith was not technically a tenant of the appellees, but only a share-cropper, or laborer.

Appellant next contends that there was no testimony tending to prove that the appellant took possession of the land in controversy by force. The appellees brought this action under § 4837 of Crawford & Moses’ Digest, and under that section force is the gist of the action. Miller v. Plumber, 105 Ark. 630, and cases there cited. Actual physical violence upon the person in possession by the one who takes possession is not a prerequisite to the maintenance of the action, but “if the demonstration of force is such as to create a reasonable apprehension that the party in possession must yield to avoid a breach of the peace, it is sufficient. It is not necessary that the party be actually put in fear. There need only be such a number of persons or show of force as is calculated to deter the person in possession from undertaking to send them away or to retain his possession.” 11 R. C. L., § 23, pp. 1160-1161. To determine whether or not force was used, the personnel and situation of the parties and the circumstances surrounding them at the time must all be taken into consideration. The testimony showed that George Smith, the share-cropper or laborer, was a negro. The appellant was a white, woman. She loaded her household goods in a wagon, and, in company with a white man, drove •over to the house occupied by Smith. She told Smith to get his things out of the house; that she was going to take possession of the place. Smith went up to the store on the place to consult with “Mr. Bob” about it. He didn’t see Mr. Bob, but asked Mr. Mike about it, who told him to go back down there until Mr. Bob came. When Smith went back, he found that the appellant had moved in, and she told Smith that she didn’t want him to give her any trouble. Smith moved away because he was afraid to stay there. His household goods liad been moved out in the back yard, and the appellant’s goods were in the house when he got 'back from the store.

This testimony was sufficient to warrant the court in submitting the issue to the jury as to whether or not appellant used force necessary to sustain the action under § 4837, C. & M. Digest, supra: The court submitted the issue to the jury under proper instructions.

Appellant next contends that the court erred in refusing to grant certain of its prayers for instructions which we deem it unnecessary to set forth and discuss in detail. Such of these prayers as were correct were fully covered by instructions which the court gave. We have examined them and find no error in.any of the -court’s rulings.

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


author: Hart, J.

text:
    Missouri Pacific Railroad Company v. Tompkins.
    Opinion delivered January 29, 1923.
    1 Removal of causes — jurisdiction after petition for removal.— Where a cause is removable to the Federal court, a State court - is without jurisdiction, to proceed with the trial after a petition for removal is filed.
    2. Courts — conclusiveness of federal courts’ decision. — As the right to remove causes to the Federal court is derived from the law of the United States, the State courts are bound by the decisions of the United States Supreme Court on the question whether a ease is made for removal of a cause from a State to a Federal court;.
    3. Removal of causes — -nonresident defendant. — Under Jud. Code U. S. § 28, as interpreted by the Supreme Court of the United States, a suit in -a State court against a nonresident defendant by a resident of the State but not of the Federal district in which such State court is situated may be removed to the Federal court, over plaintiff’s objections, if the other conditions of removability are complied with.
    Appeal from Clark Circuit Court; George B. Haynie, Judge;
    reversed.

      E. B. Kinsworthy and B. E. Wiley, for appellant.
    Appellant having in apt time filed a .sufficient petition and bond for removal of the cause to the United States District Court, it should have been removed to that court. The fact'that neither the plaintiff nor the defendant resided in the judicial district where thé action was brought does not affect the removability of the cause. Ex parte Wisner, 203 U. S. 449, on which this court has based its decisions contrary to the above contention, has been modified and partially overruled. 219 U. S. 363, 55 L. ed. 252; 209 U. S. 490, 52 L. ed. 904; 210 U. S. 368, 52 L. ed. 1 And many of the Federal courts hold it is no longer an -authority, and that these cases are removable. 218 Fed. 91; 224, 566; 251 Fed. 337; 222 Fed. 579; 244 U. S. 41; 205 Fed. 821; 211 Fed. 343. B-ut-the Supreme .Court of the United States has recently settled this question favorably to appellant’s contention. See General Investment Go. v. Lake Shore é Michigan B. Go., 43 Sup. Ct. Rep.-106.

      R. P. Hamby, and Tompkins, McRae & Tompkins, for appellee.
    The cause was not removable. The suit was brought outside-of the Federal district in which the plaintiff resided. The defendant is a foreign icorporation. 203 U. S. 449; 98 Ark. 507; 107 Ark. 512; 129 Ark. 550. The language of the Judicial Code, § 51, admits of no uncertainty on this point.
   Hart, J.

W. V. Tompkins, administrator of the estate of J. U. Brown, deceased, brought this suit against the Missouri Pacific Railroad Company to recover damages in the sum of $30,000 on account of his intestate being negligently killed by one of the defendant’s trains.

On December 3, 1920, J. U. Brown, while driving Ins automobile across a public railroad crossing over the defendant’s railroad in the city of Prescott, Ark., was struck by one of the defendant’s passenger trains, with the result that the automobile was demolished and Brown was instantly killed. Brown left a widow and two minor children dependent upon him.

The case was tried before a jury in the Clark Circuit Court, and there was a verdict and judgment for the plaintiff in the sum of $7,500.

The Missouri Pacific Railroad Company duly filed its petition for removal of the action to the District Court of the United States, and as grounds therefor alleged that it was a corporation organized under the laws of the State of Missouri, with its general officers and principal place of business in the city of St. Louis, in said State.

The petition further alleged that the plaintiff is a citizen and resident of the State of Arkansas, and that the amount in controversy in this action exceeds $3,000, exclusive of interest and costs.

The petition further alleges ’that J. U. Brown.was killed by one of the defendant’s passenger trains while attempting to drive an automobile across a public street crossing in the city-of Prescott, Ark., and that said accident happened without fault or carelessness on the part of the defendant.

The petitioner also filed its bond for the removal of the action, as required by law.

The Clark Circuit Court denied the petition of the defendant for the removal of the cause, and proceeded with its trial, with the result above stated.

The case is here on appeal.

If the cause was removable, the circuit court was without jurisdiction to proceed with the trial, and its judgment must be reversed for this reason, whether it might otherwise be sustained or not.

The ground of removal was the diverse citizenship of the parties. The petition for removal alleged that the plaintiff was a citizen of the State of Arkansas and the defendant was a corporation organized under the laws of the State of Missouri, and a citizen of that State within the meaning of the Federal statute providing for the removal of causes on account of' diverse citizenship.

The right to remove is derived from the laws of the United States, and whether a case is made for removal is a Federal question. Hence we are bound by the decisions of the United States Supreme Court on the question. K. C. S. Ry. Co, v. Wade, 132 Ark. 551, and Chesapeake & Ohio Ry. Co. v. McCabe, 213 U. S. 207.

Sec. 28 of the Judicial Code enacted by the 'Congress of the United States provides:

“Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction by this title, and which are now pending or which may hereafter be brought in any State court, may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that State. ”

According to the interpretation placed upon this section by the Supreme Court of the United States, in General Investment Company v. Lake Shore & Michigan Southern Railway Company, 43 S. C. Rep. 106, and Lee v. Chesapeake & Ohio Railway Company, 43 S. C. Rep. 230, if the plaintiff brings suit in a State court not in his district, the defendant, being a nonresident of such State, can remove such suit to the Federal court, whether the plaintiff objects or does not object, if the other conditions of removability are complied with.

Following these decisions, we hold that the case was removable to the Federal court, and, for the error in refusing to transfer it to the proper Federal court, the judgment of the Clark Circuit Court must be reversed, and the cause will be remanded for further proceedings according to law.


text:
    Pratt v. State.
    Opinion delivered January 29, 1923.
    1. Intoxicating liquors — manufacture—evidence.-—-In a prosecution charging defendant with being interested in the manufacture of alcoholic, fermented and intoxicating liquors, evidence held sufficient to connect defendant with the manufacture of such liquors.
    2. Criminal law — instruction—argumentativeness.—In a prosecution for manufacturing intoxicating liquors, where defendant claimed that the mash which he had was being prepared for hog feed, a requested instruction that, to convict defendant, you must find that he manufactured some of the liquors prohibited by law or was interested in the manufacture, “and it is not sufficient that he.was interested in the mash only as hog feed,” was argumentative, and carried a suggestion that the mash in question was prepared for hog feed.
    Appeal from Lawrence Circuit Court, Eastern District; Dene H. Coleman, Judge;
    affirmed.

      Smith & Gibson, for appellant:

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Hart, J.

W. E. Pratt prosecutes this appeal to reverse a judgment of conviction against him upon an indictment charging him with being interested in the manufacture of alcoholic, fermented, and intoxicating liquors, contrary to the statute.

On the part of the State it was shown that the sheriff of Lawrence County procured a search warrant to search the house of Lute Smith, situated in the Eastern District of Lawrence County, Ark., for a still.. When the officers reached Smith’s home, he was absent, but they found his wife and daughter and the defendant Pratt in the house. Upon searching the house they found four fifty-gallon barrels of mash which had begun to ferment, and was intoxicating. The mash was made of chops, sugar and water, and tasted like it had just begun to sour and “work up good.” They also found a number of fruit jars containing about one-half a teacup each of moonshine whiskey. When the officers entered the house, Mrs. Smith made a motion towards her daughter, and the daughter left the house with a half-gallon fruit jar full of whiskey. The officers attempted to seize her, and after a struggle with the mother, who went to the assistance of her daughter, they took the whiskey away from the daughter. During this time the defendant ran away from the house and hid in a treetop, where he was captured by one of the officers. He admitted to the officers that he was interested in the mash, and said that it had been prepared for hog feed.

Mrs. Smith stated to the officers, in- the presence of the defendant, that her husband and the defendant had made the mash while she was away from home. The officers found where there had been a furnace prepared in the smokehouse and a pipe was in a ditch leading off from it, indicating that whiskey had been manufactured there. They found no worm, but there were several containers in the smokehouse which smelled -of whiskey.

The defendant was a witness for himself, and denied having anything whatever to do with manufacturing whiskey at Smith’s house, 'and stated that he just happened to be there on the day in question.

The evidence for the State clearly shows that the mash was suitable for making intoxicating liquors, and had been used and was being used for that purpose. This is shown not only by the fact that the mash was in a state of fermentation and was intoxicating, but other intoxicating liquors were found on the premises.

According to the testimony of the officers, the defendant admitted that he was interested- in making the mash, but stated that it was being prepared for hog feed. The fact that sugar was used in its preparation negatived the idea that it was being prepared to feed hogs. The fact that it was in a high state of fermentation and that there were four fifty-gallon barrels of it, also tended to show that the mash was being used to make moonshine whiskey. The evidence for the State was sufficient to connect the defendant with the manufacture of intoxicating liquors and to support the judgment of conviction.

The court specifically told the jury that it must find beyond a reasonable doubt, from the evidence in the case, that the liquor found in the barrels was alcoholic .or intoxicating liquor, and that the defendant was interested in making it, before it would be authorized to convict him. This was a clear presentation of the theory of the,State. But it is contended by counsel for the defendant that he was entitled to have his theory of the case submitted to the jury in an appropriate instruction. His claim was that the .mash was being prepared for hog feed, and that he had a right to have this theory of the case submitted to the jury, in compliance with the rule announced by this court in Milliner v. State, 154 Ark. 608. This is true if the defendant had asked a correct instruction on this point. The instruction asked by the defendant is as follows:

“You are instructed that, before you would be authorized to convict the defendant under this indictment, you must find that he manufactured some of the liquors prohibited by law, and named in the charge, or was interested directly or indirectly in the manufacture of the same. And it is not sufficient that he was interested in the mash in proof only as hog feed. ’ ’

The concluding part of the instruction is what the defendant claims presented his theory of the case. It will be noted that this part of the instruction is argumentative in form, and for that reason the court was not required to give it. The instruction carried with it a suggestion by the court that the mash in question was prepared for hog feed, when all that the defendant was entitled to was to have this question submitted to the jury. In other words, it was a question for the jury to say, under all the facts and circumstances in evidence, whether or not the mash in question was being prepared for hog feed. The court could not indicate to the jury that this was the use to be made of it.

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


text:
    Wilson v. Pannell.
    Opinion delivered January 29, 1923.
    1. Judgment — res judicata. — A decree dismissing a complaint to quiet title on the ground that the equitable title was in defendant, which dismissal was affirmed on appeal, was res judicata in an action of ejectment by plaintiff against defendant to recover the same property under essentially the same state of facts, though a decree quieting title in defendant in the former suit was reversed because her husband was not made a party.
    2. Ejectment — equitable title. — An equitable title sufficient to prevent the holder of the legal title from maintaining a suit in equity to quiet title is sufficient to prevent him from maintaining an action of ejectment under substantially the same facts.
    Appeal from Clark Circuit Court; George R. Eaynie, Judge;
    affirmed.
    STATEMENT OF PACTS. .
    This is an action of ejectment brought in the Clark Circuit Court by Thos. N. Wilson against Mrs. S. A. Pannell to recover a certain lot in the city of' Arkadelphia, Ark.
    Mrs. Pannell filed an answer in which she claimed the equitable title to the lot, and also interposed a plea of res judicata.

    Thos. N. Wilson was a witness for himself. According to his testimony, he had lived in Arkadelphia and practiced law there for the past thirty years. The lot in controversy is on one of the principal streets of the town, and has been vacant for the past ten or fifteen years. W. G. Pannell formerly owned the lot and had a blacksmith’s shop on it. He left Arkadelphia about thirty years ago, but has made a good many visits back there, and always claimed the lot in controversy. A son of W. G. Pannell operated the blacksmith shop for a number o.f years after his father left Arkadelphia. In September, 1920, Wilson obtained a quitclaim deed from W. G. Pannell to the lot and paid him $500 for it. Wilson considered this a fair value for the lot. He knew that the defendant had not been divorced from her husband and had not relinquished her dower in the lot at the time he purchased it. Wilson did not know, however, that Mrs. Pannell claimed title to the. lot at the time he purchased it. Pannell told Wilson that his wife would not join him in the deed.
    Mrs. S. A. Pannell was a witness for herself. According to her testimony, W. G. Pannell is her husband, and deserted her and their three minor children in 1897. Since that time he has not contributed anything to the support of herself and their children. When her husband left, she took possession of the blacksmith shop on the lot in controversy, and two of her children worked in the shop. At the time her husband left, her children were respectively 19, 17, and 12 years of age. Mrs. Pannell also kept boarders and paid the debts of her husband, amounting to between $800. and $1,000. She paid these debts to keep her husband’s creditors from attaching the lot in controversy. After doing so, she had the lot assessed in her own name and paid the taxes on it for twenty-four years. She has claimed to own the lot since her husband left her. Her testimony is corroborated by that of her eldest son.
    According to his testimony, the lot was worth at least $2,500 when Wilson purchased it.' Wilson had approached him several times, as agent for his mother, to purchase the lot. The witness told Wilson that the lot belonged to his mother, and that she did not wish to sell it. Wilson knew that his father and mother had been separated for twenty-three years, and that his mother claimed the property.
    The proceedings in a chancery case between these same parties were introduced in evidence on the plea of res judicata. In that case Wilson brought a suit in equity against Mrs. Panned to quiet his title to the lot, and Mrs. Panned fded an answer and cross-complaint in which she claimed the equitable title to the lot, and also sought to quiet her title to it.
    The chancery court dismissed the complaint of Wilson for want of equity, and there was a decree in favor of Mrs. Panned quieting and confirming the title to the lot in her.
    Upon appeal to this court the decree of the chancery court dismissing the complaint of Wilson for want of equity was affirmed, but the decree quieting and confirming the title in Mrs. Panned was reversed because her husband had not been made a party to the suit. See Wilson v. Pannell, 149 Ark. 81.
    The case was tried before the circuit court, which sustained Mrs. Panned’s plea of res judicata, and from the judgment rendered in her favor Wilson has duly prosecuted an appeal to this court.

      J. H. Crawford, D. H. Craivford and T. D. Crawford, for appellant.
    1. The statute of limitation did not run in favor of Mrs, Panned against her husband. 86 Ark. 488, Even if it could have run in sucli a case, there is no proof of adverse holding.
    2. Treating appellee’s plea of estoppel, there being no allegation nor proof on which to base a finding of estoppel in pais. Laches is a defense available only in equity, and has no application in ejectment. 88 Ark. 478; 100 Ark. 399.
    3. The title to the property was not adjudicated in the former suit. 149 Ark. 81. That decision held that the legal title was in W. Or. Pannell, p. 85, Id. And that title passed to appellant. Appellant is not barred by the adjudication in that case. 55 Ark. 286; 9 E. O. L. 209, § 30; 49 Am. St. Rep. 833, note.
    The holding on former appeal that appellee was not entitled to relief for want of a necessary party, her husband, was in effect a dismissal of her action for want of a necessary party, and was not res judicata as to the subject of the controversy. 127 U. S. 619; 108 S. W. 118; 123 Wis. 510. See aiso 66 Ark. 336; 121 Ark. 594; 136 Ark. 115; 96 Ark. 87; 128 Ark. 492; 36 O. St. 347; 147 Ark. 236; 11 Ark. 411.

      Callaway & Callaway, for appellee.
    1. Appellant is not an innocent purchaser, as was adjudicated on the former appeal. 149 Ark. 81. He could acquire no greater rights by purchase than his grantor had. Moreover, a purchaser taking by quitclaim deed with knowledge of another’s equities is not an innocent purchaser. 137 Ark. 170; 68 Ark. 157; 50 Ark. 322; 23 Ark.' 270.
    2. Appellee is not concluded by 86 Ark. 448, relied on by appellant, and it has no application here since Pannell abandoned all marital relations with appellee in 1897. Appellant is barred by the statute. 29 Pac. 1117 ; 158 Cal. 149; 110 Pac. 313; 132 Pac. 291.
    3. Pannell was estopped by his conduct from disturbing appellee’s possession, and appellant, being a purchaser with full notice, and without a good and sufficient consideration, is also estopped. 21 C. J. 1152.
   Hart, J.

(after stating the facts). The judgment of the circuit court sustaining Mrs. Pannell’s plea of res judicata was correct. A comparison of the statement of facts made by the court in the suit brought in equity by Wilson against Mrs. Pannell to quiet his title to the lot with t.lie statement of facts in the present case will show that they are in all essential respects the same.

In the equity case Mrs. Pannell defended on the ground that she had the equitable title to the lot in controversy, and for that reason Wilson could not prevail in his suit to quiet title. The court dismissed the complaint on the ground that the equitable title to the lot was in Mrs. Pannell. This is clearly shown by a quotation from the opinion in the equity case as follows:

“Appellant insists that the court erred in dismissing his bill for want of equity. This must depend upon whether his grantor, W. G. Pannell, was in position to assert his legal title as against the equitable rights of Mrs. S. A. Pannell in a court of equity, for appellant cannot be regarded as an innocent purchaser, as the record reflects that he had a personal acquaintance with his grantor, W. G. Pannell, and-the appellee, Mrs. S. A. Pannell, and understood that they had lived apart for twenty-three years; that said appellee had been in the actual possession of the lot during that period, paying taxes thereon and claiming ownership thereto.” Wilson v. Pannell, 149 Ark. 81.

It is true that the court denied the right of Mrs. Pannell to have her equitable title in the lot quieted. This was not done, however, because the court was of the opinion that the equitable title was not in her, but relief was denied her on the specific ground that her husband had not been made a party to the suit, and that therefore it was a technical error for the court below to quiet the title in her.

As above stated, however, the court held in the equity case that Mrs. Pannell had the equitable title to the lot, and for that reason denied the prayer of Wilson to have his title quieted, holding that he was not an innocent purchaser and had no greater right in .the lot than his grantor, the husband of Mrs. Pannell.

Therefore in a suit between the same panties for the same property,under a state of facts essentially the same, the court having held that the equitable title was in Mrs. Pannell, her plea of res judicata is fully established. Under our Civil Code a defendant may set forth in his answer as many grounds of defense, whether legal or equitable, as he shall have. Crawford & Moses’ Digest, § 1194, 4th subdivision. Under this provision of the Code it is well settled that the defendant in an action at law must interpose all defenses, legal and equitable. Daniel v. Garner, 71 Ark. 484, and Wales-Riggs Plantations v. Banks, 101 Ark 461.

Therefore it necessarily follows that if the equitable title of Mrs. Pannell was sufficient to prevent Wilson from maintaining a suit to quiet title in the lot, it would also be sufficient, in a suit between the same parties,under substantially the same facts, to prevent him from maintaining an action of ejectment whereby he would recover possession of the lot and thus defeat the equitable title of Mrs. Pannell. In short, it would do no.good to hold that the equitable title to the lot was in Mrs. Pannell, if she could not interpose it to a legal as well as equitable suit for the property against one who had purchased the lot from her husband with full knowledge of her rights.

It follows that the judgment must be affirmed.


author: Smith, J.

text:
    St. Louis-San Francisco Railway Company v. Davis.
    Opinion delivered January 29, 1923.
    Actions — splitting cause of action. — Where a train running 40 miles an hour struck and killed or crippled 7 head of cattfe belonging to plaintiff in a distance of 225 feet, there was a single act of negligence and one cause of action, and where a judgment in the first of seven separate causes of action was paid by the defendant, the causes of action in the other six cases should have been abated.
    Appeal from Crawford Circuit Court; James Cochran; Judge;
    reversed.

      W. F. Evans, Warner, Hardin & Warner, for appellant.
    A single cause of action cannot be split in order that separate suits may be brought for the various parts of wjiat really constitutes but one demand, whether ex contract or ex delicto. 24 Ark. 177; 63 Ark. 259; 118 Ark. 402; 1 C. J. sec. 276, p. 1106, note 48; 1 Suth. on Damages (3d ed.) sec. 106; 18 Pac. 502; 127 S. W. 472; 50 L. R. A. 161; 38 Mo. Ap. 511; 24 Okla. 96; 18 Pac. 636; 120 Ky. 686; 115 Tenn. 172.
    A single tort can be the basis of but one action. 1 Suth. on Dam., sec. 110, p. 315; L. R. A. 1917-C, 543'; L. R. A. 1916-E, 974; 50 L. R. A. 828; Id. 161; 3 L. R. A. (N. S.) 225; 1 Freeman on Judgments, sec. 241; 23 Cyc. p. 1178; 25 Mo. Ap. 650; 1 C. J., sec. 301, p. 1118.
    Where an attempt is made to split the cause of action and bring successive suits for parts, a recovery in the first suit, though for less than the whole demand, will be a bar to the second action. 118 Ark. 402; 60 Ark. 146; 95 Ark. 47; 119 Ark. 263.
    For other authorities holding that there was but one cause of action see 1 R. C. L. 326, p. 346; 120 A. S. R. 379; 83 Mo. 660; 13 Ind. 103.

      George Stockard, for appellee.
    Where several judgments are rendered upon the same cause of action, .a satisfaction of one of them will operate to discharge the others, provided the costs of all the suits be paid, also the interest on the judgment which is urged as a bar. 16 Stand. Proc., p. 593. The killing of each animal was a separate offense, althoug’h occasioned by the same agency. A case illustrative of our contention, where separate suits were brought under similar facts, see 41 Kan. 521.
   Smith, J.

On September 15, 1921, appellees filed seven separate suits before a justice of the peace against the appellant railroad company to recover damages for seven head of cattle which they alleged were killed and crippled by one of defendant’s trains on the 6th day of August, 1921. A summons was issued in each case, and on September 29, 1921, a separate judgment was rendered in each case for the amount sued for. The judgment in the first case was for $60 for one heifer; that in the second case was for $60 for another heifer, and the judgments in the four other cases were for different amounts aggregating $180.

On October 7, 1921, the railroad company paid and satisfied the judgment in the first case filed, and on October 12, 1921, appealed the remaining six cases to the circuit court.

There is some controversy about the conversation which occurred between the attorney for appellee and the attorney for appellant at the time the first judgment was satisfied, as to the purpose in satisfying' it and in not satisfying the other judgments; but we regard this conflict as unimportant, for the reason that the railroad company had the right to satisfy the judgment if it saw proper to do so.

Upon the appeal the cases were consolidated and tried together, after the railroad company had filed an answer setting up the facts stated above, and pleading the satisfaction of the first judgment in abatement of the other suits.

There was testimony from which the jury might have found that the railroad company had not overcome the statutory presumption of negligence arising from the killing of the animals by a moving train. The animals were struck about 9:50 p. m. by a night passenger train, during a drenching rain, and the engineer and fireman testified that the cattle were bunched together and were lying near the point of a curve, and were not seen by them in time to have avoided striking them, because of the curve. The testimony on the part of appellees was to the effect that the animals were found lying along the track, and one witness stated that the last animal killed was lying 225 feet from the first animal killed. The other animals were lying between. Other witnesses .for appellees placed the animals nearer together than we have stated, but none of them place the entire distance at more than 225 feet, and we state the testimony most favorably to appellees. One of the animals struck by the train was not killed, but was' injured, and strayed away from the railroad, and was not found for several days.

The jury found for appellees, and the court rendered judgment in their favor for the value of the stock as found by the'jury, but assessed the costs against appellees, and the railroad has appealed.

We think the plea in abatement should have been sustained, as appellees had but one cause of action, and had no right to split this cause of action into parts.

In Sutherland on Damages, page 381, (4th ed.) it is said: “The principle is settled beyond dispute that .a judgment concludes the rights of the parties in respect to the canse of action stated in the pleadings on which it is rendered, whether the suit embraces the whole- or only a part of the demand constituting the cause of action. It results from this principle, and the rule is fully established, that an entire claim arising either upon a contract or from a wrong cannot be divided and made the subject of several suits; and if several suits be brought for different parts of such a claim, the pendency of the first may be pleaded in abatement of the others, and a judgment upon the merits of either will be available as a bar in the others.”

This statement of the law accords with our own cases on the subject. Reynolds v. Jones, 63 Ark. 259; Hemingway v. Grayling Lumber Co., 125 Ark. 400. Numerous cases are cited in the brief of counsel for appellant which support the text we have quoted.

Counsel for appellee cite the case of Mo. Pac. Ry. Co. v. Scammon, 41 Kan. 521, in which the owner of a mare was permitted to sue for and recover its value after having sued for and recovered the value of a colt which had been killed by the same train which had killed the mare. The facts recited in the opinion of the court were that the colt was first struck and killed, and then the mare was struck and injured at a point thirty rods from where the colt was struck. The court said there was a difference of time and locality, and that this difference made and constituted separate and distinct causes of action. The court stated the fact that the killing of the colt might have been prevented by the exercise of ordinary care, while the injury of the mare must have been the result of gross negligence. The court, however, recognized and stated the principle which controls here, for it was there said: “When two horses are killed by the cars of a railroad company at the same time, or when different chattels are taken by one trespass, or converted by one person at the same time, but one recovery can be had. This rule applies in all such cases where the tort, trespass, or conversion consists of one entire and undivided act.”

We think the jury was warranted in finding that the injury to the stock could have been averted had the proper precautions been taken, notwithstanding the character and the location of the curve at the point where the .animals were struck; but we think there was but a single act of negligence, and that there was no intervening time during which anything could have been done, or was omitted, which constituted an additional act of negligence. A train moving at the rate of 40 to .45 miles per hour would travel the distance of 225 feet in such a short space of time that nothing could have been done, after striking the first animal, to prevent striking the others, even though we assume that the animals were not thrown or carried any part of that distance by the train but were in fact that far apart when the first one was struck.

The first suit is a bar to the others, and the judgment-must therefore be reversed and the cause dismissed.


author: Humphreys, J.

text:
    Missouri Pacific Railroad Company v. Hanna.
    Opinion delivered January 29, 1923.
    1. Carriers — negligence—alighting prom moving trains. — Though the transportation contract of a shipper accompanying- live stock provided that he was to remain in the caboose and not get off from a moving train, he could nevertheless sue for personal injuries sustained' in alighting from a moving train on the advice of the conductor; the suit being not for breach of a contract but for the negligence of the carrier’s servant.
    2. Trial — instruction assuming pact. — In an action for personal injuries sustained by a passenger while alighting from a moviñg train on the advice of the conductor, an iiistruction which assumed that the conductor was acting within the scope of his authority in directing the passenger to get off was not erroneous where such fact was established by the evidence.
    3. Trial — instruction as to negligence. — In an action for personal injuries sustained by an owner accompanying a shipment of live •stock while alighting from a moving train under advice of the conductor, an instruction which assumed that it was negligence for a conductor to advise a passenger to alight from a moving train was correct.
    Appeal from Poinsett Circuit Court; J. M.'Futrell, Judge;
    affirmed.

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

      1. Tlie question of liability in this case is to be determined according to the law of the State of Illinois, where the injury occurred. 194 Fed. 79, 114 C. C. A. 157; 113 Ark. 265; 142 Ark. 59; 78 S. E. 925; 119' N. E. 539; Hutchinson on Carriers, § 205; Elliott on Contracts, § 3313.
    2; Under the law of the State of Illinois appellee cannot recover in this action. 229 111. 608, 82 N. E. 403 ; 85 Fed. 945, 948; 171 N. W. 86. The contract involved was a rule and regulation of the company on the subject of transporting shippers in charge of livestock, which the conductor had no right to abrogate. Elliott on Railroads, § 2391; Id. 2480.
    3. Instruction numbered 2 given by the court was erroneous in assuming that the conductor acted within the scope of his authority, and also in assuming that if he did invite plaintiff to alight from a moving train, such conduct constituted negligence on his part as 'a matter of law, whereas the question of negligence was one for the jury. 66 Ark. 109;- 98 Ark. 370; 11 Ark. 309 ; 97 Ark. 438.

      Irving M. Greer, for appellee.
    1. The validity of the contract, which was made in this State, will be determined by the law of this State. 5 R. C. L. § 670; 174 111. 13; 50 N. E. 1097; 189 Fed. 153; 10 C. J., 1164, Carriers; 227 Fed. 127; 29 C. C. A. 503.
    2. Negligence on the part of the railroad company or its employees deprives it of any protection under the contract, 1st, because such a contract is void as against public policy, and 2nd, because, under the statutes óf this State, such a contract is void and not enforceable. 5 R. C. L. § 665; Id. § 667-; 200 Fed. 197; Id. 207; 174 111. 13; 50 N. E. 1019; 40 Ark. 298; 105 Ark. 340; C. & M. Digest, §§ 843, 844. The procedure is governed by the lex fori. 113 Ark. 265. If negligence can be attributed to the defendant, liability attaches, irrespective of the contract. 4 R. C. L. § 596.
    3. Instruction No. 2 was correct, and properly assumed that the conductor was acting within the scope of his authority, and also in assuming that he was guilty of negligence as a matter of law, in inviting the plaintiff to alight from the moving train. 88 Ark. 12, and cases cited; 113 Ark. 265; Minor, Conflict of Laws, 486; 108 Ark. 292; 177Ind. 126; 97 N. E. 434; Ann. Cases, 1914-C, 1272.
   Humphreys, J.

Appellee instituted suit against appellant in the Poinsett Circuit Court to recover damages in the sum of $2,000, on account of injuries received in alighting from its train at Gale, Illinois, through the alleged negligent act of its conductor in inviting and advising him to get off at that place. It was alleged that appellee was, at the time, accompanying a shipment of stock from Harrisburg, Arkansas, to St. Louis, Missouri, and in obedience to the advice of the conductor did alight from said train, with the result that he was thrown to the ground and seriously and permanently injured; that at the time it was so dark he could not tell how fast the train was moving, and in debarking acted solely upon the advice of appellant’s employee.

Appellant filed an answer admitting that appellee was a passenger upon said train, accompanying a stock shipment to St. Louis, but denied all other material allegations in the complaint. Appellant also interposed the following defenses:

First, contributory negligence on the part of appellee in alighting from a moving train.

Second, the written contract for transportation, which required the appellee to remain in the caboose attached to the train, while the train was in motion, and to get on and off the caboose while the same was still.

The cause was submitted to the jury upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and judgment against appellant in the sum of $2,000. From that judgment an appeal has been duly prosecuted to this court.

Appellee, plaintiff below, introduced testimony to the effect that early in January, 1921, he shipped two carloads of cattle and one carload of hogs to St. Louis, Missouri, from Harrisburg, Arkansas; that he accompanied the livestock, riding by right as a passenger in the caboose; that when they were getting into Gale, Illinois, the conductor told the passengers to get off at the yard house, and it would save them walking through the dark yards; that it was then about nine o’clock, and dark; that all of them got their baggage and followed the conductor to the door for the purpose of debarking; that, while standing in the door, the conductor again told them to get off;.that the conductor got off first, J. E. Arnold next, and appellee next, who, by reason of the rapid movement of the train, was thrown violently to the ground, some twelve feet distant, and injured; that at the time he stepped off he thought the train was barely moving.

Appellant introduced testimony to the effect that the conductor told the passengers, if the train stopped at the hill, to get off so they would have time to eat; that the train was slowing down, and the conductor remarked, “I believe we are going to stop at the hill”; that the engineer took slack and started down the hill, whereupon the conductor told the passengers not to get off until they reached the bridge, about one hundred yards below the yard house; that the conductor himself got off at the yard house in order to register the train in; that Arnold succeeded in getting off safely, but that appellee fell in the attempt to do so. Appellant also introduced the bill of lading for the shipment of the livestock upon which appellant traveled, which contained a provision to the effect that the party in charge of the stock should remain in the caboose attached to the train while in motion, and to get on and 'off the caboose while the same was still.

Appellant’s main contention for reversal is that, according‘to the undisputed facts, appellee was injured while attempting to debark from a moving train, in violation of his contract for transportation. In support of this contention, appellant cites the case of Illinois Central Railroad Co. v. Jennings, 229 Ill. 608, which decided that such a stipulation was valid. Conceding that the liability is determinable by the law of the State where the injury occurred, and that the Supreme Court of Illinois has upheld the validity of such a clause in a transportat-ion contract as being- reasonable and just, the contract and adjudication, upholding- its validity, have no bearing upon or application to the instant case. This suit is not for a breach of the contract, but for an injury resulting from an alleged negligent act of appellant’s employee. The action is outside of the contract. It is based upon the maxim, “respondeat superior,” which imputes liability to a master for the negligent acts of his servant, within the scope of the servant’s actual or apparent authority, irrespective of any contract. 4 R. C. L. § 596.

Appellant’s next and last contention for reversal is, that the court erred in giving instruction No. 2, which is as follows:

“If you find from a preponderance of the evidence that, upon approaching, or while in or near the yards of the defendant at Gale, Illinois, the conductor in charge of said train of defendant advised the plaintiff to alight or get off of said train at the yard office, and if you further find that plaintiff acted upon the advice of said conductor, and attempted to alight from said train, and that in attempting to alight from said train he was in the exercise of due care for his own safety, and if you further find that the plaintiff was injured in alighting from said train and falling, you will find for the plaintiff; and, unless you find for the plaintiff under this instruction, your verdict will be for the defendant.”

The instruction is assailed because it assumed that the conductor acted within the scope of his authority if he advised appellee to get off of a moving train at the yard house; and, if such advice was given, that it constituted negligence as a matter of law.

The conductor was in command of the train, and necessarily possessed authority to direct passengers when and Avhere to get off. His own testimony reveals that he had such authority. In instructing the jury it was therefore proper for the court to assume that he was acting within the scope of his authority if he directed appellee to debark at the yard house.

It was also proper to assume, in instructing the jury, that if the conductor directed appellee to get off of a moving train, which threw him violently to the ground in the attempt to debark, it was a negligent act as a matter of law. The general law is that a carrier owes a passenger the highest degree of care consistent with the practical operation of its trains (2 Hutchinson on Carriers [3d ed.] § 1118), and to direct a passenger in the night time to debark from a moving train without furnishing ample means and protection for doing so is clearly in violation of this duty, amounting in the law to negligence. Jones v. Chicago, M. & St. P. R. Co., 42 Minn. 183; Eddy v. Wallace, 49 Fed. 801; Lake Erie & W. R. Co. v. Huffman, 97 N. E. 434.

The issue of contributory negligence on the part of appellee in debarking from the moving train was submitted to the jury under proper instructions.

No error appearing, the judgment is affirmed.


text:
    Johnson v. Shy.
    Opinion delivered January 29, 1923.
    Bills and notes — innocent purchaser. — In a suit by an indorsee of a note, evidence held sufficient to support a finding that the note was purchased by the indorsee with knowledge that it was procured from the makers through fraud and deceit and without consideration.
    Appeal from Lonoke Chancery Court; J. E. Martineau, Chancellor;
    affirmed.

      James R. Reed, Lewis Rhoton and Robt. L. Rogers, for appellant.
    Appellant is by the record shown to be an innocent purchaser for value before maturity, and is entitled to recover. The equities are on appellant’s side, and ap-' pellees, not he, should suffer. 49 Ark. 214, and authorities cited.

      Trimble & Trimble, for appellees.
    It is obvious from the facts and circumstances in evidence that the corporation whose stock appellant was .selling was a bogus concern, the object of which was to sell stock through fraudulent misrepresentations and deceit, and that appellant knew this to be a fact. He cannot recover as an innocent and bona fide purchaser. 8 C. J. 1147; 230 Pa. 106,107; 55 Tex. Civ. App. 144,146; 118 S. W. 785; 26 Neb. 345, 352; 87 S. W. 740, 743, 6 Tex. Civ. App. 633, 638.
    One canno.t be a bona fide purchaser who has brought to his attention facts which should have put him on an inquiry, which, if pursued with due diligence, would lead to actual notice of some conflicting interest in the property. 76 Kan. 764, 765; 75 Minn. 542, 546, 78 N. W. 1; 15 N. T. 354, 362
   Humphreys, J.

This suit was instituted in the circuit court of Lonoke County by appellant against appellees to recover $750 and interest upon a note in said sum, executed by appellees to themselves and transferred to the Industrial Transportation Company, a corporation, for stock in the concern. It was alleged that the note was given for a valuable consideration, and was sold to and purchased by appellant for a valuable consideration, before maturity.

Appellees filed an answer admitting the execution of the note, but denying that it was given for a valuable consideration, and that the plaintiff purchased it before maturity for a valuable consideration, in good faith, and without notice of their equities. They also alleged' that the note was without consideration, and was procured through fraud and deceit, in which appellant participated. They also alleged that the note had been annulled, and its collection enjoined, by the chancery 'court, in a suit wherein appellees and others were petitioners and said Industrial Transportation Company was respondent.

By agreement of the parties, the cause was transferred to the Lonoke Chancery Court, where it was heard upon the pleadings, and oral and documentary evidence, which resulted in a decree dismissing appellant’s hill with prejudice.

The cause is before this court upon appeal for trial de novo.

The Industrial Transportation Company, a Washington, D. C., corporation, established an office in Little Bock for the purpose of selling its preferred and common stock. Its plan was to seíl a certain amount of stock in a town or city, and to build and operate a general store for the purpose of selling goods to its stockholders cheaper than they could purchase them elsewhere. The company employed a number of agents to sell stock, paying them a commission of fifteen or twenty per cent. The stock was sold at par for one-half cash and one-half on time, evidenced by promissory notes. The stock was to be delivered when the notes were paid. Appellant came to Arkansas from South Dakota, and was employed by the company in February, 1920. For the first few months he •accompanied the -other agents on stock selling tours. In April he began to sell stock, and made his first sale to appellees. He sold stock to the amount of $10,000 the first three months, and continued to work as a stock salesman until the following--December. During the time he visited the offices every week or two -and conversed and consulted with the officers of the company. Occasionally he sold on credit entirely, and took two notes in payment; one to the company for one-half the amount, and one to himself for the balance. When lie did this, he sent the company its note and cash in lieu of the note executed to himself. When he quit working for the company, he had notes in about the sum of $3,000 which he had obtained in this way. The $750 note in question was the only one he ever purchased from the company. He testified that he gave $735 for it in adjusting his commission and account; that he never knew of the comoanv ever selling any other note at a discount; that he bought the note from Gamble, the vice-president of the company, who turned' it over to Austin Hart to be used in settlement of commissions which the company owed him; that the company owed him about $2,300, all of which it would have paid him in cash had he not bought the note.

A copy of the note carrying the following indorsement was attached to the complaint:

“Pay to the order of Melvin Johnson, without recourse.
“Industrial Transportation Company,
“By---
“Treasurer.”

The note was introduced in testimony, and the name of Austin Hart appeared on the blank line after “By” and before “Treasurer.” Appellant testified that he did not know when Austin Hart signed his name to the indorsement. He also testified that he sold appellees $1,000 of the stock, but not the particular stock for which the note in question was executed; that he represented the company to be solvent and prosperous, stating, in explanation, that he thought it was, and that, as far as he knew, he was telling the truth. He denied, on cross-examination, that he represented to the Sliys and other stock purchasers that he had personal knowledge, or a knowledge from an examination of the records and books, that the company had a surplus, or •sinking fund, to pav 8 per cent, interest on all stock all the time, and ample funds to maintain the stores; but that he stated the books of the company were subject to audit by the United States Government once a year. He also stated that he discovered the failing condition of the companv in December, and quit working for them; that at that time he had in his possession $4,000 in notes which he had taken for stock' in Texas, that he turned back to subscribing stockholders.

S. L. Shy, one of the appellees, testified in part as follows: “Q. This is a suit on a note for $750 for stock you bought; are you acquainted with the plaintiff? A. Yes. Q. Who influenced you to buy this stock? A. Johnson. Q. What representations did he malee to you? A. He stated that they would at all times keep a full stock of goods in the store; that they had a charter from the government, and it was under government control, and the company would investigate the books every thirty days, and the government would audit the books once a year, and the company would audit the books every thirty days, and that the stock would pay eight per cent, all the time. Q. Did he represent that he would guarantee that would be done, or that was his understanding? A. He said it was positive. Q. Did he say anything at all about paying eight per cent, interest? A. He said you could buy all the stock you wanted, and that the company would pay eight per cent, interest on all stock. Q. Did he say there was any surplus or sinking fund for that purpose? A. Yes, he said the money was already made; they had that before. Q. Did he state that as facts ? A. Yes. Q. And that he knew about it? A. Yes. Q. He said he knew about it? A. He said he had examined the records and books to find out.”

He also testified that, while he did not buy the stock for which the note was given, directly from appellant, it was purchased on account of representations made by appellant when he first sold him stock; that when he purchased this stock at the office he treated it as appellant’s sale, and told them to allow -appellant the commission on it.

It was agreed by counsel for the respective parties that Mrs. Neeson, Mr. Sanders, and other witnesses for appellees would testify to substantially the same representations made by appellant to them, when selling them stock, as Shy testified were made to him by appellant.

The decree of the chancery court of Lonoke County, of date February 17, 1921, in which appellees and others were petitioners and the Industrial Transportation Company was respondent, was introduced showing 'that the note in question, as well as many others which had been executed .for stock in said, company, had been annulled for the want of consideration, and because procured through fraudulent misrepresentations.

Appellant contends that the decree is contrary to a preponderance of the evidence. He contends that the note was without consideration as between appellees and the Industrial Transportation Company, but contends that the record reflects, by a preponderance of the evidence, that he was an innocent purchaser of the note before maturity, for value. We cannot agree with him in this contention. The record reflects facts and circumstances sufficient to have put a man of ordinary prudence and caution upon inquiry, which, if followed up, would have revealed the fraudulent intent in selling its stock. This particular note was selected at'random from a large number and sold, contrary to custom, at a discount. It was inferable from the evidence that the instrument was signed by Hart after the suit was instituted. The note was purchased by appellant with a knowledge that the stock, for which it had been given, had not been delivered, and without seeing to it that same was delivered. The whole testimony tends to show a very close relationship between the officers of the company and appellant. The weight of the testimony warranted a conclusion that appellant wilfully misrepresented the financial condition.of the company in order to sell its stock.

The finding and conclusion of the court that the note was obtained by appellant with a knowledge that it was procured through fraud and deceit, and without consideration, is supported by the decided weight of the testimony.

The decree is therefore, affirmed..


text:
    Missouri Pacific Railroad Company v. Henderson.
    Opinion delivered January 29, 1923.
    1. Evidence — market prices.- — -Evidence of a live stock shipper as to a decline in the market .price of cattle between the time they should have been delivered at destination by the carrier and the time they were delivered, based upon information from the consignee and from a regular market publication showing quotations from day to' day on cattle, was sufficiently definite and competent as tending to establish the decline value of the cattle during the period of delayed shipment.
    2. Carriers — written notice to furnish car — waiver.—The rule that a railroad company when engaged in transporting live stock is bound to furnish suitable ears therefor on reasonable notice is controlled in interstate shipments by the character of notice approved by the Interstate Commerce Commission; and where it approved a rule requiring a written notice, an agent of a carrier could refuse to accept an oral order or notice to furnish a car for a shipper, but the requirements of written notice may be waived by the carrier's agent.
    Appeal from Faulkner- Circuit Court; George W. Clark, Judge;
    affirmed.

      Pryor & Miles, for appellant.

      R. W. Robins, for appellee.
   Humphreys, J.

This suit was originally instituted by appellee in the Faulkner Circuit Court against the Missouri Pacific Railroad Company to recover $153 damages on account of the decline in prices of a carload of cattle in the St. Louis market occasioned by the alleged failure to furnish a car for the shipment thereof from Conway, Arkansas, on the sixteenth day of October, 1919, after notification. The shipment occurred during -government control of railroads, -and by agreement James C. Davis, as agent for the President, was substituted for the railroad company, and entered his appearance. Upon- the trial of the cause before a jury, a verdict was returned and judgment rendered against appellant for $132 with interest -at the rate of 6 per cent, per annum from June 16, 1920, until paid, from which an appeal has been duly prosecuted to this court.

Two contentions are made by appellant for a reversal of the judgment; first, that the proof was insufficient to justify the submission to the jury as to whether cattle declined in price at St. Louis between the time they should have been delivered in the National Stock Yards and the time they were delivered; and second, because the court erred in permitting appellee to recover upon a verbal contract for a car in which to ship the cattle.

Appellee testified that the market price of the cattle he shipped was twenty-five cents less on the hundred pounds on the day the cattle arrived in the National Stock Yards, in East St. Louis, than on the day they should have arrived. The delay in shipment was eight days. He not only testified that he received this information from the man to whom he shipped the cattle, but that he obtained his knowledge from a regular St. Louis market publication, showing quotations from day to day of hogs, cattle, sheep, etc., which all the live stock men sent out regularly to shippers of live stock. Appellant was pressed closely on cross-examination concerning the character of the market publication, circular,- or card, and he said it was published by the National Live Stock Company for use by all the live stock commission merchants and their patrons. We think the testimony sufficiently definite and competent -as tending to establish the decline of the market value of the cattle during the period of delayed shipment. St. Louis & S. F. R. Co. v. Pierce, 82 Ark. 353; St. L. I. M. & S. R. Co. v. Laser Grain Co., 120 Ark. 119.

The appellant testified that on October 13, 1919, he called the agent at Conway, B. C. Benedict, and notified him to have a cattle-car ready on Saturday the 16th for shipment of a carload of cattle, belonging to him, from Conway, Arkansas, to the National Stock Yards at East St. Louis, Illinois; that the agent accepted the oral notice; that, pursuant to the notice, he drove his cattle a distance of twenty miles to Conway, where he was compelled to wait for a week before he could get a cattle-car. As against appellee’s right to recover, appellant cites a Missouri case, Underwood v. Director General, 222 S. W. 1037, in which it was held that “no verbal agreement for cattle-cars for shipment in interstate commerce can be- relied on under the Carmack amendment, which requires a written contract, nor can a preliminary oral agreement for future interstate shipment.” Appellee did not sue upon an oral agreement or contract of the government’s 'agent ito furnish him a cattle-car for an interstate shipment. He sued the carrier for not furnishing the oar within a reasonable time after notice to do so.

“A railroad company, when engaged in the business of transporting live stock, is bound to furnish suitable cars therefor upon reasonable notice, whenever it is within its power to do so without jeopardizing its other business.” (Syllabus) Hines v. Mason, 144 Ark. 11. Of course the above rule is controlled, in interstate shipments, by the character of notice approved by the Interstate Commerce Commission, and it approved a rule requiring a written notice. So, under the latter rule, the agent could have refused to accept an oral order or notice for a car. In the instant case, however, the agent accepted the oral notice or order, thereby waiving the form of notice. We know of no reason why the form of the notice or order might not be waived.

As the shipment occurred during government control, the judgment is reversed as to the Missouri Pacific Railroad Company, and affirmed 'as to James C. Davis, as agent for the President of the United States.


text:
    Kansas Flour Mill Company v. L. Gordon & Company.
    Opinion delivered January 29, 1923.
    Sales — place of delivery a jury question when. — In an aation for an alleged breach of contract to accept a carload of flour and shorts when it arrived at destination, evidence of a letter and telegram made the issue as to whether the flour was ordered f. o. b. destination or f. o. b. mill a question for the jury.
    Appeal from Conway Circuit Court; J. T. Bullock, special judge;
    affirmed.

      C. A. Holland, for appellant.

      Edward Gordon, for appellee.
   Humphreys, J.

Appellant instituted suit against appellee in the Conway Circuit Court to recover $523.56 damages growing out of an alleged breach of contract to accept a carload of flour and feed when it arrived at Morrilton, Arkansas. The issue joined by the pleadings was whether the carload of flour and feed wat ordered f. o. b. Morrilton, Arkansas, or f. o. b. mill, which was located at Kingman, Kansas, freight paid to Morrilton. The case was submitted to the jury upon the theory that, if it was found from a preponderance of the evidence that the order was f. o. b. Morrilton, Arkansas, a verdict 'should be returned for appellee. But if the order was an f. o. b. mill order, freight paid to Morrilton, a verdict should be returned for appellant. The jury returned a verdict for appellee, and a judgment was rendered dismissing appellant’s complaint, from which is this appeal.

Appellant’s only contention for reversal of the judgment is that the record contains no substantial evidence in support of the verdict and judgment. The testimony presented by appellant consisted of telegrams, confirmation contract signed by appellant alone, and a number of letters which subsequently passed between the parties. The first telegram was dated September 9, 1920, signed by L. Gordon in the following words: “We offer three dollars 300 gray shorts balance in flour at last quotation answer. ’ ’ After the exchange of several telegrams the car was ordered by appellee and booked by appellant for prices fixed in telegrams. Immediately after booking the order appellant mailed appellee the confirmation of the contract, which contained the following clause relative to place of delivery: “Sale and delivery f. o. b. Morrilton, Arkansas. On basis freight rate in effect.”

Appellant requested appellee to sign the confirmation contract and return one of the copies to it. Appellee did not sign or return the confirmation contract. The confirmation contract was dated September, 1920. Subsequently appellant shipped the carload of flour and shorts to appellee at Morrilton, Arkansas, with bill of lading attached, which did not arrive at Morrilton until October 5,-1920. In the meantime the price had gone down. Appellee refused to accept the car and pay the draft on the ground that it was billed f. o. b. Morrilton, and because the price had gone down, claiming that under the contract the title thereto remained in appellant until received by appellee at Morrilton, and that appellant must look to the carrier for damages on account of unreasonable delay in transportation; appellant claiming that under the contract the title to the flour and shorts passed to appellee after being billed to him at the place of shipment, and that he must look to the carrier for the decline in prices on account of the unreasonable delay in transportation. Appellant sent a man to Morrilton to resell the flour and shorts, who sold same to appellee at a loss of $523.56, it being understood that neither party thereby waived his rights under the original contract.

Mayo Gordon testified in behalf of appellee that the telegrams ordering the flour and shorts were based upon a letter antedating the telegrams, in which appellee requested appellant to quote prices on the flour and shorts f. o. b. Morrilton, Arkansas, and that the said' letter had not been introduced by appellant; that he had made a number of inquiries and orders for appellee from time to time, all of which were for prices delivered at Morrilton.

The letter referred to, when read in connection with the telegrams, made the place of delivery a question to be determined by the jury. The testimony referred to is substantial and sufficient to support the verdict and judgment.

No error appearing, the judgment is affirmed.


author: Per Curiam.

text:
    Kelley v. State.
    Opinion delivered February 5, 1923.
    Criminal law — inquiry as to sanity. — Neither at common law nor under the statute (Crawford & Moses’ Dig., § 3251) is one convicted of a less than capital offense entitled to have an inquiry in the circuit court as to his sanity; Crawford & Moses’ Dig., § 9669, providing. relief for convicts in the State Penitentiary on being found to be insane.
    Certiorari to Logan Circuit Court, Southern District; James Cochran, Judge;
    petition dismissed.

      Evans & Evans, for appellant.

      J. S. Utley, Attorney (leneral; Elbert Godwin and W: T. Hammock, Assistants, for appellee..
   Per Curiam.

The petitioner, A. J. Kelley, states in his petition that at the January term, 1922, of the Logan Circuit Court he was convicted on a charge of murder in the second degree and sentenced to a term in the penitentiary, and that the judgment of conviction was, on appeal, affirmed by this court ( Kelley v. State, 154 Ark. 246); that at the August term, 1922, of the said circuit court there was presented to the court by his wife, as next friend, a petition praying for a writ of error coram nobis, on the grounds that at the time of the trial and conviction he was insane and not capable of making a rational defense, but that the circuit court denied the writ, and on appeal to this court the judgment of the circuit court was affirmed (Kelley v. State, 156 Ark. 188); that on January' 22, 1923, petitioner appeared in the circuit court, surrendered himself into custody under his bond, and presented to the court, by his counsel, a petition stating that he was then insane, and asking the court to impanel a jury to inquire, into the question of his sanity or insanity at that, time, and that the execution of the judgment of conviction be postponed or suspended and petitioner committed, to the State Hospital for Nervous Diseases for treatment, instead of being immediately sent to the penitentiary, and that the circuit court denied said petition and ordered immediate- execution of the judgment of conviction, and denied an appeal to this court. The prayer -of the petition is that this court issue a writ of mandamus to the circuit judge, sitting in term time, to grant an appeal as prayed for by petitioner, and that an order be made by this court admitting the petitioner to bail during the pendency of the proceeding here to review the action of the circuit judge.

The petition has been submitted to this court to determine, in the first instance, whether there is a showing made in the petition to justify the issuance of the writ and the allowance of bail during the pendency of the proceeding.

The court has reached the conclusion that the facts set forth in the petition are not sufficient to justify the issuance of the writ of mandamus, as it is clear that the petitioner asked for relief which the circuit court "was not authorized to grant.

Learned counsel for petitioner rely upon the rule of the eonxmon law, which has been repeatedly recognized by this court, that the execution of a judgment of conviction against an insane person ought not to be carried out, and that the court wherein the conviction was had has power, before execution, to stay sentence during the period of insanity. Taffe v. State, 23 Ark. 34; Ferguson v. Martineau, 115 Ark. 317.

The common-law rule, however, was confined to relief sought in capital cases. 4 Blackstone, p. 24; 1 Hawkins’ Pleas of the Crown, eh. 1, sec. 3; 1 Hale, pp. 34-35. Blackstone stated- the rule as follows:

“If a man in his sound memory commits a capital offense, and before his arraignment he become absolutely mad, he ought not by law to be arraigned during such frenzy, but be remitted to prison until that incapacity be removed; the reason is because he cannot advisedly plead to the indictment; and this holds as well in case of treason as felony, even though the delinquent in his sound mind were examined, and confessed the offense before his arraignment. And if such person, after his plea and'before his trial, become of nonsane memory, he shall not be tried; or if, after his trial, he become of nonsane memory, he shall not receive judgment; or if, after judgment, he become of nonsane memory, his execution shall be spared, for, were he of sound mind, he might 'allege somewhat in stay of judgment or execution. ’ ’

Sir Matthew Hale stated the common-law rule in substantially the same terms as in Blackstone, and added the following qualifications:

“But because there may be great fraud in this matter, yet if the crime be notorious, as treason or murder, the judge, before 'such respite ef trial or judgment, may do well to impanel ,a jury to inquire ex officio touching such insanity, and whether it be real or counterfeit.” 1 Hale’s Pleas of the Crown, p. 35.

There is nowhere found a statement of any rule of the common law which would extend relief in a felony case of less degree than a capital offense, the reason evidently being that it is a rule of extreme emergency to prevent the execution of the death penalty on an insane felon.

The lawmakers of this State, in the enactment of the Criminal Code, § 291 (Crawford & Moses’ Digest, § 3251), provided a statutory remedy in such cases by empowering the sheriff charged with the execution of a death penalty to impanel a jury to determine the question of sanity or insanity of the convicted felon. It is thus seen that the lawmakers saw fit to go no farther than the common-law rale in affording a statutory remedy.

There is also a statute providing for relief to a convict confined in the State Penitentiary who is found to be insane. Crawford & Moses’ Digest, § 9669.

It is thus seen that there is no authority in the common law or in the statute for the remedy now sought by the petitioner, and the circuit court was correct in refusing to grant the prayer of the petition.

The prayer of the petition filed herein is therefore denied, and the petition is dismissed.