text:
    Arkansas Power & Light Company v. Hubbard.
    Opinion delivered May 19, 1930.

      Rose, Hemingway, Cantrell $ Loughborough and Elmer Schoggen, for appellant.

      Wills <& Wills and W. R. Bonham, for appellee.
   Butler, J.

This suit was brought by the appellee, Nettie Hubbard, to recover damages for personal injuries received from contact with appellee’s high-powered transmission line. There was a judgment in the court below for $5,000 in favor of the appellee, from which this appeal is prosecuted.

’The testimony regarding the alleged negligence of the appellant in the maintenance of its lines is in conflict, that upon the part of the appellant tending to show that the line was properly erected and maintained, the wires being the ordinary and suitable distance above the surface of the ground, having no slack except such as was necessary for the proper maintenance and operation of the lines. The testimony of witnesses for the appellee was to the effect that the wires had become slackened because of a leaning pole, to the extent that midway between the poles the -wires extended downward from horizontal to within from nine feet to about eighteen feet above the ground surface, as estimated by the different witnesses for the appellee. It was testified that the proper height at which the line should have been strung and maintained was several feet higher. The line extended along the side of the highway between Little Rock and Conway. About three or four miles from North Little Rock, on this highway, the appellee and her husband owned a store which was twenty-four feet back from the transmission line of the appellant, and they were also engaged in running a filling station, the pumps and tanks of which were 9 feet 7 inches high, and immediately under the transmission line. Just preceding the accident the appellee’s husband had cut a long* pine pole to which, near the top, had been fastened a large rectangular metallic sign at right-angles to the pole. Two long wires were fastened to the sign for the purpose of holding the pole steady and guiding- it while it was being set in a hole prepared between the two pumps. The appellee was called to assist in lifting- the pole; she held one of the steadying wires and a youth the other. As the pole was being- raised it fell against the transmission line, either the guide wire on the pole, or a portion of the sign coming in contact with the electric wire, resulting in a severe electric shock to the appellee, the extent of -which injury was a matter of dispute.

The appellant insists that incompetent and prejudicial testimony was admitted; that the court erred in instructing the jury, and, lastly, that the court erred in refusing to instruct a verdict for the defendant, because the testimony was insufficient to support the verdict in several 'particulars, which were alleged, the last of which is that the plaintiff was guilty of contributory negligence as a matter of law. It is unnecessary to discuss the assignments of error as presented, as we are constrained to the opinion that the evidence fails to support the verdict on the last ground mentioned, and that as a matter of law the plaintiff was guilty of contributory negligence, which bars a recovery.

All of the testimony tended to establish the fact that the electric wares were uninsulated, and the gasoline tanks and pumps were on a line immediately under the high transmission line of the appellant, and that a hole had been dug- between the two' and in line with them for the purpose of inserting the pole upon which the sign was fastened. According to the testimony of the appellee, the transmission line was not more than four to five feet above the pumps, and fifteen feet above the surface of the ground, and none of her witnesses put the height as over nineteen feet, so that the fact that these wares were uninsulated was readily discoverable from the place where the appellee was when engaged in helping to raise the pole, and she must be charged with knowledge of this condition. Hines v. Consumers’ Ice & Light Co., 173 Ark. 1103, 294 S. W. 409. The pole was of green pine, and, according to witness ’ owui figures, when set, was at least twenty-two feet high exclusive of the part set in the ground. To sustain a pole of the height and weight of this one, it is probable that it was set in the ground not less than from two to three feet, so that the pole, at the time appellee was helping to raise it, must have been from twenty-four to twenty-five feet long-. Whatever the length of the pole which they were attempting to raise, and whatever the height of the wire above the ground, it must have been true that the pole was much longer than the wires were high above the ground. The top of the sign was approximately five feet 'below the top of the pole, and this sign must have been as high or higher than the wires, for when “it swung around and hit the live wire,” the current of electricity passed down into the body of the appellee; otherwise, the part of the pole above the sign would have touched the wire without damage, or the pole would have fallen under the wire without touching same. There were four people attempting to raise this long green pine pole, which must have been very heavy, to an upright position to be slipped into the hole in the ground which had been dug for that purpose — two men, a boy, and a woman, the appellee. It must have been apparent to any one of ordinary prudence that there was danger that the pole might fall before it reached the perpendicular, and was set in the ground, and that, if this happened, the pole would come in contact, with the bare high-tension wires of the appellant. The appellee knew that the transmission wires were electric wires, but seeks to avoid the consequences of her negligent act by the statement that she did not know the ydres were dangerous.

On January 18, 1900, in the case of Danville Street Car Co. v. Watkins, 97 Va. 713, 34 S. E. 984, where, as in the case at bar, the plaintiff sought damages for injuries occasioned by contact with an electric wire, in passing upon the question of plaintiff’s contributory negligence, the Supreme Court of Virginia said: “Watkins states in his evidence that he knew nothing about electricity, and had never been in a power house, and did not know what effect it would have; that he did not know that contact with a wire charged with electricity would have any effect other than would be caused by contact with any other váre suspended over a street. We are indisposed to entertain at this day, when electricity is so generally applied as a motive power to machinery, a plea of ignorance of its dangerous properties.” Three decades since the opinion in Danville v. Watkins, the use of electricity has become so general and wide-spread as to be a public necessity, and its properties are so universally known and recognized as to be a part of the common knowledge of the people, and it seems to be the general rule, where such is the case, all persons of ordinary intelligence and experience will be presumed to know of its dangerous qualities. Stackpole v. Pa. G. & E. Co., 181 Cal. 700, 186 Pac. 354; Riggs v. Standard Oil Co., (Minn.) 130 Fed. 199; Morrison v. Lee, 16 N. Dak. 377, 13 L. R. A. (N. S.) 650; Aljoe v. Penn. C. L. & P. Co., 281 Pa. 368, 126 Atl. 759.

In the case at bar the appellee is a woman of mature years and of sound business judgment, and at least of ordinary intelligence, for she is shown to be capable of managing the business in which she and her husband are engaged, and of earning more than $100 a month. Electricity is used in connection with her business; her home and place of business are lighted by electricity. Appellee must have known that the transmission line, before reaching her place of business, had served others along its route, and that it extended on beyond to a neighboring town carrying on its wires the energy sufficient to serve the needs of that community. Common experience and observation must have given her knowledge that these wires carried a considerable voltage, and that they were dangerous, and whether or not she knew of the dangerous character of the transmission wires, the true test is, what would one of ordinary prudence and caution be presumed to know with reference to such wires, and what would one of such caution and prudence do or refráin from doing under similar circumstances? St. L. S. F. R. Co. v. Carr, 94 Ark. 246, 326 S. W. 850; Bulman Furn. Co. v. Schmuck, 175 Ark. 442-50, 299 S. W. 765, 35 A. L. R. 1039.

Appellee cites and relies upon the recent case of Arkansas Power & Light Co. v. Cates, 180 Ark. 1003, 34 S. W. (2d) 846, where it is held that the plaintiff, in helping to hang a sign, detached a wire which had caught on the side of a wall by pulling it from the ground, and which came in contact with an electric wire causing his injury, was not guilty of contributory negligence. The facts in that case were essentially different from those of th'e case at bar, which, as stated by the court, were as follows : “Spradling, who was on the ladder near the sign, was pulling tlie surplus wire through the vent, and, by reason of a crook on the end of the -wire, it caught in the mortar joint 'between the brick. The lower end of the wire extended down to the ground, and appellee’s intestate took hold of it to assist Spradling in pulling it through the vent. Spradling jerked the wire loose, and it fell over against the heavily charged electric wire, causing a short-circuit, the entire force of electric current passing through Cates’ body, -which caused his death.” The mere statement of the facts marks the distinction, and that case has no application to the instant case, nor is it in conflict with our holding herein.

It is insisted, however, by the appellee that the appellant waived its defense of contributory negligence, because it asked that that question be submitted to the jury. We do not think this ground is well taken, for the reason that at the close of the testimony the appellant proved for a peremptory instruction, which motion was denied, the appellant objecting and saving its exceptions. This preserved all its rights in the case as to insufficiency of the testimony on any one of the defenses made by it, including that of contributory negligence, and a subsequent request for an instruction defining contributory negligence, and to submit that question to the jury was not. a waiver of the request for an instructed verdict first made. Under the undisputed facts of this case, we are of the opinion that the appellee was guilty of negligence contributing t-o her injury, which bars recovery on her part. The judgment of the trial court is therefore reversed, and the cause is dismissed.

Humphreys and Mei-iaeey, JJ., dissent.

MoHaney, J., absent and no! participating.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Mutual Benefit Health & Accident Association of Omaha v. Hunnicutt.
    Opinion delivered June 2, 1930.

      Charles Q. Kelly, Robinson, House <i> Moses and Harry E. Meek, for appellant.

      Saxon, Wade <0 Warren and H. G. Wade, for ap-pellee.
   McHaney, J.

On February 28, 1927, appellant issued and delivered to appellee its policy of health and accident insurance which contained this paragraph: “The association will pay, for one day or more, at the rate of $100 per month for disability resulting from disease, the cause of which originates more than thirty days after the date of this policy, and which confines the insured continuously within doors and requires regular visits therein by legally qualified physician, provided said disease necessitates total disability and total loss of time. ’ ’

The policy went into effect at noon of February 28, and for any disease originating between that date and noon March 30, 1927, the appellant was not liable. The principal question to be determined in this case is, Did the disease which caused appellee’s total disability originate within that period of time? If it did, there is no liability. If it did not, appellant is liable. There wras a verdict and judgment for appellee.

The question to be determined is one of fact, and appellant concedes the well established rule of this court that, if there is any substantial evidence to support the verdict, it must stand. But it contends that there is no substantial evidence to support the verdict; that the undisputed evidence shows that the kidney affliction from which appellee was disabled originated prior to noon of March 30, 1927; and that therefore there should have been an instructed verdict in its favor. In determining this question we must consider the facts in the light most favorable to appellee. "When considered in this light, and, giving them the strongest probative force of which they are reasonably susceptible and every reasonable inference deductible therefrom, as we must do under the rule of this court, we cannot say there is no substantial evidence to support the verdict in this case. The evidence, when considered in the light most favorable to appellee, is substantially as follows: Appellee had some trouble with varicocele which was relieved bjr an operation on April 4. On March 31, he began to have some trouble in the region of the left kidney. This Avas not considered serious on April 4, when he was operated on for varicocele, but on April 34, he Avent to the Baptist Hospital in Little Bock and was operated on to drain the kidney, the drain from the left kidney to the bladder being stopped, which caused a pressure on the kidney and great pain. This Avas an acute condition which necessitated an operation. Dr. Eubanks, one of the surgeons, testified that this is a disease that develops suddenly. In “Physician’s Pinal Proof of Illness” Dr. Eubanks stated that the date of the onset of the disease Avas March 33. Appellee stated that it developed April 14, the date of the operation. "While this evidence is meager and is contradicted by other eAddence, yet it Avas submitted to the jury on instructions from the court that are not questioned, and we cannot say there Avas no substantial evidence to support the verdict.

It is finally insisted that the court erred in rendering .judgment for the statutory penalty and attorney’s fee, on the ground that appellant is admitted to do business in this State under the provisions of act 139, Acts 1925, p. 405, and that under said act it is exempt from the provisions of § 6155, C. & M. Digest, subjecting defaulting insurance companies to a 12 per cent. penalt}r and attorney’s fees. This contention is based on § 10 of said act, which provides that “associations organized or admitted to do business in this State under this act shall not be subject to any other law of this State governing insurance companies or construed to apply to associations operating under this act.”

We do xxot think appellant’s contention in this regard is sound. The clear meaning of § 10 of said act is that the general insurance laws relating to the organization and conduct of the insurance business shall not apply to companies operating- under said act. Section 6155, C. & M. Digest, is not a law governing the organization and conduct of the business of insurance companies. The same contention was made relative to the provisions of §16, act 137 of 1925, p. 390, in Old American Ins. Co. v. Hartsell, 176 Ark. 666, 4 S. W. (2d) 25. Section 16 provides “that the general insurance laws of this State or any laws governing the organization and control of mutual assessment companies shall not apply to or govern coinpanies organized under this act.” We there said: “We think, however, that counsel misinterprets the purpose and effect of § 16, above quoted, as the purpose of that section was to make the organization and control of companies ‘operating on the stipulated premium plan’ subject to the provisions of that act. Section 6155, C. & M. Digest, does not relate to the organization or control of insurance companies, a.s that sectioix was passed to require prompt settlement of any liability ‘in all cases where loss occurs, and the fire, life, health or accident insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor,’ and the provisions of that section apply to the companies named, regardless of the manner in which they may be organized or controlled. ’ ’

In Springfield Mutual Ass’n v. Atnip, 169 Ark. 968, 279 S. W. 15, we held that the provisions of § 6155, C. & M. Digest, apply to mutual assessment associations, not doing business as fraternal benefit societies, as defined by C. & M. Digest, § 6068. See also Mutual Relief Ass’n v. Poindexter, 178 Ark. 205.

"We therefore conclude that § 10 of act 139 of 1925 does not exempt appellant from the provisions of § 6155, G. & M. Digest. Affirmed.


author: Per Curiam.

text:
    Howell v. Todhunter.
    Opinion delivered June 9, 1930.

      Harney M. McGehee and A. L. Rotenberry, for petitioner.

      Hal L. Nonvood, Attorney General, for respondent.
   Per Curiam.

W. H. Howell has appealed from a judgment of the circuit court denying his petition for a writ of certiorari to review the proceedings to try his present sanity or insanity before S. L. Todhunter, warden of the State penitentiary. His counsel allege in their petition certain errors and irregularities of the warden in the hearing before him. The prayer of the petition is that a writ of certiorari be issued out of the circuit court to S. L. Todhunter, as warden of the State penitentiary, requiring him to certify to the circuit court the original or a copy of the proceedings in the insanity hearing held before him on the 25th day of March, 1930, in which a jury of twelve men rendered a verdict of sanity of the said W. H. Howell, and that this verdict be vacated and set aside.

W. IT. Howell was convicted in the circuit court of the crime of murder in the first degree, and his punishment fixed at death by the jury trying him. The judgment of the circuit court was affirmed by this court on October 28,1929, and a petition for rehearing was denied on December 3, 1929. Howell v. State, 180 Ark. 241, 22 S. W. (2d series) 47.

On a petition presented by the attorneys for said Howell, the court held that he had a right to have his present sanity or insanity inquired into before the warden of the State penitentiary as prescribed by the provisions of our statute. Howell v. Kincannon, ante p. 58. There was a majority and also a dissenting opinion prepared and filed in that case. ■ Both opinions recognized that writers on criminal law and courts generally concur in the humane provisions of the common law, and agree that no person in a state of insanity should ever be tried for crime while in that condition or made to suffer the judgment of the law, while insane. We all recognize that in the application of this humane provision of the common law, in the absence of a statute to the contrary, the power of the circuit court upon proper application is undoubted to try the present sanity of a prisoner after conviction and sentence, and upon inquiry, if he was found to be insane, then to stay his execution until a recovery.

The majority opinion, however, held that the power thus conferred upon the trial judge by the provisions of the common law had been modified by the provisions of our statute. We all agree that the Legislature had the power to change or modify the common law in this respect as it pleased, but the dissent was based upon the theory that the statute was not passed for this purpose, but for the purpose of aiding the G-overnor in the proper exercise of his power of commutation or of pardon. That this was the meaning of the opinions will be seen by reference to the per curiam opinion in Howell v. Todhunter, ante p. 250. In that case, the court said that where the warden of the penitentiary had empanelled a jury and no verdict was reached, he thereby declared that he had reasonable grounds for believing that the defendant ■was insane, and it became his duty to empanel another jury for the purpose of securing a verdict on the question. See also Nobles v. Georgia, 168 U. S. 398.

Under the allegations of the petition in the present application, it will be seen that another jury was em-panelled and that a verdict of sanity was reached by it. It became the duty of the counsel for the defendant to preserve a transcript of the testimony and other matters relating to that proceeding if they desired to have the same reviewed by the circuit court. If they did not do so, the circuit court could not intelligently act in the matter.

Counsel for appellant rely upon the procedure recognized in Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041. It will be noted, however, that in that case the evidence before the board was carefully preserved and a transcript furnished to the circuit court, so that there could be no doubt about what happened before the board. Here no record whatever was made of the proceedings had before the warden, and the case stands just as if, after the trial of the prisoner in the circuit court, no bill of exceptions had been made, preserving alleged errors and irregularities for review in the appellate court.

We have uniformly held that, where no bill of exceptions has been filed in the time and in the manner prescribed by law, the appellate court can only review for alleged errors appearing upon the face of the record itself. In the present case there are no errors appearing from the face of the record. The petition itself shows that the jury upon inquiry as prescribed by the statute found the prisoner to he sane. The statute, as we have already seen, prescribed the manner in which the inquiry should be made, and the manner in which the question of the present sanity or insanity of the prisoner should be determined was purely a matter of legislative regulation. Any other construction would greatly obstruct and embarrass the administration of the criminal law; otherwise, as pointed out in Howell v. Todhunter, supra, it would be within the power of convicted felons, or their friends, to indefinitely delay the execution of the sentence by repeated suggestions of insanity, followed by inquisitions in each instance and appeals therefrom. As we have already seen, it was a subject within the control of the State Legislature, and, the provisions of the statute having been complied with, and no errors appearing upon the face of the record, the circuit court properly denied the petition for a writ of certiorari, and the judgment must be affirmed upon appeal. It is so ordered.


author: MoHaney, J.

text:
    Board of Commissioners of McKinney Bayou Drainage District v. Board of Directors of Garland Levee District.
    Opinion delivered May 19, 1930.

      II. M. Barney and W. H. Arnold, for appellants.

      Henry Moore, Jr., (for appellee.
   MoHaney, J.

The principal question presented by this appeal, if not the only one, is that of priority of liens, if any, for taxes on assessed benefits or betterments in overlapping improvement districts, organized by legislative authority at different times, and under different acts of the Legislature. Appellants will hereafter be referred to as the drainage district and appellee as the levee district.

The levee district was created by .Special Act 311, Acts of 1913, p.. 1267, and the provisions thereof were reenacted, and the district validated by Special Act 56, Acts 1917, p. 235. Additional bonds were authorized by Act 451, Acts 1921, p. 944, and by Act 516, Acts 1923, p. 1113. The validity of the levee district was sustained by this court in Dorsey Land & Lumber Co. v. Board of Directors, Garland Levee Dist., 136 Ark. 524, 203 S. W. 33.

The drainage district was created by order of the county court of Miller County, Arkansas, on May 4,1923, under and by virtue of the provisions of the general drainage district laws, known as the alternative system, § 3607 et seq. C. & M. Digest of the Statutes of this State.

The levee district, prior to the organization of the drainage district, had issued bonds in the sum of $267,500, of which amount $150,000 are still outstanding. A levee was built along the west bank of Red River, connecting with another levee on the north, and running southerly to McKinney Bayou, near the hills, but left a gap between the south end and the hills of .about one-fourth anile. About 45,000 acres of land are in the levee district. The drainage district is composed of the south two-thirds of the lands in the levee district, about 30,000 acres, and was organized to supplement the work of the levee district by building a levee, along the bank'of McKinney Bayou, in a southeasterly direction, and connecting with the south end of the levee built by the levee district, which protected the lands in both districts from overflow through the gap heretofore referred to. Ditches were also constructed to drain off the surface water, and flood gates constructed to let the water through to the ba3^ou.. Improvements made in the drainage district cost approximately $450,000, and large bond issues are now.outstanding. 'Having defaulted in the payment of bonds, it. is now in the hands of a receiver. The levee district is also •in default.

Certain of the levee district taxes for 1926 not having been paid, it brought suit to collect same. Decree of foreclosure was had in July, 1928, and 'the delinquent lands ordered sold by a commissioner appointed for the purpose. The commissioner reported on July 28, 1928, that he had advertised said delinquent lands for sale, had publicly offered same, but that, although parties were present, “No one offered to purchase (for the levee taxes subject to the lien of the existing* drainage district taxes in favor of MoKinne3'' Bayou Drainage District, and 3mur commissioner, in accordance with § 3646 of Crawford & Moses’ Digest, reports the above facts to the court that the court may take proper action thereon.” At the suggestion of the levee district, an attorney ad litem was appointed to notify the drainage distinct, its receiver and the trustee (for its bondholders that it was the intention of the levee district to- proceed further in said suit according to the provisions of §.3646, C. & M. Digest. Thereafter the drainage district and the trustee for bondholders were made parties to the suit to foreclose. An order was sought directing a sale of the lands for the delinquent levee tax for 1926, free from the lien of the drainage district assessments, but subject to future taxes in the levee district. Appellants opposed the procedure, and contested the right of the levee district to a superior lien on any grounds, but on a trial the court held with appellee that its lien was superior to that of the drainage district, and again ordered the land sold for delinquent levee taxes for 1926, but free of incumbrances of the assessment of benefits and drainage tax of appellant district, but subject only to subsequent installments of benefits in the levee district, in accordance with the court’s view of the proper construction to be placed on § 3646, C. & M. Dig’est. This appeal followed.

Said section of the statute is as follows: ‘ ‘ On sales of land condemned to be sold for the taxes of drainage districts, and other improvement districts in this State, the land shall first be offered subject to the lien of all improvement district assessments then existing thereon. If no one will purchase on those terms, the commissioner appointed to make the sale shall report that fact to the court, and the land shall not again be offered for sale until after the lapse of one year, nor until an attorney ad litem has been appointed to notify the commissioners or directors of other improvement districts, and the trustees of all bondholders having liens thereon that said lands have been offered for sale on those terms, and that no purchaser therefor has been found. Upon the coming in of the report of such attorney ad litem, showing in detail the notice that he has given to the commissioners or directors of other improvement districts having- liens upon the property, and to the trustees of the bondholders of all districts having' liens - on the property, the court shall make an order for the sale of the lands free of in-cumbrances of the assessments of all other improvement districts that are subordinate to the lien that is foreclosed, but subject to subsequent installments of the assessments of benefits in the plaintiff district. And when such sale is made, any balance that may remain after paying the cost of foreclosure -and the amount of the lien that is foreclosed shall be distributed by the court in such manner as may be found equitable. If the board of commissioners or directors of any drainage district having a lien on the lands, or the trustee of any bondholders having’ such lien is not notified of the application for such sale, they may, on motion at any time within three years have the sale set aside and the lands resold. ’ ’

It becomes necessary to determine the meaning of said section. "We have never had the exact question as now presented before us heretofore, and this court has never been called upon in any other case to construe this section of the Act of 1913 (§ 14, Acts 1913, p. 738). It was evidently enacted to cure a defect in the drainage district law, and its provisions were made 'broad enough to- in-cludé all other improvement districts which overlap each other, such as the case now before us. Many such districts were in existence at the time of the passage of said act, and many more have been created since, 'all of which have assessments of 'benefits with annual taxes thereon to retire bonds issued to pay the cost thereof. If the construction placed on this statute by the learned trial court is correct, that is, that the first district in point of time has the prior and paramount lien, and that, by following the procedure outlined in said statute, it is entitled to an order of court directing a sale of delinquent land in the prior district free of all assessment of benefits in subsequent districts and taxes levied thereon, it is easy to see that the consequences to the subsequent district will be disastrous. Let us now examine the statute to see if the Legislature meant to entail such consequences on subsequent districts. • The first sentence in said section is: “On sales of land condemned to be sold for the taxes of drainage districts and other improvement districts in this State the land shall first be offered sub^ ject to the lien of all improvement district assessments then existing thereon. ’ ’’ Manifestly, the land cannot be sold for taxes that are not due, but only for delinquent taxes. So, when the land is offered for sale at the first sale provided for in said section, it is offered “subject to the lien of all improvement district assessments then existing thereon.” In other words, if there be a purchaser at such sale he buys with the understanding that he will have to pay all accrued taxes in other districts, and subject to the taxes for which liens will accrue in the future in all districts. But if there be no purchaser at such sale, and the procedure is resorted to as provided in said section, then the statute further provides that “the court shall make an order for the sale of the land free of incum-brances of the assessments of all other improvement districts that are subordinate to the lien that is foreclosed, but subject to subsequent installments of the assessment of benefits in the plaintiff district.” We are of the opinion that the lawmakers meant accrued assessments, and that they did not intend to destroy or free the land of the lien of -subsequent installments of the assessment of benefits in subsequent districts, but free of the lien of taxes that have already accrued in subsequent districts. In other words, the levee district, being prior in point of time, by following the procedure set out in said section, may sell the land for delinquent taxes due it free of the lien for accrued taxes in the drainage district; its lien being ‘ ‘ subordinate ’ ’ only to this extent.

Nor do we think either district has any priority of lien over the other, except as stated above. Both districts are created by virtue of legislative authority. Both are State agencies. Each is authorized to construct certain improvements by issuing bonds to pay therefor, and to levy a tax on assessed benefits to pay the bonds and the interest thereon. The act creating the levee district provides that an annual tax shall be levied upon the real estate in the district not to exceed 10 per cent, of the assessed valuation as it appears upon the real estate assessment books. Section 7 gives the taxes so assessed, and the tax lists the effect of a bona fide mortgage for a valuable consideration, and a first lien on all the lands, as against all persons having any interest therein. Another section pledges the taxes to be collected in the future to the payment of the bonds and interest. The validating act of 1917 provided in § 35 that “this act shall be liberally construed so as to make the lien -of said assessment valid, and prior to all other liens.” The effect of these various provisions was to give the levee district a lien for taxes. In the drainage -district, by § 3617, C. & M. Digest, the county court is required to enter an order on its records, having- “all the force of a judgment, providing- that there shall be assessed upon the real property of the district a tax sufficient to pay the estimated cost of the improvement, with ten per cent, added for unforseen contingencies,” payable in annual installments. “The tax so- levied shall be a lien upon all the real property of the district, from the time that same is levied by the county court, and shall be entitled to preference over all demands, executions, encumbrances or lien whatsoever created, and shall continue until ’such assessment * * * shall have been paid.” 'So it will be -seen that the act under which each district was created gives a lien which is entitled to preference over all contract liens, or liens that are acquired by virtue of contractual relations between individuals, persons or private corporations. The statute does not mean that such liens shall be superior to the State’s lien for-taxes. Nor does the State’s superior lien for taxes extinguish improvement district taxes on forfeiture and sale to the State. While the title rests in -the State, the tax-lien in improvement districts is merely suspended, and, on redemption from the State, accrued improvement district taxes must be paid, as well as accrued State and county taxes. Section 2, Act 261 of 1925, p. 781; Turley v. St. Francis County Rd. Imp. Dist. No. 4, 171 Ark. 939, 287 S. W. 196; Wyatt v. Beard, 179 Ark. 305. This act 261 of 1925 tends very strongly to show that the Legislature did not intend to- give priority of assessment liens in improvement districts, but to place them all on a parity. The decision in the Turley case supra further supports the same view, where the court said that “the lawmakers, in the exercise of their authority, have provided for coordinate enforcement of liens of the State for general taxes, and improvement districts in recognition of the continuation of both liens.” It was there further said, with reference to the act above mentioned: “This statute is well within the legislative power, as we have already seen, for it does not amount to an exemption from taxation, or to relinquishment of the State’s lien, but merely operates as a continuation of the coordinate lien of one of the State’s agencies, and establishes a method of preserving each one of the liens without extinguishing the other. That statute, of course, has no application to the present litigation, for it was enacted after the liens were acquired, and after appellants had purchased the land in controversy from the State. But we think that the other statute quoted above (C. & M. Dig., § 5433) is equally potential in continuing the lien of the improvement district, and in preventing its extinguishment by a sale for general taxes. The words ‘all demands, executions, incumbrances or liens whatsoever created, ’ have no reference to the State’s paramount lien for taxes. But the words which follow unmistakably carry the meaning that the special taxes of the improvement district shall continue until fully paid, and are not extinguished. Of course, the forfeiture to the State of lands for general taxes necessarily suspends the enforcement of the special tax lien as long as the title remains in the State, but as the lien, under the terms of the statute, is not extinguished, and continues until the special taxes are paid, the same can be enforced when the land goes back into private ownership. This construction of the statute gives full recognition to the State’s paramount right of taxation, and in nowise detracts from the dignity and power of the State as against subordinate agencies.”

If a sale of lands, under the paramount lien of the State for delinquent taxes does not extinguish the inferior or subordinate liens of improvement districts, it necessarily follows, we believe, that a sale for delinquent taxes in an improvement district that is prior only in that it was first created would not extinguish the lien of another district subsequently created by the State. This view seems to be strengthened somewhat by the decision of this court in Hoehler v. W. B. Worthen Co., 154 Ark. 444, 243 S. W. 822, although the question now presented was not before the court in that ease.

There are holdings (by some courts in other 'States that the improvement district first created has the prior lien, while in others it is held that the last created has the prior lien. But, as we see it, great confusion will result from either holding. No douibt the Legislature has the power to provide that the one or the other is prior, but, until it has done so in plain and unmistakable language, we do not feel that we should so. hold. Furthermore', the view we' now take is just and equitable. It is conceded that the levee district without the drainage district failed to accomplish the purpose of its creation. It is likewise true that the drainage district without the levee district would ¡be practically useless. Each therefore is complementary to the other. It would therefore appear to be unfair and inequitable for either lien for taxes to 'be held to be prior to the other, except as indicated herein, unless the Legislature has made it so in plain and unmistakable language, and we do not think it has done so. The acts under which both districts were created provide that each lien shall be superior to .all other liens, but, as we have already shown, such liens are not superior to the State’s lien for taxes, and are only superior to contract liens. The declaration in the third sentence of § 3646 that at the second sale the land shall be sold “free of the incum-brances of the assessments of all other improvement districts that are subordinate to the lien that is foreclosed, but subject to subsequent installments of the assessments of benefits of the plaintiff district, ’ ’ fails to define which is the “subordinate” district, and the clause beginning with “but” does not add anything to enlighten us, and it is merely declaratory of the common law. This statute therefore has no application except to accrued assessments, or taxes that are due.

This construction of the statute under consideration disposes of all the questions raised by this appeal. The result is that the decree must be reversed and remanded with directions to order a sale of the delinquent land of the levee district involved in this action free from the lien of accrued taxes in the drainage district. It is so ordered.

Hart, C. J., Kirby and Mehaffy, JJ., dissent.


author: Hart, O. J.,

text:
    Hunter v. First State Bank of Morrilton.
    Opinion delivered May 26, 1930.

      Edivard Gordon, J. S. Utley and Wm. T. Hammock, for appellant.

      E. A. Williams and W. P. Strait, for appellee.
   Hart, O. J.,

(after stating the facts). As suggested by the circuit court in directing a verdict for the defendant, the first impulse of nearly every. one would be in the circumstances of the case to find for the plaintiff; but, under the well-established principles of law heretofore decided by this court, this cannot be done.

The suit is predicated upon the theoiy that the facts called for the application of the doctrine of respondeat superior, which rests upon the proposition that, in doing the acts out of which the accident arose, the servant was representing the master at the time and engaged in his business. It is conceded that the doctrine cannot be -invoked unless, at the time of the negligent act causing the injury, the servant was engaged in performing a service for the master or incidental thereto.' It is generally stated by text writers and in judicial decisions that the test of the liability of the master for his -servants acts is whether the latter was at the time acting within the-scope of his employment. The phrase “in the scope of his employment or authority,” when used relative to the acts of the servant, means while engaged in the service of Ms master or -while about his master’s business. It is not synonymous with, “during the period covered by his employment. ’ ’

In the application of the rule in Sweeden v. Atkinson Improvement Co., 93 Ark. 397, it was held that a master was civilly liable for an injury caused by the negligent act of his servant when done -within the scope of his employment even though the master did not authorize or know oif such acts or may have disapproved or forbidden them. It was further held that a master is not liable for an independent, negligent or wrongful act of his servant done outside of the scope of his employment, and that the act of a servant for which his master is liable must pertain to 'something that is incident to the employment for which he is hired, and which it is his duty to perform or do for the benefit of the master.

Again, in Wells Fargo & Co. Express v. Alexander, 146 Ark. 104, it was held that the test of a master’s liability for his servant’s tortious acts is not whether they were done during the existence of the servant’s employment, but whether they were committed in the prosecution of the master’s business, and pertained to the particular duties of the servant’s employment.

In the later ease of American Railway Express Co. v. Mackley, 148 Ark. 227, a review was made of all orn-ear lier decisions on the subject. The court declared that the established rule to be in this State that the test of a master’s liability for the act of a servant is not whether a given act was done during the existence of the servant’s employment, but whether it was committed in the prosecution of the master’s business. This rule has been recognized and applied by this court in a suit for damages against the owner of an automobile for injuries sustained by a third person on account of the negligence of the chauffeur.

In a case note to 32 A. L. R. at page 1398, it is said that it is the well-established general rule that an owner of an automobile is not liable for an injury or for damage resulting from the negligent operation of his car by his employee while the latter is using it for his own purposes without the owner’s permission or consent, since, to hold the latter liable, the relation of master and servant must exist at the time, and the act must be within the scope of the servant’s authority. Among the numerous cases cited is Healey v. Cockrill, 133 Ark. 327.

The same rule is laid down in a case note to 45 A. L. R. 478, and among the cases cited in support of it is Bizzell v. Hamiter, 168 Ark. 476. To the same effect, see Crowell v. Duncan, 145 Va. 489, 134 S. E. 576, 50 A. L. R. 1425; and the case note to 50 A. L. R., page 1450.

In the case note to 22 A. L. R. at page 1419, it is said that the owner of the automobile is not liable where the employee, furnished a. car for business, uses it for his own purposes.

In the application of the rule in Slater v. Advance Thrasher Co., 97 Minn. 305, 5 L. R. A. (N. S.) 598, 107 N. W. 133, it was held that where a company furnished one of its agents with an automobile for his own use in expediting its business, and the agent, after business hours, used the automobile for his own purposes, not connected with the master’s business, the company is not liable for an injury resulting from the agent’s negligence, since such use of the automobile was not within the scope of the agent’s employment. To the same effect see Mullia v. Ye Planry Building Co., (Cal. Ct. of Appeals) 161 Pac. 1008; Martinelli v. Bond, (Cal. Ct. of Appeals) 183 Pac. 461; Solomon v. Commonwealth Trust Co., (Penn.) 100 Atl. 534; and Kilroy v. Chas L. Crane Agency, 203 Mo. App. 302, 218 S. W. 425.

So it will be seen that the test of the owner’s liability for the negligence of his employee in injuring the property or person of third persons while driving the former’s automobile is the nature of its use at the time of the accident, whether or not it is being used in the transaction of the business of the owner of the automobile. The very basis of the rule of respondeat superior, as applied to automobile accidents as well as to other cases, is that the driver of the car is acting for the owner and not for himself personally at the time of the accident. When the servant steps outside of the master’s business and enters upon the performance of some individual purpose of his own, he ceases to act as the servant of the owner, and the latter’s responsibility for his act terminates.

This brings us to a consideration of whether Ferrell, at the time of the accident, was acting within the scope of his employment, and this involves an inquiry into the contract of his employment, and the relation of his acts at the time of the accident to the services he actually performed pursuant to his employment.

According to the testimony of Luther Finch, he gut in the car of the defendant with Frank Ferrell on Sunday evening for the purpose of going across the Arkansas River near Morrilton to look at a cow on the farm of Emmett Mitchell, Finch agreed with Ferrell about the price of the cow, and gave him a check payable to Emmett Mitchell. When they got back to Morrilton, Finch got out of the car, and Ferrell went on to the house of a neighbor, and stayed for a short time. He then left in the car and went on home and ran over and injured the plaintiff and her husband by his negligent driving on the way there.

According to the testimony of R. L. Deal, he was vice president and cashier and managing officer of the First State Bank of Morrilton, Arkansas, and represented the Bank Commissioner in the collection of some old debts due the Bank of Morrilton. During the fall of 1927, he hired Frank Ferrell to act as chauffeur for Dr. Oates and Joe Irving who wfere employees of the bank, and who were engaged in driving about the country and collecting the assets of the Bank of- Morrilton for the First State Bank. Frank Ferrell, being familiar with the people and being a good judge of stock, was employed to act as chauffeur to Dr. Oates and Joe Irving*. In addition to driving* the car, he had no duties except to assist them in collecting stock or in advising them as to the value of the same when called upon to do so. He was paid at the rate of $10 per week, and was not required to work on Sunday. He had no authority to sell the property or assets of the bank. Ferrell had no authority to use the car or to have it out at all on Sunday; the duties of his employment did not require him to work on Sunday, and none of the bank officers knew that Ferrell did perform any work on Sunday for the bank. Each day’s work was routed in advance. Sometime Dr. Oates and Joe Irving* would permit Ferrell to take the car home and keep it overnight. They allowed him to take the car home on the Saturday evening before the accident occurred, and he was to keep it until the next Monday morning in the garage at his home. The officers of the bank did not know that he was using* the car on the Sunday that the accident occurred.

The 'testimony of Deal was corroborated in all respects by that of Frank Ferrell.

According to the testimony of Joe Irving’, when the car was not in use, it was presumed to be kept at night in his garage, but when Ferrell and he would come in off a trip, Ferrell would sometimes drive him home and he would permit Ferrell to talco the car to his home and keep it in his garage until it was used again on the business of the bank. Thus, it will be seen that Ferrell did not have any authority to use the car for his own purposes, and the bank did not know that he was using the car on the Sunday that the accident occurred. He had been driving around the country with a friend for pleasure, and then took Finch in. the car for the purpose of selling* him a cow that ’belonged to Emmett Mitchell. It is true that Mitchell was a director of the bank, but the bank did not have any interest whatever in the cow and was not interested in the sale of her. Hence it cannot be said that Ferrell was acting within the apparent scope of Ms authority in using the car for the purpose of carrying a prospective customer to look at a cow belonging to Emmett Mitchell. The officers of the bank did not know that Ferrell was using the car ou Sunday, and did not give Mm permission to do so. He was not required to use it in the performance of his duties to the bank. It is true that there is testimony tending to show that he was allowed to keep a pair of the mules and a cow belonging to the bank on his own premises and to sell them, but this was not done on the Sunday the accident occurred, and he was given specific instructions in the matter. He did not use the car in the performance of any business entrusted to him by the bank on the Sunday in question. lie had also been given permission to keep and sell a cow of the bank, but the permission to sell a cow or pair of mules for the bank had no relation to his authority to sell a cow for Mitchell.

The only ground upon which the defendant could be held liable was that an automobile is such a dangerous instrumentality that the owner of it must be deemed responsible for the tortious act of his servant in driving it, whether that act 'was clone in the performance of the master’s business or regardless of the fact of whether the master had knowledge of it. We think such a rule would be contrary to the principles of law already decided by this court. If the master is not liable for the tortious acts of the servant when he deviates from his employment for his own business or pleasure, with equal reason the master should not be held liable where the employee is furnished a car for business use, and takes it out of the garage without the master’s consent and uses it for his own purpose. The rule of law applicable to the care and protection of dangerous instrumentalities does not apply as will be clearly seen from the rule laid down in Healey v. Cockrill, 133 Ark. 327, and Bizzell v. Hamiter, 168 Ark. 476, and Keller v. White, 173 Ark. 885. Ferrell, in driving the car around on the Sunday of the accident, was using it for purposes of his own, and Ms act in so doing bad no relation to Ms services as chauffeur for the bank, and the latter’s immuMty to liaMlity is settled by the principles of law above announced.

The evidence on this breach of the case is undisputed; and in the application of the rule of law decided and applied herein there was no question of fact to be submitted to .the jury. The rights of the plaintiff to recover depended wholly upon the law as declared by the court, as applied to the undisputed facts. Having reached the conclusion that the owner is not liable for the tortious act of his servant in injuring the person or property of third persons where the servant is not using the car for the performance of the business of the owner, but is using it wholly for his own purposes, there is no question of fact to submit to the jury.

Therefore the judgment will be affirmed.


author: Humphreys, J.

text:
    Sutton v. Lee.
    Opinion delivered May 26, 1930.

      G. T. Gotham, for appellant.

      Murphy Wood and B. N. Florence, for appellee.
   Humphreys, J.

This suit in ejectment was originally commenced by appellee against appellant in the circuit court of Garland County to recover the possession of the following described real property, situated in said county, State of Arkansas, being a part of lot three (3)-and a part of lot four (4), block thirty-six (36) of the United States Reservation, as surveyed, mapped and platted by the United States Hot Springs Commissioners, and more particularly described as follows:

“Commence at the junction of Lead Street and Reserve Avenue, and run south on the east line of lot four (4) and the west line of Lead Street, two hundred eighty-six (286) feet to an iron stake and the place of beginning; thence south on the west line of Lead Street one hundred thirty-one (131) feet to the common corner of lots three (3) and four (4) of said block thirty-six (36) and to the junction of Lead Street and Grand Avenue; thence southwesterly along the west line of Grand Avenue, one hundred eighty (180) feet to the corner of lots two (2) and three (3) of said block thirty-six (36) marked with an iron pipe and 100 feet east of Reserve Avenue; thence north one hundred (100) feet east of Resei’ve Avenue to an iron stake; thence northerly one hundred (100) feet parallel to Reserve Avenue to an iron pipe on the line dividing lots three (3) and four (4) of said block thirty-six (36) and one hundred (100) feet east of Reserve Avenue; thence northerly parallel with Reserve Avenue one hundred (100) feet to a point and stake two hundred twenty-one (221) feet west from the place of beginning; thence easterly in a straight line two hundred twenty-one (’221) feet to the place of beginning.”

After the issues were made up the cause was, by consent of the parties, transferred to the chancery court where the same was tried and a decree rendered in favor of appellee for the possession of said real estate, from which is this appeal.

The facts necessary to a determination of the issues involved are undisputed and are as follows: Appellee inherited said real estate from her father, Benjamin Hutchinson, who received a patent to lots 3 and 4 in block 36 in the city of Hot Springs, Arkansas, on the 30th day of March, 1882, from the United States. Prior to his death he conveyed certain parts of said real estate by definite description to three different parties, and in 1888 died seized and possessed of the remainder of said real estate which is involved in this action. Each purchaser from him assessed-and paid taxes on the part he purchased under the following description: “Part of lots 3 and 4 in block 36 in the city of Hot Springs, Arkansas.” Benjamin Hutchinson left surviving him a widow, Julia, who afterwards married a -man by the name of Brown and subsequently died. Prior to her death she paid taxes on said real estate under the following description: “Part of lots 3 and 4 in block 36 in the city of Hot Springs, Arkansas.” She failed to pay the taxes for 1917 on a part of lot 4, block 26; and in 19'21 on a part of lots 3 and 4 in block 36. There was a forfeiture, sale and conveyance of said real estate to the State for these years under an assessment to Julia Brown by the indefinite and uncertain description of “part of lot 3 and part of lot 4 in block 36 in the city of Hot Springs, Arkansas.” Appellee was never in the actual possession of the real estate involved in this action, and never paid any taxes thereon either before or after the death of her mother, Julia Brown.

Appellant ascertained that the real estate in controversy was unoccupied, and that same had been forfeited to the State of Arkansas for nonpayment of taxes for 1917 and 1921 under indefinite descriptions, and further information to the effect that appellee was dead. She then had the real estate in controversy surveyed, and under the definite description furnished her thereof by the surveyor proceeded under act 365 of the Acts of 1923 to purchase the said real estate from the State. She complied with all the provisions of said act and became the purchaser thereof at the sheriff’s sale and received a certificate from him which contained a definite description of the land in controversy. She then paid the purchase price, presented her certificate and applied to the State Land Commissioner for a deed thereto. The Land Commissioner refused to make her a deed according to the description contained in her certificate from the sheriff, but made her a deed- according to the description by which the land had been forfeited and conveyed to the State for the nonpayment of taxes for the years 1917 and 1921. Immediately upon receipt of said deed appellant took possession of the land in controversy, and made valuable improvements thereon.

Appellant contends for a reversal of the decree because neither appellee nor her predecessors in title had been in possession of said lands within five years before the institution of her suit in ejectment, and in support of this contention relies upon § 6948 of Crawford & Moses’ Digest, which reads as follows:

“No action of ejectment, when the plaintiff does not claim title to the lands, shall be brought or maintained when the plaintiff, or his testator or intestate, has been five years out of possession.”

The st-atuté in question has no application to the instant case, as appellee asserted title to said real estate as a basis for her action.

Appellant also contends for a reversal of the decree because the description contained in the deed she received from the State can be made definite and certain by referring to the deed describing the parcels of lots 3 and 4 in said block sold by Benjamin Hutchinson to his grantees, and deducting said parcels from the total area of said lots. Even if such a method were permissible in order to definitely ascertain what particular part of said lots were forfeited in the name of Julia Brown, it would be necessáry to show that the purchasers of the several parcels of said lots assessed and paid their taxes for the years 1917 and 19'21 by definite and certain descriptions. They did not do so, but, on the contrary, assessed and paid their taxes as parts of lots -3 and 4 in said block. This court ruled in the case of Hershey v. Thompson, 50 Ark. 484, that (quoting from the syllabus) “Proof that the person in whose name land was assessed owned no other in the legal subdivision of which it is a part is not sufficient to identify it. ’’

Appellant also contends for a reversal of the decree because no affidavit was filed before the suit was brought with the circuit clerk showing that a tender for taxes and improvements had been made as required by § 3708 of Crawford & Moses’ Digest. The requirements of this section of the statute do not apply to void tax sales made without power or authority. Kelso v. Robertson, 51 Ark. 397; Winn v. Little Rock, 165 Ark. 11. In the instant case the sale was unauthorized ¡because the description of the land in the assessment and all proceedings involved was insufficient to identify it. It amounted to no description at all.

Appellant also contends for a reversal of the decree because the certificate of purchase acquired under a compliance with the requirements of act 365 of the Acts of 1923, contained a definite and certain description of the real estate in controversy. This act only applies to purchasers of lots from the State to which it has acquired title. The State acquired no title to the real estate in controversy in the instant case as the assessment and forfeiture were void from the want of a description by which saíne might be located. The certificate was issued without authority, and could not and did not confer color of title to said real estate although definitely describing it.

Appellant also contends for. a reversal of the decree because the court did not allow her for the improvements made upon the real estate in controversy under' the Betterment Act, §§ 3703-3710 of Crawford & Moses’ Digest. This act does not protect an occupant of land for the value of improvements made unless he or she has color of title thereto. Appellant’s certificate of title was void because issued without authority, and her deed was void because it described nothing. . No color of title conferred upon her by either.

Lastly,- appellant contends for a reversal of the decree because appellee was barred from bringing the action under § 6947 of 'Crawford & Moses’ Digest, which is a two-year statute of limitations running in favor of a person or persons actually occupying lands under color of title to the exclusion of the true owner. It has no relation or application to the instant case, because appellant had no color of title to the real estate in controversy.

No error appearing, the decree is affirmed.


author: Mehaeey, J.

text:
    Paving Improvement District No. 105 of Pine Bluff v. Wright.
    Opinion delivered May 26, 1930.

      C. B. Thweatt and Coleman & Qant-t, for appellant.

      Rowell <& Alexander, for appellee.
   Mehaeey, J.

The city council of the city of Pine Bluff created an improvement district for the purpose of improving Fifth Avenue and Ohio Street in said city. The commissioners for said improvement district are J. F. Hilton, Dr. O. W. Clark and J. F. Rutherford. On November 20,1929, the district through its commissioners entered into a contract with Chris L. Wright as engineer for said district. Section 7 of said contract is as follows: “If, because of the second party’s instructions, permission or neglect at any time, it shall appear that the work of the improvement is not being carried out according to the plans and specifications, the State Highway Commission shall have the right to terminate this contract. ’ ’ The commissioners of the improvement district thereafter discharged, the engineer, and he thereupon 'began this action in the Jefferson Chancery Court for a mandatory injunction to restore him as engineer, and to require the commissioners to perform said contract. Appellee prayed that, if the relief above asked could not be granted, he be given judgment against the district, and that commissioners be ordered to pay same out of the first money coming into their hands. He also prayed, if the relief above asked could not be granted, that he be given judgment against the commissioners individually. Appellants filed demurrer, motion to strike and answer. Numbers of witnesses testified, and the evidence is voluminous. Much of the evidence is as to the improper conduct and management of the parties. It would serve no useful purpose to set it out because the only question for us to determine is, did the commissioners have the right to discharge the engineer1? If they had that right under the law, they could exercise such right, and their motives would be immaterial. After the hearing by the court a permanent injunction was issued, and the district and commissioners have appealed. Appellee calls attention to the case of Philpot v. Taylor, 179 Ark. 356. The court in that case held that a contract let to a contractor who was a business partner of the engineer of the district was against public policy. The contract was also held to be against public policy and void for other reasons, but that case has no application hero. Appellee earnestly contends, however, that the 7th section of the contract quoted above deprives the commissioners of the right to discharge the engineer. The law (Acts Sp. Sess. 3928, No. 8), provides that the commissioners of the improvement district shall employ the engineer, and not the State Highway Commission. It provides, however, that they shall select an engineer who is. acceptable to the State Highway Commission. This provision was evidently put in the act because the State Highway Commission was to pay part of the cost of improvement. It is reasonable, if the Highway Commission is to pay part of the cost of the improvement, that the engiueei‘ in charge of the work should be acceptable to it. It did not either under the law or the contract have anything to do with the election of the engineer. The commissioners of the improvement district elected the engineer. The law gives the State Highway Commission no power to elect-or discharge the engineer. The right of the State Highway Commission to discharge the engineer is given in the contract entered into between the commissioners and the engineer, and that gives the right to discharge for the things mentioned in the contract. There might be other things besides those mentioned in section 7 of the contract that would make the services of an engineer unsatisfactory and make his discharge necessary, and no one would contend that the -State Highway -Commission could discharge him except for the causes mentioned in the contract. The contract is not with the State Highway Commission. It simply approved the selection of the engineer. It probably wo-uld not have approved the selection of the engineer if the commissioners of the improvement district had not given it the right to discharge for the causes mentioned. The law imposes certain duties on the commissioners which they must perform. They are required under the law to control the construction of the improvement. They are prohibited from being interested in any contract they may make as commissioners, and there are other provisions prescribing their duties and liabilities. They cannot make a valid contract where they are interested, and they cannot make a valid contract depriving themselves of the right to- discharge an employee or to relieve themselves from the performance of any duty. 6 R. C. L. 743; Bryant Lumber Co. v. Fourche River Lumber Co., 124 Ark. 313. This court has decided that the authority of appointment and removal is in the board of commissioners. Seitz v. Merriwether, 114 Ark. 289.

The commissioners of the improvement district in this case have the same right to employ an engineer as in other cases. The only additional requirement is that the engineer selected shall be acceptable to the State Highway Commission. They also have the right to discharge, but they have by their contract with the engineer given the State Highway 'Commission the right to discharge for certain causes. The commissioners of the improvement district may discharge, not only for the causes mentioned in the contract, but for other causes also. This is a suit to compel the specific performance of the contract employing appellee -as engineer, and the remedy at law is complete and adequate, and for that reason a court of equity has no jurisdictions. Leonard v. Board of Directors, 79 Ark. 42; 32 C. J. 199 ; Ryan v. Reddington, 87 Atl. 285; Lewis & Spelling on Injunctions 500; Chapman & Dewey L. Co. v. Bd. of Imp. Dist., 127 Ark. 318; Pharr v. Knox, 145 Ark. 4.

Holding as we do that the commissioners of the improvement district had the right to discharge appellee, it is unnecessary to consider the other questions discussed by counsel. The decree of the chancery court is reversed, and the cause remanded with directions to dismiss the complaint.

Hart, C. J., Humphreys and Butler, JJ., dissent.


author: MgHaney, J.

text:
    Wright Chevrolet Company v. Kent.
    Opinion delivered May 26, 1930.

      N. A. McDaniel, for appellant.

      Brouse & Brouse, for appellee.
   MgHaney, J.

Appellant sold appellee one Chevrolet coach automobile on July 2, 1928, to be delivered August 15, 1928, at a price of $719.7'5. Appellee on the same date delivered to appellant his second-hand car at a price of $125 to be applied on the purchase price of the new car which left a balance of $594.75 to be paid. The contract was in writing. It provided that the price of the new car was subject to change by the manufacturer, and that the price effective on the day of delivery would govern, but the purchaser had the right to cancel the order if the change in price was not satisfactory. The pro-, vision with reference to the trade allowance was as follows : “If my used car has been delivered to you, and this order is thereafter canceled, you will return said car to me, and I will pay a reasonable charge for any storage of, or repairs to, said car during- the period from delivery to notice of cancellation, and if you have sold the said car you will refund to me the amount actually received from said sale, less a selling commission of 15 per cent, and my expense incurred in storing, insuring, conditioning- and advertising said car for sale.” Another provision of the contract provided that if the appellee failed to take the car ordered (except for change in price as aforesaid) “forfeits my deposit as liquidated damages for your expense and trouble, and permits you to otherwise dispose of the car without any liability to me whatsoever.”

Appellant sold the used, car for $135, and appellee thereafter declined to take the new car and pay for it because he said he was not able to pay for it. He demanded of appellant the $135 for which his car was sold, less 15 per cent, commission, but appellant refused to pay, contending- that appellee had forfeited that amount by virtue of the contract heretofore mentioned, and that the second-hand car, or the money for which it was sold, constituted a “deposit” within the meaning of the clause of the contract above quoted providing for forfeiture of the “deposit” in the event he refused to take the car except for the cause stated. Appellee thereupon sued appellant for the sale price of the second-hand car less the commission of 15 per cent. At the conclusion of the testimony the court directed a verdict for the appellee in the sum of $121.87 which was the amount sued for with interest, and this appeal followed.

Appellant contends that the second-hand car of the agreed value of $125 was a “deposit” within the meaning of the contract. We do not think so. The contract provided that the price of the new car should be diminished by the “deposit” and by the agreed value of the second-hand car. No deposit was made. The word “deposit” as used in the contract meant cash deposit. Since there was no deposit made, there was no forfeiture by reason of appellee’s failure to take the new automobile. It was not agreed that he should forfeit the secondhand car or its agreed value of $125. The contract was written by appellant on a form provided for the purpose, and will be construed most strictly against it. It would take a liberal construction of the contract in appellant’s favor to hold that axipellee forfeited his second-hand car or its value by refusing to take the new car. If appellant suffered any damages by the breach of the contract of sale and purchase, he might maintain an action against appellee to recover such damages as he actually sustained. The undisputed proof shows that appellant sold the car ordered for appellee to another for the same price, and could not therefore have been damaged. The judgment of the circuit court was correct, and is therefore affirmed.


author: Butler, J.

text:
    Herring v. Bollinger.
    Opinion delivered May 26, 1930.

      Cravens & Cravens, for appellant.

      J. Seaborn Holt, for appellees.
   Butler, J.

The occurrence out of which this litigation arises was a collision between the automobile of the appellant and a truck of the appellee at the intersection of North 13th and “O” Streets in the city of Fort Smith, Arkansas. The testimony of the appellee, which was corroborated by other testimony, tended to show that one Walter Standard, the employee of the appellee, was driidng a new Chevrolet truck loaded with gravel and traveling north on 13th Street which intersects “O” Street at right angles. “0” Street runs from east to west. The appellee was going at a moderate rate of speed, not greater than twelve or fifteen miles per hour. When within about fifteen feet of “0” Street, he saw the appellant’s car about a block and a half away traveling west and coming at a very rapid rate of speed. Ap-pellee looked then in the opposite direction to see if any other car was approaching, continuing to drive until he was well within the intersection of 13th and “0” Streets when the appellant’s car, still advancing at a high rate of speed and without pause, collided -with his truck demolishing it and scattering its contents over a considerable space in the vicinity. “0” and 13th Streets, at and near the point of collision, was a residential section of the city.

There was testimony on the part of the appellant contradicting the testimony of the appellee, and to the effect that the appellant was not driving at an unusual or rapid rate of speed, and that the speed did not exceed twenty miles per hour; that appellee’s automobile had reached the intersection of 13th and “0” Streets and the truck was approaching from his right-hand on 13th Street; that he tried to avoid the collision by turning to the left, but was unable to do so and the truck struck the side of his automobile at the right front door, badly damaging it and injuring the appellant.

There was testimony tending to impeach the credibility of the appellant. At the conclusion of all of the testimony the court, over the objection and exception of the appellant, gave instructions numbered one and two at the request of the appellee, and refused to give instruction B requested by the appellant, to which action exceptions were duly saved. The jury returned a verdict for the appellee and the court entered judgment in accordance therewith, from which judgment this appeal has been duly prosecuted.

The appellant assigns as error the giving of instructions 1 and 2 at the instance of the appellee, which instructions are as follows :

“No. 1. You are instructed that:
“Sec. 8. Speed Generally. No person shall drive a vehicle upon any public street or highway in this city at a greater rate of speed than is reasonable or proper, having regard to the traffic and the use or condition of the way, or so as to endanger the life or limb or injure the property of any person. If the rate of speed of any vehicle operated in a resident district exceeds twenty miles an hour, such a rate of speed shall be prima facie evidence that the person operating the vehicle is running at a speed greater than is reasonable and proper, having regard to the traffic and the use and condition of the way.”
‘ ‘ If you find from the evidence in this case that the defendant, Joe Herring, was operating his automobile along and upon North “0” Street, this city, in a resident section at a speed greater than twenty miles per hour, then I instruct you that such rate of speed is prima facie evidence that he was operating his car at a speed greater than is reasonable and proper, having due regard for the traffic and the use and condition of the way. And, if you find that such speed was the proximate cause of the collision and damages, if any, proved by the evidence, then you should return a verdict for the plaintiff. You are instructed that a resident district, as used in these instructions, means a territory contiguous to a highway not comprising a business district when the frontage on such highway or street for a distance of three hundred feet or more is mainly occupied by dwellings or by dwellings and buildings in use for business. ’ ’
"No. 2. You are instructed that:
“(a) The drivers of vehicles approaching’ a street-intersection at approximately the same time shall give the right-of-way to the vehicle approaching from the right. So that, if you find from the evidence in this case that the plaintiffs’ employee and driver, Walter Standard, was driving plaintiff’s automobile truck along and upon North 13th Street in a southerly direction at a point where North 13th intersects “0” Street, and you further find that the plaintiff’s automobile truck and the defendant’s automobile reached said intersection at approximately the same time, then I instruct you that the plaintiff’s automobile truck and the driver thereon, Walter Standard, had the right-of-way over the defendant, and that it was the duty of the defendant, Joe Herring, to yield said right-of-way to plaintiff’s driver. And if you find that defendant failed to Afield said right-of-way, and that this was the proximate cause of the collision and of the damages resulting from said collision, if any, then I instruct you to return a verdict for the plaintiffs.”

It is insisted that instruction No. 1 contains three prejudicial errors:

(a) That the statement in the instruction that the running of a motor vehicle in a resident district in excess of twenty miles an hour is prima facie eAfi-dence that the operator, of the ATehicle is running at a greater rate of speed than is reasonable and proper is in conflict with the statute. We do not agree with the appellant. By paragraph 7 of § 4 Act No. 223, Acts of 1927, the speed in resident districts is fixed not to exceed twenty miles an hour unless otherwise fixed by local authority, and by paragraph 8 of that act thirty-five miles is fixed as the speed limit under all other conditions. Immediately following paragraph 8 is this language: “It shall be prima facie unlawful for any person to exceed any of the foregoing speed limitations except as provided in subdivision ‘c’ of this section.” (Subdivision “c” authorizes the local authorities by ordinance to increase the speed limit).

The statement of the instruction was in line with the language of the statute and was correct.

(b) It is further insisted that the instruction is objectionable because it tells the jury to find for the plaintiff if the violation of the statute was the proximate cause of the collision and damage, without requiring the jury to find whether the appellant was negligent in failing to comply with the law. We think this objection is well taken, for it was a declaration in effect that violation of a traffic law was per se negligence, whereas violation of the law merely cast upon the appellant the burden of showing that under the circumstances he was acting with ordinary care notwithstanding the violation of the law. It is not enough that the violation of the statute be the proximate cause of the injury, but it must also appear that this violation of the law was negligence, which question should have been submitted to the jury. Of course, if a violation of any statute was not the proximate cause of the injury, there could be no legal ground for complaint, but where such violation is the proximate cause of the injury the burden rests upon the party offending to show by a preponderance of the testimony that under the facts and circumstances of the case the conduct of such party was not negligence. If it is so shown, there can be no liability, even though the violation of the law might have occasioned the injury. That the appellant was driving at a speed greater than twenty miles per hour was one of the facts in the case which the jury had a right to consider along with the other facts and circumstances in determining whether or not he was negligent. Mayes v. Ritchie Gro. Co., 177 Ark. 305; Pollack v. Hamm, 177 Ark. 348. But, as we construe the instruction, the right to consider any other circumstances was withdrawn from the jury, leaving them only to determine the negligence of the appellant from the single fact of the rate of speed at which he was driving.

(c) The further contention is made that the instruction was prejudicial because it assumed that the collision took place in a resident district without any proof having been adduced to establish that fact. Without reviewing at length the testimony on this question which is not very clear, we think there was enough testimony to submit that issue to the jury, and the instruction in this respect was not erroneous.

Instruction No. 2 is erroneous for the same reason as instruction No. 1, supra, in that it tells the jury that a violation of the traffic law with respect to drivers of vehicles approaching a street intersection in effect is negligence, and that if a violation of such law was a proximate cause of the injury they should find for the plaintiff. What we have said as to instruction No. 1 above is applicable to instruction No. 2. Appellees argue that if these instructions were erroneous in the particular discussed this error was cured by the giving of instruction No. 8 at the request of the appellant, by which the jury were told that the violation of the traffic law was not of itself necessarily evidence of negligence, but that the same, if any, might be so considered by the jury in connection with other circumstances disclosed by the evidence. This instruction is in conflict with instructions 1 and 2. By instruction No. I as we have seen, the jury are virtually told that the violation of the law was negligence, while instruction No. 8 not only told the jury in effect that, the violation of the traffic law is not of itself negligence but that it is not even “of itself necessarily evidence of negligence.” We think that instruction No. 8 is not correctly phrased. The jury might well have been instructed that a violation of the traffic law is not of itself necessarily negligence, but to say that it is not necessarily evidence of negligence is incorrect. It is evidence of negligence, the weight and sufficiency of which, tested by the light of surrounding circumstances, is a question for the jury.

In St. L. I. M. & S. R. Co. v. Rogers, 93 Ark. 564, we held that where “the instructions given may be apparently conflicting, if, from the language used or the relation which the instructions are made by the whole charge to bear toward each other, it is readily seen that' they are to be read together without conflict and as a harmonious whole, and they can be so read, then it is our duty to so treat them. ’ ’ In the case at bar instruction No. 8 is wholly disconnected from instructions 1 and 2, and it is not at all evident that they are to be read together and as a harmonious whole, for they cannot be so read because they are irreconcilable with each other.

In Garrison Co. v. Lawson, 171 Ark. 1122-5, we referred to the case of St. L. I. M. & S. R. Co. v. Rogers, supra, and quoted with approval therefrom as follows: “Separate and disconnected instructions, each complete in itself and irreconcilable with each other, cannot bo read together so as to modify each other and present a harmonious whole. ”

We have seen, therefore, that instructions No. 1 and No. 2 are not only erroneous, but prejudicial.

There is another vice in these instructions which has not been briefed by the appellant, but, as there must be a new trial of this case, we think proper to mention it. As a defense to the action appellant pleaded the negligence of the servant of the appellees in bar, and on this issue introduced testimony and submitted the issue to the jury by instruction No. 7 given on motion of the appellant. In instructions 1 and 2 this issue was ignored. “An instruction which ignores a material issue in the case about which the evidence is conflicting and allows the jury to find a verdict without considering that issue, is misleading and prejudicial, even though another instruction which correctly presents that issue is found in other parts of the charge.” St. L. I. M. & S. R. Co. v. Rogers, supra.

In the case of Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, we said: “We all agree that an instruction should be complete in itself when it undertakes to tell the jury when a verdict should be returned for the plaintiff, and that the trial court should not instruct the jury that it must find for the plaintiff or the defendant, as the case might be, upon a partial or incomplete statement of the law applicable to the material facts of the case. * * * The result of our views is that it is established as a settled law of this State by the decision in Garrison Co. v. Lawson, 171 Ark. 1122, and Natural Gas & Fuel Co. v. Lyles, 74 Ark. 146, that an instruction is inherently erroneous, and therefore prejudicial, which leaves out of consideration the plaintiff’s contributory negligence * * * and leaves to the jury the determination of the defendant’s conduct as the sole issue of the jury’s verdict, by concluding with the phrase, “you will find for the plaintiff,” since, under the evidence, the conduct of the plaintiff as well as that of the defendant is essential to a proper verdict.”

In Murray v. Jackson, 180 Ark. 1144, we held that “the word ‘intersection’ does not mean the point where two automobiles approaching at right angles would meet if they continued on their course, nor the point where the middle or center line of the two streets would cross each other, but the space occupied by the two streets where they cross each other, the whole space between the lines of the two streets.” The appellant requested an instruction B in which he attempted to define the word “intersection” under the rule announced in Murray v. Jackson, supra. The requested instruction 'was as follows: “Under the evidence in this case, you are instructed that the word ‘intersection’ as used in the other instructions of the court means'that space on North “0” Street between the east line of 18th Street and the west line of 13th Street.” The appellant calls attention to the peculiar alignment of “0,” 18th and 13th Streets and insists that the definition requested conformed with the rule stated. We have examined the plat, and do not agree with the appellant in this contention, but think the intersection in this particular case is the space in “0” Street within the east and west lines of 13th Street extended to and across said “0” Street, and the court’s refusal to give the instruction as requested was not error.

As we have already said, this case must be remanded for a new trial, and we therefore desire to call attention to another instruction which is incorrect, namely, instruction No. 17 on the measure of damages. This instruction is almost identical with one.condemned in the case of Kansas City Sou. Ry. Co. v. Biggs, ante p. 818 decided this date. We refer to that decision for a discussion of the error and for citation of authority.

The evidence in this case was ample to support the verdict of the jury, but the appellant was entitled to have his theory of the case fairly and correctly presented to the jury, and since, as we have seen, the instructions be-foré criticized were erroneous and prejudicial, the judgment of the trial court will be reversed, and the cause remanded for a new trial.


author: Hast, C. J.,

text:
    Eason v. Highley.
    Opinion delivered June 2, 1930.

      O. E. Williams, for appellants.

      W. A. Utley, for appellees.
   Hast, C. J.,

(after stating the facts). It is the settled law of this State that where an estate comes to an intestate by gift or devise, without consideration other than that of blood, it is an ancestral estate; but that, if any part of the consideration is a valuable one, the estate acquired is a new acquisition. The court has held frequently that the purpose of the statute creating ancestral estates was to keep such estates in the line oif1 blood from which they came, and that blood must be the only consideration by which they are acquired, whether by devise or gift. Hence, if an estate is ancestral and comes to the intestate by gift, devise, or descent, on the part of the father or mother, it goes to the heirs of the intestate who are of the blood of the ancestor from whom it came. If, on the other hand, the land is a new acquisition, on the death of the mother after that of Van Franklin Highley, the land passed to his brothers of the half blood. Martin v. Martin, 98 Ark. 93; Hill v. Heard, 104 Ark. 23; McElwee v. McElwee, 142 Ark. 560; Earl v. Earl, 145 Ark. 559; Beard v. Beard, 148 Ark. 23; and Carter v. Carter, 129 Ark. 7 and 573.

It is contended by counsel for appellants that a preponderance of the evidence shows that- the lot in controversy was an ancestral estate. They point to the fact that the records of the bank show that Mrs. Alice L. Highley had on deposit in the bank the sum of $1,400 on the day that the .deed to Van Franklin Highley was executed. Thejr state that this fact,' coupled with the other circumstances attending it, show that the whole consideration was paid by the mother. It is true, as contended by appellants, that the pension attorney testified that, undér tlie laws of tlie United ’States, tlie pension was received by Mrs. Alice L. Highley for herself and her minor son, but a consideration of the whole testimony of the pension attorney shows that he was referring to the amount received after September 27, 1916, at which time the minor became sixteen years of age. The mother had applied for and received a pension commencing November 16, 1911, and from that time until her minor son became sixteen years of age, on September 27, 1916, it appears that she received the pension, both for herself and for her minor son. In any event, she so considered the matter and so reported it to the probate court. She was the guardian of her minor son, and in her final settlement, which was filed on the 2d day of March, 1920, she charged herself with the sum of $752 on account of the minor’s pension. She also asked for credit from the death of his father up to September 27, 1916, for funds expended in his education and maintenance. This shows that she regarded his claim for minor’s pension as belonging to him, and that she must account for it to the probate court. It is true that her account was approved by the probate court, but this does not end the matter. . She had not obtained any previous order of the court allowing her to expend this sum for the support and maintenance of her minor son.

It is the established law in this State that the probate court cannot approve the expenditures of a guardian for the maintenance and education of his ward in so far as they exceed the income of the ward’s estate, unless such expenditures have been under the direction of the court. Campbell v. Clark, 63 Ark. 450; Thomas v. Thomas, 126 Ark. 579; and Diffie v. Anderson, 137 Ark. 151. There is nothing in the record tending to show that there had been any previous order of the probate court directing Mrs. Highley to expend any part of the principal of her ward’s estate for his education and maintenance. On the other hand, such proof as the record contains on the point was, that the son, while in-poor health, worked during the ■week-ends in delivering' groceries and endeavoring to earn what be conld to help support himself and Ms mother. She earned her own support by daily labor, but there is nothing to show that she was authorized to expend any part of her ward’s money towards his education and support.

The testimony of Mrs. Hutcheson, who deeded the lot to the minor, was that his mother told her that it was to he paid for her out of the pension money belonging to herself and to her minor son. While the mother had on deposit in the bank in her own name the amount, which she paid for the lot, still when her daily deposit slips in the hank for the time previous to the execution of the deed are examined, we must come to the conclusion that it required the pension money of her son to make out the $1,400. Another witness testified, that when the mother told him in the presence of her son that she wished to purchase them a home but did not have sufficient money for that purpose, her son replied that he wished his pension money to be used in part payment of the purchase price of a home for them. Hence we are of the opinion that a preponderance of the evidence is that a part of the purchase price of the land in question was paid by the minor; and, under the principles of law above set forth, the estate was a new acquisition, and, upon the death osf: the mother after that of the minor, it descended to his half brothers as his heirs at law.

There is nothing in the case of United States Fidelity & Guaranty Co. v. Hicks, 180 Ark. 118, 21 S. W. (2d) Ark. 421, which conflicts with the views we have expressed here. In that case, the record showed that the United ■States had allowed the mother a monthly pension of $20 for the support of her ward, and that the probate court had allowed her a monthly sum of $25 for the same purpose. The court also said that the testimony showed that, after the allowance was made, the guardian supported and maintained her ward and spent more than the sum allowed upon her ward, So, it will be seen that the facts in that case showed that ail allowance had been made in the probate court for the support and maintenance of the ward, and that the mother had expended more for that purpose than the sum allowed by the probate court, or allowed as a pension for the minor by the United States; but was only permitted to hold as her own money the amount so allowed her.

It follows that the decree of the chancery court was correct, and must be affirmed.