text:
    Glen Falls Insurance Company v. Bassett.
    Opinion delivered January 18, 1932.

      Verne McMillen, for appellant.
    ■ C. A. Holland and George W. Clark, for appellee.
   Smith, J.

This is a suit by appellee upon a fire insurance policy issued to him by the appellant insurance company to recover damages to compensate a partial destruction of the building covered by the policy.

■ An unsuccessful attempt was made to adjust the loss on the basis of the cost of restoration, and all the testimony in the case was devoted to the development of the question of the cost of this repair, and a number of building- contractors testified on that subject. .No one of them appears to have testified as to the difference in value between the building in its condition before the fire and its value after its restoration. Indeed, the estimates of cost of restoration were based upon plans which would have put the building in as good condition as it was before the fire.

The property was purchased by appellee in 1928 for $3,000, and, as the building was old, he made repairs' costing about $300, which put it in good condition. Appellee admitted the property was more valuable at the time of its purchase than it was at the time of the fire, and the undisputed testimony is to the effect that the two lots upon which the building stands are. worth not lests than $1,000.

There was a verdict and judgment for $2,750, from which is this appeal, and it is earnestly insisted for its reversal that it is grossly excessive. We dispose of this feature of the case, however, by saying that, while it appears to be very liberal and to be based upon estimates of the complete restoration of the building to its condition before the fire, we are unable to say that it is not supported by sufficient testimony.

The policy sued on contained the following clause: ‘ ‘ This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such, actual cash value, with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality. ”

As has been said, the testimony was devoted to the question of the cost of the restoration of the building to its condition before the fire. Upon this issue the court gave, over the objection and exception of the defendant company, an instruction numbered 1, which reads as follows: “The court instructs the jury that, in determining the cost of restoring the building and the measure of the plaintiff’s damage, you have a right to take into consideration the difference in the value of a patched-up or restored building and a building built at one time without patches and repairs.”

We think this' instruction was erroneous. As has been said, the building was not a new one, yet this instruction permits the recovery, not only of the restoration cost, hut also the difference in value between the restored building and a new one, that is, “a building built at one time without patches and repairs.”

The provision of the policy above quoted does not contemplate, under the facts of this case, the erection of a new building, but only the restoration of the damaged one to a condition as good as that existing at'the time of the fire. It contemplates, of course, that material, workmanship and finish shall be of equal quality with that of the old building; in other words, the building must be restored to its condition before the fire, but this does not mean that its value was then to be equal to a new building or one “built at one time:”

The obligation of the insurer under a contract of insurance similar to the one here sued on, where the option to repair and replace has been asserted, was declared in the case of Hartford Fire Ins. Co. v. Peebles’ Hotel Co., 82 Fed. 546. This was a case heard by the Circuit Court of Appeals of the Sixth Circuit, in which Judges Taft and Lurton sat, the opinion being delivered by the latter. It was there held that, after election by an insurer under such a policy to repair or rebuild, the measure of damages is the cost of repairing or rebuilding where there has been a total failure, or the difference between the work as done and its value if done according to the standard of that existing before the fire, and that, upon such election by the insurer, the contract becomes one for rebuilding or repairing, and is governed by the principles applicable to engagements of that kind where the consideration has been paid in advance. It was said further in this opinion that the option to rebuild or repair affords the insurer a mode of adjustment whereby all extravagant claim of loss may be avoided, and that, when once resorted to, the whole character of the contract is changed, and the original contract of indemnity becomes, in effect, a building contract.

The case of National Union Fire Ins. Co. v. Harrower, 170 Ark. 694, 280 S. W. 656, is cited as sustaining the instruction set out above. But such is not its effect. There was no election of the option to repair in that ease, and the issue decided was the amount of damage to the building occasioned by the wind against which the policyholder had been indemnified.

The testimony offered by both parties at the trial from which this appeal comes related to the cost of repair, and the case was developed on that theory, and became, in effect, therefore one for a breach of the contract to repair which the insurer had elected to assume but had not performed. Its liability under the issue joined is identical with that of a builder, who, for a consideration paid in advance, has failed to perform the contract to repair. Hartford Fire Ins. Co. v. Peebles’ Hotel Co., supra; Commonwealth Ins. Co. v. Sennett, 37 Pa. 205, 78 Am. Dec. 418; Cooley’s Briefs on Insurance, vol. 7, p. 6568.

The court gave an instruction at the request of the defendant insurance company which stated the measure of damages as herein declared, but that’ did not cure the error of instruction numbered 1, set out above. The confiict in the instructions left the jury without a clear and definite rule with which to measure the damages.

For the error indicated, the judgment must be reversed, and the cause will be remanded for a new trial It is so 'ordered.


source: Caselaw Access Project

author: Kirby, J.,

license: Public Domain

text:
    Grossman v. Taylor.
    Opinion delivered January 18, 1932.

      Charles Frierson, Jr., and Chas. D. Frierson, for appellant.

      Sam Borex and Lamb <S Adams, for appellee.
   Kirby, J.,

(after stating the facts). The larv designates all creditors of a failed bank, of which the bank commissioner has taken charge, as either “secured creditors, prior creditors or general creditors;” and in act 107 of 1927, § 1, defines a prior creditor as follows:

“(5) The beneficiary of an express trust, as distinguished from a constructive trust, a resulting trust, or a trust ex-maleficio, of which the said bank was the trustee, and which was evidenced by a writing signed by said bank at the time thereof.” The instrument cre-^ ating the express trust of the funds deposited in the bank and naming the American Trust Company as trustee, defining its powers and duties as such, was accepted in writing by said American Trust Company in accordance with the terms thereof, and the bank’s record of the transaction shows it as a trust fund, and that the trust was being executed by the trustee in accordance with the terms of the instrument creating it.

It is true the amount of money set aside for this trust was already in the bank at the time of the execution of the agreement creating the trust duly accepted by the bank, but the instrument was as effectual to create an express trust as though the money had been checked out and redeposited. It is likewise true that this trust fund was not a special deposit within the meaning of the provisions of said act classifying creditors entitled to a preference, but neither was it required to be such in order to entitle the beneficiaries to a prior claim, since the express trust constituting the bank trustee was evidenced by a writing signed by the bank at the time prescribing the duties of such trustee.

Taylor v. Street Improvement District, 183 Ark. 526, 37 S. W. (2d) 84, furnishes no authority for holding otherwise, that case being easily distinguishable from the instant case. There the money was placed in the bank to its credit as treasurer of the districts, the districts being allowed to check it out without restrictions, and the districts were not entitled to priority in payment of their claims because no express trust in writing was created at the time, and neither was any special deposit of the funds made within the meaning of the act; the chancellor there having found that they were entitled to such priority because the funds were trust funds of which special deposit was made.

The act provides all prior creditors as defined in the act, not specified in the exception, “shall have such priority to the extent that they, respectively, may specifically identify their property in its original or traceable form into the hands of the Commissioner, and, if unable so to identify such property, to the extent that the assets in the hands of the Commissioner, in the form of the lowest amount of cash on hand, exclusive of deposits in other banks and all other assets, remaining in said bank continuously after their said respective priorities arose, where necessarily increased by such property, such cash on hand being deemed to have been so increased to the extent of any priorities which may be acquired under classification number (7) as hereinabove set forth, and if such cash on hand is not sufficient to pay all such prior creditors in full the same shall be prorated among them.” The balance of any such claims that can not be so paid in full to be paid as the claims of general creditors of the bank. Act 107 of 1927, p. 301.

The trust fund was not a special deposit, the actual cash being used by the bank as other funds regularly deposited therein, and could not be specifically identified in the hands of the Commissioner, and is to be paid along with the claims of such other prior creditors out of the fund as designated in the statute, and the balance, if said fund is not sufficient to pay all such claims, to be paid as the claims of the general creditors of such bank.

It necessarily follows that the court erred in holding otherwise, and the decree is reversed and the cause remanded with directions to enter a decree in accordance with this opinion holding said claims entitled to prioritv of payment along with such other prior claims or creditors under the terms of said act.


author: Humphreys, J.

text:
    West Helena v. Patrick.
    Opinion delivered January 25, 1932.

      John C. Sheffield, for appellant.

      Peter A. Diesch, for appellee.
   Humphreys, J.

Appellee brought suit on September 27, 1930, against appellant in the circuit court of Phillips County for $1,775, alleged to be due him for salary as chief of police of said city for eleven months and twenty-five days, at the rate of $150 per month. Appellant filed an answer, denying that it was indebted to him in the sum of $1,775, or in any other sum for salary as chief of police. The cause was submitted to the court upon the pleadings and an agreed statement of facts, which resulted in a judgment against appellant in the amount sued for, from which is this appeal.

The agreed statement of facts is as follows:

“Agreed Statement of Facts.
“It is agreed by and between the plaintiff and the defendant that this case may be tried on the laws and the following statement of facts:
“1. The city of West Helena is a city of’first class.
“2. L. H. Kessler was elected mayor of West Helena at the regular biennial election on April 2, 1929, and entered npon his duties as mayor on the following Monday night, at the regular monthly meeting of - the city council.
“3. Ordinance No. 66 of the city of West Helena, approved March 15, 1920, reads as follows: 'Section 9. That, at the first regular meeting held by the city of West Helena city council after the annual election in April, or as soon thereafter as practicable, the mayor shall appoint a competent man of good moral character to be chief of police, who shall hold his office for the term of- one year, or until his successor shall have been appointed and qualified, and the salary is fixed at the sum of $150 a month.’
“4. Pursuant to ordinance No. 66, at the first meeting of the city council in regular session, or on the same date the mayor was qualified as mayor, as per paragraph 2, L. H. Kessler, mayor, with the advice and consent of the council, appointed the plaintiff, Lee Patrick, as chief of police on April 9, 1929, and he served as such chief of police until April 15, 1930.
“5. At the first regular council meeting held after the city election, same being the regular election, or on April 15, 1930, John J. Johnson was appointed by Mayor Kessler, with the advice and consent of the council, to succeed the plaintiff, Lee Patrick, as chief of police, and on the same date John J. Johnson qualified as said chief of police, and has since that time served as chief of police. Lee Patrick was paid the sum of $150 every month by the city of West Helena up to the time of Johnson’s appointment, April 15, 1930, when Johnson was appointed and qualified.
'Signed: “Peter A. Deisch,
“Attorney for Plaintiff.
“John O. Sheffield,
“Attorney for Defendant.”

Under the agreed statement of facts, appellee was appointed chief of police of the city of West Helena for the term of one year or until his successor was appointed, accepted his appointment and served until April 15, 1930, at which time his successor, John J. Johnson, was appointed and qualified without objection or protest on his (appellee’s) part. He accepted pay for the time he served, and allowed his successor to accept the salary thereafter without objection or protest. Having been appointed pursuant to the terms of the ordinance, and having retired pursuant to the terms thereof, he cannot now be heard to say that the part of the ordinance fixing his term at one year was in conflict with the State statute fixing his term at two years, and therefore void. He is clearly estopped to plead the invalidity of the ordinance in that respect. His acquiescence in the appointment of his successor and his successor’s service and acceptance of salary amounted to a resignation and refusal to serve on his part, and he is bound by his acts. Otherwise, where all parties acted in good faith, his silence would place the 'burden on appellant city of paying two salaries, one to the party who actually served in the capacity of chief of police and earned’it and the other to a chief of police who did not serve or offer to serve, but who willingly walked away without protest and allowed another to do his work. Even though the ordinance was void in fixing a one-year instead of a two-year term for chief of police, appellee’s act precluded him from recovering the balance of the salary attached to the unexpired term.

On account of the error indicated, the .judgment is reversed, and the cause of action is dismissed.


author: Kirby, J.

text:
    Green v. State.
    Opinion delivered January 25, 1932.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Kirby, J.

This appeal is prosecuted from a judgment of conviction of appellant for carnal knowledge of a girl under 16 years of age named in the indictment.

No brief has been filed for appellant. It is alleged in the motion for a new trial that the court erred in the admission and exclusion of certain testimony as designated, and in the failure to give appellant’s requested instruction No. 1, and that the testimony is not sufficient to support the conviction.

The first assignment is that the court erred in refusing to allow Cleda Bowling to answer on direct examination the question: “Did she say (the prosecuting witness) why they (her parents) were cruel to her?” Without regard to whether this was material, the record does not show what the witness ’ answer would have been, had she been permitted to make one, and the assignment of error is therefore unavailable. Dunham v. State, 169 Ark. 257, 275 S. W. 325.

The next assignment is that the court erred in refusing to permit the defendant to recall the prosecuting witness, Thelma McCleary, for further cross-examination. This request was made after the witness had been thoroughly cross-examined ¡by counsel for the defense, after she had testified as a witness in behalf of the State, and no abuse of discretion was shown in the court’s refusal to permit further re-cross examination. Section 4190, Crawford & Moses’ Digest; Murphy v. State, 169 Ark. 275, 273 S. W. 718; Underhill, Criminal Evidence, p. 509, § 358.

Neither was error committed in the court’s refusal to permit the introduction of a letter in evidence, part of which was admittedly written hy the prosecuting witness for the purposes of impeachment only. The witness testified, however, that she did not write all the letter, calling attention to the part of it that had been changed after it was written, and an examination of the entire contents of the letter shows that it did not contain any statement relevant or material to the trial of the issue in the case. After witness was excused, counsel for appellant attempted to have her recalled for further cross-examination about the letter, and, upon objection that it was not proper cross-examination, the court refused to allow it to be done, stating, however, that counsel could make the witness his own and examine her as fully about any relevant matters as he cared to, but counsel refused to do this.

The next assignment is that the court erred in refusing to give appellant’s requested instruction No. 1. This instruction told the jury that the burden was on the State to prove beyond a reasonable doubt that the prosecuting witness was under the age of 16 years at the time of the alleged intercourse, but the court had already given instruction No. 7, in virtually the same language of the refused instruction requested, and it was not necessary to give the requested instruction, even though it was correct, it being fully covered by the court’s charge.

The testimony is amply sufficient to sustain the jury’s verdict. It showed that the appellant went away from home with the girl under the age of consent and kept her away from home about 20 days, traveling about with her into two other States. It was not denied that the intercourse had occurred in the county where the indictment was found, the chief question of the case being whether the girl was under the age of 16 years at the time. Her mother and father and one of the other wit-, nesses testified, giving her birth date, that she was under 16 years of age at the time; and the main insistence of appellant, who did not testify, was an attempt to show that some of the witnesses had made contradictory statements about the girl’s age, indicating that she was over the age of consent at the time of the intercourse. The whole evidence discloses, however, that appellant had manifested no interest in or curiosity about the age of the prosecutrix until after he was indicted.

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


text:
    Mississippi Valley Power Company v. Board of Improvement, Water Works District No. 1.
    Opinion delivered January 25, 1932.

      Hill, Fitzhugh <& Brizzolara, for appellant.

      Jones, Hocker, Sullivan <& Angert and Partain <C Agee and Coleman \& Riddick, for appellee.
   Kirby, J.,

(after stating the facts). Appellant contends that the conduct of the parties, the power company continuing to furnish power to the district and charge and receive for the service the same rates or compensation as paid under the contract, amounted to an extension of the terms of the contract for another five-year period, without regard to whether any notice of such desired extension was given in accordance with the terms of the contract. That the provisions about the written notice were for its benefit and could be waived by it. The undisputed testimony shows that no such written notice of desire to extend the contract for an additional period of five years was given, or attempted to be given, in accordance with the terms of the contract before its expiration; nor did the appellant company make any claim or insistanee that such conduct and so-called waiver of notice amounted to an extension before the meeting of the parties to discuss the contemplated action of the waterworks district for purchasing the Deisel engines from Fairbanks-Morse & Company, which would necessarily dispense with the use of the power furnished by appellant company. The district could have complied with the terms of the contract by giving the written notice required for its extension, but certainly the power company could not, by any waiver of such notice, express or otherwise, extend the provisions thereof; and the continuation of the service at the same rates, as under the terms of the old contract, could not have had effect to extend it for another term. Appellant argues otherwise, saying that, without such notice, the company on the 5th day of October, 1928, was at perfect liberty to cut off the current, and refuse further service, but such is not the casé, as the company is a public service corporation, and as such was bound to furnish to appellee district, so long as it desired it to be done, current for its use at a reasonable rate, and, by an attempted waiver of such notice of the extension of the terms of the contract charging the old rates provided therein, it could not acquire any other rights under the law than to furnish the desired power at reasonable rates. Clear Creek Oil & Gas Co. v. Ft. Smith Spelter Company, 161 Ark. 12, 255 S. W. 903. The appellee district could continue taking the power furnished by appellant company at the rates provided in the old contract without an extension of same, and without being bound or estopped in any way to claim a reduction to reasonable rates in accordance with the law providing therefor.

Appellee did not hold over any property of appellant company after the expiration of the lease as contended by appellant. It is presumed, of course, that appellant was fully compensated for the extra service and expenses for service in furnishing the power by the rates allowed to be charged and collected under the terms of the contract. All of the parties appeared to have understood their rights as disclosed by the meeting held for determination of whether the district could not save much expense by the installation of its own power plant, instead of the continued use of power furnished by appellant, the appellant at such meeting agreeing to reduce its rates 25 per cent, if power were used according to the “off peak” schedule. The appellant company had no contract with the waterworks district for furnishing power for any particular term or time, when it sought to enjoin the district from installing a power plant of its own, with which it could supply water to the district at a saving of about 3 cents per thousand gallons, and from such savings pay for the installation of the new power plant in a period of seven years, leaving in the savings fund more than $4,000, and no error was committed in dismissing the appellant’s complaint for want of equity.

Neither does appellant company have, any standing as a taxpayer to resist or prevent the purchase of the new power plant by the appellee district. Sections 14 and 15 of act 64 of 1929 provided for the creation of improvement districts for installing waterworks, electric light plants, and sewers, and making repairs, improvements or extensions thereon,- “when they are in funds”; and, when 'such district has to borrow money for such purposes, the •exercise of the power is conditioned on a petition of the majority in value of the property owners of the district, the adoption of an ordinance by the council authorizing the commissioners to proceed with the work, the assessment of benefits and the levying of a tax to raise funds to repay the money borrowed. The appellant contends that the district is not authorized to purchase the Deisel engines for the new power plant-except by procuring the money in the manner provided for borrowing in said statute. This contention is not warranted, however, since the contract expressly provides that the purchase price of the engines is to be paid for only out of the savings in the cost of pumping water, and the agreement provides : “shall never be held to create any liability or general obligation upon the district, and no taxes, general or special, shall ever be levied upon the real estate or other property in the district, or hereafter within the limits of the district, to pay all or any part of the said sum of $23,560, or interest thereon.” It also provides that no part of the purchase price shall ever be paid from other funds of the district, except funds on hand representing the savings in the cost of pumping water, and that the credit of the district is in no manner pledged for payment of the monthly installments evidenced by writing, providing it is not a general obligation of the improvement district, but a special obligation, “payable only from that part of the income of the waterworks plant of the said district set aside by the terms of the contract between the waterworks district No. 1 of Van Burén, Arkansas, and Fairbanks-Morse & Company, as applicable to payment hereof, and, by reference to said contract, the terms thereof are, so far as regards payment hereof, incorporated herein.” The district is in funds, of course, if there is money enough in the “savings fund” available to make the payments as they become due, but it necessarily would be in funds to discharge such obligations, because under the contract there is no obligation unless the fund for its discharge is on hand, and, when there are no such funds, there is no obligation that can be made a charge or levied as a benefit or assessment against the property of the district, as said in a Massachusetts case:

“It is, in effect, a cash transaction, where the payments are to be made pari passu with the accumulation of the fund, and the only fund, out of which they are to come.” Smith v. Town of Dedham, 144 Mass. 177, 10 N. E. 782. Appellant insists, however, that, notwithstanding the notes or instruments are payable out of the “ savings fund,” they are none the less a debt, bearing interest, and are purchase-money notes for machinery, of which title is retained until their payment. The courts have held, however, that contracts of this character did not create debts within the purview of constitutional or statutory prohibitions against incurring debts as the only recourse in the contract which the selling company has in the case of the failure to pay the purchase price is to retake the machinery. It is a contingent liability only, for which a general tax cannot be levied, and does not constitute a lien upon the power plant, nor its revenues. It can be paid only on the contingency that the district derives enough net revenues from the consumers of wider and lights furnished by the.plant to pay such notes after payment of all expenses of operation, and, as said in Bell v. Fayette, 325 Mo. 75, 28 S. W. (2d) 356: “There is no aspect to that situation which could make the ag’reement to pay in the manner provided a debt of the city. It is a contingent purchase, the property to be paid for only out of the net earnings which it produces; the seller takes a chance on that contingency.” See also Lang v. Cavalier, 59 N. D. 75, 228 N. W. 828; Barnes v. Lehi City, 74 Utah 71, 279 Pac. 878; Johnson v. Stuart, Iowa 226 N. W. 164. Other authorities sustaining the principle are State v. Neosho, 2031 Mo. 40, 101 S. W. 99; Shields v. Loveland, 74 Col. 27, 218 Pac. 913; Franklin Trust Co. v. Loveland, 3 Fed. (2d) 114; Twichell v. Seattle, 106 Wash. 32, 179 Pac. 127; Bowling Green v. Kirby, 220 Ky. 829, 295 S. W. 1004; Searle v. Haxton, 84 Col. 494, 271 Pac. 629; Carr v. Fernstermacher, 119 Neb. 172, 225 N. W. 114; Butler v. Ashland, 113 Ore. 174, 232 Pac. 655; and Ward v. Chicago, 342 Ill. 167, 173 N. E. 810.

Appellant attempted to make a showing in the meeting, held for the consideration of the purchase by the district of the machinery for the power plant, that the waterworks district could use electricity furnished by the appellant company in pumping its water as cheaply as it could be done with the plant contemplated being purchased, and some of the estimates made by the power company’s experts tended to sustain the contention; the other estimates introduced by experts showing overwhelmingly to the contrary, and that in six years the district would be able to supply its own water .with the plant proposed to be purchased, paying the entire purchase price of the engines and have remaining over some $5,500 in money; and also that the life of the engines was more than 20 years. The proposed purchase and contract was not an improvident one, could not be, and the contract-was within the power of the district to make, not -being prohibited by said §§ 14 and 15 of act 64 of 1929. The contract being valid, and the agreement or obligation to pay being such that it did not constitute a debt against the district, nor impose general liability thereon, no tax conld be levied to raise funds for the payment thereof, the credit of the district not being pledged for the payment of the installments, nor the funds of the district, except the “savings fund,” the contract of purchase could not affect the taxpayer’s private interests, and he has no case of equitable interposition nor right to an injunction to prevent its consummation, even though the contract were invalid and it may be challenged by the State. Jones v. Mayor, 25 Ark. 301; Henry v. Steel, 28 Ark. 465.

The court did not err therefore in dismissing appellant’s complaint for want of equity, and the decree must be affirmed. It is so ordered.


author: Butler, J.

text:
    Austin v. J. R. Watkins Company.
    Opinion delivered January 25, 1932.

      Bice & Bice, for appellant.

      J. T. McGill, for appellee.
   Butler, J.

The appellant, W. H. Austin, and J. W. McAllister, entered into a contract with the J. R. Watkins Company which was indorsed on the back of a contract entered into between the Watkins Company and one Hayes who had agreed to handle the goods of the •company. The contract made by Austin and McAllister, in so far as is material to an understanding* of the issues raised, is as follows:

■ - ■ “In consideration of one dollar to us in hand paid by the J. R. Watkins Company, receipt whereof is hereby acknowledged, and the execution of the foregoing agreement, which we have read or heard read and hereby agree and assent to, and the sale -and delivery by it to the party of the second part, as vendee, of goods and other articles as therein provided, we, the undersigned sureties, do hereby waive notice of the acceptance of this agreement, notice of default or non-payment, and diligence in bringing action against said second party, and jointly, severally and unconditionally promise, agree and guarantee to pay for said goods and other articles, and the prepaid freight, express, or postal charges thereon, at the time and place, and in the manner in said agreement provided. ’ ’

Hayes made default in the payment of sums due the company amounting to $437.10, with interest amounting to $483.67, for which the Watkins Company brought suit against Austin and McAllister. There was no controversy as to the amount due. After suit was brought McAllister paid the company $200, and the following written instrument was executed and delivered by the company to him:

“Whereas, J. R. Watkins Company, a corporation, has entered suit in the circuit court of Benton County, Arkansas, v. W. H. Austin and J. W..McAllister, defendants, seeking judgments against said defendants in the sum of $483.67, as sureties upon a certain bond that it is alleged that said defendants executed to plaintiff in behalf of Ernest' Chester Hayes on October 4,1927; and,

“Whereas, plaintiff and defendant McAllister have agreed upon full settlement of said suit, so far as the defendant McAllister is concerned,

“Now, therefore, the undersigned J. It. Watkins Company, in consideration of payment to it of the sum of $200 by the said J. W. McAllister, the receipt of which is hereby acknowledged, do hereby accept said sum in complete and full settlement of any and all claims that Watkins Company now have or claim by reason of the suit and bond herein mentioned, as against J. W. McAllister and agree to dismiss said suit as against this defendant with prejudice.”

At the conclusion of the introduction of testimony in the case, the defendant Austin requested, and the court refused, to charge the jury that a discharge by the creditor of one surety discharges all, and that, if the jury should find that McAllister and Austin were co-sureties and that the plaintiff received $200 from McAllister in consideration of which he was discharged, then a verdict should be rendered in favor of Austin’. The court, on the contrary, instructed the jury that the plaintiff had a right to release McAllister upon the payment of $200, and that in doing so did not release the defendant, Austin, from his obligation to pay one-half the amount due, if otherwise liable.

The case was submitted to the jury on the question of whether Austin did or did not cancel his contract with the company before the goods were shipped to Hayes. The evidence on this question was conflicting, and the instructions given by the court .on that issue appear to have been correct. The jury found in favor of the plaintiff in the sum of $200.

In appellee’s motion for a new trial, a number of errors are assigned, but none are urged -in his brief except the alleged error of the • court in refusing to give at his request, and giving at the request- of plaintiff, the instructions heretofore mentioned, by which the effect of the release given McAllister was submitted. Therefore all grounds of objections except the one relating to the effect of the release must be treated as abandoned. Shawmutt Lbr. Co. v. Waits, 122 Ark. 224, 182 S. W. 907; Fitzhugh v. Leonard, 179 Ark. 816, 19 S. W. (2d) 1010; Roath v. North Little Rock, 181 Ark. 1146, 28 S. W. (2d) 67.

We are of the opinion that the trial court correctly interpreted the effect of the release given McAllister, and it only exonerated Austin to the extent of one-half of the debt. This was the holding of the court in Gordon v. Moore, 44 Ark. 349, and Lashbrooke v. Cole, 124 Ark. 48, 186 S. W. 317. We find nothing in the cases cited by the appellant announcing a contrary doctrine. Therefore, on the authority of these cases we hold that there was no error committed by the trial court which has been urged upon our attention.

The judgment is affirmed.


text:
    Southwestern Life Insurance Company v. Hillson.
    Opinion delivered February 1, 1932.

      Willis B. Smith, for appellant.

      T. S. Clark and T. B. Vance, for appellee.
   Kirby, J.

Appellee brought this suit upon a $500' insurance policy upon the life of her husband issued by appellant company in which she was named beneficiary.

The complaint alleged that the policy was in full force when the insured died, that proof of death was duly furnished, and that demand had been made for one-half the face of the policy, the amount due under its terms, and that payment had been refused.

The insurance company denied indebtedness upon the policy, pleaded a compromise settlement, and exhibited a release signed by the beneficiary, the consideration of the same being the snm of $62.50. It alleged that the release was obtained from appellee, the beneficiary, on the 6th day of May, 1930, and, before the company could issue a check in that amount in fulfillment of the compromise, it was notified by Talbert, the father of the insured, that he was claiming the money due under the policy on the life of his son.

Upon the trial in the municipal court the appellant company tendered the beneficiary in the policy, appellee, the sum of $62.50 in fulfillment of the compromise agreement, which said sum was refused. Judgment was rendered in the municipal court for $250 with penalty and attorney’s fee, and the case was appealed to the .circuit court.

There the appellant again tendered the beneficiary in open court the sum of $62.50, “in fulfillment of their previous compromise with said beneficiary,” which was again declined. Upon the trial of the case in the circuit court the judge instructed a verdict for appellee in the sum of $250 with 12 per cent, penalty and $50 attorney’s fee; and this appeal is from that judgment. ■

The undisputed testimony showed that the release pleaded in bar of the suit was executed by appellee, but also that the money agreed to be paid therefor had not been paid to appellee. It is true that appellant tried to explain as a reason for its nonpayment that other claimants to the insurance had developed and tendered the amount of the consideration for the release to appellee, both in the municipal and circuit courts, where it was declined. This was more than five months, however, after the release was procured, and certainly such instrument could not be binding on appellee nor a bar to her suit on the policy, since it was procured without payment of the money agreed to be paid therefor, as shown by the undisputed testimony. Appellant concedes this to be true, but appears to think its failure to comply with the terms of the agreement for the release was excused by demand of another claimant to the insurance due under the policy, and that it had the right later to tender the money and complete the satisfaction of the new agreement. This, of course, could not be done. It admitted that it had not paid the consideration, under which the purported release was obtained, and there was no question for determination by the jury. There are other questions that need not be determined in view of this holding.

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


author: MoHaney, J.

text:
    Forsgren v. Massey.
    Opinion delivered February 1, 1932.

      Schoonover \& Schoonover, Buebee, Pugh A Ilarrison and Walter L. Pape, for appellant.

      W. P. Smith, A. J. Cole and Jackson & Blackford, for appellee.
   MoHaney, J.

Cases Nos. 2291 and 2363 have been consolidated here as they refer to the same controversy. The former is an appeal from a judgment for personal injuries in the sum of $12,500, while the latter is an appeal from an order overruling a motion for a' new trial on account of newly discovered evidence.

A reversal of the judgment in 2291 is sought on several grounds: that the court erred in not directing a verdict in appellant’s favor at his request, and that error was committed in giving certain instructions requested by appellee and, in refusing to give certain others requested by him. In view of the disposition we make of the ease in 2363, we think it unimportant to discuss in detail the errors assigned and relied on for a reversal in 2291. Suffice it to say that the evidence, in our judgment, was sufficient to take the question of the negligence of appellant to the jury, and that the court fully and fairly instructed the jury on the questions at issue. We therefore pretermit a further discussion of the .alleged errors in case No. 2291. The recovery was based on allegation and proof of an injury to appellee'’s left hip and back which caused a paralytic condition of the left leg to such an extent that he had totally and permanently lost the use of it; that the nerves therein were dead, and that it was insensible to pain. He appeared in court and in public generally on crutches, dragging his left leg, and both his physicians, and those of appellant who made an examination of appellee during the trial, testified that his leg, in their opinion, was paralyzed and useless, those for appellee stating it was their opinion such condition was permanent, while those for appellant thought nature would gradually restore the nerve structure, both motor and sensory, and that he would eventually recover. There was no testimony contradicting the nature and extent of his injury.

The trial occurred at the January, 1931, term of the court, motion for a new trial was filed and overruled, and thereafter on May 26, 1931, appellant filed an additional motion for a new trial under the seventh subdivision of § 1311 of Crawford & Moses’ Digest, which provides that the court may grant a new trial for “Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence have discovered and produced at the trial.” See also §§ 1315 and 1316, Crawford & Moses’ Digest, for necessary requirements and procedure. The petition or motion complied with these requirements. It alleged that subsequent to the trial two witnesses, Bill Cockrum and his wife, Edith Cockrum, had disclosed to ~W. J. Schoonover, one of appellant’s attorneys, that appellee had not received a serious or permanent injury; that his leg was not paralyzed; that he had been faking such an injury by appearing in public on crutches and dragging his leg as if he had no use of it, whereas, in the privacy of his own home, he discarded his crutches and had the use of said leg the same as if he had never been injured; that said witnesses lived in the same house appellee lived in, they on one side thereof and appellee and his wife on the other, and were in daily contact with him; and that both before and after the trial appellee was able to use said leg to walk, run, drive a car, stand upon it and move about without any perceptible limp.

It was further alleged that said evidence was not available to appellant at the trial nor at any time during the trial or at the January term of court, and could not have been discovered with reasonable dilig’ence, that same was material for appellant in the trial of said cause, and was not cumulative in any sense. It was further alleged that the evidence was discovered when said Bill Cockrum approached said Schoonover at his home after nightfall sometime after the trial, stating that he had been sent by appellee to try to effect a settlement of his judgment for about one-tenth thereof in an attempt to defraud his attorneys; that said Schoonover declined to make any settlement in the absence of said attorneys, began questioning said Cockrum and elicited from him the above information relative to appellee’s condition. Cockrnm’s affidavit was taken, and later that of Mrs. Cockrum, both of whom stated they would not have disclosed the facts detailed above before the trial to any one. These affidavits, as also that of Mr. Schoonover as to how he obtained the information, were attached to the petition or motion for a new trial, which was filed, docketed ¿s a new case, summons issued, response filed and the case set for trial and was tried at the next term of court. On the trial the deponents above named testified to substantially the same facts herein related, and appellee produced witnesses who testified to the contrary. The court found “that the petitioner has not proved due diligence in the procurement of the newly discovered evidence forming the basis for the petition for new trial, and that said petition should be overruled and denied.”

This court has many times held that motions for a new trial on account of newly discovered evidence are addressed to the sound discretion of the trial court, and that this court will not reverse for failure to grant unless an abuse of such discretion is shown. Nor where the newly discovered evidence is cumulative merely. It must be relevant and material to the issue involved in the original case, and of such a character and cogency that might probably change the result, and due diligence must be shown. Killion v. Killion, 98 Ark. 15, 135 S. W. 452; Medlock v. Jones, 152 Ark. 57, 237 S. W. 438; Connor v. Bowers, 184 Ark. 102, 41 S. W. (2d) 977. There can be no question about the relevancy and materiality of this evidence, and it is also true that it is such as might probably change the result. Nor is it cumulative, as contended by appellee. There was no evidence to contradict appellee and the physician witnesses as to the nature and extent of Ms injuries. In an action for damages for personal injuries there must be both actionable negligence and injury. Appellee’s injury was therefore a vital question in the case, as upon it depended the amount of the recovery. This evidence therefore wa.s highly important, as “it tended to break down the evidence of appellee” as to the nature and extent of his injury. Medlock v. Jones, supra.

The court overruled the motion on the ground that reasonable diligence had not been shown. In this we think the court erred. All that the statute requires is “reasonable diligence.” Both witnesses testify they would not have disclosed this evidence before the trial if inquiry had been made of them. No one connected with the case for appellant knew of the existence of these persons or that they lived in the same house with appellee or that they might so testify. No person had any reason to suspect that appellee was a malingerer, and, therefore, had no occasion to inquire of those close to him whether he was faking an injury. On this point we think the case is ruled by Medlock v. Jones, supra.

Reversed and remanded for a new trial.

Mehaeey, J., dissents.


author: Smith, J.

text:
    Brewer v. Wilson.
    Opinion delivered February 8, 1932.

      W. K. Ruddell and Coleman <& Reeder, for appellant.

      T. A. Gray and J. J. MoCaleb, for appellee.
   Smith, J.

J. T. Wilson was survived at the time of his death on June 8, 1911, by his widow and seven children. He owned at the time of his death a quarter section of land, upon which he resided as a homestead, and the personal property usually found on a farm of that size.

G. W. Brewer, who had married one of Mr. Wilson's daughters, resided on this farm, and he claims to have rendered personal services to Mr. Wilson, who was an invalid for several years prior to his death, for which he should receive compensation of $1 per day, amounting to $1,269.

There was no administration on Mr. Wilson's estate until about a year after the death of his widow in March, 1928, at which time Brewer took out letters of administration, so that about eighteen years elapsed after the death of the intestate before letters of administration had issued.

The court below was of opinion that this lapse of time barred Brewer’s right as a creditor to administer upon the estate, and, on this theory, reversed the .judgment of the probate court, which had -allowed the claim in part. The correctness of this ruling is the point for decision.

The excuse given for the delay in having an administration was the existence of the widow’s right of homestead and dower, and it is asserted that an administra.tion was had within a reasonable time after the termination of those estates.

We think the excuse offered for the delay was insufficient, and that the circuit court correctly held that Brewer’s claim was barred by the delay.

In the case of James v. Gibson, 73 Ark. 440, 84 S. W. 485, it was said: “The rule is well established in this State that real estate is assets in the hands of the executor or administrator for the payment of the debts, as far as needed for that purpose, after the personal property has been exhausted; yet the right of creditors to enforce payment out of the lands must be exercised within a reasonable time. (Citing cases.) It has been held that seven years’ delay, without reasonable excuse, is sufficient to bar the right, and it is immaterial whether the delay occurred before or after the administration commenced. Roth v. Holland, [56 Ark. 633, 20 S. W. 521, 35 Am. St. Rep. 126] supra.”

In the case of Roth v. Holland, just referred to, 56 Ark. 601, 56 Ark. 633, 20 S. W. 521, Mr. Justice Hemingway stated the reasons which induced the court to hold that a delay of more than seven years on the part of a creditor in procuring letters of administration to be issued upon the estate of his debtor is such delay as will defeat the application of the administrator for an order to sell the lands of the estate. It was said of this holding in the case of James v. Gibson, supra, that “The rule is not an application, strictly, of the equitable doctrine of laches, for it lacks some of the elements of that doctrine, nor of the statute of limitation, though it is applied in cases at law as well as in equity, but it is sui generis, rather an application of the statutory period of limitation to the equitable doctrine of laches in part, so as to prevent the abuse by creditors of the right to enforce demands against the lands of a decedent after unreasonable delay.”

The case of Turner Heirs v. Turner, 141 Ark. 48, 216 S. W. 44, is cited to sustain the contention that there has been no such delay as to bar the allowance of Brewer’s claim, inasmuch as the land of the intestate constituted his homestead, and was not subject to sale to pay his debts until the expiration of the widow’s homestead and dower estates.

That and the instant case are not otherwise similar. In the former case the intestate died in 1894, and, while the date of the letters of his administrator is not recited in the opinion, it is stated that the claims against the estate were presented and allowed in 1895 and 1896. The personal estate appears to have been exhausted in the course of the' administration. There appears to have been no delay in probating the claims against the estate in that case, and the opinion recites that the administration was still pending at the time of its rendition. There was no petition in the probate court until after the death of the intestate’s widow in 1918, for an order to sell the homestead and a small adjacent tract of land, which was said to have been valueless if sold apart from the homestead. Inasmuch as the homestead could not have been sold in payment of the intestate’s debts during the continuance of the homestead estate of the widow, it was held that there was no laches or delay in waiting until the homestead estate had expired before asking the probate court for an order to sell.

The delay in the instant case consisted in not having an administration upon the estate. The claim could have been probated in any event, and the right so to do was not affected by the fact that all the land belonging to the intestate was embraced in the homestead. As was said by Justice Hemingway, in the case of Roth v. Holland, supra: “Delay in taking out letters, and delay in applying to sell after they are taken out, alike keep alive uncertainty in the tenure of the heir, and are alike due to the non-action of the creditor. For, although letters are issued upon application of the administrator, it is within the power of creditors to compel administration after thirty days from the debtor’s death, and, if it is delayed, it is as much due to them as is the delay in applying for leave to sell. Our conclusion, therefore, is that the right to sell is lost by delay in administering, whenever a like delay after administering, in proceedings to sell, would forfeit it. [Citing cases.]”

We conclude therefore that the circuit court was correct in holding that the delay in causing the estate to be administered upon — about eighteen years — was unreasonable, and barred the right of the appellant creditor to proceed against the estate. Lester v. Kirtley, 83 Ark. 554, 104 S. W. 213; Field v. Tyner, 163 Ark. 373, 261 S. W. 35; Backes v. Reidmiller, 157 Ark. 569, 249 S. W. 10; Mayo v. Mayo, 79 Ark. 570, 96 S. W. 165; Black v. Robinson, 70 Ark. 85, 68 S. W. 489; Stokes v. Pillow, 64 Ark. 1, 40 S. W. 580; Brogan v. Brogan, 63 Ark. 405, 39 S. W. 58; 58 Am. St. Rep. 124; Abramson v. Rogers, 97 Ark. 189, 133 S. W. 836.

The judgment of the court below must therefore be affirmed, and it is so ordered.


text:
    Norsworthy v. Searan.
    Opinion delivered February 8, 1932.

      George E. Pilce, for appellant.

      W. A. Leach and M. F. Elms, for appellee.
   Smith, J.

The immediate question in this case is, What is the compensation to which jurors, grand and petit, are entitled in Arkansas 'County? The answer to this question depends on the constitutionality of act 299 of the Acts of 1931 (Acts 1931, page 1032).

This act 299 is entitled, “An act fixing the fees and salaries of certain county officers and creating the office of collector in counties having a population 'between twenty-two thousand and twenty-two ^thousand five hundred. ’ ’ By this act the offices of sheriff and collector are separated, and certain duties are imposed on the collector in regard to visiting each incorporated town in the county. All the county officers are put on salaries, and provision is made for deputies and clerical assistance. Section 18 contains the following provision in regard to the compensation of jurors: “That, from and after the passage of this act, the grand jurors and petit jurors of the circuit court of such county shall receive as their compensation three dollars fifty cents ($3.50), and they shall be allowed the same mileage as now allowed by law. ’ ’

Other sections of the act provide the fees' to be paid upon suits filed in both the circuit and chancery courts, and for making transcripts upon appeals to the Supreme Court.

It is provided in the act, however, that “the provisions of this act shall apply to all counties which had, according to the last Federal census, a population between twenty-two thousand and twenty-two thousand five hundred. ’ ’

By the, last or 1930 Federal census, Arkansas County had a population of twenty-two thousand three hundred, and was the only county in the State whose population exceeded twenty-two thousand and was less than twenty-two thousand five hundred. It is therefore apparent and certain that the act can apply only to that county, and its operation is as definitely limited to Arkansas County as if it had been made to apply to that county by name and to no other. As the act is not prospective, but applies only to the counties “which had, according to the last Federal census,” the designated population, it cannot ever apply to any county except Arkansas County. The act is therefore a local one within the inhibition of the constitutional amendment against local legislation.

There has been confusion as to the number of this and certain other amendments: The Local Bill Amendment to the Constitution is designated in Applegate’s Constitution- of Arkansas, Annotated (page 231), as amendment No. 12, and we have used that number in referring to it. This is the amendment which provides that “The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.” The Secretary of State has had printed the Constitution with the amendments thereto, in which he has designated the Local Bill Amendment as amendment No. 14., and we therefore employ the same number in referring to it.

The instant case cannot be distinguished from the recent ease of Cannon v. May, 183 Ark. 107, 35 S. W. (2d) 70, and is controlled by it, and, upon the authority of that case, it must be held — and we do hold — that act 299 of the Acts of 1931 is void, as having been enacted contrary to Constitutional Amendment No. 14, above referred to. There is therefore no valid act fixing a different or special compensation for jurors in Arkansas County, and they must therefore be paid the same compensation as is allowed by the general laws of the State.

The decree of the chancery court, from which this appeal comes, conformed to this view, and it is therefore affirmed.


text:
    Altman-Rodgers Company v. Smith.
    Opinion delivered February 8, 1932.

      Buzbee, Pugh <& Harrison, for appellant.

      Tom W. Campbell, for appellee.
   Humphreys, J.

Appellee brought suit against the Southwestern Bell Telephone Company, appellant, and others to recover damages in the sum of $30,000 for an injury received by him from a telephone wire stretched across State Highway No. 67 near Beebe, which struck and threw him from a load of hay on which he was riding. It was alleged that appellants and the other defendants had moved the wire, and in replacing it had negligently lowered its position, thereby causing the injury.

A separate answer was filed by appellant and two other defendants, denying the material allegations of the complaint, and later appellant filed an amendment to its answer, pleading in 'bar of the cause of action against it that a settlement and compromise of the cause of action had been made by appellee with one of its codefendants, Southwestern Bell Telephone Company.

No pleadings were filed by the other defendants, and the cause was tried to the jury, resulting in a verdict and judgment against appellant for $8,000, from which is this appeal.

Appellant’s sole contention' for a reversal of the judgment is, that under the evidence it was entitled either to an instructed verdict in its favor or else to have the' issue of whether there was a settlement of the cause with appellant’s eodefendant submitted to the jury.

It requested a peremptory instruction, and, when refused, it requested the court to give instruction No. 9, also refused, which is as follows:

“You are instructed that if you find from the evidence in this case that the plaintiff entered into an agreement of settlement with the defendant, Southwestern Bell Telephone Company, that bars his action against the defendant, Altman-Rodgers Company, and your verdict must be for that company.”

Both requests were 'based upon the following eleven questions propounded to appellee, and his answers thereto:

“Q. Mr. Smith, when this suit was filed, you included as one of the defendants here the Southwestern Bell Telephone Company, or the Bell Telephone Company, and that suit, I understand, has been dismissed?” “A. Well, I don’t know anything about that. ” “Q. I will ask you, have you made a settlement with the telephone company?” “A. I haven’t.” ‘‘ Q. Do you know whether Mr. Campbell, your attorney, has?” “A. I don’t know.” “Q. Hasn’t he informed you that he made a settlement with the telephone company? ” “A. He never said anything to me about it. ’ ’ “Q. You don’t know why suit has been dismissed as to them?” “A. Mr. Campbell knows that; I don’t know.” “Q. Did you hear him make a statement here to counsel for the defendant this morning that he had dismissed as to them?” “A. No, sir.” “Q. Didn’t you sign an agreement with the Southwestern Bell Telephone Company not to sue in consideration of them paying you $500?” “A. I signed a receipt or something that Mr. Campbell wrote out there.” “Q. Didn’t you understand the consideration for you signing that was five hundred dollars?” “A. I didn’t see no five hundred dollars.” “Q. You didn’t see the five hundred dollars?” “A. I signed a receipt or something; I didn’t read nothing, and he didn’t tell me nothing. He give me his personal check for $250.” “Q. He retained half of it as his fee; yon had an understanding to that effect?” “A. We never said nothing about that.” “Q. You signed a paper agreeing not to sue the telephone company any further?” “A. I couldn’t say what it was.”

Appellant argues that the application of the rule of law announced 'by this court in the case of Coleman v. Refining Company of Louisiana, 172 Ark. 428, 289 S. W. 2, to the facts detailed above entitles it to a reversal of the judgment and a dismissal of the cause of action against it. The rule of law referred to is as follows:

“Where the concurrent negligence of two persons was responsible for an injury to a third person, a settlement by the latter of an action for such injury will bar an action against the other, although the defendants in the respective actions were not joint tort-feasors.”

The rule invoked is not applicable because the evidence relied upon does not show a settlement of the cause of action between appellee and the Southwestern Bell Telephone Company. The most it shows, and the most the jury could have found it shows, is that appellee agreed for a consideration not to sue the Southwestern Bell Telephone Company.

This court is committed to the doctrine that a covenant not to sue one of two joint tort-feasors does not operate .as a release of the other from liability. Texarkana Telephone Company v. Pemberton, 86 Ark. 329, 111 S. W. 257; Dardanelle Russellville Railway Company v. Brigham, 98 Ark. 169, 98 S. W. 969; Mahaffey v. Glover, 184 Ark. 1159, 45 S. W. 521.

No error appearing, the judgment is affirmed.


text:
    Smalley v. Pegg.
    Opinion delivered February 8, 1932.

      Daily & Woods, for appellant.

      Partain & Agee, for appellee.
   Humphreys, J.

This suit was brought by appellee against appellants in the chancery court of Crawford County to enjoin them from taking an additional strip of land, twenty feet wide by four hundred feet long, belonging to her for the purpose of widening a portion of State Highway No. 71 in said county, commonly known as the Mountainburg-Winslow road, under the provisions of § 5249 of Crawford & Moses’ Digest. The injunction was sought upon the ground that, in a condemnation proceeding under the provisions of said section of Crawford & Moses’ Digest, initiated on petition of the State Highway Commission on the 8th day of May, 1928, against appellee and others, an agreement was entered into between said Highway Commission and appellee to the effect that,,in consideration of $300 paid to her, the Highway Commission would appropriate for use in the construction of the road certain lands belonging to her, accurately designated on the drawing or plat, and no ■more, and that this agreement was incorporated in a judgment entered by the county court of Crawford County awarding damages in the sum of $300 to appellee for said land, which was paid to her by the comity.

Appellant filed an answer, denying that the settlement in the original condemnation proceeding- and the order entered by the county court of Crawford County incorporating same provided that no more of appellee’s land should thereafter be condemned and appropriated for the purpose of widening said highway, but, on the contrary, that the settlement and order simply fixed the amount to be paid for the land particularly described therein and the injury resulting to the entire tract owned by her by reason of taking same.

The cause was submitted upon the pleadings and testimony adduced, from which the court found that the settlement between the parties and order entered by the Crawford County court in conformity therewith constituted an agreement by which no more land of appellee should ever be condemned for widening said highway, and thereupon permanently enjoined appellants from going upon, taking, injuring, or damaging any land or property of appellee save and except the land described in the county court order of March 3, 1930, from which is this appeal.

The language relied upon by appellee as constituting an agreement never to condemn any more of her land for the purpose of widening said highway is contained in a letter written by her attorneys to appellants’ attorneys and their reply thereto in negotiating the settlement in the original condemnation proceeding, together with language used in the order entered by the county court of date March 3, 1930, pursuant to said agreement or settlement. The material portions of the letter written by appellee’s attorneys to appellants’ attorneys are as follows: ;

“In regard to settlement of claim of Mrs. Pegg v. Crawford County: We have taken your proposition of settlement for the sum of $300 up with Mrs. Pegg, and have finally received her permission to make settlement for that amount with the following conditions understood:

“1. That the route is to go as shown by the drawing submitted to us, and no more land is to be taken than that shown, and at the points shown.”

The material portion of the letter in response thereto is as follows:

“Mr. W. T. Barry, district highway engineer, has written Judge Smalley a letter advising him that the route is exactly as set forth in section one of your letter, and that no land will he taken except as shown on the drawing heretofore submitted to you.”

The material language used in the order of the county court is as follows:

“No additional land shall be taken except as shown in green and yellow on said plat, as above set forth, and the proposed or new right-of-way lines for said road shall be as shown on said plat.

“The plaintiff, Mary B. Pegg, is to have and receive the sum of $300 as her damages for such land so taken, and the damage to the balance of her land by reason of such taking, it being expressly agreed and understood that no more land is to be taken than that shown in green and yellow on said plat, and that same is to he taken at the places shown on said plat.”

The language used in the letters and in the order as quoted above referred to the land that was then being paid for and which had been previously condemned, and had no relation whatever to lands which might be condemned for highway purposes in future condemnation proceeding’s. We are unable to discern anything in the language indicating that the State of Arkansas had surrendered its sovereign power to ever thereafter condemn any more of appellee’s land if needed for the construction of highways.

The decree is therefore reversed, and the cause is dismissed.


author: 'Kirby, J.

text:
    Measles v. Owens.
    Opinion delivered February 8, 1932.

      Searcy & Searcy, for appellant.

      Atkins Sb Stewart, for appellee.
   'Kirby, J.

This appeal is prosecuted from a judgment upon a petition for certiorari for review of an order of the county superintendent revoking appellee’s license to teacli in the public schools. The court sustained the petition, overruling the demurrer, and holding that the license to teach was wrongfully revoked by the superintendent, and set his order aside.

It is contended here that error was committed by the superintendent upon the hearing in refusing to disqualify himself, because of interest in the matter, and because of his testifying at the hearing of the proceedings.

Appellee was charged with not possessing the requisite moral character to teach, and cited for re-examination to show cause why his license should not he ■ revoked. Upon the hearing, the license was revoked, and a petition for certiorari was filed in the circuit court asking a review of the proceedings, and alleging that the license was erroneously revoked, and that the superintendent was disqualified to hear and determine the matter, because he was an interested party and prejudiced against the petitioner, and further because he erred in testifying in the hearing in regard to admissions of immorality made by appellee to him. A demurrer was interposed to this petition, and a temporary order overruling the demurrer was made, and finally the order óf the superintendent canceling the license was revoked, from which order this appeal is prosecuted.

Our statute provides for revocation of a license to teach by the county superintendent upon a citation for re-examination of the person holding such license upon his being satisfied by such re-examination that such person does not sustain a good moral character, etc. Section 8897, Crawford & Moses’ Digest.

The statute clothes the county superintendent with special powers, and charges him with certain duties, giving him exclusive authority to hear and determine these matters and makes no provision for a hearing before any other agency or tribunal; and no error was committed therefore in overruling the objection to the competency of the examiner to conduct the hearing and make the proper order of revocation of the license upon his determination that it should be done.

Neither was error committed in the examiner being a witness in the hearing and testifying about the matter. He was only a ministerial officer, and not clothed with judicial power within the meaning of our statutes relative to disqualification of a .judge called as a witness in matters before this court, and besides no objection was made to the introduction of this testimony. Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041; 24 R. C. L., § 70, page 615; Lee v. Huff, 61 Ark. 949, 33 S. W. 846; Stone v. Fritts, 169 Ind. 361, 82 S. W. 792, 15 L. R. A. (N. S.) 1147, citing Doyle v. Continental Ins. Co., 94 U. S. 535, 24 L. ed. 148; Smith v. Farmers’ Bank of Newport, 125 Ark. 549, 188 S. W. 1167.

The county superintendent being given exclusive jurisdiction of the matter, the allegations of the petition relative to his bias and interest and want of judicial capacity are without force. He must answer, of course, to the body responsible for his election for the manner in which he discharges his duties, so long as he keeps within his legitimate sphere, and his arbitrary and unwarranted actions are' subject to review and correction upon certiorari.

The demurrer to the petition for certiorari should have been sustained, and, there appearing to be substantial testimony in support of the superintendent’s finding, his decision and order revoking the license of appellee should not have been canceled and revoked by the lower court upon the certiorari, and its judgment is erroneous, and must be reversed, and the case dismissed. It is so ordered.


author: Mehaeey, J.

text:
    Baltimore & Ohio Railroad Company v. McGill Brothers Rice Mill.
    Opinion delivered February 8, 1932.

      Garter, Jones ■& Turney, Morrison JR. Waite, Won. A. Eggers, Frank H. Cole, Jr., N. F. Lamb and Arthur L. Adams, for appellants.

      A.JJ. Meehan and John W, Monorief, for appellees.
   Mehaeey, J.

On May 15, 1929, the appellees, McGill Brothers, delivered a shipment of rice to the St. Louis Southwestern Railway Company at Stuttgart, Arkansas. The shipment was consigned to the order of McGill Brothers Rice Mill, Cincinnati, Ohio, with directions to notify the American Diamalt Company.

The St. Louis Southwestern Railway Company delivered the shipment to the Baltimore & Ohio Railroad Company, which company transported it to Cincinnati. When the rice was shipped the McGill Brothers drew a draft for the amount of the shipment, $1,106.85, which draft, with the bill of lading attached, was sent to the Provident Savings Bank So Trust Company of Cincinnati, Ohio. The draft was drawn on the American Diamalt Company, payable to the First National Bank of Stuttgart, Arkansas.

When the shipment reached Cincinnati, the American-Diamalt Company secured the bill of lading from the Provident ‘Savings Bank So Trust Company, and the draft was marked “Paid.” The bill of lading delivered to the railroad company was canceled.

On July 5,1930, A. U. McGill and H. T. McGill, doing business as McGill Brothers Rice Mill, and the. First National Bank of Stuttgart filed suit in the Arkansas Circuit ■Court ag’ainst the • St.' Louis Southwestern Railway Company.

The complaint alleged the delivery of the rice to the railway company; th$t the shipment was consigned under shipper’s order bill of lading with draft attached. The bill of lading provided for the notification to the American Diamalt Company, Cincinnati, Ohio, and the complaint alleged that the defendant undertook to transport said rice under the terms of said bill of lading; that the bill of lading was duly indorsed and a draft for $1,106.85 drawn on the American Diamalt Company was attached; that- the draft with the bill of lading- attached was delivered to the First National Bank of Stuttgart, and by it forwarded to the Provident Savings Bank & Trust Company of Cincinnati; that the American Diamalt Company paid the draft to the Provident Savings Bank & Trust Company and the bank delivered the bill of lading and draft to the American Diamalt Company, and it indorsed said bill of lading and presented it to the agent of the connecting carrier, the Baltimore & Ohio Railroad Company ; that the railroad company marked the bill of lading canceled, and delivered the shipment of the. rice to the consignee who accepted said shipment; that thereafter the Baltimore & Ohio Railroad Company wrongfully surrendered and delivered back to the American Diamalt Company the bill of lading and received back into its possession the shipment of rice.

It alleged a , conspiracy between the 'Baltimore & Ohio Railroad Company and the American Diamalt Company, by which the draft was returned and the money refunded.

It was also alleged that the St. Louis Southwestern Railway Company with knowledge consented to the action of the Baltimore & Ohio Railroad Company and American Diamalt Company, and that the Baltimore & Ohio Railroad Company wrongfully took back the shipment of rice and held and disposed of it; that the rice was of the grade and quality agreed to be sold, and was of the value of $1,106.85, and that the McGill Brothers Rice Mill was damaged in this amount.

The St. Louis Southwestern Railway Company filed answer, admitting the delivery of the rice, the indorsement of said bill of lading by McGill Brothers, and that the draft was attached. It denied any knowledge of receiving and accepting back by the Baltimore & Ohio Railroad Company, and denied any knowledge of the grade or quality of the rice.

On February 17, 1931, an amendment to the complaint was filed alleging that the defendant and its connecting carrier, after making surrender and delivery, surrendered back the bill of lading and assumed possession and control of the shipment, and demanded that the plaintiffs pay freight, demurrage and storage, and that they thereafter sold said rice.

The complaint alleged that the defendant and its connecting carrier made false entries showing that no delivery had been made, and no acceptance of the shipment.

Thereupon the St. Louis Southwestern Railway Company filed motion to make amendment more specific, which motion was by the court overruled.

The cause was then continued until the August, 1931, term of court. On June 25,1931, another amendment was filed joining the appellant, the Baltimore & Ohio Railroad Company, as defendant, and the Chicago, Rock Island & Pacific Railway Company as garnishee, alleging that the Baltimore & Ohio Railroad Company was liable under its complaint, and that the Chicago, Rock Island & Pacific Railway Company was indebted to the Baltimore & Ohio Railroad Company in the sum of $2,000, and prayed for a writ of attachment and garnishment. Affidavit and bond were filed, warning order was issued and published, and attorney ad litem appointed for the Baltimore & Ohio Railroad. Company.

On July .31, 1931, another amendment was filed to the complaint Alleging bankruptcy of McGill Brothers, and that Charles G. Miller and Virgil C. Pettie were receivers, and joining them as plaintiffs.

It also alleged in an amendment that Charles G. Miller, Virgil C. Pettie and R. B. Westbrook were duly elected trustees in bankruptcy, and joining them as parties plaintiff.

There was a motion filed by the St. Louis Southwestern Railway ■ Company, asking the dismissal of the complaint as to the First National Bank of Stuttgart.

On August 3, 1931, the Baltimore & Ohio Railroad Company, after filing a motion to dismiss as to the First National Bank of Stuttgart, filed its answer denying all the material allegations in plaintiff’s complaint, and also filed a cross-complaint praying judgment for expenses in the sale of the rice and other charges amounting, after deducting the price the rice sold for, to $475.86.

A reply was filed to the cross-complaint, and then on August 4, 1931, the Baltimore & Ohio Railroad Company filed 'a motion for continuance, on the ground that it had no knowledge of any claim against it until a few days before that time; that its witnesses lived in several States, none of them living in Arkansas, and on the same day it filed an amendment to its motion for continuance and amendment thereto. These motions gave the names of the witnesses, where they lived, and what their evidence would be if present.

The attorneys for plaintiffs announced in open court that they would concede that each and all of the witnesses would testify, if present, as statedfin the motion, and the court thereupon overruled said motion for continuance.

When the case was called for trial on August 5,1931, the Baltimore & Ohio Railroad Company announced that, since the filing of the motion for continuance and amendment thereto, it had learned that J. B. Brodberger was a necessary witness, and set out what he would testify to if present. The motion for continuance as amended was overruled and exceptions saved.

There was a jury trial, and a verdict for appellees against the Baltimore & Ohio Railroad Company for the amount sued for. Motion for a new trial was filed and overruled, and the case is here on appeal.

Appellant first contends that the case should he reversed because the court overruled its motions for continuance. When the motion was filed, appellees admitted that, if the witnesses were present, they would testify to the statements contained in the application for continuance.

The section of the Digest governing continuances reads as follows: “A motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made only upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it; and, if it be for an absent witness, the affidavit must show what facts the affiant believes the witness will prove, and not merely the effect of such facts in evidence, that the affiant himself believes them to be true, and that the witness is not absent by the consent, connivance, or procurement of the party asking the postponement. If thereupon the adverse party will admit that on trial the absent witness, if present, would testify to the statement contained in the application for a continuance, then the trial shall not be postponed for that cause. Provided the opposite party may controvert the statement so set forth in the said motion for continuance by evidence.” Section 1270, Crawford & Moses’ Digest.

The warning order was issued on July 24,1931, and the appellant filed its answer on August 3, 1931. It was not required to answer until 30 days, but it did file answer on August 3rd, and the case was therefore ready for trial, except for the absence of appellant’s witnesses. If the case had been postponed, appellant says that it would have taken the depositions of witnesses because most of them were not in its employ. It had all the advantages that it would have had by taking depositions, because the statements of the witnesses were read to the .jury as evideuce. If depositions had been taken, the appellees would have had an opportunity to cross-examine the witnesses. In order to get a trial, however, they admitted that the witnesses, if present, would testify to the statements prepared by tbe attorneys for appellant.

They not only bad no opportunity to cross-examine them, but tbe statements prepared were doubtless as favorable to appellant as tbe attorneys thought tbe facts would justify, and tbe statute was strictly complied with by permitting appellant to introduce these statements in evidence.

There was no claim made by appellant that it would have tbe witnesses present in court to testify; on tbe contrary, it said that their depositions would be taken, most of them not being in its employ.

Appellant calls attention to a number of cases decided by this court, all of which bold that it is within tbe sound discretion of tbe court to grant or overrule a mo- „ tion for continuance, and that tbe granting or overruling a motion for’continuance will not be disturbed unless tbe trial court á'bused its discretion to tbe injury of tbe party presenting tbe motion.

Tbe earlier cases to which attention is called by tbe appellant were under a statute very different from tbe present statute. Tbe statute as to continuances that was in force prior to tbe section of Crawford & Moses’ Digest above quoted provided that tbe adverse party might prevent the postponement of a trial by admitting that tbe statements which tbe party claimed tbe witnesses would testify to were true. Civil Code, page 112.

Under tbe former statute, if one admitted that the witnesses would testify as stated by tbe party making tbe motion, be must also admit that the statements were true. They could not be contradicted at tbe trial. For this reason tbe party generally could not get a postponement of tbe trial, because be could not afford to admit that tbe things set up in the motion were true. The earlier cases were therefore decided on tbe statements in tbe motion alone.

But- this court has uniformly held that the granting or refusing a motion for continuance is in the sound discretion of the trial court, and this court will not interfere with the exercise of this discretion, unless the action of the trial court is plainly erroneous, and is a clear abuse of its discretion. Bankers’ Fire Ins. Co. v. Williams, 176 Ark. 1189, 5 S. W. (2d) 916; Missouri Pac. Rd. Co. v. Sloan, 176 Ark. 179, 2 S. W. (2d) 15.

It is true, as stated by appellant, that it had never been made a party until June 25th, but it is also true that it knew several months prior to this time that the appellees claimed that appellant was liable to them because it had delivered the shipment to the consignee and had received back the bill of lading and thereafter repossessed itself of the property, returning the bill of lading with some altered indorsement to the consignee.

It therefore appears that it knew what the claim of the appellees was, and it does not appear that it would have had any other or different testimony from what it was permitted to introduce, or what it might have introduced.

It is next contended by appellant that there is no proof of adjudication in bankruptcy, or the appointment and qualifications of trustees, or their authority to maintain the suit, and it calls attention to numerous authorities as sustaining its contention. First, it calls attention to subdivision b of § 11 of the Bankruptcy Act of 1898, 11 USO A, § 29 (b). That simply provides that the court may order the trustee to enter his appearance and defend any impending suit against 'the bankrupt. This was not a suit against the bankrupt, but a suit begun by McGill Brothers, who afterwards went into’bankruptcy, and we know of no provision - of the Bankruptcy Act that prohibits trustees in bankruptcy from being substituted or joined as parties plaintiff.

One of the cases referred to by appellant is Callahan v. Israel, 186 Mass. 283, 71 N. E. 812. In that case the court expressly stated: “It was not the intention of Congress that a trustee could not make a demand for payment, receive money offered him in payment, or take any of the nsnal means to collect and reduce to money the estate, the title of which had vested in him, without some specific direction so to do. That clause was merely intended to 'give to the court power to direct the proceedings of its trustees if occasion for such direction should arise in any specific instance, and not to place upon the court the burden of giving constant directions as to the reducing of the property to money. The title to the estate is vested in the trustee. * * * There is no reason to hold that he has not the right of an owner to bring suit to collect his property, save as it is clearly expressly limited by the act.”

The act, as we have already said, has reference to suits against the bankrupt.

Appellant also calls attention to the case of In re Price, 92 Fed. 987. The court held in that case that it could make no order requiring- the receiver in a State court to transfer assets to the trustee in bankruptcy. It was said the receiver is an officer of the 'State court, and the court held that, while the title to the property was in the trustee, this did not authorize one court to interfere with the property lawfully in the possession of another, and what the court in the last-mentioned case with reference to its order said was that an order might be made authorizing the trustee to apply to the State court for an order directing the receiver to transfer property, and to that end the trustee may be substituted as plaintiff.

In another case referred to by appellant, Western Star Lodge No. 24, F. & A. M., v. Burkes Construction Co., 267 Fed. 550, the court said: “We do not understand that any one can make himself a party plaintiff or defendant in an equity case by simply filing a paper therein asking- to be made a party. It takes the judicial action of the court.”

That means the court where the cause is pending. It requires the permission of the court to be made a party. But, as to the right of the trustees to be made parties, and also as to their election and qualification, the appellant cannot complain. After they had been made parties, appellant filed a cross-complaint against all the plaintiffs, which included the trustees in bankruptcy, and it cannot now be heard to say that they were not qualified trustees or that they had no right to appear as plaintiffs.

It is finally contended that the evidence is insufficient to support the verdict. It is stated by appellant that the majority rule holds a delivery complete when notice has been given to the consignee of the arrival of the goods, and a reasonable time after such notice for removal of the goods has elapsed.

The evidence as to what took place is in conflict, and it was therefore a question for the jury.

A. U. McGill testified that the bill of lading, the original of which was introduced, shows a cancellation stamp placed on it by the cashier of the Baltimore' & Ohio Railroad Company under date of May 22d. The car was delivered to the initial carrier May 15th. There was also indorsed on the bill of lading “No. 1238, date delivered, May 22, 1929.” McGill testified that the bill of lading shows that the shipment was delivered and bill of lading canceled on May 22d, and then' shows, by indorsement not dated, that it was returned to the American Diamalt Company after examination. He also testified that the bill of lading shows that it was handled through the Provident Savings Bank & Trust Company of Cincinnati, and that it bears the indorsement of the American Diamalt Company, by its auditor. He also testified that it was customary and necessary for the consignee to indorse the bill of lading to obtain delivery.

The draft and invoice were introduced in evidence, and it was shown that the draft was for the amount of the selling price, less the freight. McGill examined the draft when it came back to the Bank of Stuttgart, and it showed that it had been marked “Paid” by the Provident Savings Bank & Trust 'Company of -Cincinnati. He also said that it showed an erasure.

The evidence therefore on the part of the appellee was sufficient to submit to the jury 'the question of whether there had been a complete delivery to the American Diamalt Company and a payment of the draft. If there had been, neither the railroad company nor the consignee could chang-e the relation of the parties, and if the appellant, after the shipment had been delivered to the consignee and paid for, repossessed itself of the property, it did what it had no lawful right to do.

The evidence offered by the-appellant contradicted the evidence offered by appellee, not only as to what was done as to delivery and payment, but as to the quality and value of the rice. These, however, were questions of fact, and the jury’s finding is conclusive. This court cannot pass on the credibility of the witnesses, nor the weight to be given their testimony.

The appellant complains'about the instruction given at the request of the appellee. It is a lengthy instruction, and appellant’s objection is, first, that it fails to present the issues, and does not mention or indicate the defenses. The instruction would not be erroneous for this reason. It simply told the .jury that the questions at issue, naming them, were all questions of fact for them to determine, and that the burden of proof was on the appellees.

The next objection is that it unduly, emphasizes the evidence and theory of the plaintiffs. We do not agree with appellant in this contention. The instruction merely recites the facts pleaded by the appellee, telling the jury what is claimed by the plaintiff, 'but does not emphasize the evidence in any way.

It is next contended that the instruction in effect quotes the theory of the plaintiffs, and nowhere states the theory of the defense. It is not usual in requesting instructions by either party to state the theory of the opposing party, and in this case the theory of the appellant was stated in a number of instructions and so plainly that the jury could not have been misled.

It is next stated that the instruction is abstract, and finally that the measure of damages stated is inconsistent with the later instruction on damages. The jury were told in the instruction complained of that the appellee must prove by a preponderance of the testimony, among’ other things, that appellees had suffered a loss of $1,106.85, but, in giving the jury the form of a verdict, the amount of the recovery, if they found for the plaintiff, was left blank.

The court instructed the jury at appellant’s request that, if they found the shipment was tendered to consignee under the terms and provisions of the bill of lading, and was rejected for no cause occurring or happening in transit, they would find for the defendants.

They were also told at the request of the appellant that, if they found from the testimony that only such inspection took place at Cincinnati as was customary and usual under consignment shipments allowing inspection, then they would find in favor of the defendants, regardless of who had possession of the bill of lading during the period of such inspection.

The jury also were instructed that a delivery is not made until notice has been given the consignee, and a reasonable time allowed for its unloading or rejection, and, if the jury found that within a reasonable time the consignee rejected the shipment, they must find for the defendant.

They were also told in an instruction requested by appellant that the measure of damages was the fair market value of the rice at destination point.

There is no conflict between this instruction and the one given at request of appellees.

There was no error in the instructions, and the judgment of the circuit court is affirmed.