text:
    Cropper v. Tackett.
    4-2868
    Opinion delivered February 13, 1933.

      Kent K. Jackson and Perry G. Goodwin, for appel-' lant.

      Northcutt >& Northcutt, for appellee.
   McHaney, J.

By special act 211 of 1905, Fulbax School District was created, composed of what had been School District No. 10 in Fulton County and School District No. 29 in Baxter County. By agreement, the county superintendent of schools in Fulton County has supervised said school, and all the funds accruing to said district have been transferred to the Fulton County school funds and administered and expended by the proper officials of that county. Thereafter, on March 13, 1931, the county board of education of Fulton County made an order consolidating said district with Viola Special School District No. 15 and Union Ridge No. 59, under the name of Viola, or extended tlie boundaries of the Viola District to include the others. Since that time, Viola Special School District has functioned as a school district according to law and the order of the county board of education of Pulton County. On March 1, 1932, eight men, a small minority of the electors of the old Pulbax District, held a school election in said district, in which appellants were elected directors, who thereafter employed a teacher who taught a term of school, and was paid from funds belonging to the Viola District, collected from taxes on property in that part of Viola District in Baxter County and what was formerly district No. '29 of Baxter County before Pulbax District was created.

To a complaint setting out the above facts and that said fund was being unlawfully appropriated by appellants, who have no legal status, a demurrer was interposed by appellants, which was overruled, and, upon their declining to plead further, they were perpetually enjoined from performing any duties as directors, and from paying out any funds or otherwise interfering with the affairs of said Viola District.

Appellants contend for a reversal on the ground that the order made by the county board of education of Pul-ton County consolidating the Pulbax District with Viola and another was not binding as to that part of the territory of the Pulbax District lying in Baxter County, and that said order of consolidation, being improvidently made, could not be cured by § 54 of act 169, Acts of 1931, known as the “School Law.”

Conceding without deciding that the demurrer to the complaint raises the question of the validity of the order of the county board of Pulton County extending the boundaries of the Viola District to include the others above mentioned, we think the court correctly overruled the demurrer. The applicable portion of said § 54 is that “any errors, omissions or defects in the procedure of creating such district are hereby cured, and the action creating such district is hereby ratified.” While it is true that the applicable statute provided for the action of both county hoards to form a school district of lands in two counties, act 156 of 1927, p. 549, still the Fulbax District was created by the Legislature of 1905, and, by common consent and mutual agreement, the Fulton County board and the county superintendent of that county supervised it and managed its affairs as if it were a Fulton County district in its entirety. After the order of consolidation was .made, all persons in the district acquiesced in it, and no appeal was prosecuted from such order. The order was not void, but voidable. Its only defect was the omission to have the action of the county board of Baxter County. A similar case is that of White v. Board of Education of Independence County, 184 Ark. 480, 42 S. W. (2d) 989, where districts in one county were annexed to a district in another county with the action of the county board in one county only. We there denied a petition for certiorari to quash the order of consolidation because of delay in bringing the action for ten months. Here appellants did not appeal, and brought no action contesting the validity of the order, but assumed authority to act as a board of directors in a district that had been abolished for 26 years.

Their action in so doing was without authority of law, and the court correctly enjoined them. Affirmed.


source: Caselaw Access Project

author: BtttleR, J.

license: Public Domain

text:
    Haraway v. Mance.
    4-2869
    Opinion delivered February 13, 1933.

      Moore, Daggett & Burke, for appellant.

      John G. Sheffield, for appellee. •
   BtttleR, J.

The appellee, Henry Manee, was a negro laborer who lived in the city of West Helena and was employed as a cotton picker on the farm operated by the appellant, A1 Haraway, and a Mr. Latten, which farm was about forty miles from Helena. Haraway owned a Model A, iy2-tori Ford truck which was used to haul cotton pickers from their homes to the plantation and return. This truck was operated by a negro, Granville Shields, who was hired by Haraway to secure cotton pickers, telling them how much they would receive for their work and transporting them to and from the plantation.

On the morning of the 4th of January, 1932, Shields secured about thirty cotton pickers in West Helena, among whom was the appellee, and conveyed them from West Helena to the plantation, where all engaged in picking cotton until about three or four o’clock in the afternoon, when it began to rain. Mr. Fatten, whose business it was to weigh and pay for the cotton picked, paid the' appellee and the others for the cotton picked that day. and Shields then loaded them into the truck and started on the return journey. On the way there was a collision between the truck driven by Shields and a truck driven by one Harvey Wallace, belonging to and engaged in the business of the Grear Trucking Company, which truck was coming in the'opposite direction from that in which the truck driven by Shields was traveling. The appellee was severely injured, and brought suit against both Wallace, the driver of the G-rear truck, and the appellant.

The appellee alleged negligence on the part of the drivers of both trucks as the proximate cause of the injury he received. The trial resulted in a verdict and judgment in favor of the appellee against both defendants, from which judgment is this appeal.

For reversal, it is urged that the trial court erred in refusing to direct a verdict for the defendant, Hara-way, the grounds for the alleged error being, first, that the appellee and the truck driver employed by the appellant were fellow-servants; second, that the undisputed facts disclosed by the evidence established contributory negligence on the part of the appellee; and, third, that there was no substantial testimony tending to show any negligence on the part of Shields, the driver of the appellant’s truck.

1. The appellant insists that the facts in the instant case bring.it within the rule announced in St. Louis, A. & T. Ry. Co. v. Triplett, 54 Ark. 289, 15 S. W. 831, 16 S. W. 266, and’ therefore there was no responsibility on the part of the appellant for injuries inflicted upon the appellee for the reason that, if there was any negligence on the part of the driver, it was the act of a fellow-servant. The fellow-servant doctrine has been abrogated by statute as to corporations, but still obtains where the employer is an individual or a partnership such as in the case at bar. The important question, is whether Shields was the fellow-servant of the appellee. If so, there could be no recovery against the employer for his negligent act. This is well settled by the decisions of this court which, at an early date, recognized the fellow-servant doctrine in the case of Fones v. Phillips, 39 Ark. 17, 43 Am. Rep. 264, which has been followed and approved in all subsequent cases.

It is not easy to lay down a well-defined rule as to who are and who are not fellow-servants, so that it may be universally applicable. The ordinary definition of fellow-servant is that those engaged under the control of the same master, in the same common business, the purpose of which is to accomplish a single result, are deemed to be fellow-servants, and negligence of one fellow-servant resulting in injury to another fellow-servant will not render the master liable; but, as is said in Ry. Co. v. Triplett, supra, at page 294: “When we undertake to determine what is essential to render the service common to all, we find the cases numerous and contradictory.” It therefore seems that the tests approximately applicable to all cases can be found only in the reason in which the rule itself is based, which is that one who voluntarily engages in the service of another presumably assumes all the risks ordinarily incident to that service, including that of the negligent acts of those who are his fellows while they are engaged in the prosecution of a common purpose, which negligent acts are not the result of some breach of duty which the master primarily and personally owes to the servant. In regard to the last-mentioned duty, we find also, as in determining who are fellow-servants, no rule which will cover all classes of cases and he of universal application. The generalization which most nearly approaches to it is quoted with approval in Fones v. Phillips, supra, as follows: “Whenever a master delegates to another the performance of a duty to his servants, which the master has impliedly contracted to perform in person, or which rests upon him as an absolute duty, he is liable for the manner in which that duty is performed by the middleman whom he has selected as his agent, and, to the extent of the discharge of these duties by the middleman, he stands in the place of the master; but, as to all other matters, he is a merel co-servant, and the question is not whether the master reserved oversight and discretion to himself, but whether he did in fact clothe the middleman with power to perform his duties to the servant injured.” Wood on Master & Servant, p.. 860. This rule was approved by the court in the following language: “This seems to us to embrace all the conditions under which, by the current and superior weight of authority, the master has been held liable for the acts of negligence of one employee, by which another has been injured.”

In order to determine the question, we must therefore examine the relation which the evidence showed Shields sustained to the master and to the appellee. On this phase of the case there is no conflict. Shields testified that he was' employed by the appellant, Haraway, to drive the truck and transport cotton pickers to and from the plantation; that he would go out in the morning and get a load of people, none of whom he knew by name, and getting different ones each morning; that he would tell those he met that they would receive fifty cents per hundred for picking cotton, and be taken to and from the plantation; that these were all his duties, for which he was paid $1.50 per day by Mr. .Haraway, the owner of the truck and the man who had hired him. Appellee testified that he lived in West Helena, and that every morning Shields was out “hollering for cotton pickers”; that witness asked him what he was paying, and Shields said, “Fifty cents a hundred and carry you there and bring you hack.”

The testimony of Manee and Shields regarding the duties of the latter was not disputed, and these facts, it is insisted by the appellant, make the fellow-servant doctrine applicable to this case, and that to hold otherwise would call for the abrogation or modification of the rule announced in Ry. Co. v. Triplett, supra, and in Walsh v. Eubanks, 183 Ark. 34, 34 S. W. (2d) 762; Williamson & Williams v. Gates, Ib. 579, 37 S. W. (2d) 88, and Parham v. Parker, Ib. 674, 37 S. W. (2d) 879. To further sustain this contention, reliance is had on the case of St. L. S. W. Ry. Co. v. Henson, 61 Ark. 302, 32 S. W. 1079. We do not think, however, that the proved facts in the case at bar bring it within the fellow-servant doctrine;-but rather establish a state of case where a duty which the master has impliedly contracted to perform in person is performed by another under authority from the master for whose negligent act the master is liable as if he were present personally and himself breached the duty. In all the cases cited from our court and relied upon by the appellant, there is a marked distinction between them and the instant case. In St. L. S. W. Ry. Co. v. Henson, supra, the plaintiff was employed by the railroad company in the bridge-building department, and the servant who injured him was an engineer in the transportation department. Plaintiff was furnished a boxcar for his use while engaged in the discharge of his duties, which car was hauled from place to place on the defendant’s line whenever necessary. The car, while thus being hauled, was derailed, and the plaintiff injured and a part of his g-oods destroyed, the immediate result of the negligence of an engineer on another train which occasioned a head-on collision. The court held that the fact that the employees belonged to separate departments was of no consequence other then tending to show whether or not the injury complained of was a risk ordinarily incident to the service undertaken. After discussing the relative duties of the two employees, the court concluded as follows: ‘1 There was nothing of the master’s duty in the work of running the engine. The doctrine announced by this court in Railway Co. v. Triplett, 54 Ark. 289, [16 S. W. 266, 11 L. R. A. 773], applied to the facts of this record, determines the relation of the plaintiff and the defaulting engineer as that of fellow-servants.”

In Walsh v. Eubanks, supra, the negligent employee, who was held to he a fellow-servant of the one injured, was a common laborer and engaged in performing such duties as he was bidden at whatever place necessary to carry into effect the common purpose for which they were both employed and in which they were both engaged. A part of his duty was to drive a truck to haul material to be used in the work, and, at the time of the injury, he and the employee injured, with other employees, were going from the place of work in a truck driven by him, to unload a car of cement to be used in the construction of the work.

In Parham v. Parker, supra,, it was shown that Parker was employed by Parham and was injured while attempting to board a moving truck in which he and other employees were riding. There was a conflict in the testimony as to who employed the driver and whether he bore any relationship to Parham. The point decided in that case, as stated in the opinion, was that there was “no evidence that the master was guilty of any negligence in any respect,” and “this injury occurred.when the appellee attempted to get back on the truck while it was moving, and his foot was caught in the wire, causing it to be run over by the truck. It was an unfortunate accident for which no one was liable.” The reference in that case regarding- liability of a servant injured by the negligent act of a fellow-servant is dictum.

In Williamson & Williams v. Cates, supra, the contention was that one Mitchell was for the time being the foreman of the injured employee under whose direction he was working and for whose negligence the master was liable. The evidence, however, on that contention was merely that Mitchell showed his fellow-servant the place where they were to work and informed him of the character of the work to be done, which was to cut down bushes. Mitchell did not show his fellow how to' cut the bushes, and the injury .which resulted was not because of failure of duty on the part of Mitchell as the representative of the master, but the negligence, if any, was the failure of Mitchell to use ordinary care in cutting the bushes at the same time and place with such fellow in which work they were merely fellow-servants.

In the instant case, when the master undertook to transport the laborers from their homes to his plantation and to return them when the day’s work was done, there rested upon him the duty imposed by law to exercise ordinary care for their protection, and, while they were not passengers within the common meaning of the term, this duty still remained, and for the breach of such duty he was responsible. St. L. I. M. & S. Ry. Co. v. Harman, 85 Ark. 503, 109 S. W. 295; St. L. I. M. & S. Ry. Co. v. Wiggam, 98 Ark. 259, 135 S. W. 889; Oak Leaf Oil Mill Co. v. Smith, Ib. 34, 135 S. W. 333. The discharge of this duty was intrusted to Granville Shields, who not only acted as the agent of the appellant in the transportation of the laborers, but in the employment of the cotton pickers, and his default was that of the master. Bloyd v. Ry. Co., 58 Ark. 66, 22 S. W. 1089; Bryant Lbr. Co. v. Stastney, 87 Ark. 321, 112 S W. 740; Archer-Foster Const. Co. v. Vaughan, 79 Ark. 20, 94 S. W. 717; Western C. & M. Co. v. Buchanan, 82 Ark. 499, 106 S. W. 694; Headline v, G. N. Ry. Co., 113 Minn. 74.

In every case in which the facts are clearly established and show precisely what were the respective duties of the injured and delinquent employees and what relation they bore to each other and to the master, it is for the court to say whether or not the negligent employee was a vice-principal or a fellow-servant, and, as such is the state of case in the record before us, the court did not err in declining to declare the law to he that Shields was the fellow-servant of the appellee.

It will be remembered that the plantation was some forty miles from the home of the appellee, and that,, late in the afternoon of a rainy day early in January, 1932, Shields started from the plantation on his return journey to West Helena with a load of cotton pickers. After he had proceeded approximately half of the distance his truck was overturned and badly damaged on account of some happening, the particulars of which the testimony does not disclose. The truck was righted by the driver assisted by the passengers. The sides and top of the truck had been broken, and the debris was piled on the floor of the truck. Into this thirty negro laborers loaded and disposed themselves as best they could. As stated, this was a Model A, 1%-ton truck, and it is apparent that it was overloaded by actual weight, for these thirty negroes must have weighed approximately 1,000 pounds beyond the capacity of the truck. It is reasonable that it must have been difficult for them to find room in the truck even before the wreck and before the broken top and sides of the truck had been piled upon the floor of the same. The evidence shows that some of the laborers were sitting with their feet hanging off the end, some were standing, and others disposed themselves about in various positions. The defendant, with several others, took a place on the left edge of the truck with their legs hanging down on the outside. It is because he took this place and remained in this position as he continued the journey and until he was hurt, that appellant contends he was guilty as a matter of law of contributory negligence.

In considering this contention, it must be borne in mind that it seems to have been reasonably necessary for some of those on the truck to ride in this manner and through no fault of theirs. In the first place, it is clear that more persons were invited by appellant’s agent to ride on the truck than it could accommodate, and, secondly, the overturning of the truck and the placing of the wreckage on its floor aggravated the situation and made it still more inconvenient for the laborers to ride upon it. It seems that it was: a choice of two evils which appellee and his companions had to make; either ride on in the place and manner, which as subsequently proved was fraught with danger, or be left on the roadside, far from home, on an inclement winter night to pursue their homeward journey as best they might. Appellee’s choice proved disastrous to him, but under the circumstances created through no fault of his, and, in part at least, by appellant’s agent, can it be said that all reasonable minds would agree, that no ordinarily prudent person, situated as was appellee, would have acted as he did? As we view the evidence, we are of the opinion that the court below rightly left that question for the jury to answer.

It is contended, in the last place, that the testimony is insufficient to establish any negligence on the part of Shields in the operation of the truck. On this question the evidence is in direct conflict. That on the part of the appellant tends to show that Shields was traveling on his side of the road, and, as he approached the truck of the Orear Company, he swerved still further to the right until his right-hand wheels were off the pavement and on the shoulder of the highway, and that, while in this position, the truck of the Grear Company swung to the wrong side of the road causing the injury to the appellee. All of this is strongly disputed by the driver of the Grear Company truck, and his testimony is corroborated by that of other witnesses to the effect that it was the Grear truck which was being driven on the proper side of the road, and that it was the improper driving of the truck of the appellant which caused the injury. There is other testimony which we think sustains the finding of the jury that they were both negligent, and that this concurring negligence was the proximate cause of the injury.

These were all questions for the jury, which, under well-settled rules, is the sole judge of the credibility of witnesses and the weight to be given their testimony, and, since there was some substantial evidence to justify the verdict, it must stand.

It follows that the judgment of the trial court is correct, and it is therefore affirmed.


author: Humphreys, J.

text:
    Botts v. Arkansas County.
    4-2832
    Opinion delivered January 30, 1933.

      G. W. Botts, for appellant.

      Bay S. Gibson, for appellee.
   Humphreys, J.

Appellant sought a judgment against appellee in the county court of Arkansas County and again, on appeal, in the circuit court, .Southern District, of said county for $459.44 on account of having recovered a judgment for appellee against M. F. Montgomery, former treasurer of said county, and his bondsmen in the sum of $2,679, which he retained out of his fees in excess of $5,000, contrary to the Constitution of Arkansas.

The cause was submitted in the circuit court on the testimony adduced, and a judgment was rendered in favor of appellant against appellee for $52.60, from which is this appeal.

Appellant contends for a reversal of the judgment on the ground that, according to the undisputed facts, he was entitled to judgment in the full amount claimed.

The facts are, in substance, as follows:

Appellant and his law partner entered into a written contract with the county court of said county, by and with the advice and consent of the prosecuting attorney, to obtain adjustments and settlements of the amounts due the county by the county officers, which involved an audit and the institution and prosecution of many suits. An order of such employment was made and spread of record in the county court. The order, in part, is as follows:

“Wherefore the court on this day hereby entered into an agreement and employed the law firm of Botts & O’Daniel for the purpose.of securing and assisting in an adjustment of the settlements of the above-named former officers of Arkansas County, and for their services it is agreed that the law firm of Botts & O’Daniel shall receive $250 and expenses for their services, and the further sum of 25 per cent, of all adjustments and collections made in the accounts of the above-named officers.”

In the course of the employment, the firm of Botts & 0 ’Daniel obtained a .judgment in favor of said county for $2,679 against M. F. Montgomery and his bondsmen, from which no appeal was taken, which was collectable and which they were prevented from collecting by the incoming county judge, who discharged them as attorneys in the case. After discharging them, the incoming county judge settled and satisfied the judgment for payment of $500 to the county by M. F. Montgomery.

Appellee contends, first, that the county court had no authority to enter into the contract because no appropriation had first been made to defray the expenses of the litigation, and, second, that, if the county court had authority to make the contract, the judgment should be affirmed because same was settled for $500.

(1) By reference to the order of employment, it will be seen that the fee was contingent and was, together with the retainer and expenses, to he paid ont of adjustments and settlements. This kind of contract is not the character of contract inhibited before an appropriation has been previously made therefor under § 1976 of Crawford & Moses’ Digest.

(2) It is argued that, because the contract uses the words “settlements and adjustments,” the contingent fee must be based on the amount actually collected, and not upon the amount of the judgment recovery, notwithstanding the judgment could and would have been collected. The undisputed evidence shows that the only reason the judgment was not collected by the attorneys for the county was that they were discharged without cause by the incoming county judge. We think the provisions of the contract were substantially complied with when a judgment was obtained which was collectable in full. It is true that parties may compromise suits without the consent of their attorneys, but such settlements are binding upon the parties only and do not prejudice the right of an attorney to a lien on the judgment for his fee.

On account of the error indicated, the judgment is reversed, and the cause is remanded with directions to the trial court to enter a judgment in favor of appellant for $459.44, the full amount claimed.


author: Smith, J.

text:
    Missouri State Life Insurance Company v. King.
    4-2865
    Opinion delivered February 20, 1933.

      Allen May and Bose, Hemingtvay, Cantrell & Lough-borough, for appellant.

      Bam T. Poe and Tom Poe, for appellee.
   Smith, J.

Appellee was employed in the shops of the Missouri Pacific Railway Company in North Little Rock, and, by virtue of this employment, had two certificates which had been issued to him under separate group insurance policies issued by appellant, Missouri State Life Insurance Company, to the railway employees. One of these certificates provided for a weekly indemnity, in case of disability to perform the duties of the insured’s avocation, of $15 per week, but not to exceed twenty-six weeks. The other certificate provided for the payment of $2,000 in the event the insured should, after six months ’ disability, be found to be permanently disabled.

Appellee, after making claim, and proof of his disability under the first-named certificate, filed suit on August 26, 1931, to recover on the first-mentioned certificate providing for the payment of $15 per week. A physician representing the insurance company examined appel-lee, and certified that, while he was affected with syphilis, he was not disabled at that time, and upon this examination and report the company filed an answer, denying liability.

The insured’s disability continued, and on December 5, 1931, his attorney, residing in Little Rock, wrote the company the following letter: “In re: Rome King, 0-2377, Missouri Pacific Railroad Company, Certificate No. 1101.

“Oentlemen: Rome King, the insured, had been totally and permanently disabled for six months, and we now make demand under the above policy and certificates.

‘‘Please advise immediately your intentions in this matter. ’ ’

On December 10th the company answered and stated that the matter had been referred to their local attorney in Little Rock for investigation and report, and on December 11th the local attorney referred to wrote the insured’s attorney saying that, in order to determine whether the insured was totally and permanently disabled, they would ask to have the insured examined by a physician, whose name was stated. No response being received, a second letter was written, reading as follows:

“Please let us have a response to our letter of recent date. If your client will submit to an immediate examination, we will give you an early decision as to whether the company is liable for the payment of total and permanent benefits.”

In the meantime, the company had furnished the insured’s attorney the blanks .used in making proof of claims of this character, and on December 16th these blanks, properly filled out, were sent to the company, showing that the insured was then totally disabled, and had been so for a period of six months.

On December 17th the insured’s attorney wrote the company’s attorney that it would be agreeable for the insured to be examined, provided a representative of the insured be permitted to be present at the examination, and provided also that a copy of the report be promptly furnished insured’s attorney. This letter was answered the day it was received, and the name of the physician selected for the examination, with his office address, was given. This letter concluded with the following statement:

“Just as goon as he can furnish us his report of his findings, we will admit or deny liability for the total and permanent disability benefits. In the meantime, please refrain from filing suit. We feel that we are entitled to a reasonable opportunity to pass upon the claim without being subjected to the statutory penalty and attorney’s fees.”

This letter advised that arrangements for tlie examination to be made on December 18th had been perfected, bnt the insured did not report for the examination until December 22d. On the day on which this examination was held, the insured’s attorney wrote the company’s attorney as follows:

“Claimant was examined at Trinity Hospital today, and we wish you would furnish us with a copy of the report as soon as it is received. Please file your answer in this ease as soon as possible, so it can be set down for trial.”

On the same day on which this letter was written, to-wit, December 22, 1931, an amendment was filed to the original complaint, in which the plaintiff alleged his permanent disability, and prayed judgment, not only for the weekly disability benefits as was originally prayed, but for the face of the policy for permanent disability.

The final report of the examining physician was mailed to the company’s attorney on December 26th, and a copy thereof transmitted to appellee’s attorney December 28, 1931. The letter transmitting this report reads as follows:

“There is inclosed the original report which we have received from Trinity Hospital. In view of the findings, the company admits liability, and is willing to pay the sum of $2,000 with interest from the date the claim was filed. Kindly inform us if this is acceptable. If so, Mr. Broadaway will be instructed to deliver a draft to you at once.”

This offer was not acceptable, and was not accepted, and the cause went to trial upon the records stated on the issue whether the insured was entitled to receive, in addition to the face of the policy and the interest thereon, the statutory penalty and the attorney’s fee on the two thousand dollar policy. It was not questioned that the insured was entitled to his weekly benefits at the time of the trial, together with the penalty and attorney’s fee in that case, and the judgment rendered in the insured’s favor for these items is not questioned and has been paid.

Upon rendering judgment upon the amended complaint for the amount of the two-thousand dollar policy, with the penalty and the attorney’s fee thereon, the court said:

‘ ‘ It seems to me that this statute ought to he strictly construed as to this policy. Of course, being prepared by the defendant, it ought to be construed more strongly against the defendant than the plaintiff. Under the terms of the policy as written, it required the defendant to pay the insured whenever it receives due proof of loss. I think that that part of the policy was substantially complied with by the plaintiff when he sent in the proof of loss by the doctor’s certificate. There is nothing in the policy, unless you give it a very liberal construction, that would give the company any absolute right to require him to submit to an examination. I think, under our statutes, the plaintiff is entitled to the attorney fee and penalty if the insurance company fails to pay the claim within the time specified by the statute. I think now, according to the construction given to that statute in other cases, that the attorney is entitled to his attorney fee and penalty.”

The declaration of law by the court that, under the terms of the policy as written, the company was required to pay when it received due proof of loss, without having the right to make additional investigation, presents the issue in the case, as there appears to be no substantial dispute in the testimony.

The policy sued on contained no provision requiring the insured to submit to a physical examination at the hands of the insurer, but the undisputed testimony was to the effect that this practice was pursued in all cases, and had been followed in a number of eases in which the attorneys here appearing had represented — the one the appellant insurance company, the other policyholders making claims for disability benefits against that company.

The policies or certificates here sued on contained the following provision in regard to the time when the insurance should be paid,

“If the employee shall furnish the company with due proof that * * # he * * * has become totally and permanently disabled by bodily injury or disease, and that he * # * is then, and will be at all times thereafter, wholly prevented thereby from engaging in any gainful occupation, * * *, the company will immediately pay to the employee in full settlement of all obligations hereunder the amount of the insurance in force hereunder on the employee at the time of the approval by the company of the proofs as aforesaid. # *.*”

Appellee insists that the sum for which he here sues was payable immediately upon the delivery of the proof of disability, as the proof furnished was made in conformity with the requirements in this behalf, and that he was not required to wait for any additional investigation to be made by the company, and that especially was this true, inasmuch as the company had filed an answer to the original complaint, before it was amended, denying liability for the weekly benefits for temporary disability. This answer had been filed upon the report of the company’s physician, made some months before the original complaint was amended to embrace and to sue for the permanent disability.

We are not required to decide whether, in all cases or in any case, an insured is required to submit to an examination by the company physician, the policy not having imposed that requirement. But here, whether required to do so or not, the insured had so agreed, and he appears to have been responsible for such delay as occurred in connection with his examination.

We are of the opinion, however, and do decide, that the proof of disability furnished by the insured was not conclusive of that fact. The company had the right to make an investigation. Disability is not a fact, like that of death, which either exists or does not exist. It may be, and frequently is, a question about which there is a doubt, and, if the company had the right to investigate this fact; it was, of course, entitled to a reasonable time within which to exercise the right. This investigation should be made expeditiously and in good faith, but the undisputed testimony shows both expedition and good faith.

Now, as we have said, we do not decide that the right to investigate embraced the right to subject the insured to a physical examination at the company’s hands, but, had that right not been conceded, other means of investigation might have been employed. Nor do we think that the action of the insurer in denying liability under the weekly indemnity certificate is conclusive of the question here presented. The cases arose under different certificates of insurance, and the denial of the existence of liability some months previously would not be conclusive evidence that the same action would be taken later on the second certificate.

The insurer has paid a penalty and an attorney’s fee in the first case, and the second case must be disposed of on its own merits. When so considered, the undisputed facts are that, when the investigation was made, which we think the company had the right to make, it confessed liability and made tender of the full amount of the certificate to which the insured was entitled, and this was done without any delay on its part.

The language of our statute imposing a penalty and an attorney’s fee applies only when payment is refused at the time specified in the policy for the payment to be made, and our construction of the policy here sued on is that the payment was due, not upon the filing of the proof by the insured, but “at the time of the approval by the company of the proofs as aforesaid,” filed by the insured with the company. In this connection, we repeat that this approval was due when the company, acting expeditiously and in good faith, had been afforded a reasonable opportunity to investigate the proofs submitted. The company had incurred the expense of an examination of the insured, and had done this with his consent. He had consented to this method of investigation, whether the company had the right to make this demand or not, and on the very day of the examination the complaint was amended to add the additional canse of action of a claim for judgment on the two-thousand dollar certificate, with a penalty and an attorney’s fee for delay in making the payment.

We think the statute allowing a penalty and an attorney’s fee should not he so construed as to allow a penalty and an attorney’s fee in this'case, and the judgment must therefore he reversed. As the claim of the insured has been paid in full, less the penalty and attorney’s-fee, the cause of action thereon is now dismissed.


text:
    Beck v. Little Rock.
    Crim. 3830
    Opinion delivered February 20, 1933.

      Robert J. Brown, Jr., for appellant.
   Humphreys, J.

Appellant was convicted in the Little Rock Municipal Court for transporting liquor, and, on appeal to the criminal division of the Pulaski Circuit Court, where the case was tried de novo, he was again convicted of said offense and adjudged to pay a fine of $100, from which is this appeal.

The record reflects that appellee lived at 408 West Markham Street and had walked from his house onto the sidewalk and was approaching a taxicab which had stopped near the curb a short distance from the entrance to his home, where he was stopped and searched by officers, who found a small flask of whiskey upon his person. The record is silent as to where he was going and what he was going to do with the whiskey. Under the rule announced in the case of Locke v. Fort Smith, 155 Ark. 158, 244 S. W. 11, the evidence detailed above is insufficient to show that he was transporting* liquor within the meaning of the statute prohibiting the transportation thereof.

On account of the error indicated, the .judgment is reversed, and the cause is remanded for a new trial.


author: Kirby, J.

text:
    French v. Cherry.
    4-2863
    Opinion delivered February 20, 1933.

      J. G. Brookfield, for appellant.

      Walter Killough and Giles Dearing, for appellee.
   Kirby, J.

This appeal is prosecuted from a directed verdict in appellant’s suit for damages for personal injury caused by the wrecking of appellee’s truck and trailer, in which appellant, with other cotton pickers, were being transported to and from their homes to the place of work in appellee’s cotton fields.

The undisputed testimony shows that appellee, a cotton planter near Parkin, sent his truck, driven by Charley Jones, his regular driver, to Wynne to gather up cotton pickers and transport them to the farm, as was the custom. The driver of the truck announced, as always, that appellee was paying 30 cents per hundred for picking cotton and transporting the cotton pickers to and from his plantation for their work. The driver of the truck did not pick cotton himself.

Appellant had been going with the others picking-cotton on the farm prior to this particular morning. On this morning, after the cotton pickers were loaded into the trailer, it began raining while they were en route to Parkin, and Mr. Cherry, the appellee, ordered the driver of the track to return the cotton pickers to Wynne as it was too wet to pick cotton. On the return trip, the truck pulling the trailer, in which appellant was standing with the others, turned a short corner rapidly, turning the trailer over and injuring appellant and others seriously. The negligence alleged consisted of driving too rapidly, making too short a turn at the corner on the wet pavement, thereby causing the injury.

The testimony was virtually undisputed, and the court directed a verdict against appellant on the ground that the driver of the truck was a fellow-servant of the other cotton pickers, for whose negligence appellee was not liable.

It is insisted that the court erred in holding that the suit for all the injuries could not be brought together and requiring appellant to try his suit separately; and it is also insisted that the court erred in directing a verdict against appellant, and this contention must be sustained.

This case is controlled by the ruling in Haraway v. Mance, ante p. 971, wherein it was held that the driver of a truck engaged in collecting and hauling cotton pickers to the plantation, who were paid so much for picking cotton and transported to and from the cotton fields by the employer, was not a fellow-servant of the cotton pickers, and they did not assume any risk on account of the negligence of such driver.

The undisputed testimony shows here that the driver of the truck pulling the trailer was employed by appellee to gather and transport the cotton pickers to and from” the fields, they being paid so much in addition for picking cotton; that the driver of the truck did not pick cotton. He was ordered, on the morning of the accident herein, to take these people back to their homes because of rain having made the fields too wet for picking. On the return journey, the driver, at a rapid rate of speed, turned a corner too sharply on the wet pavement, turning the trailer over, in wMcli appellant was riding, and seriously injuring lier and others.

The driver of the truck here necessarily represented the master or employer, and was not a fellow-servant of appellant, within the doctrine well established by opinion in Haraway v. Mance, supra, and our other cases reviewed therein. The case is unlike Walsh v. Eubanks, 183 Ark. 34, 34 S. W. (2d) 762, where the driver of the truck transporting other employees of the master for the purpose of assisting him in unloading a car of cement was held a fellow-servant for whose negligence, causing injury to one of such employees, the master was not liable.

The cases might well have been consolidated, as all the injuries complained of by the different cotton pickers arose out of the same transaction and from the one act of negligence; but, since we are reversing the case for an erroneously instructed verdict, we do not determine here whether error was committed in requiring a separation of the trial of the cases.

For the error designated, the cause is reversed and remanded for a new trial.


author: Mehaeey, J.

text:
    Bridges v. Shapleigh Hardware Company.
    4-2872
    Opinion delivered February 20, 1933.

      Oliver & Oliver, for appellant.

      Ward & Ward, for appellee.
   Mehaeey, J.

The appellant is a retail merchant at Corning, Arkansas, and the appellee is a wholesale merchant in St. Louis, Missouri. About August, 1929, the appellant wanted to purchase a number of radios to sell to his country trade. Mr. Bond was a traveling salesman for appellee, and appellant ordered through this salesman, Bond, two battery sets, which were received and sold, and proved entirely satisfactory. The appellant then ordered ten other sets of the same kind, and sold some of them, but they were unsatisfactory. Appellant then asked permission to return the radios, which the appellee refused. He then made some efforts to repair the radios or adjust them so that they would perform, and he employed a radio expert, but the expert was unable to adjust them or rebuild them.

Appellant made some payments, paying at one time $268, and at another time $75, leaving a balance of $290, for which suit was brought in the justice of the peace court.

The appellant filed answer, in which he alleged that the radios were worthless, and that he did not owe anything except $14 for some other merchandise, and offered to confess judgment for this amount. The case was tried, and judgment rendered against appellant.

An appeal was prosecuted to the circuit court, where it was tried before the circuit judge, sitting as a jury, and the trial resulted in a judgment in favor of appellee for the amount sued for. The case is here on appeal.

Two witnesses testified on behalf of appellee about the sale of the radios, the price and the payments, and as to the balance due. The appellant testified that appellee first sent him one radio set, and that he, expecting to get similar sets and ones that would perform similarly, ordered the other radios, for the payment of which this suit is brought. He received the radios and sold two of them, but they were returned to him because they did not perform. He then employed Luster King, a radio man, but King was unable to do anything with them. Appellant could not sell the sets because they would not perform. He bought batteries and tubes with the sets, and sold them and remitted to appellee, all except $14, for which he offered to confess judgment. Mr. Bond, appel-lee’s salesman, called on him, and he paid him $75 for batteries and tubes, and told him he would pay the balance in a short time. He had never offered to pay a penny on the account for the radio sets that would not perform; that he was able to sell one of the radios after working with it repeatedly, and able to make it perform to a point where it stayed sold; that the radios were worthless. He never did tell appellee to send a man tó fix the radios, for the reason that before they arrived it was evident from the crop conditions, and from the drouth, and also from the fact that the radios were still cheaper than the year before, that he would be unable to sell the radio sets that fall. If the radio sets had been in marketable condition when he purchased them, he could have sold them, but it was a different story in the fall of 1930. These sets were intended for sale to farmers, and, since it was evident in the summer of 1930 that there would be no crops, he knew he could not sell them; he could have sold them in 1929 if they had been marketable.

Luster King testified that he had had experience with radio sets, and he tried to adjust these, and was unable to make them so they would perform with any degree of satisfaction. There was something lacking which made it impossible to rectify them. They had very little value, if any market value at all.

This was all the evidence, except the correspondence. Appellee wrote numerous letters to appellant, which appellant ignored. It wrote to him on August 16 that it had passed for shipment a day or two prior an order for ten radios, amounting, to approximately $500. It asked in the letter for more information about his business. It again wrote him on August 20th. On August 21 appellant wrote appellee about his financial condition. On November 9,1929, appellee again wrote appellant, calling his attention to his overdue account of $568. On December 17, 1929, appellee again wrote appellant acknowledging receipt of $268, and urging him to pay the balance. It again wrote him on January 13,1930, calling his attention to his account of $312, and asking for payment, and again on February 4,1930, it wrote him about his account. Again on February 25, 1930, appellee wrote appellant urging him to pay his account. On March 11 it wired him that it must have settlement. March 24, 1930, it again wrote him about his account, and on March 25, 1930, appellant wrote appellee, complaining about the defects in the radios, and that they would not stay sold, but in the letter appellant stated that he found one of the ten that performed, and finally made a sale of it. He also stated in this letter that he would be lucky and satisfied if he could get enough money out of them to break even.

On April 3,1930, appellee again wrote appellant and again on April 14, urging the payment of his account, and wired him on April 25 and again on May 1st. On May 8, 1930, appellee again wrote appellant, calling his attention to his account, and on May 8 appellant wrote to appellee, complaining somewhat about the radios, stating that, if appellee undertook to force collection, it would not be able to realize anything.

Appellee again wrote to appellant on May 12, and on May 16 he wrote to appellee, stating that he would like to have appellee’s man come down and fix the sets, if he could make them acceptable so that he would not be held responsible. Appellee again wrote him on May 19 and on Jnne 16. In the last letter it told appellant it could send a man down in the next few days. Again, on July 1, it wrote him, asking if he would he ready for it to send the man down.

On July 14, Bond, the traveling salesman, collected $75, which he sent to appellee. On July 22 appellee wrote to appellant, acknowledging receipt of the $75. On August 6 it wrote him again, urging payment, and also on August 13. It again wrote him on August 28 and on September 15. It again wrote him on September 22 and on September 29 and on October 6.

Appellee did not respond to any of these letters, except as mentioned above. While he complained that the radios were defective, and wanted a man to come down and adjust them, when appellee wrote him requesting him to name the time when it would suit him for the man to come down and adjust the radios, he did not reply to its letter.

Appellant first contends that the sale was made by a sample, and that there was therefore an implied warranty that the radios would be as good as the samples. We think it wholly immaterial whether the sale was made by sample or not, because there would be an implied warranty that the radios were suitable for the purpose for which they were purchased.

A buyer may rescind a contract, but he must do so within a reasonable time after the discovery of facts which justify a rescission. 55 O. J. 286. The appellant in this case did not rescind the contract, but he made payments long after he had complained about the defects. Failure to exercise the right to reject goods purchased within a reasonable time usually implies an acceptance. The implied warranty may be waived by the buyer, either by express agreement or by conduct inconsistent with its assertion. 55 C. J. 798. As to whether there was a waiver, and also as to whether there were defects in the radios, were questions of fact to be determined by the trial court.

When a case is submitted to the trial judge, Ms finding of fact is as conclusive as the finding of a jury. American Ins. Co. v. Brannan, 184 Ark. 978, 44 S. W. (2d) 346; Hargis v. Jordan, 184 Ark. 1136, 45 S. W. (2d) 525; Price-Snapp-Jones Co. v. Brown, 184 Ark. 1143, 45 S. W. (2d) 517; Little River County v. Buron, 165 Ark. 535, 265 S. W. 61; Road Imp. Dist. No. 1 of Howard County v. Bank of Commerce & Trust Co., 169 Ark. 43, 272 S. W. 834; Prairie County v. Harris, 173 Ark. 1182, 295 S. W. 725; C. A. Blanton Co. v. First Nat. Bank, 175 Ark. 1107, 1 S. W. (2d) 558; Arkla Sash & Door Co. v. Fair, 176 Ark. 1203, 5 S. W. (2d) 308.

Appellant, however, contends there was no dispute about the facts, and no facts for the trial .judge to decide.

The testimony of a party to an action who is interested in the result will not be regarded as undisputed in determining the legal sufficiency of the evidence. Elmore v. Bishop, 184 Ark. 243, 42 S. W. (2d) 399; McGraw v. Miller, 184 Ark. 916, 44 S. W. (2d) 366; Warren & Saline River Rd. Co. v. Wilson, 185 Ark. 1063, 50 S. W. (2d) 976.

The trial court not only had a right to weigh the testimony given by the appellant, but it had a right to consider appellant’s conduct and all the attendant circumstances, and like the finding of a jury, if there is any substantial evidence to support the finding of the court, the judgment will not be disturbed.

There appears to be substantial evidence to support the finding of the circuit judge, and the judgment is affirmed.


author: McHaNey, J.

text:
    Cormack v. Missouri State Life Insurance Company.
    4-2838
    Opinion delivered February 20, 1933.

      Emmet Vaughan and Sam T. •& Tom Poe, for appellant.

      Allen May and Rose, Hemingway, Cantrell & Lough-borough, for appellee.
   McHaNey, J.

This is an appeal from an order of the circuit court setting aside a judgment in appellant’s favor against appellee on .a motion for a new trial filed by it. Appellant failed to file a stipulation on his part to the effect that, if the order of the circuit court he affirmed, judgment absolute may be rendered by this court against him, as provided by § 2129, Crawford & Moses’ Digest. The applicable portion of the second subdivision of the above section reads as follows: “But no appeal to the Supreme Court from an order granting a new trial, in a case made or bill of exceptions, shall be effectual for any purpose, unless the notice of appeal contains an assent on the part of the appellant that, if the order be affirmed, judgment absolute shall be rendered against the appellant.”

No final judgment has been rendered in the lower court from which to appeal, and this court has many times held in such cases that an appeal which failed to comply with the above-quoted provision of the statute must be dismissed. Osborn v. LeMaire, 82 Ark. 490, 102 S. W. 372; St. L., I. M. & S. R. Co. v. Hix, 101 Ark. 90, 141 S. W. 492; McPherson v. Consolidated Casualty Co., 105 Ark. 324, 151 S. W. 283; Yowell v. Ft. Smith Pure Milk Co., 118 Ark. 448, 177 S. W. 4; Matyski v. Buczkowski, 152 Ark. 89, 237 S. W. 694.

Appellant has, since the original submission of this case, petitioned the court to permit him now to file such stipulation, or to permit him to file same in the trial court and bring up an amended record. Neither course could avail appellant anything, for it was held in Osborn v. LeMaire, supra, that such course was not available to appellant. "We there said: “Appellant now asks that such assent he noted of record, and consents that judgment absolute shall be rendered against it in the event that judgment should be affirmed. Without determining whether such assent can be made in this court after appeal has been granted by the circuit court, it is sufficient to say that it is more than one year since the appeal was granted and before such assent is filed herein. An appeal must be taken within one year.” Citing cases. “If it were proper to perfect this appeal in this court in the manner now sought, it is too late to do it. The statute requires the noting of assent to judgment absolute as a condition to obtain an appeal from such order, and it must be complied with. ’ ’

The statute now requires an appeal to be taken within six months. Therefore appellant could not now file the stipulation here, as more than six-months have expired from the date of judgment. Nor could he accomplish anything by filing it in the court below, as the time for appeal has long since expired.

Appellant’s case is still pending in the court below for a new trial. The appeal will be dismissed.


text:
    Horne v. Paragould Special School District No. 1.
    4-2873
    Opinion delivered February 20, 1933.

      L. P. Biggs, Wallace Townsend and Flcock & Martin, for appellant.

      W. F. Kirsch and Horace Sloan, for appellee.
   McHaNey, J.

Appellee, an urban special school district, of Paragould, Arkansas, brought this action against appellant, county treasurer of G-reene County, in which the city of Paragould is located, to enjoin him from paying out on bond issues of the district, both maturities and interest, that part of the 18-mill school tax voted by the electors of the district, under Amendment No. 11 to the Constitution, for general school purposes, in the year 1931, payable in 1932. A 6-mill tax was voted for the building or bond payment fund and 12 mills for general school purposes. The bonds were all issued prior to the passage of act 169, Acts of 1931, and totaled approximately $400,000 now outstanding. The complaint alleged that “said bond issues (were) secured by various pieces of real estate belonging to said district, and, in addition, by an attempted pledge on the part of the district of all of the income of the district for the purpose of paying off and retiring said bonded indebtedness, together with the interest thereon.” It was further alleged that the collector of the county had collected school taxes in the district, so voted, as above stated, in the year 1932 for the tax of 1931, in the sum of $33,061.86, and that additional revenues to accrue to the district from the State for the school year 1932.-1933 are estimated at $7,518.64, or a total revenue of $40,580.50, one-third of said sum of $33,061.86, or the sum of $11,020.62 being voted by the electors of the district and set aside for the retirement of bonds and interest, and the remainder being available for general school purposes; that during the school year 1932-1933 bond maturities and interest will amount to $40,567.50, just $13 less than the total gross revenue of the district from all sources; that the whole of the sum voted by the electors for bond retirement had been paid out by appellant for such purpose, and that, unless restrained, he would pay out the remainder of the funds now in his hands, $15,605.75, thereby using all the 18-mill tax so voted and all other available revenue, so that no schools could be conducted in said district.

To this complaint a demurrer was interposed by appellant, which was'overruled by the court, and, on his declining to plead further, he was perpetually enjoined in accordance with the prayer of the complaint.

The issue to be determined by this court on this appeal is succinctly stated by counsel for appellee as follows : “Whether or not the directors of an urban special school district under the law as it stood at the time of the issue of the said bonds had authority of law to make, without submission of the question to the electors of the district, a pledge of all the proceeds of the 18-mill tax for the sole purpose of paying bonds and interest when future levies thereof were not and could not be within the control of the school board (or of the Legislature itself, for that matter) but depended for their existence on the favorable annual vote of the electors of the district. ’ ’

Only the 12-mill tax voted by the electors is involved. Appellant claims the right, by virtue of the pledge of all the income of the district for the payment of bonds, made by the directors of appellee district when the bonds were issued, to pay out the proceeds of said 12-mill tax to the retirement of bond maturities and interest, thereby closing the schools. Whereas appellee contends that the directors had no power to pledge revenue or income of the district, which was uncertain and contingent on a vote of the electors of the district annually. It appears to be conceded by appellee (a point we do not decide) that all revenue, save and except the amount voted annually by the electors for general school purposes, including the State tax of 3 mills, the tobacco and severance taxes and the amount voted for bond purposes, is subject to the payment of bonds and interest.

The framers of the Constitution of 1874, recognizing the great importance of educational advantages for all the children of the State through a system of free public schools, imposed on the State the duty of establishing and maintaining such schools in the following eloquent language in § 1, article 14: “Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free schools whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction. ’ ’

The same Constitution by § 3, of article 14, provided for the levy of a tax for such purpose as follows: “The General Assembly shall provide by general laws for the support of common schools by taxes, which shall never exceed in any one year two mills on the dollar on the taxable property of the State, and by an annual per capita tax of one dollar, to be assessed on every male inhabitant of this State over the age of twenty-one years. Provided, the General Assembly may 'by general law authorize school districts to levy by a vote of the qualified electors of such district a tax not to exceed five mills on the dollar in any one year for school purposes. Provided, further, that no such tax shall be appropriated to any other purpose nor to any other district than that for which it was levied.”

By amendments adopted in 1907 and 1917, the maximum rate that might be voted was increased to 7 and 12 mills respectively, and by Amendment No. 11, adopted in 1927, it was provided as follows: 1 ‘ The General Assembly shall provide by the general laws for the support of common schools by taxes which shall never exceed in any one year three mills on the dollar on the taxable property in the State, and by an annual per capita tax of one dollar, to be assessed on every male inhabitant of this State over the age of twenty-one years. Provided, that the General Assembly may, by general law, authorize school districts to levy 'by a vote of the qualified electors of such districts a tax not to, exceed 18 mills on the dollar in any one year for the maintenance of schools, the erection and equipment of school buildings and the retirement of existing indebtedness for buildings. Provided, further, that no such tax shall be appropriated for any other purpose nor to any- other district than that for which it is levied.”

By act 63 of 1927, p. 177, enacted pursuant to Amendment No. 11, it is provided: “That the qualified electors of the school districts at any annual school election may, in accordance with election procedure provided for by law,- levy any rate of school tax they may desire. Provided that no rate voted shall exceed 18 mills on the dollar.” It will be noticed that the act is not so explicit as the amendment itself, in that it fails to designate the purpose for which the electors may vote the tax up to 18 mills. Three purposes are named in the amendment (1) “for the maintenance of schools”; (2) for “the erection and equipment of school buildings”; and (3) for “the retirement of existing indebtedness for buildings.” And it is then provided “that no such tax shall be appropriated for any other purpose nor to any other district than that for which it is levied.” This appears to be very simple language, unambiguous, and not difficult of comprehension. The electors of any school district may vote a tax'at any rate they wish for any or all said purposes, provided the tax voted for all does not exceed 18 mills. For instance, they might vote 6 mills for bond and 12 mills for school purposes, as they did in this case, and, when so levied and collected, neither sum could “be appropriated for any other purpose # * * than that for which it is levied.” In other words, the 12 mills voted for school purposes could not lawfully be'appropriated for payment of bonds or the interest thereon, nor could the 6 mills voted for bond purposes be appropriated for schools. Such is the plain language of the amendment. No other construction can be given, and any other in the present ease would probably work disaster to both parties. For, since the voting of any tax for any purpose is optional with the district’s electors, the taking of the 12 mills voted for general school purposes to pay bonds would close the schools and keep them closed for many years, it would seem reasonably certain the electors would not vote a tax on themselves and have no schools. The bondholders would lose the 6-mill tax now being received, a substantial loss to them, and the district would be without a free public school for years to come, which would be disastrous to it and its people.

Appellant contends that § 8977, Crawford & Moses’ Digest, and the decisions of this court in Schmutz v. Special School District of Little Rock, 78 Ark. 119, 95 S. W. 438, and Am. Ex. Trust Co. v. Trumann Special School Dist., 183 Ark. 1041, 40 S. W. (2d) 770, support his contention that all the revenue may be pledged. Said section provides: “To borrow money and mortgage the real property of the district as security therefor under such conditions and regulations as to amount, time and manner of payment as the board of directors of said school district shall prescribe.” This section authorizes the directors to mortgage the real property of the district to secure the money borrowed, and permits them to fix the time and manner of payment. It does not authorize them in specific terms to pledge any revenue, and it could not authorize them to pledge any part of the 18-mill tax voted for any other purpose. Neither the Schmutz nor the Trumann Special School District case, supra, discussed the exact question now under consideration. In the latter case, after quoting from the former, it is said: “The board of directors could not have limited the liability of the district to the payment of the bonds out of the revenues set aside for ‘the building fund,’ if one had been provided, since they were and are a charge against the whole revenues of the district.”

What the court meant by a “charge against the whole revenues of the district” was the whole of its certain revenue, or revenue from fixed sources, such as the 3-mill State tax, poll tax, tobacco tax, severance tax, snob bond fnnd tax as might be, if and when voted, bnt not that part of the optional tax voted for school purposes. We think these and other cases cited by appellant are not in point, for the reason they do not have the same background of fact.

Nor is this repudiation as contended by appellant. It is merely postponement of payment of an obligation because of lack of available funds legally bound therefor. It is quite probable, although.the complaint fails to show the date of the bond issues outstanding, that, when many of said bonds were issued, the maximum amount permitted to be voted was 5 mills or 7 mills; if so, certainly when the electors tax themselves 6 mills for such purpose at this time, the bondholders are getting all they could in equity and good conscience demand.

Affirmed.


author: Mehappy, J.

text:
    Coca-Cola Bottling Company of Arkansas v. Jordan.
    4-2725
    Opinion delivered November 7, 1932.

      Busbee, Pugh & Harrison, for appellant.

      Edward Gordon, John B. Gulley and Lewis Rhoton, for appellee.
   Mehappy, J.

The appellee brought suit in the Conway Circuit Court alleging that in August, 1531, he purchased a bottle of Coca-Cola which contained a decayed or rotten cockroach; that the appellant negligently and ■carelessly caused to be sold in the regular course of trade the bottle of Coca-Cola which contained the decayed cockroach.

Appellee drank part of the contents of the bottle before he discovered the cockroach. As the result of drinking part of the contents, he became a victim of ptomaine poison, from which he suffered, and is still suffering, and will suffer to some extent the rest of his life.

Appellee further alleged that, since swallowing the contents of the bottle, he had been unable to eat and digest any normal meal, but was subject to violent vomiting, which caused him great pain and humiliation; that he was permanently injured. There were other allegations of suffering and inability to sleep.

The defendant filed answer denying all the material allegations of the complaint.

The evidence offered by appellee tended to show that he bought a bottle of Coca-Cola from the Arkansas Bottling Works on West 7th Street, Little Rock, Arkansas, and drank a part of it. It was bought from the Johnson Grocery Company. He drank part of it and swallowed something that was in the bottle, and called attention to Mrs. Johnson. She examined it and said that .there was a bug in the bottle. Appellee showed the bottle to the manager of the appellant, who examined it and said that there was a bug in the bottle. Later appellee delivered the bottle to Dr. Scoggin.

The drinking from the bottle made appellee sick. Before he drank it he weighed 207 pounds, and now weighs 35 pounds less. Mrs. Johnson testified corroborating the statement of appellee, and physicians testified as to his physical condition.

The appellant’s testimony tended to show that a cockroach in the bottle would not produce the effect testified to by appellee and his witnesses. Appellant also introduced evidence showing the manner in which the Coca-Cola was manufactured and bottled, and showed that it was impossible for anything to get into the bottle unless some of the "inspectors were negligent.

There was a verdict and judgment for $4,000, and the case is here on appeal.

Appellant insists on a reversal of the judgment because of remarks made'by appellee’s counsel in the opening statement to the jury.

Several depositions had been taken by the appellee before the trial, and immediately before the trial began the appellant’s attorney called the attention of the court to the depositions, and objected to them as incompetent and irrelevant, and objecting at that time to counsel for appellee in making his opening statement to make any reference to said depositions.

The court, at that time, overruled the objections of appellant, but did not pass on the competency or admissibility of the depositions.

In making the opening statement to the jury the ap-pellee’s attorney said: “They claim that no foreign substance gets into it. You can see what that is (here exhibits bottle). A reputable citizen of Little Rock, Mr. Bellingrath, testifies — he will just tell you it is absolutely impossible for any foreign substance to get in and remain in a bottle of Coca-Cola. We propose then to produce that.”

Appellant objected, and the attorney for appellee stated that he wanted the record to show the depositions would only be offered in rebuttal if they undertake to show that it can’t get in.

The appellee’s attorney further said in his opening statement: “The deposition of Quinn Glover, son of Congressman Glover, will tell you that he bought a Coca-Cola — bought it from these people, with foreign substance in it. I will not go much in detail about it. You understand the situation.”

The appellant’s attorney then objected and excepted to counsel’s statement. After this the evidence was introduced, and at the close of appellant’s testimony the ap-pellee offered the depositions that had been referred to before tbe beginning of the trial. The court examined the depositions and held the testimony incompetent. The court did not state why the depositions were incompetent, and it is not necessary for us to pass on the admissibility of this evidence.

Appellant cites Kansas City Sou. Ry. Co. v. Murphy, 71 Ark. 256, 85 S. W. 428, and quotes at length from the opinion in that case. The court said in that case: “The control of argument is in the sound judicial discretion of the trial judge, and it is his duty to keep it within the record and within the legitimate scope of the privilege of counsel, and this he should do on his own initiative; if he fails to restrain counsel, then it is the right of opposing counsel to object to the argument. This should be a definite objection to the alleged improper remarks, and call for a ruling of the court thereupon, and if the court then fails to properly restrain and control the argument within its proper bounds, and to instruct the jury to disregard any improper remarks and admonish the counsel making it, then an exception should be taken to the action of the court. A mere exception to argument interposed to make a record in the appellate court, and not calling for a ruling of the trial court, is insufficient. ’ ’

The court also said in that case: “However, a wide range of discretion must be allowed the circuit judges in dealing with the subject, for they can best determine at the time the effect of unwarranted argument; but that discretion is not an arbitrary one, but that sound judicial discretion the exercise of which is a matter of review.”

In the instant case objection was made before the appellee’s attorney had begun his opening statement; the attorney for appellant had objected to the depositions that had been taken, and objected to the counsel for ap-pellee in his opening statement making any reference to the depositions. The court overruled this objection, and did not at that time pass on the question of the admissibility of the depositions.

The appellee’s attorney then, in his opening statement to the jury, made the statement above set out, but the appellant did not take the steps which the case referred to by it, K. C. S. Ry. Co. v. Murphy, says must be taken.

One of the things required is that he should call for a ruling of the court upon his objection. No ruling of the court was made, and none called for. No request was made by appellant to instruct the jury to disregard the remarks of the attorney, or to admonish counsel making it. Moreover, there was nothing in the remark of the attorney that could have prejudiced the jury against the appellant. The circuit judge, not having passed on the admissibility of the depositions up to that time, probably was uncertain himself as to whether or not they were admissible. When the 'depositions were finally presented to the circuit judge, he held that they were incompetent. Certainly up to that time the appellee’s attorney had not intentionally stated anything that he expected to prove which he thought was incompetent. In making opening statements to the jury, the attorneys should confine themselves to a statement of the facts. Apparently this is what the attorney for the appellee was endeavoring to do.

Appellant then calls attention to Scripps v. Reilly, 35 Mich. 371, 24 Am. Rep. 575. In that case the court said: “The trial judge must always have a very large discretion in controlling and managing the routine proceedings at the trial, and it is not necessary to specify the matters to which such discretion extends. It applies beyond doubt to the addresses of counsel as well as to other incidents. But it must be a reasonable, a legal, discretion, and whether it be so or not must depend upon the nature of the proceeding on which it is exercised, the way it is exercised, and the special circumstances under which it is exercised. It can never he intended that a trial judge has purposely gone astray in dealing with matters within the category qf discretionary proceedings, and, unless it turns out that he has not merely misstep-ped, but has departed widely and injuriously, an appellate court will not re-examine. It will not do it when there is no better reason than its own opinion that the course actually taken was not as wise or sensible or orderly as another would have been.”

We call attention to the fact that in the Scripps v. Reilly case, supra, the attorney in making his opening statement, read at length to the jury a series of articles published in the newspaper during the course of several months. About 20 articles were read to the jury as part of the opening statement, and the court held that they were calculated from their character to influence the minds of the jurors against the plaintiff in error.

Appellant then calls attention to German-American Insurance Co. v. Harper, 70 Ark. 305, 67 S. W. 755. They quote from that case: “These remarks were gravely prejudicial. True, they were not made under the sanction of an oath as a witness. But the statement of matters of fact by counsel of high character and excellent standing in the profession might be as readily accepted and believed by the jurors, and make as profound and ineradicable impression upon their minds, as if they had been uttered under oath. ’ ’ The counsel in that case made the following statement to the jury: “Gentlemen of the jury, if you knew Marshall’s business methods, you would say, ‘God save the plaintiffs, and God save all those who deal with him’!” The court held that these remarks were prejudicial.

This court has often held that the trial court must have a very large discretion in managing, and controlling the proceedings at the trial, and, even after objection had been made, if the court had overruled the objections, and the appellant had taken exceptions, it would not be cause to reverse the case, because we are of the opinion that there was no abuse of discretion.

' Appellant next insists on reversal because the court refused to give its instructions numbers 2 and 3. They are as follows:

“No. 2. You are instructed that no presumption of negligence arises against tire defendant, and, before the plaintiff is entitled to recover against it, he must affirmatively prove by a preponderance of the evidence that his injuries, if any, arose on account of the negligence of said defendant.”

“No. 3'. You are instructed that the defendant is not a guarantor or insurer of the purity of the drink prepared by it and placed on the market for sale. It is only bound to use. ordinary care and prudence in the preparation of said drinks and in the selection of the materials from -which it is made. ’ ’

The court gave several instructions requested by appellant and several requested by appellee, and these instructions given by the court make it so plain that the plaintiff could not recover unless the preponderance of the evidence showed that the defendant was guilty of negligence, the jury could not have been misled.

They were repeatedly told that they could not find for the plaintiff unless they found from a preponderance of the evidence that the foreign or poisonous substance in the Coca-Cola was put there through, or on account of, the negligent acts of the defendant.

This court has uniformly held that a judgment will not be reversed for a refusal to give an instruction where the matter is fully covered by other instructions.

Appellant calls attention to the case of Drury v. Armour & Co., 140 Ark. 371, 216 S. W. 40. We do not think this case supports the contention of appellant. In that case the trial court directed a verdict, and the court held that this was error; that the testimony was sufficient to warrant submission of the question of negligence to the jury.

The instructions in the instant case constituted a correct guide- for the jury. There is no contention that the evidence was not sufficient in this case to justify the submission to the jury, and to sustain the verdict.

The judgment is affirmed.


text:
    Magee v. State use Miller County.
    4-2767
    Opinion delivered December 12, 1932.

      Pratt P. Bacon, for appellant.

      Millard Alford, Will Steel and James D. Head, for appellee.
   Kirby, J.

It will suffice to say that this case is ruled by the decision in Yates v. State use of Miller County, (ante p. 749) and it must be held that the court erred in not surcharging the sheriff’s account with the fees retained for the automobile licenses collected, which should have been charged, of course, in his report to the circuit judge for the first year, and also his report to the -circuit judge for both years, and the approval of such accounts without any disclosure made would not prevent surcharging the account as could be done in this proceeding.

It appears, however, that the officer collected these fees, including an amount beyond the salary which he was entitled to retain the first year, but that the fees from which his salary was to be collected in the second year were not sufficient to pay it after the necessary expenses allowed by law were credited to him without the amount of the fees for automobile licenses retained by him on the first year’s settlement. The court allowed the account accordingly with this credit claimed on the second year’s salary and committed error in doing so. He could, of course, have been charged interest on the amount wrongfully retained on the first year’s salary, which should have been paid into the county treasury by the sheriff, up to the time of its credit on the second year’s salary.

The allowance for the purchase of the automobile was not a proper one, as said in the other case, and no error was committed in refusing or rejecting it.

The purchase of the disinfectant for the jail would appear to be a proper expenditure for the jail, but it should have been authorized by the county court before said purchase was made and certainly approved by such court before the allowance thereof as a claim against the county. ■, \} !

The decree is accordingly affirmed on the appeal, and reversed on the cross-appeal with directions to enter a decree in accordance herewith. It is so ordered.

Butler, J., dissents on cross-appeal.


text:
    Simon v. Girard Fire & Marine Insurance Company.
    4-2880
    Opinion delivered February 27, 1933.

      James G. Coston, J. T. Coston and F. C. Douglas, for appellant.

      jReid, Evrard S Henderson and Verne McMillen, for appellee.
   Smith, J.

Suits were brought by appellant on four fire insurance policies, which, for convenience, were consolidated and tried together. Three of the insurance companies made defendants carried policies of fire insurance on the seats in the Home Theatre in Blytheville, Arkansas, owned by the appellant. The other defendant insured the appellant against loss of rents resulting from the fire. The fire occurred about two o’clock on Sunday morning in a building adjacent to the theatre building, and as a result of this fire the roof covering the theatre was damaged. The damage to the roof was serious enough to require its repair, but not serious enough to prevent the use of the theatre for the usual purposes, and pictures were shown in the building each day up to and including the Saturday following the fire. On this Saturday, while the roof was being repaired and a portion of it open for that purpose, a heavy rain occurred, and the seats were damaged as a result of the rain.

The trial court submitted the question of loss of rents to the jury, and there was a verdict for the appellant on that account. The appellant complains, however, that this verdict was inadequate, and was made so by the instruction of the court on that issue. In the suits for damage to the seats a verdict was returned under the direction of the court for the defendants, this being upon the theory that the damage was the result of the intervening negligence of the insured in repairing the roof, and the plaintiff has appealed from the. judgment of the court on both issues.

The undisputed testimony is to the effect that there was no damage to the seats either from the fire or from water used in extinguishing it. There was a damage to the roof which made its repair necessary, but there was no leak in the roof as a result of the fire, and the use of the building was continued for its usual purposes notwithstanding the fire. There was testimony to the effect that a representative of the insurance companies directed the owner to repair the roof as a part of the fire loss; but this direction was general, and the owner was left to use his own judgment in this respect.

The fire made the repair of the roof necessary, but the undisputed testimony is to the effect that the repair could have been made at a time and in a manner which would have occasioned no damage to the seats. This damage was the result of tearing off the roof and letting in the rain, whereas the roof might have been repaired without this result.

Appellant insists, however, that his right to recover should not be defeated, although the negligence of his contractor may have contributed to the damage, for the reason that the fire was the primary cause of the damage. The case of Beavers v. Security Mutual Ins. Co., 76 Ark. 595, 90 S. W. 13, is cited to support this view.

The trial court, in the case just cited, had instructed the jury that “if the loss occurred either through the negligence of the plaintiff or was the result of his own wrong, the insurer would not he liable. ’ ’ In condemning this instruction this court said: “The law is well settled that the insurer is liable, even though the negligent act of the insured or his servants be the proximate cause of the damage through the fire,” and a number of cases were cited to support that declaration of law.

There is in the instant ease, however, no insistence that the negligence of the insured was the proximate canse of the fire; nor is it questioned that the insurer is liable for all damage of which the fire was the proximate cause. The insistence is that, the fire having occurred, the insurer is not liable for any damage thereafter occurring through the negligence of the insured. Upon this issue the case of Benson v. Firemen’s Ins. Co., 150 Ark. 532, 234 S. W. 628, appears to be decisive.

We said there that we could easily imagine a case where the insurer in a fire policy might be liable for damage done by rain as a direct damage by fire, and that such would be the case if rain followed so closely after the fire that no reasonable opportunity was afforded to protect the property from that damage, for the reason that the fire continued to be the proximate cause of the damage. But it was also said in that ease that, where subsequent to the fire there had been a failure to exercise care and to use reasonable means to protect the property after the fire, this failure broke the causal connection between the fire and the subsequent damage, and that such subsequent damage was not a direct loss or damage by fire against which the insurer had contracted to indemnify the insured.

It is ordinarily a question of fact for the jury as to whether the original fire or the subsequent negligence of the insured is the proximate cause of the damage; but there appears to be no such question of fact in the instant case. Numerous witnesses testified that there would have been no subsequent damage to the seats, had the roof been repaired in a proper time and manner, and the contractor employed to do the work admitted that there would have been no damage if he had cemented and waterproofed the roof as he tore the old roof off and put the new roof down. It is not only a matter of common knowledge that roofs may be repaired without damage to the contents of the buildings which they cover, but the undisputed testimony here shows this to be true. One contractor testified that he had repaired and replaced something over eleven thousand roofs without damage to the contents of the buildings in any case, and that there was no occasion for damage in the instant case.

The insuring clause in the rent policy was in the form of a rider attached to a standard fire policy, and contains the following provision: “If said premises or any part thereof, whether rented at the time or not, shall be rendered untenantable by fire or lightning occurring during the continuance of this policy, this company shall become liable for the rental value of such untenantable portions, loss to be computed from the date of fire or damage by lightning, until such time as the building could, with reasonable diligence and dispatch, be rendered ten-antable. ’ ’

This rider further provided that this “loss is to be computed from the date of fire or damage by lightning, until such time as the building could, with reasonable diligence and dispatch, be rendered again tenantable, although the period may extend beyond the termination of this policy.”

The original policy to which the rider was attached provided that the insurer shall have the option to repair, rebuild or replace the property lost or damaged with other of like kind and quality; but these provisions do not appear to be applicable to the loss of rents, as they could not, of course, be repaired or replaced.

Upon the issue of the rents recoverable, the court instructed the jury to find for the plaintiff “for such amount as you may find, from a preponderance of the evidence, to be the rental value of the building during the time it would have taken the plaintiff, with reasonable diligence and dispatch, to repair the damage caused by the fire which was necessary to restore the building to the same tenantable condition as before the fire.”

It is insisted that this instruction was too narrow, and that the court failed to instruct the jury with reference to contingencies and conditions beyond the control of the insured. But we think the instruction correctly defines the measure of damages for loss of rents and did not exclude from tlie jury any circumstances which, the jury had the right to consider. The instruction appears also to have conformed to the obligations which the insurer assumed in this respect.

The testimony shows the rental value of the property to have been $475 per month, and the jury returned a verdict for $1,425 for loss of rents, this being for a period of three months.

We conclude therefore that there was no error in this respect, and, as we are also of the opinion that the court was correct in holding that there was no liability for the damage to the seats caused by the rain, the judgment must be affirmed, and it is so ordered.