author: McHaney, J.

text:
    Beene Motor Company v. Dison.
    Opinion delivered February 3, 1930.

      Silas W. Rogers, for appellant.

      Joiner & Stevens, for appellee.
   McHaney, J.

Appellant brought this action to recover the balance due, $116, on a promissory note in the sum of $286 dated September 11, 1926, and due ninety days thereafter with interest at 8 per cent, on which a payment had been made on the due date of $170, said note having been executed and delivered by appellees to appellant under the following conditions: On September II, 1926, appellee, Dison, purchased from appellant a truck for the total sum of $572, none of which was paid in cash, but a note representing one-half the purchase price, dated the same date and due December 11 thereafter at 8 per cent, was executed by appellee, Dison, with appellee Shepherd, as surety. On the same date appellee Dison and appellant entered into a conditional sales agreement (for the purchase of said truck which recited that ‘ ‘ The buyer has this day paid to the seller two hundred and eighty-six ($286) dollars, and the buyer agrees to pay the seller, or order, two hundred and eighty-six ($286) dollars, one at $286 dne December 11, 1926, balance payable in 5 monthly installments of forty-eight ($48) dollars each, and one monthly installment of forty-six ($46) dollars each, which installments shall become dne on the 11th day of each month, and shall bear interest, etc.” The sales agreement further provided: “Title to the car * * * shall not pass by delivery to the buyer, but shall remain vested in and be the property of the seller or assigns until the purchase price has been fully paid. ’ ’ On December 11,1926, appellees paid $170 on the note in controversy, but prior and subsequent thereto said Dison had paid on the conditional sales agreement $193. He failed to pay the balance due on the note in controversy, and defaulted in payment of the installments due under his contract. After being in default for some time, appellant repossessed the truck under the terms of said conditional sales agreement, and brought this action for the balance due on the note due December 11,1926, in the sum of $116 as aforesaid, with interest. Appellees admitted the execution of said note, but defended on the grounds, 1st, that said note had been paid, and 2nd, if not paid, that appellant had elected to repossess said truck under its title retaining contract, which released them from all further liability on the note. The case was tried to a jury, which resulted in. a verdict and judgment for appellees.

We find it necessary to discuss only one defense offered by appellees, and that is, that the repossession of the car by appellant before the full purchase price had been paid released the appellees from further liability on said note. We think the appellees were entitled to an instructed verdict in their favor on this account. The note for $286, as also the installment payments due under the contract, represented a part óf the purchase price of said truck, for which title was retained until paid. By the express provisions of the contract, the buyer, Dison, agreed to pay the seller, appellant, one note of $286, due December 11, 1926, and the balance in five equal monthly installments of $48 each, and one installment of $46, which installments 'became dne, the 1st on October 11, 1926, and one on the 11th of each and every month thereafter, until paid, and since title was retained for the full amount of the purchase price, when appellant retook possession of the car, it elected to take the property to which title had been retained, and thereby cancel the indebtedness. It had only one of two remedies; either it could have treated the sale as canceled and repossessed the property, as it did, or treat the sale as absolute, and sue ifor the purchase price. We held in Loden v. Paris Auto Co., 174 Ark. 720, 296 S. W. 78, that “where a vendor of chattels has reserved the title until the purchase price has been paid, on breach of condition, he has two remedies; one is to retake the chattel and thereby cancel the debt, and the other is to sue' for the debt, and thereby waive his title to the property. So, in such a case, the vendor has the right to elect which remedy he will pursue, and, having elected to pursue the one, he is precluded from pursuing- the other. ” In that case we cited one of the leading oases on the subject in this court, Nashville Lumber Co. v. Robinson, 91 Ark. 119, 121 S. W. 350, and quoted therefrom the following: “For, if the appellant elected to retake the property, and thus in effect to cancel the debt before this suit was 'brought, then it could not thereafter sue to recover the purchase money also. When this debt became due, and was unpaid, the vendor, having reserved the title until the purchase price was paid, had its election to take either of two courses. It could elect to retake the property, and thus in effect cancel the debt, or it could bring its action to recover the debt, and thus affirm the sale and waive reservation to title.” (Citing cases). And see also cases cited in Logan v. Paris Auto Co., supra. From one of the cases there cited, Olsen v. Moody, Knight & Lewis, Inc., 156 Ark. 319, 246 S. W. 3, we quoted with approval as follows: “This court is committed to the doctrine

that a vendor who has retained title in personal property until the payment of the purchase money has only, .two remedies for the breach of contract. He may either treat the sale as canceled, and bring suit in replevin for the property, or may treat the sale as absolute., and sue for the unpaid purchase money, and, in aid thereof, attach the property, under §§ 8729 and 8730, C. & M. Digest. (Citing cases). There is no suggestion in any of the Arkansas cases that a third remedy is open to a vendor who has conditionally sold personal property.”

Since the $286 note, as we have already seen, was included in the conditional sales agreement for the sale of the truck, was a part of the purchase -price recited therein, and title -to the property was retained until the whole purchase price was paid, it necessarily "follows, from the authorities heretofore cited, that when appellant elected to retake the truck, it also elected to cancel the balance of the indebtedness due against the car, which had the effect of relieving the appellee Shepherd either as surety or .joint maker on the note.

Appellant also complains of certain leading questions asked by counsel for appellee. We have examined these questions and do not find them to be leading. Complaint is also made of certain instructions, but since appellees Were entitled to an instructed verdict in their favor, as we have already seen, it is in no position to complain about instructions submitting the matter to a jury. Judgment affirmed.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Missouri Pacific Railroad Company v. Myers.
    Opinion delivered February 3, 1930.

      Thos. B. Pryor, Vincent M. Miles and Thos. B. Pryor, Jr., for appellant.

      C. M. Wofford, for appellee.
   Butler, J.

This is a suit brought by the appellee against the appellant to recover for damages to an automobile which resulted from a collision with appellant’s passenger train at Alma, on the 8th of December, 1928. There was a trial in the circuit court of Crawford County, resulting in a verdict and judgment for the appellee, from which this appeal is prosecuted.

The facts may be briefly stated as follows: Lee Lollis, while in the employ of the appellee, and in the discharge of his duties, left the home of the appellee in a Chevrolet car to journey to Little Bock. His route lay through the town of Alma, where he arrived about 3:30 o ’clock in the morning. Passing through the town on the main street, he reached the railway crossing, and found it blocked by a freight train. He turned and went one block east to find the crossing there 'blocked by a locomotive attached to the train which blocked the Main street crossing. The engineer in charge of the locomotive, in compliance with a signal given by Lollis, ¡backed his locomotive so that about one-half of the crossing was left clear, giving sufficient room for Lollis to pass, which he did, and proceeded two blocks to the north, where he found the highway blocked at that point. He then returned to the crossing over which he had just passed, where he found the locomotive in the same position as when he crossed.

There is a dispute as to whether the headlight of the locomotive was shining, or whether it had been turned out, Lollis stating that it was lighted,^and the operators of the train that it was not. Before attempting to cross the track again, Lollis stopped his car about fifteen feet from the track, putting his car in low gear, and starting over the crossing directly in front of the locomotive. Passing on from thence his car reached the main track just as a passenger train was passing, which train struck his automobile, demolishing it. As Lollis passed from in front of the locomotive and entered on the space between the side track and the main track, he discovered the approach of the passenger train, and, being unable to stop his car, he turned it so that it went at an angle on to the main track and not directly in front of the passenger locomotive. The testimony is conflicting regarding the giving of signals by the blowing of the whistle and the ringing of the bell for the crossing. Witnesses for the appellant all testified that such signals were given, and Lollis testified that he did not know the passenger train was approaching, and did not hear any whistle sounded or bell rung. The testimony to the effect that the engineer and fireman on the passenger locomotive were keeping a lookout, and that they did not see, and could not have seen, Lollis until lie had passed from in front of the freight locomotive on the side track, was uncontradicted. "When Lollis stopped his car just before entering upon the crossing, he saw two or three men in the cab- of the freight engine, and the headlight of the freight engine was turned on. The men he saw were the engineer and the firemen of the freight train. They were expecting the passenger train, and had entered on the side track for the purpose of clearing the main line for its passage, and, at the time Lollis entered the second time upon the crossing in front of the freight locomotive, the engineer was looking' back in the direction from which the passenger train was approaching. The fireman at that time was shoveling coal into the furnace of the locomotive, one of the brakemen was on the left side, two or three cars back from the engine, looking over the train, and another was standing south of the depot, some distance away from the crossing. None of the train crew were watching the crossing in front of the locomotive, and none saw Lollis when he approached the second time, or when he went upon the crossing, passing in front of the locomotive, just before the collision. The car Lollis was driving was a closed car, and it is uncertain whether or not the windows of the car were up, the testimony on this point not 'being very clear. The locomotive and freight cars on the side track prevented Lollis from seeing- the approaching passenger train, and prevented the engineer and fireman on that train from seeing him.

At the request of the appellee, the court gave the following instruction: “Under the laws of this State, it is the duty of all persons running trains upon any railroad in the State to keep a constant lookout for persons and property upon the tracks of such railroad. If any person or property is injured by the neglect of any employee of any railroad to keep such a lookout, the company owning or operating such railroad shall be liable and responsible to the person injured for all damages resulting from the neglect to keep such lookout, notwithstanding any contributory negligence, if any be shown, on the part of the person injured, where, if such lookout had 'been kept, the employee or employees in charge of such train could have discovered the peril of the person injured in time to have prevented the injury by the exercise of reasonable care; and the burden of proof is upon the railroad to establish the fact that this duty to keep such lookout has been performed.”

It is the contention of the appellant that this instruction should not have been given for the reason that the undisputed proof shows that, if the engineer and firemen had been keeping the lookout, they could not have discovered the approaching automobile in time to avoid striking it, and for the further reason that there was no allegation in the complaint which warranted the submission of that issue to the jury. We agree with the appellant in this contention, but are of the opinion that, in view of the other instructions given and the testimony, the attention of the court should have been called to the vice of this instruction by specific objection, and that a general objection was not sufficient.

The case of Missouri Pac. Rd. Co. v. Wright, 168 Ark. 259, 270 S. W. 601, relied on by the appellant as authority for the position taken by it, is quite similar to the instant case. In that case the court held that it was error to submit to the jury the issue of failure to keep a lookout, both because there was no allegation of negligence in this regard, and because it was undisputed that the view was obstructed so that the train crew could not see any one approaching in time to avoid a collision. The appellant requested the court to give an instruction excluding that question from the consideration of the jury, which instruction the court refused. The request for the instruction was tantamount to a specific objection. In the case at bar there was only a general objection, and, since the instruction was a correct declaration of law, if the defendant conceived that it was abstract as submitting an issue not raised by the pleadings or testimony, it should have called the attention of the court to this error by specific objection, or by asking the court, as in the Wright case, supra, to give the jury the instruction excluding that question. Moline Lumber Co. v. Taylor, 144 Ark. 318, 222 S. W. 371; Cohn v. Chapman, 150 Ark. 258, 234 S. W. 42; Roach v. Scott, 157 Ark. 165, 247 S. W. 1037.

By instruction No. 3, at the instance of the appellee, the court presented the issue in this case. That instruction is as follows: “You are instructed that, if you find from the evidence in this case that, at the time plaintiff’s car was approaching the crossing where it is alleged the injury occurred, a freight train occupied a side track, and was partly upon said crossing, or near thereat, waiting for an east-bound passenger train to pass, it was the duty of the employees of defendant on both trains to keep a constant lookout for persons or oars upon said tracks and crossing; and if the destruction of plaintiff’s car was the result of the negligence of the employees of defendant to keep such lookout, the defendant is liable to plaintiff for the injury to his car. ’ ’ This instruction is not complained of by the appellee in his brief, and we think the instruction, when taken together with instructions given at the request of the appellant, which submitted the question of contributory negligence, correctly stated the law in this case. It is our view that the testimony fails to disclose any negligence on the part of the operators of the passenger train, and the jury might well have been so instructed, but the negligence, if, any, consisted in the failure of the operators of the freight train, after having cleared the crossing and knowing of the imminent arrival of the passenger train, to maintain a watch on the crossing for any one who might approach, as the view of any such person would be obstructed by the freight train. Under ordinary circumstances, the exercise of ordinary care would not require a lookout to be kept by the operators of a freight train on a side track to watch for persons entering upon the crossing, but this cannot be said to be the case where a freight train clears the crossing, and thus impliedly invites persons to enter thereon when the view is obstructed, and where the approach of another train is expected at any moment. This would 'be a proper question for submission to a jury.

The next proposition relied upon for reversal is that" the nncontradicted evidence established the negligence of -the driver of the car, and that this was the proximate cause of his injury. It is true that the evidence is undisputed, (but we cannot say as a matter of law that these facts sustained the appellant in its contention. The situation was such that there might easily be a difference of opinion as to what might constitute ordinary caution under the circumstances. Viewing the facts and making the deductions therefrom in a light most favorable to the appellee, as we are bound to do, it might be said that, while as a usual thing it would have been the duty of the driver of the car to exercise extra caution in the use of the crossing where the track is obstructed so as to interfere with sig'ht or hearing, still, where, in response to a signal given by the driver of a vehicle, the crossing is cleared for its passage, over which it passes safely, and on his return in a short time to recross the driver sees the crossing still clear and the locomotive of the freight train standing where he had last seen it, with headlight burning, it cannot be said that it was unreasonable for him to assume that there was an invitation to again cross the track with the implied assurance that the way was safe. The conduct of the train crew in charge of the freight train in the instant case was such that an ordinarily prudent person might have assumed that the crossing was clear, and have acted upon this assumption. What is ordinary care, or what is negligence, depends upon the peculiar character of the circumstances incident to each case, and we are of the opinion that the facts in this case warranted the submission to the jury of the question of the driver’s negligence.

“The suggestions of ordinary caution and prudence may require the traveler, under peculiar circumstances, to get out of Ms vehicle and approach the track and look np and down it in both directions before attempting to cross it, but plainly there can be no rule of law establishing such a duty for all cases; 'but whether the circumstances are of that peculiar character which requires the traveler so ta act will be a question of fact for the jury.” Elkins v. Western Maryland Ry. Co., 76 W. Va. 733, 86 S. E. 762, 1 A. L. R. 198.

“It is well settled that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury, and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being disputed, fair-minded men will honestly draw different conclusions from them.” St. L. I. M. & S. R. Co. v. Hitt, 76 Ark. 227, 88 S. W. 908.

The allegations in the complaint relating to negligence for failure to keep a lookout might not have been sufficient to include a charge of negligence on the part of the engineer and fireman on the passenger train to keep a constant lookout, as provided by § 8568, Crawford & Moses ’ Digest, but it was sufficient to allege negligence on the part of the crew of the freight train for failure to watch for and 'warn travelers on the highway of the approach of passenger trains, since it was through their acts that a view of the tracks and the approaching train was prevented.

The record presents no reversible error, and we think that the circumstances warranted the submission of the question of the negligence of the appellant and the contributory negligence of the appellee to the jury. The judgment is therefore affirmed.


author: Hart, C. J.,

text:
    Cannon v. Felsenthal.
    Opinion delivered February 10, 1930.

      Powell, Smead <& Knox, for appellant.

      G. B. Grumpier, for appellees.
   Hart, C. J.,

(after stating the facts). The decree of the chancery court was correct. The principal ground relied upon for reversing the decree is that the commissioners were about to take a part of the property of appellant, and other real property within the proposed improvement district, without first condemning said property and paying them therefor.

Under § 4006 of Crawford & Moses’ Digest, municipal corporations are given the power to lay off, open, widen, straighten, and establish streets, etc. Section 4007 of the Digest provides that no street shall be opened, straightened or widened without the concurrence in the ordinance directing the same of two-thirds of the whole number of members elected to the council:

The complaint shows that the provisions of the statute in this respect were duly complied with in the passage of the ordinance providing for the widening of the street in question. The complaint also shows that a street improvement district was duly organized in the manner provided by statute for the purpose of talcing and improving said street, as widened under the provisions of said ordinance, and that commissioners were duly appointed who were proceeding to construct the improvement provided for.

Appellant,. as a property owner of said proposed improvement district, seeks to enjoin the commissioners from proceeding further in the matter, because they have not first paid him the compensation for taking his property, as required by article 12, § 9, of our Constitution, which prescribes, in effect, that no property or right-of-way shall be appropriated to the use of any corporation, until full compensation therefor shall be first made to the owner in money, etc. This court has held that the seetion of the Constitution just referred to does not apply to the taking of property for public use by a municipal corporation. Paragould v. Milner, 114 Ark. 334, 170 S. W. 78. 'In that case, the court had under consideration the taking of a strip of land for the. purpose of widening a street in the city. Again, in Dickerson v. Tri-County Drainage District, 138 Ark. 471, 212 S. W. 334, it was held that, the section does not apply to a taking by a drainage district.

The power of eminent domain is an attribute of sovereignty, and, for the purpose of a case like this, is governed by the provisions of article 2, §§ 22 and 23, of our Constitution, which is a part of what is commonly called our Bill of Bights. Section ’22 provides that the right of property is before and higher than any constitutional sanction, and that private property shall not be taken or damaged for public use without just compensation. Section 23 provides that the State’s right of eminent domain and taxation is herein fully and expressly conceded.

Under constitutional provisions like these, it is generally held that the procedure for ascertaining the value of the property sought to be condemned, and the making of reasonable provision for the payment of the same, is a matter of legislative regulation. As staged in Backus v. Fort Street Union Depot Co., 169 U. S. 557, 18 S. Ct. 445, “All that is essential is that, in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and, when this has been provided, there is that due process of law which is required by the Federal Constitution. ’ ’

In Albert Hanson Lumber Co., Ltd., v. United States, 261 U. S. 581, 43 S. Ct. 442, it was said, that the owner is protected by the rule that title does not pass until compensation has been ascertained and paid, nor a right to the possession until reasonafble, certain, and adequate provision is made to obtain just compensation.

In Joslin Manufacturing Co. v. Providence, 262 U. S. 668, 43 S. Ct. 684, in discussing the subject, the court said:

“Third. We next consider the contention that the act permits the taking of property, and grants the power to lease, sell or dispose of it without an offer to pay compensation therefor, or a determination of it in advance. It has long been settled that the taking of property for public use by a State, or one of its municipalities, need not be aociompanied or preceded by payment, hut that the requirement of just compensation is satisfied when the public faith and credit are pledged to a reasonably prompt ascertainment and payment, and there is adequate provision for enforcing the pledge.”

Our own statute complies with the requirements laid down in the cases cited above, both from this court and from the Supreme Court of the United States. Sections 4022 to 4026, inclusive, of Crawford & Moses’ Digest relate to condemnation proceedings by boards of improvement in cities and towns. Section 4022 provides that the board of improvement shall have power to enter upon any private property for the construction of any designed improvement, and that any damages that may be sustained thereby shall be paid out of the improvement fund.

Section 4023 provides that, if the person damaged and the board of improvement cannot agree upon a sum to be paid fob such damages, the person aggrieved may file his petition in the circuit court of the county, setting forth his grievance and asking compensation therefor, making the board a party defendant.

Section 4024 provides for a. trial of the issue by a jury, and that the case shall be advanced on the docket so as to have precedence over all other causes.

Section 4025 provides that the judge of the circuit court may hold a special term for the trial of any such cause.

Section 4026 provides that the judge of the circuit court may, in vacation, in case an agreement cannot be arrived at 'between the board of improvement and the owner of the property in relation to the damages claimed, fix an amount to be deposited with some person to be designated by tbe court before entering upon and taking possession of the property to be used and taken, as aforesaid.

Thus it will be seen that the statute provides that compensation must be made, and the amount of damages for the taking settled in the circuit court, before the board of commissioners can take possession of the property and proceed with the construction of the improvement. Under the provisions of the statute, the title to the property would not pass until the money had been deposited in court for the payment of the damages to the owner. The reasoning of our own court, as well as that of the Supreme Court of the United States, on the question is, that no one has a vested right in any given mode of procedure, .and all that the landowner may require is that a form of procedure may be given him with a right of review in the courts, and that a reasonable and adequate means of payment for the property taken shall be provided. Dickinson v. Tri-County Drainage Dist., supra. So it will be seen that the landowner may proceed in accordance with the provision of §§ 4022-4026, inclusive, of the Digest; or he may wait until the street is widened and sue for damages under § 3930 of the Digest.

It is next insisted that the ordinance creating the district is void because it fails to limit the cost of the improvement to 50 per cent, of the assessed value of the property. In making this contention, counsel rely upon act 64 of the Acts of 1929, which is entitled, “An act to simplify the system of organizing and administering- local improvement districts in cities and towns.” Acts of 1929, vol. 1, p. 241.

The part of the section relating- to this 'question reads as follows: “If it is found that a majority has signed the petition, the district shall be authorized, unless limited by the terms of the petition to a smaller per cent., to make improvements costing- not more than fifty per cent, of the assessed value of the real property in the district ; and, if it is f oiind that the petition, has b'e'en signed by seventy-five per cent, or more in value of the owners of real property within the district, said district may expend, in making the improvement for which it is organized, as much as one hundred per cent, of the assessed value of the real property therein, unless limited by the petition as aforesaid. Interest upon money borrowed shall not be computed in determining the cost lof improvement. ’ ’

Under the statute a majority in value of the owners of real property shall be authorized, unless limited by the terms of the petition to a smaller per cent., to make improvements costing not more than, fifty per cent, of the assessed value of the real property in the district. The council expressly found upon the report of the commissioners that the estimated cost of the improvement was less than fifty per cent, of the assessed value of the property in the district. Hence, there is nothing in this contention.

No other grounds for a reversal of the decree have been urged upon us, and it will therefore be affirmed.


author: Hart, C. J.

text:
    Cathey v. State.
    Opinion delivered February 10, 1930.

      Harney McGehee, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Hart, C. J.

Buford Neely and Jack Cathey were jointly indicted and tried by a jury for the crime of robbery. The jury returned a verdict of not guilty as to Neely, and guilty as to Cathey, and fixed his punishment at three years in the penitentiary. Cathey has appealed.

The only ground relied upon for a reversal of the judgment is that the testimony was not legally sufficient to sustain the verdict.

According to the testimony of E. E. Moore and his wife, they operated a grocery store in the city of Fort Smith, Sebastian County, Arkansas. When they were getting ready to close their store, at about seven o’clock in the evening on the 20th day of February, 1929, their telephone bell rang, and some one telephoned them to wait a few minutes, so he could come and get some gro-' ceries. They sat down by the stove to wait while their customer was coming. In a few minutes a man came in and asked Mr. Moore about some pork chops. He walked behind Moore, and Moore asked him if he was the party who called over the telephone. The man, whom Moore recognized as Neely, replied, “No.” Neely drew a pistol on Moore, and the defendant, Cathey, drew a Winchester gun on Mrs. Moore, and the Moores were told to put up their hands, that they were being held-up. They demanded cash from Moore, and he told them, that he had put it up. Neely then knocked Moore down, and he was rendered unconscious. Mrs. Moore then became frightened and told them where the money was. They continued to hold their guns on Mr. and Mrs. Moore, and took from the store $195 in money of the United States and three checks amounting to $97. Both Mr. and Mrs. Moore recognized Neely and Cathey as the men who robbed them.

According to the testimony of Neely, he was sick at home at the time of the robbery, and his testimony was corroborated by that of the physician who attended him, and by that of other persons.

According to the testimony of Cathey, he lived about two doors from the store that was robbed, and was engaged in playing a social game of cards there at the hour when the robbery occurred. His testimony was corroborated by that of the people with whom he lived, and with whom he was playing cards at the time.

While we cannot say that there is no sufficient evidence upon which the verdict might be sustained, it is not very satisfactory, and the verdict of the jury is somewhat inconsistent. Mr. and Mrs. Moore identified both Neely and Cathey as the men who robbed them. They identified each of the parties with equal positiveness, and it is manifest from their testimony that they were both guilty. The jury returned a verdict of not guilty as to Neely, and guilty as to Cathey. Both defendants made proof of an alibi. According to the testimony of Neely, and of the witnesses in his behalf, -he was sick at home at the date of the robbery. According to the testimony of Cathey and of other persons, he was playing a social game of cards at the house where he roomed, which was about two doors away from the store that was robbed, at the time of the robbery. The jury, however, were the judges of the credibility of the witnesses, and there is no principle of law upon which the court could reverse a judgment of conviction against Cathey, because it seems inconsistent with returning a verdict of not guilty as to Neely.

According to the testimony of the witnesses for the State, all the elements of the offense of robbery existed; and while their testimony was somewhat weakened by cross-examination, and by the contradictory evidence of the witnesses for the defendant, yet it was within the province of the jury to believe them, or so much of their testimony as it believed to be true; and this testimony, being of a substantive character, we are not at liberty to disturb the verdict of the jury or to reverse a judgment based upon it. Martin and Woodard v. State, 178 Ark. 117, and Weldon v. State, 179 Ark. 10, 14 S. W. (2d) 245.

Therefore, the judgment will be affirmed.


author: Smith, J.

text:
    First National Bank of Waldron v. Ary.
    Opinion delivered February 10, 1930.

      O. R. Smith, A. F. Smith and Evans <& Evans, for appellant. ‘

      Sam T. Poe, Tom Poe, McDonald Poe, Duke Frederick, W. A. Schofield, Lee J. Lewis, W. A. Bates, Holmes, Canale, Loch & Glanker and Hamilton E. Little, for appellee.
   Smith, J.

This case involves a contest of the will of W. B. Turman, who died at the age of eighty-seven without having married. He had for a number of years been the president of the First National Bank of Waldron, and was serving in that capacity at the time of his death, and, while he owned only a small amount of the stock, he carried a large deposit in the bank. Upon his death his will was probated in common form, without notice to his heirs. By the terms of his will, Turman gave $1 to all persons related to him within the fourth degree, and the remainder of Ms estate was devised to the bank of which he had been president.

Five separate appeals were prosecuted from the order of the probate court admitting the will to probate, all of which were perfected in the manner provided by the statute. Section 2258, C. & M. Digest. One of the appellants was Dona Ary, who alleged that she was the illegitimate — but adopted — daughter of the decedent. The others were second cousins, or the descendants of second cousins, who were shown to be the next of kin: These claimants are divided into two groups, one tracing their kinship throug’h the decedent’s paternal line, the other through the maternal line, and these latter claim that they are the sole heirs at law, for the reason that the estate in question is an ancestral one which came to the decedent, through his mother. Dona Ary claims the entire estate, to the exclusion of both sets of heirs, upon the theory that, having been adopted as a daughter, she is the sole heir at law. 'She claims that she was adopted pursuant to the act of January 12,1853, which appears as §§ 3493 and 3494, C. & M. Dig’est, and that the declaration of that fact, for which the statute referred to provides, was duly recorded, but that all the records of the county were destroyed by a fire. A prima facie showing to this effect was made before the court.

Numerous motions were filed in the case, which we find it unnecessary to discuss in detail, as the purpose of all of them was to require the contestants to settle their conflicting claims before being allowed to contest the will. These motions were overruled, and the'will was contested in the circuit court, upon the appeal from the probate court, upon the grounds that the testator lacked testamentary capacity to make a will, and had been unduly influenced in its execution.

There was a preliminary hearing before the court, upon which much testimony was taken, touching the rights of the contestants to oppose the probate of the will, and the court, without passing upon the respective merits of the conflicting claims, held that all of them had made a prima facie showing of an interest in the estate, which gave them the right to resist the probate of the will. The court consolidated all the appeals into a.single case, and a jury was impaneled to determine the validity of the will. The jury found against the will, and, as the testimony upon which this finding was made has not been abstracted on this appeal from that judgment, it will be conclusively presumed that the testimony supported the verdict of the jury, and the judgment thereon to the effect that Mr. Turman had died intestate.

For the reversal of this judgment, it is very earnestly insisted that it was prejudicial error for the court to have permitted these conflicting interests to make common cause in an attack upon the will, and that the court should have required these claimants to contest separately or to have first litigated among themselves the merits of their respective claims.

We do not agree with learned counsel in this contention. Certainly it is not the policy of the law to permit five separate contests of a will. There was either a will or there was none, and this was the only question involved on the appeal from the probate court, and as each contestant raised this question and no other, it was entirely proper to consolidate these separate appeals, and to try them as a single case. Section 1081, C. & M. Digest. There was an order and judgment of the probate court admitting the will to probate, which bound all persons until that judgment was set aside. It would, therefore, have been an anomalous practice to have required these claimants, whose interests under the will were merely nominal, to first litigate the merits of their respective claims, while a valid order probating the will was outstanding, which will practically exclude all of them from any participation in the distribution of the estate. Dona Ary took nothing under the will, and the other claimants only $1 each, and until it had first been determined that there was no will, there was no occasion for them to litigate with each other. The time within which any of them conld appeal might have expired before the question oí their relative rights could be adjudicated.

The trial in the court below was had under § 10,525, C. & M. Digest, which provides that “When the proceeding is taken to the circuit court, all necessary parties shall be brought before the court; and, upon the demand of any one of them, a jury shall be impaneled to try which or how much of any testamentary paper produced is or is not the last will of the testator.”

The question for trial, therefore, was, how much, if any, of the testamentary paper produced was or was not the last will of the testator? and the question was not how the estate should be distributed if the will was not valid. That question did not then arise, and has not yet arisen. All of the appellants from the probate court were necessary parties, and should have been brought before the court if they had not voluntarily come through their appeals from the probate court, as a proceeding- was about to be had which would be conclusive of their rights to an interest in the estate.

“An heir at law may contest without any other showing of interest than heirship, so may the widow, legatees, devisees, beneficiaries under a trust, assignees of legatees, claimants under prior or subsequent wills. Borland on Wills and Administration (enlarged ed.), pp. 210-211.

All the contestants made a prima fade showing of heirship, and of an interest adverse to the will, and upon this showing they were entitled to contest the will. None of them has asked that the estate be distributed, nor could they do so in this proceeding, as the sole question to be tried on the appeals from the probate court was, How much of the testamentary paper produced is or is not the last will of the testator ?

By § 216, C. & M. Digest, it is provided that “No executor or administrator shall be compelled to pay legacies or distributive shares, 'unless the same are of a perishable nature or subject to injury, until two years after the date of his letters, unless ordered by the court so to do; and not then until bond, with good and sufficient security, be given by the legatee, or distributee, to refund his proportion of any debt which may afterward be established against the estate, and the costs attending the record thereof.”

When the time thus provided by law for the distribution of the estate arrives, these conflicting claims will then be heard upon that question; but, before that question could be properly determined,, it was necessary, first, to determine whether there was a will, and this is the only question which § 10525, -C. & M. Digest, provides shall be determined upon the appeal from the probate court.

The eases of Flowers v. Flowers, 74 Ark. 212, 85 S. W. 242, and Brackville v. Holt, 153 Ark. 248, 239 S. W. 1059; are decisive of the question here presented.

The Flowers case arose under facts which are very similar to -those of the instant case. There Josephine Flowers claimed to be a child and sole heir at law of the testatrix, while Baldwin and two others who joined in the contest denied the legitimacy of the alleged daughter, and claimed that, there being no legitimate child, they were the sole heirs at law. In that case testimony was offered on the question of the legitimacy of Josephine Flowers, and the court said:

“It is next argued by counsel for appellants, that the court erred in submitting to the jury the question of the legitimacy of appellant, and they contend that the statute limits the. submission to the sole question, 'which or how much of any testamentary paper produced is or is not the last will of the testator.’ Kirby’s Digest, § 8041. It is only persons who are interested in the estate of a decedent who can be heard to contest a proposed will; and if an issue be made as to the right of contestant to appear for that purpose, it becomes necessary for the court to determine that question. In,this kind of a proceeding the jurisdiction of the probate court, and of the circuit court on appeal, is limited to the sole question as to whether or not the proposed instrument shall or shall not be admitted to probate as a will; but, for the purpose of ascertaining the rights of the parties to contest, the court may inquire into the interest of' the contestant as a preliminary question. Brogan v. Brogan, 63 Ark. 405, 39 S. W. 58; Works on 'Courts and Jurisdiction, p. 441; Brown on Jurisdiction, § 146.
“The better practice is, we think, for the court to settle such incidental or preliminary question before the trial of the main issue, rather than to submit them all together; but this is a matter left to the sound discretion of the trial judge, and we cannot say there has been any abuse of that discretion, or any prejudice resulting therefrom to the appellants. They, having raised the issue as to the legitimacy of appellee, thereby challenging her right to contest the will, and having taken the initiative in producing proof tending to show her illegitimacy, cannot now be heard to complain of the court’s action in submitting the question to the jury to be determined from the proof.”

Here the trial court did what was there said to be the better practice. It was determined by the court as a preliminary matter that all the contestants had made a prima, facie showing adverse to the will, and upon this showing they were all permitted to join in its contest, and to try the question, “which or how much of any testamentary paper produced is or is not the last will of the testator?”

Numerous cases are cited in the briefs of appellees, which are in harmony with the views of this court expressed in the cases above cited, but the value of those cases depends upon the similarity of the statutes construed to the statutes of this State, for the reason that the contest of a will is a statutory proceeding.

We call attention, however, to the case of Lillard v. Tolliver, 154 Tenn. 304, 285 S. W. 576, in which the authorities are reviewed at length. The procedure in contests over wills is similar under the statutes of Tennessee to the procedure in this State. The court there held that the filing of a will contest transferred the proceeding to the circuit court to he there heard as an original — and not an appellate — proceeding, and that all persons interested, either for or against the will, had the right to be made parties to the suit, and that strict common law rules relating to adversary proceedings between parties would not be enforced, but that most liberal rules admitting parties would prevail. It was there further held that public policy required the courts to shorten, as far as possible, litigation involving estates of decedents, and that claimants or persons having any possible interest in the estate of the decedent are proper parties in a will contest.

It having been determined that there was no will, the contestants may now litigate in an appropriate manner the validity of their respective claims.

Certain other questions have been raised as to the trial of the cause at an adjourned term, and the refusal of the court to change the venue; but there does not appear to have been any abuse of discretion in the ruling of the court in either iof these matters.

As no error appears in the proceeding from which this appeal comes, the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Wilson v. Monticello Cotton Mills Company.
    Opinion delivered February 10, 1930.

      D. A. Bradham, W. F. Norrell and R. W. Wilson, for appellants.

      J. G. Williamson, Lamar Williamson and Adrian Williamson, for appellees.
   Humphreys, J.

This suit was brought in the chancery court of Drew County by appellees to enjoin appellant, Walter Wilson as ex-officio collector of taxes, from distributing to the State of Arkansas and her subdivisions $6,051.52 in taxes collected from it over its protest on April 10‘, 1928, which had been assessed, and extended on the tax books of Drew County against the property used in the manufacture of cotton and fiber goods, and for judgment against him to refund said sum to it; and to enjoin appellant A. B. Clower and his successor, as assessor, from assessing its property invested in its textile plant in Monticello, Drew County, Arkansas, for a period of seven years from the date of its organization and location of its said textile mill on J anuary 1, 1926.

The gist of the complaint, gleaned from the express allegations therein, and the reasonable inferences deducible therefrom, is that the capital or property involved herein was invested in a textile mill in this State on J anuary 1, 1926, and was, and is exempt from assessment and taxes for a period of seven years from said date under amendment No. 12 of the Constitution of the State of Arkansas adopted on the 5th day of October, 1926, which is as follows:

"Section 1. That all capital invested in a textile mill in this State for the manufacture of cotton, and other fiber goods in any manner, shall be, and is, hereby declared to ibe exempt from taxation for a period of seven years from the date of the location of said textile mill.”
“■Section 2. This amendment shall take effect and be in force and operation after its approval and adoption by the people iof the State of Arkansas.”

A demurrer was filed to the complaint which was overruled by the court, and, appellants electing to stand upon their demurrer and refusing to plead further, the court rendered a decree cancelling the assessment of 1926, and the extension of taxes upon the taxbooks of Drew County pursuant to the assessment, and enjoining further assessment and collection of taxes upon said property by appellee for a period of seven years from January 1,1926, and adjudging that said collector return all the taxes collected to appellee, from which is this appeal.

Appellants contend for a reversal of the decree, and a rendition of a decree sustaining the demurrer to the complaint, and a dismissal of same, alleging as reasons therefor; first, that amendment No. 12 is not retroactive, and does not and can not exempt capital invested in textile mills prior to its adoption; second, that amendment No. 12, as construed by the General Assembly in act No. 74 of 1929, applies to capital invested after its adoption; and third, that amendment No. 12 exempting capital invested in textile mills from taxation grants immunity to certain citizens of the United States, and denies an equal protection of the laws to other citizens of the United States contrary to § 1, article 14, of the Constitution of the United States, and is void.

It was not necessary, as contended by appellants, for amendment No. 12 to expressly state that it was retroactive, or that such intention be clearly implied, in order to exempt appellee’s property or capital from assessment and taxation. The language of the amendment itself exempts the property or capital without interpreting the language as retroactive in effect. The amendment plainly and unmistakably states that capital invested in a textile mill “shall be and is hereby declared to be exempt from taxation for a period of seven years from the date of the location of said textile mill. ’ ’ The amendment does not say that all capital invested in a textile mill after the adoption thereof, nor thereafter invested shall he exempt from taxation for a period of seven years from the date of the location of the textile mill, but, on the contrary, grants exemption to all capital invested in a textile mill in this 'State “for a period of seven years from the date of the location of said textile mill.” It 'will be observed that the emphasis is placed upon the date of the location of the mill, whether located before or after the adoption of the amendment. A part of the seven year exemption might exist before, and a part after the adoption of the amendment, or all after the adoption thereof. According to the allegation of the complaint in the instant case, conceded by the demurrer, all of appellee’s capital involved was invested in a textile mill at Montioello, Arkansas, in the year 1926, prior to the adoption of the amendment in October of that year, so this period of seven years exemption from assessment and taxation began when it located its textile mill at Montioello on January 1, 1926. It is true that appellee purchased the physical assets of the Montioello cotton mills, which was a textile mill that had been operated for many years, and then engaged in the manufacture of cotton cloth at the present site; but the complaint contained the following allegation relative to the investment of its capital in the textile mill in question.

“(b). The plaintiff (appellee) immediately took possession of the textile mill so purchased, and invested a large amount of additional capital therein by practically rebuilding- said mill, changing’ it from an old styled steam driven to an electrically driven mill, installing large amounts of new machinery, and doubling the capacity of said mill, which textile plant, as so rebuilt and enlarged and modernized, the plaintiff has continuously operated at its location in Montioello, in Drew-■County, in the State of Arkansas until the present time. ’ ’

This allegation was tantamount to alleging that appellee’s capital was invested on January 1, 1926, in a textile mill within the meaning of amendment No. 12.

We cannot agree with appellants that the Legislature of 1929 construed amendment No. 12 tu apply to capital only invested in a textile mill after its adoption ment. The act referred to followed the language of the amendment in exempting the capital invested in textile mills for a period of seven years after the adoption of the amendment or for a'period of seven years after the location of such textile mills in the 'State. Certainly, the Legislature did not intend to exempt property by the passage of said act which was not exempt under the language of amendment No. 12. If such was its purpose, the act would necessarily be void because in conflict with the amendment itself. The purpose and intent of act No. 74 was to effectuate amendment No. 12 and not to efface or destroy it.

Amendment No. 12 does not, as contended by appellants, contravene or offend against § 1, article 14, of the Constitution of the United States prohibiting’ the abridgment of immunities or requiring equal protection of the laiws to every citizen of the United States. The effect of the amendment was not to grant immunity to some and deny equal protection to other citizens of the United States, but to exempt capital of all citizens invested in textile mills from taxation for a period of seven years from the date of the location of the mills. It was a reasonable classification under the State’s right of taxation exempting certain capital from taxation applicable to all individuals, partnerships or corporations within the class tc encourage the location of textile mills in this State for the manufacture of cotton and other fiber goods. 'The classification was not discriminatory and arbitrary, but applied alike to all citizens coming within the class. Such classifications and exemptions have been upheld as valid, when extended by States to

railroads and telephone lines, by the ¡Supreme Court of the United States in the cases of Florida Cent. Rd. Co. v. Reynolds, 183 U. S. 480, 22 S. Ct. 176, and Citizens’ Telephone Co. v. Fuller, 229 U. S. 322, 33 S. Ct. 833. The right of a State to classify and exempt railroad companies and telephone lines necessarily implies the right of a State to- exempt textile mills from taxation, if the classification applies impartially to the property of all citizens in the class. In amendment No. 12 and act 74 of the Acts of 1929' it does.

No error appearing-, the decree is affirmed.

Mr. Justice Kirby dissents.


author: Humphreys, J. Smith, J.,

text:
    Chicago, Rock Island & Pacific Railway Company v. McKamy.
    Opinion delivered February 10, 1930.
    if. T. Harrison and Thos. 8. Buzhee, for appellant.

      Golden Blount and Tom W. Campbell, for appellee.
   Humphreys, J.

This is an appeal from a judgment rendered in the circuit court of White County against appellant for injuries received by appellee at the public crossing where the highway crosses appellant’s railroad track near Protho’s gin in Pulaski County, in a collision between appellant’s freight train and appellee’s motor truck between 10:00 and 11:00 o’clock on the night of May 8, 192(8.

Appellee joined the engineer, E. Gr. Medlock, operating- the locomotive at the time of the collision, with the appellant as co-defendant, alleging their concurrent negligence as grounds for a recovery against both. The allegations of concurrent negligence are contained in paragraph (c) of the complaint, which is as follows:

“The said defendants, and each of them, then and there neglected and wholly failed to ring the bell or siound the whistle of the engine of said train at all, as the said train approached said crossing, or to give any signal whatever to warn persons of the approach of said train, although said crossing was upon one of the most constantly used highways in the State, and many people were then and there almost constantly coming- and going along said highway and over said crossing, which fact was known 'by said defendants; the said defendants therefore failed to exercise ordinary care for the safety of persons then and there about to cross over said crossing, in violation lof the duties imposed upon said defendants by law, but carelessly and negligently ran said train over said crossing, and struck the plaintiff and truck in which he was then and there riding, causing the plaintiff’s injuries as aforesaid, and said defendants then and there knew that plaintiff was approaching said crossing in his said truck, and said defendants then and there knew, because of the darkness of the night, and because of the fact that no bell had been rung or was being rung and no whistle had been sounded or was being sounded upon the engine of said train, and the headlight on said engine was s;o defective, that it could not be seen at a safe distance by travelers upon said highway, that the plaintiff did not know said train was approaching said crossing, yet, with full knowledge of the plaintiff’s said peril, said defendants then and there negligently, wilfully and maliciously ran said train over said crossing, and struck the plaintiff and his said truck, and injured him as aforesaid.”

Appellant filed a petition in apt time to remove the cause to the United States District Court, in due form and accompanied by proper bond, which contained, in addition to- an allegation of diversity of citizenship, the following averment:

“That it is alleged in paragraph (c) of the complaint that E. -Gr. Medloek, an engineer on a train of the defendant, which it is alleged struck a truck driven by the plaintiff; knew that the plaintiff was approaching the crossing- at which said alleged collision took place. Petitioner alleges as a fact that at the time of said alleged collision the defendant E. Gr. Medloek, as engineer of said train, had passed said crossing, was several hundred yards therefrom, and could not have known that plaintiff was approaching said crossing, and that these facts were known to the plaintiff at the time the complaint herein was prepared and filed, and said allegations were made by plaintiff fraudulently, and for the sole purpose of preventing a removal of this cause to the United -States District Court.”

The trial court refused to- transfer the cause to the United States District Court, over appellant’s objection -and exception, although the request to transfer was renewed after all the evidence had been introduced.

The record reflects, in substance, the following facts:

Appellee, with two guests, A. B. Brewer and Opal Padgett, was driving his truck friom Beebe to Little Bock, and, after crossing the Iron Mountain Bailr-o-ad, all of them began and continued to listen in both directions for a whistle or bell as they approached the crossing near Protho’s gin, and, hearing none, continued to travel, still listening, at the rate of twenty-five or thirty miles an hour until within about one hundred .feet (estimated) of said crossing, when they observed appellant’s through freight near to or on said crossing running east towards Memphis. The train was running about thirty-five miles an hour. Although looking, they had been unable to see any headlight on the train. Immediately upion the discovery of the train on or near the crossing appellee applied the foot and emergency brakes, which were in good repair, turned off the switch, and put the engine in gear, but, failing to* stop the truck in time to prevent a collision, turned it to the right in an effort to do so, and ran into either the comer of the first box car or the twentieth box car in the rear of the locomotive. The three occupants of the truck testified that the corner of the first box car behind the engine struck the automobile, and Opal Padgett, who recovered consciousness immediately, testified that other box cars bumped ag’ainst the truck as they passed along. One of appellant’s employees fiound the radiator of the truck hung onto the corner of the twentieth box car following the locomotive, when he inspected the train after same reached 'Carlisle. Appellee met two automobiles just before he discovered the train, which had passed over the crossing in front of said train. Ben Hodges, in company with Lon Etson, was driving* the second car which appellee met just before he discovered the train near or on the crossing. They both testified that, as they approached the crossing near Protho’s gin, they were listening and watching in both directions for a train, and did not hear any bell or whistle, and did not see the headlight of the train, although there was nothing between them and the train to prevent them hearing, or to obstruct their view. They also, testified that, after meeting and passing* appellee, they heard a noise, and looked back, and saw a train moving over the crossing, but heard no bell or whistle. Appellee further testified that he thought, at the rate of speed he was traveling, that he could stop his truck within a space of about thirty-two feet by applying his brakes, but that he might not be able to do so on a concrete road. The highway at this point had a concrete surface.

The employees operating the train testified that the headlight was in good repair, shining brightly, and that they were sounding" the whistle and ringing the bell continuously, for a distance of eighty rods before reaching the crossing near Protho’s gin.

Appellant first contends for a reversal of the judgment because the trial court refused to grant its petition for the removal of the cause to the United States District Court. It is argued that paragraph (c) of the complaint failed to state a' joint cause ;of action against appellant and E. Gr. Medlock, and that its petition for a removal to the United States District Court contained a statement of facts showing that the joinder of E. Gr. Medlock with appellant was a fraudulent device to prevent a removal of the cause. Our .attention is called to the allegation in the petition to the effect that E. G. Medlock, the engineer, had passed the crossing, was several hundred yards therefrom, and could not have known that appellee was approaching the crossing, and that these facts were known to appellee at the time the complaint was prepared and filed. The allegation of a fraudulent joinder in the petition for removal is directed at the latter part of paragraph (c) in the complaint. A complete joint cause of action is sufficiently alleged in that portion of paragraph (c) down to and including the word “aforesaid” just before the first semi-colon in the paragraph. It was so ruled in the case of Burke v. Missouri Pacific Rd. Co., 294 Fed. 1913, and the rule announced in that case is supported by the decisions of the ¡Supreme 'Court of the United States cited therein. The facts alleged in the first part of paragraph (c) of the complaint referred to were not traversed by the allegations in the petition for removal and, as they state complete joint cause of action against appellant and E. G-. Medlock, the engineer, it is apparent that the petition for removal was insufficient on its face to deprive the trial court of its jurisdiction to try the cause. No facts were set forth therein tending to show that the joinder of appellant and E. G-. Medlock in that part of paragraph (c) was a fraudulent device to prevent a removal of the cause. We also think the court properly retained jurisdiction to try the cause after all the evidence had been introduced upon the renewal of appellant’s petition to remove said cause to the United States District Court. The record reflects ample evidence of a substantial nature to sustain the allegations of fact contained in the first part of paragraph (e) in the complaint heretofore referred to.

Appellant’s next contention for a reversal of the judgment is the refusal of the trial court to peremptorily instruct a verdict for it.

The facts in the instant case 'bring it within § 8575 of Crawford & Moses’ Digest, commonly known as the comparative negligence statute, as there is substantial evidence in the record tending- to show negligence on the part of appellant and its employees, as well as,t° show contributory negligence on the part of appellee.

The testimony introduced by appellee tended to show either that the headlight on the locomotive was not functioning or was in bad repair, and that the bell was not ringing and whistle not blowing as the train approached the public crossing near Protho’s gin.

The testimony introduced by appellant tended to show that appellee approached said crossing without exercising ordinary care for his own safety by listening for warning signals that were given, and watching for the train, the headlight of which could have been seen within time to have stopped his truck and prevent the injury.

The rule of the comparative negligence statute is that an injured party, guilty himself of contributory negligence, cannot recover damages for an injury unless his negligence is of less deg'ree than the negligence of the railroad company or its employees.

The facts detailed above presented the issue of whether appellant was to blame in greater degree than appellee for the collision resulting in the injury, and, on account of the conflict in the evidence, the issue was properly determinable by the jury, not by the court.

Appellant argues that, because appellee did not stop his truck after discovering the train, and thereby prevent the injury, it must be said, as a matter of law, that he was to blame in equal or greater degree than the appellant for the collision and consequent injury. The distance he was from the train when he discovered it was only an estimate, and the evidence tends to show that he did all in his power to stop the truck, and avoid the collision after he discovered the train. He did not testify positively the distance he was from the train when he discovered it, nior that he could stop his truck within thirty-two feet on >a hard surface road. The undisputed evidence does not show that he was driving at a reckless rate of speed, or that he could have discovered before he did that a train was coming by listening for signals and watching for same. The evidence tended to show that he did both.- The court therefore submitted the issue to the jury for determination under correct instructions. Appellant’s criticism of instruction No. 6 to the effect that it was abstract is not supported by the record.

No error appearing, the judgment is affirmed.

Smith, J.,

(dissenting). The testimony on the part of the railroad company was to the effect that the train had been made up at Biddle', which is a division point in the suburbs of Little Book where engines are inspected, and where this engine had been inspected and the headlight found to be in perfect condition, and no trouble of any kind developed during the trip, which began at Biddle ; that it was only four or five miles from Biddle to the Protho crossing, where the collision occurred, and that the run of this train and of similar trains between these points was usually made in about twenty-five or thirty minutes; that the automatic bell ringer was turned on when the train left the yards at Biddle and was not turned off until the train had gone some miles beyond that point; that it was customary to ring the bell with the automatic bell ringer between Biddle and the Protho crossing because of the numerous road crossings between those points, and the engineer and fireman testified that they would not have- dared run this train without the protection which a headlight afforded. Dr. Protho, near whose place the collision occurred, testified that he visited the scene shortly after the train had passed, and that the tracks of the truck showed that it was run “head-on” into the train.

If it be assumed that the jury disregarded all of this testimony, and that it was not arbitrary so to. do because it was in conflict with other testimony on the subject, there are certain undisputed facts which it was arbitrary to disregard, and among others are these: The country was open and level, and there was nothing to obstruct the view of the approaching train. There had been no rain, and the night was clear, although the testimony does not show whether the moon was ■shining. Certainly the driver of the truck could have seen an object as large and as long as a train if he had looked, even though the headlight was not burning. More certainly could appellee have heard this train, had he listened. The train consisted of sixty-three cars, in addition to the engine, and it had attained a speed of about forty miles per hour at the time of the collision. It could not have done this without making’ a noise which could have been plainly heard by appellee a sufficient distance away from the track to have enabled him to. stop his truck if he had been paying the slightest attention to his surroundings. Appellee admitted that he could have stopped his truck in a distance equal to two or three times its length. The train could not have been stopped in many times that distance.

Appellee was thoroughly familiar with his surroundings, and for some time had been crossing the railroad tracks at the place of the collision twice daily. He knew that he was approaching the crossing, for he and the other occupants of the truck testified that they were listening for trains. Appellee did not claim that the engine struck his truck, but he did testify that he thought it was the first car next to the engine which had struck the truck. He testified. ‘‘I don’t know what box car, but somewhere between the second or tenth or twelfth ¡box car, somewhere along there. ’ ’

The train crew testified that they knew nothing’ about the collision until the train stopped at Carlisle, which is twenty-seven miles east of the Protho crossing, when the conductor found part of an automobile radiator hanging on the oil box of the twentieth car from the rear of the engine, and this radiator was identified as the one which had been knocked off of appellee’s truck.

The testimony appears to me to establish the fact beyond question that appellee ran his truck into the train; that the train did not hit him, but that he hit it, and if this is true it should be said here, as was said in the case of St. Louis-San Francisco Ry. Co. v. McClinton, 178 Ark. 73, 9 S. W. (2d) 1060: “There is a presumption of negligence arising out of the fact that appellee was injured by the operation of a train; but the undisputed testimony is such that it must necessarily appear that appellee’s negligence was greater than that of the operatives of the train, and, this being true, a recovery is not authorized by § 8575, C. & M. Digest,” which is the comparative negligence statute under which the majority have upheld the verdict and judgment of the court herein.

I therefore dissent, and am authorized to say that Mr. Justice Butler concurs in the views here expressed.


text:
    Schultz Construction Company v. Lovett.
    Opinion delivered February 10, 1930.

      Pryor, Miles Pryor, for appellant.

      Partain S Agee, for appellee.
   Humphreys, J.

Tbe sole question presented by this appeal is wlietker tbe record contains any substantial evidence tending to show negligence on the part of appellant which contributed to appellee’s injury. An automobile operated by Henry Shull ran into a cable in use by appellant causing it to hit appellee, who was engaged in his duties near the cable, with such violence and force that he was thrown twelve feet into the air and thirty feet from where he was standing, and severely injured him. He sued appellant for damages in the sum of $3,000, and recovered a judgment for $500 on account of the injury for alleged negligence in placing him at work with the cable stretched across a traveled street without putting out any warning sign of approaching traffic, and maintaining an outlook to protect appellee while engaged in the performance of his duties.

The record reflects that a three-quarter inch steel cable was attached at one end to a railroad car, containing sand, which was standing on one side of the main street in Alma, Arkansas, with the other end attached to a clam shell on the other side of the street, for the purpose of pulling the car across said street; that, in doing this, appellee was directed by Ole Oleson, appellant’s foreman, under whom he was working, to stand in front of the car, and pull the slack out of the cable when the clam shell stopped forking, to keep the cable from being run over by the wheels of the railroad car, and that, while engaged in his work, a traveler by the name of Shull ran his automobile into the cable, causing it to strike the cable in the manner, and with the result alleged in the complaint.

Ole Oleson testified that he was the clam shell operator for appellant and engaged, at the time of the injury to appellee, in pulling a railroad car containing sand across the street with the caíble and clam shell; that it was appellee’s duty to pull the slack out of the cable, and to watch for traffic coming from the siouth, while it was the duty of another employee by the name of Bob Bounds to watch for traffic from the north, and to perform other duties around the car olf sand; that, while Bob Bounds had gone to the car to perform duties there, the automobile driven by Shull came from the north, and struck the cable just as appellee was going to pick it up to keep the slack away from the wheels of the railroad car; that just as appellee started down the automobile came along and struck the cable; that he put no one up the street to stop the traffic.

The record alsio reflects that no signs warning the traffic were put out.

On cross-examination the following questions were propounded to and answered by appellee:

‘‘Q. Was the place provided for you to work a safe place? A. Why, the street was a safe place if that man had stayed hack where he belonged and not knocked me out in the street. It is just as safe a place as you ever saw if that man had stayed where he belonged. Mr. Hardin: We object to the statement about where he belongs. The court: Yes, that is right.' Q. When this cable was stretched across the street, was it easy to see? A. Yes sir. Any one could have seen it. Q. Do you think it was necessary, to prevent a man in a car from running into the cable, to place a watchman there? A. No sir. It was not necessary to have a watchman there. He could see the cable. Mr. Hardin: We object on the ground that these are conclusions. The court: That is well taken. ’ ’

Appellant contends for a reversal of the judgment, because appellee is bound by his answers tending to show that the street was a safe place to work Yvithout a watchman being stationed there, and without signs being put out to warn the public. The questions and answers are set out above. They were objected to by the attorney for appellant’s co-defendant, and ruled out by the court. They cannot be treated as a part of the record against appellee on this appeal as they were ruled out by the trial court generally, and for all purposes. The record stand® as if the questions had nerm been asked and answered. In this view it is unnecessary to decide whether these questions and answers within themselves would have precluded appellee from recovering a judgment.

Appellant also contends for a reversal of the judgment, because there is no substantial evidence tending to show any negligence on the part of appellant. We cannot agree vñth appellant in this contention. The law imposed the duty upon it to use ordinary care to make the place reasonably safe for its employees, and it could have done this by putting out warnings and watchmen to keep the traffic back while appellee was at work. He was called from other work to this place for the purpose of taking up the slack out of the cable, and was unable to watch and protect himself against traffic approaching him, from the rear or the north at the time his attention was required in the performance of his other duties.

Appellant also contends for a reversal of the judgment, because the injury it claims resulted to appellee through the negligence of his co-employee, Rob Bounds in leaving the place as watchman. This would have been true, had his co-employee abandoned his post as watchman without the knowledge of appellant. The record reflects that he left, not only with the knowledge of appellant’s foreman, but with his implied consent, to attend to appellant’s business around the car of sand. This made his leaving or his absence the negligence of appellant.

No error appearing, the judgment is affirmed.


author: Kirby, J.

text:
    Sullivant v. Clements.
    Opinion delivered February 10,1930.

      Isaac McClellan and Clary <& Ball, for appellant.

      Nathan Nall and George II. Holmes, for appellees.
   Kirby, J.

Appellant prosecutes this appeal from a judgment for damages obtained against him by appellees for the obstruction of an alleged public road interfering with their hauling logs to and lumber from their mill to the 'State highway.

Appellant denied the allegations of the complaint, and filed a demurrer and cross-eomplaint.

The testimony shows that the road had been used by the /public, the people living in that neighborhood and beyond, for 40 or 50 years, although some of the witnesses testified that it had fallen into disuse and had been used very little, if at all, for the last 10 or 15 years. Appellant admitted, too, that he had given appellees permission to haul over the road that ran across his land. The testimony showed that appellant had obstructed the road by tearing up some of the bridges, cutting trees down across the road, and rolling logs into the road, as well as removing some of the causeway put down by appellees. Appellees had bought some timber on some land there, and put the mill on one of the tracts of land on which they had bought the timber, expecting to use this old road in hauling the logs to the mill, and lumber from the mill to the State highway. It was the most convenient, if not the only way, to and from the mill. It was shown that, because of appellant’s activity in obstructing the road, it got so bad that some of the teamsters that had hauled lumber at so much per thousand feet quit their contracts, and appellees were compelled to hire them at a specified amount per day. That finally the interference got so bad that appellees were compelled to move their mill; and the testimony showed that appellant continued to obstruct the road and harass the teamsters when they were hauling the logs from the old to the new mill-site. Appellant admitted, that he had consented for appellees to use the road in hauling the logs and timber, and gave no explanation of having withdrawn this permission. He also testified about the damages done to his unfenced lands, through which the road ran, by reason of the use of it for the transportation of logs to and lumber from the mill. The jury returned a verdict for $150 damages for appellees, and from the judgment thereon this appeal comes.

Appellant insists that the court erred in not directing a verdict in his favor, and also in overruling his general demurrer to the complaint.

It is insisted that no special damages were suffered by appellees because of appellant’s obstruction of, and interference with, their use of the road more than resulted to all others using the road and the public generally. Such is not the case, however. The undisputed testimony shows that this was the most convenient, if not the only practical, way to and from the mill in supplying it timber and transporting the lumber to the market; and this court has held that the deprivation of an entrance to, or exit from, one’s property is a special or peculiar damage to him, different from that suffered by the general public, and for which an action will lie. Langford v. Griffin, 179 Ark. 574, 17 S. W. (2d) 296; Peeples v. Aydelott, 125 Ark. 50, 187 S. W. 671.

Moreover, appellant, having expressly consented for appellees to use the old road across his land, was bound to show that something had occurred to bring to an end or terminate the right of occupancy and use of the road under that permission, which the jury evidently found he had not done.

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


author: Kirby, J.,

text:
    Baker v. Gowers.
    Opinion delivered February 10, 1930.

      James B. McDonough, for appellants.

      Cochran <S Arnett, Hays, Priddy & Smallyiood and W. B. Rhyne, for appellees.
   Kirby, J.,

(after stating the facts). Appellants insist that the chancellor’s finding, that the conveyances were made with a fraudulent intent to cheat, hinder and delay the creditors of appellants in the collection of their debts, is contrary to the preponderance of the testimony, and that these conveyances were valid, regardless of the fact that they may have effected a preference in payment of the claims of these creditors over others. The court has concluded, after a careful examination of the testimony, that the contention of appellants must be sustained.

The preponderance of the testimony shows, in onr opinion, that the advances or loans of money claimed to have been made by Mrs. Van Hoozer to her son-in-law and daughter, and borrowed by them for payment of the wages of the miners and other expenses incident to the operation of the mine, as well as for interest due upon the mortgage and loans by other persons to Mrs. Baker, were actually made. The notes given by Nellie and F. B. Baker, evidenced different amounts borrowed from and furnished by Mrs. Van Hoozer, and attached to each of the notes was a short memorandum showing the different sums constituting the amount of the note given, and a great many canceled checks from Mrs. Van Hoozer were also introduced, showing the amount of money advanced as indicated by the memorandum attached to the notes executed theretofore. Both Mrs. Baker and F. B. Baker, her husband, who had the matter specially in charge, kept the memorandum of indebtedness for money borrowed from Mrs. Van Hoozer, produced a great number of- paid checks, showing the amounts of money obtained, testified that they owed her for money borrowed the amount of the different notes -given in the whole sum of the consideration recited in the conveyances of the 160 acres to her in payment thereof. That the debts were bona fide and the money had been actually supplied by Mrs. Van Hoozer. She testified that she had advanced the money in the amount shown to be due by the recited consideration in the deed, and even attempted to borrow some more money and lend to them to keep the mine in operation when they were unable to proceed. It was established also by other witnesses, that Mrs. Van Hoozer had a good deal of property, with an annual income of something over $5,000, and was able to loan the money claimed to have been advanced.

The brother, John L. Baker, Nellie Baker and F. B. Baker all testified that the -debt -due John L. Baker, secured by the mortgage, was a hona fide debt due for money obtained from him; and there was no evidence contradicting their statement, further than the mortgage was not given at the time the note was made and the money borrowed.

It is true Mrs. Van Hoozer conveyed these lands, after they were conveyed to her by the appellants, to her grandson, the son of Nellie and F. B. Baker, for a recited consideration of love and affection; but she could do' as she pleased with her own property, without regard to the source of its acquisition, if the conveyance to her was valid. The conveyances complained of are not voluntary conveyances, although made to near relatives, as disclosed by a close scrutiny of the entire transaction, and no presumption as to their being fraudulent therefore arises. “Fraud may ¡be established by circumstantial as well as by direct evidence, ¡but it is not to be presumed. If the form and design of the transaction may be traced to an honest source, under a preponderance of the evidence, the transaction must be allowed to stand.” Frauenthal & Schwartz v. Bank of El Paso, 170 Ark. 326, 280 S. W. 1001, 44 A. L. R. 871. In Wait on Fraudulent Conveyances, § 5, it is said:

“Fraud, it is also argued, will not be lightly imputed and cannot be established by circumstances of mere suspicion. * * * The creditor must prove tangible and substantial facts from which a legitimate inference of a fraudulent intent can be drawn. The evidence must convince the understanding that the transaction was entered into.for a purpose prohibited by law.”

While it is true that the conveyance from Mrs. Van Hoozer to her grandson, Fenner Brown Baker, may be regarded a voluntary conveyance, it must be remembered that Mrs. Van Hoozer was not indebted to any of the creditors of the corporation, nor to F. B. Baker or his wife, Nellie Baker, and was not insolvent; and it can make no difference to any such creditors how she disposed of her property legally acquired. Having concluded, as already said, that the chancellor’s finding and holding the conveyance of the 160 acres of land to Mrs. Van Hoozer fraudulent as to creditors, and also the mortgage of the other tract to John Luther Brown, is erroneous and contrary to the preponderance of the testimony, it follows that the decree must be reversed, and the cause remanded with directions to dismiss the complaint for want of equity. It is so ordered.


author: M'eharty, J.

text:
    Linograph Company v. Bost.
    Opinion delivered February 10, 1930.

      Hugh Basham, for appellant.

      Paul McKennon, for appellee.
   M'eharty, J.

This is the second appeal in this case. The suit was originally brought in the Johnson Chancery Court to recover $2,149.50, the balance of the purchase money due on a typesetting machine, and to foreclose a chattel mortgage given to secure the debt.

S. H. Logan bought the property from the appellant, and executed the notes and mortgage upon which suit was brought. Logan afterwards sold his business to Hunter and Bost, and Hunter and Bost purchased the typesetting machine from appellant, and assumed the payment of the unpaid notes given by Liogan.

One of the defenses in that case was that appellant was a foreign corporation, and had not complied with the laws of this State permitting it to transact business in this State, and this contention was sustained by the chancery court; the complaint was dismissed for that reason, and appeal was prosecuted to this court. This court reversed the chancery court. The only question decided by this court, however, was the question of whether the chancery court erred in dismissing appellant’s complaint on the ground that it was a foreign corporation, and had not complied with the laws of this State permitting it to transact business in this State. This court held that the transaction was an act of interstate commerce, and that the judgment of the court below in holding' to the contrary should be reversed, and the cause remanded. The opinion in the case when it was here on appeal before is Linograph Co. v. Logan, 175 Ark. 194, 299 S. W. 609.

After the case was remanded it was again tried, the appellee defending on the ground that the machinery was defective, and would not work as guaranteed by appellant, and he denied that he owed appellant anything. The appellant undertook to prove that when Logan sold out to Hunter and Bost, he sold the typesetting machine. Logan testified to this, but the other witnesses testified that Hunter and 'Bost bought the property from the appellant, 'and that Logan stated that he had nothing to sell. He had purchased it and only paid a small amount, and the appellant had retained title to the property and took notes and a mortgage.

The preponderance of the testimony shows that Hunter and Bost bought from the Linograph Company and agreed to execute notes for the purchase price, and that the representative came to Clarksville and sold the typesetting machine to them, and promised to put the machine in first-class condition, so that it would do the work. The representative went back to the home office, and they concluded that, instead of writing new notes, they would get Turner and Best to assume the notes that Logan had given. Hunter and Bost signed a written obligation assuming to pay the notes that had been given by Logan. There was no written contract entered into between Hunter and Bost and the Linograph Company. They simply signed an obligation assuming the payment of the Logan notes.

The evidence shows that the agent of the Linograph Company came to see Bost and Turner a few days after they purchased the newspaper outfit from Logan; and after they took charge of the paper, and the agent of appellant with whom Hunter and Bost made the contract to purchase the machine promised to put the machine in good order, and guaranteed that it would do the work, and, because of these promises, they purchased the property and signed the obligation agreeing to pay the Logan notes. They had intended to buy a new machine.

The preponderance of the evidence shows that the machine was not only unsatisfactory, but so defective that it was impossible to use it; that they bought it on the gnaranty made by the agent, and that they purchased from the agent because ¡of the warranty, and this evidence was practically undisputed. There is some conflict in the testimony as to the purchase of the machine by Hunter and. Bost from Logan, Logan testifying that he sold it to them. But he could only have sold his interest in the contract, and the undisputed proof shows that they bought it of the Linograph Company and agreed to pay Logan’s note, and the undisputed proof also shows that the agent of the Linograph Company warranted the machine. Bost paid the amount Logan was due the company at the time he, Bost, made the purchase, $400. When he found out he could not use the typesetting machine, he refused to pay any more, and suit was brought.

Appellant contends, first, that the case should not have been tried a second time in the lower court, because it says the pleadings have not been changed, although it is admitted that the appellee did not develop" the proof fully as to the paragraph of its answer alleging the defects in the machine. And it is contended, because this court reversed and remanded the ease, the lower court should have entered a decree for appellant. Appellant argues that in reversing the case this court simply said: “This cause is remanded to said chancery court for further proceedings to be had according to the principles of equity, and not inconsistent with this opinion.” And he calls attention to a number of authorities sustaining his contention that when a case is reversed and remanded with directions no more proof can be taken.

Appellant is mistaken about this court reversing it and remanding it with directions for further proceedings to be had according to the principles of equity and not inconsistent with the opinon. The only question decided by this court was whether appellant was prevented from recovering, because it had not complied with the laws of .Arkansas, and the court said:

“We conclude, therefore, that the transaction here ander review was an act of interstate commerce, and the judgment of the court below holding- to the contrary will therefore be reversed and the cause remanded.”

So it will be seen from the opinion in that case that, while the pleadings originally contained in the issue as to the defective condition of the machine, and there was some proof on that, that question was not decided by the chancery court nor this court. The chancery court holding that the contract was unenforceable because of the failure of appellant to comply with the laws of Arkansas of course made it unnecessary to decide any other questions in the case. When the case was sent back to the chancery court, it was then proper to try the question that had not been settled by this court. If a case has been fully developed, and it is reversed and remanded with directions, the lower court, of course, simply complies with the directions of this court. But when it has not been fully developed, and there are other issues made by the pleadings that have not been determined either by the chancery court or this court, then it is proper for the court below to determine these issues after the case is remanded.

Appellant calls attention to and relies on the case of Stevens v. Shull, 179 Ark. 766, 19 S. W. (2d) 1018, and quotes as follows from the opinion in that case: “In the last suit two additional grounds of attack upon the validity of the district were added. But these grounds might have been offered in the first two suits.” That case'involved the validity of an improvement district, and the court had passed on the validity of the district, and this was another attack on two additional grounds. And the court said: “But these grounds might have been offered in the first two’ suits, and for that reason the plea of res judicata should be sustained. As pointed out in the cases referred to, if this were not true, litigation would not end until the parties had no more money or the ingenuity of counsel in suggesting additional grounds in support of the issue had been exhausted. Different landowners could prosecute different suits and make different attacks on the validity of the district, so that it would be practically impossible to make any proposed improvement in a city within a reasonable time. Therefore we hold that the chancery court properly sustained the plea of Fes judicata in case No. 1173.”

The difference between that case and this is that there have been no additional grounds alleged in the answer in this case. The issues were made up by the original pleading's, and the ground now relied on by appellee was in the original answer. The court simply held that the contract was invalid, and did not consider or decide these other issues, and certainly it cannlot be contended that an issue that has not been decided by any court is res judicata, where the failure to decide the issue was not the fault of the parties.

Where a case has been to the Supreme Court and been reversed, the law announced on the former appeal is the law of the case. Propositions of law once decided by an appellate court are not open to reconsideration in that court upon a subsequent appeal. Whatever was decided on the first appeal remains the law of the case for all further proceedings. Morris & Co. v. Alexander & Co., ante p. 735, 22 S. W. (2d) 558; Fentris v. City National Bank, 172 Ark. 711, 290 S. W. 58. However, the decision on former appeal is the law of the case as to so much of the case as was adjudicated. Henry v. Irby, 175 Ark. 614, 1 S. W. (2d) 49; Chicago Mill & Lumber Co. v. Osceola Land Co., 94 Ark. 183, 126 S. W. 380.

The only question adjudicated in this case on former appeal was the right of appellant to maintain the suit. This question was settled on the former appeal, and cannot be reconsidered. The other issue raised by the pleadings was not adjudicated on former appeal, and is not res judicata.

It is next Contended that there was no warranty because the instrument signed by Turner and Bost assuming the indebtedness of Logan contains no warranty. The witnesses in behalf of appellee show that the agent came here from the company, made the representations and warranties to them, and that, because of these promises and warranties, they purchased the machinery, and agreed to assume and pay the notes of Logan.

Appellant quotes and relies on the case of Lower v. Hickman, 80 Ark. 506, 97 S. W. 681, quoting from the syllabus as follows: “A warranty is so clearly part of a sale that where the sale-is evidenced by a written instrument it is incompetent to engraft upon it a warranty proved by parol.”

The instrument signed by Turner and Bost does not purport to be the contract iof sale entered into, but simply a promise on their part to assume the notes which had been executed by Logan. The instrument does not undertake to do- anything else, and does not even recite the sale.

Whether there was a warranty at the time of the sale to Hunter and Bost, and whether the machine was unfit for use, were both questions of fact, and we have repeatedly held that the finding of facts by a chancellor will not be set aside unles-s contrary to the preponderance of the evidence. The chancellor passed on these questions of fact, and he necessarily found that there was a warranty and a breach of the warranty.

We think that the finding of the chancellor is supported by a preponderance of the evidence, and the decree is therefore affirmed.