author: Wood, J.

text:
    Bank of Hatfield v. Bruce.
    Opinion delivered June 9, 1924.
    1. Banks and banking — loan.—Evidence held to justify a finding that defendant bank was indebted to plaintiff for money loaned by her to it.
    2. Banks and banking — loan—instruction.—Where there was evidence tending to prove that the vice president of defendant bank, acting on behalf of defendant, borrowed money from plaintiff, and that the bank actually received the money, it was not error to refuse to instruct the jury that, before they could find for the plaintiff, they must find that the vice president had authority to represent the. bank.
    3. Banks and banking — discharge op loan. — Where there was evidence that plaintiff loaned money to a bank through its vice president, and that the vice president subsequently executed and delivered a note to plaintiff for the amount of the loan, and made a small payment thereon, it was held, under the evidence, that, whether the acceptance of the note was a waiver of any claim against the bank, was a question for the jury.
    4. Payment — note op third person. — When a creditor receives from his debtor the. note or bill of a third person, the presumption is that he takes it by way of security.
    Appeal from Polk Circuit Court; B. E. Isbell, Judge:
    affirmed.

      Norwood & Alley, for appellant.
    ■ Her acceptance of the note, not signed by the bank, but by Johnson and bis brother, and taking- it away and keeping it, was a waiver of any claim .against the bank for the money. 158 Ark. 119. The statement sent her by the bank was an account stated, and, if it was in any way incorrect, she should have made that fact known to the bank in a reasonable time. 126 Ark. 266; 117 U. S. 96; 27 L. R. A. 823; 29 L. R. A. (N. S.) 342; 1 R. C. L. 216. Johnson, according to the undisputed evidence, got the full benefit of the loan. His acts in this transaction, he being the vice president with limited authority, negotiated by himself, which resulted in benefit only to himself, were not binding on the bank. 170 U. S. 133; 3 R. C. L. 440, § 86; 126 Ark. 266.

      Minor Pipkin, for appellee.
    1. The statement of appellee’s account, accompanied by the canceled check payable to the bank, was evidence and notice to her that the amount of her deposit account had been appropriated by the bank to its own use, and that was in accordance with her understanding that she had loaned the money to the bank. 65 Ark. 316. An account rendered is binding upon the party rendering it, as well as upon the other party. 28 Ark. 447.
    2. Johnson was publicly held out as having- authority to bind the bank. Appellee and the public generally had the right to presume that he actually had the authority which he was held out as having, and which was to be implied from the position'he held, unaffected by any secret restrictions on his power and duties in connection with the business of the bank, of which neither appellee nor the public were shown to have had any notice. 1 Michie, Banks & Banking, 696, note 12, and cases cited.
   Wood, J.

This is an action by Mrs. L. iB. Bruce against the Bank of Hatfield to recover the sum of $250.54, which she alleged was loaned the bank on the 19th day of January, 1921; that the bank was to pay her the sum o.f 10 per cent, interest on the loan from date. The bank denied that it borrowed any money from Mrs. Bruce, and denied that it was indebted to her in any sum.

Mrs. Bruce testified substantially as follows: In January, 1921, she had money on deposit in the Bank of Hatfield. She had transacted business with the bank prior to that time. At that time she had a conversation in the bank with Louis Johnson, who had been working-several years in the bank. She transacted her business with the bank through him. She was thinking of taking her money out .of the bank and loaning it to some farmer. Johnson asked her to loan it to the bank, and told her that it would pay 10 per cent, interest. She replied that if she could not loan it in any other way she would let it go in that way. Johnson was vice president of the bank, and in charge of the same at the time. He told witness that, if she would let the bank have the money, the bank stood good for it — “was behind every bit of it.” She agreed with Johnson to let the bank have the money. She had on deposit at the bank at the time, $250.54. She had no other understanding at all, only her money was in the bank safe and was to draw 10 per cent, interest. She afterwards received the following statement from the bank:

“Statement of your account from March 2-20, to Jan. 25, 1921. Bank of Hatfield, Hatfield, Arkansas, in account with Mrs. L. B. Bruce, city.
‘ ‘ This statement is furnished you instead of balancing your pass book. It saves you the trouble of bringing your pass book to the bank and waiting for it to be balanced. These statements will be found very convenient to check up and file. All items are credited subject to final payment. Use your pass book only as a receipt book -when making deposits.”

Attacked to tke statement was the following check:

“Hatfield, Ark., 1-19-21. The Bank of Hatfield 81-356 Pay to the order of B. of H. $250.54, two hundred fifty and 54 dollars. Mrs. M. B. Bruce ‘L. ’ ”

Witness didn’t draw the check, but supposed the letter “L” was for Louis Johnson. She didn’t know whether the letters “B of H” meant Bank of Hatfield or not. After the loan was made in January, she made inquiries either in June or July. She wrote to M. J. Dover to know how much she had in the bank, and in reply he wrote her the following letter:

“Hatfield, Ark., May 30, 1922. Mrs. Vandie Bruce, Hatfield, Arkansas. Dear Mrs. Bruce: Ans. your letter of May 29, we find you have a checking account of $75, and you have a time deposit for $125. This is all I have been able to find. Hoping this is the information you wanted. Yours very truly, M. J. Dover.”

After she had received the above information she went to the bank and obtained the note. She talked to Mr. Holder, who was working in the bank at the time. She asked him about the note. She loaned the money to the bank in January, and did not know that the note was there until May, or thereafter. She heard that she had a note, but did not know for certain until she went and saw it. When she went down and asked them for it, they said it was Louis Johnson’s. That was the first time she knew who had signed the note. She saw it, and left it there. When sbe got the note, she asked for her money, and they refused to pay her. After she instituted this action against the bank, she received $10 from Johnson, and that is all she had ever received. At the time she loaned the money to the bank she did not talk to anybody except Johnson. She did not know at that time who the president or cashier of the bank was. She did not know what position Johnson held; supposed that he was the manager. At the time she loaned the bank the money she was already receiving four per cent. Johnson did not tell her that he would use the money himself. Two or three weeks after the deal was made in the bank there the check came to her through the mail. When she loaned the money to the bank she never asked for any note. There was nothing said about a note. After Dover became interested in the bank, she went down and got the note. Mr. Henry Miller went with her. Holder got the note aiid delivered it to her, and read it to her at the time. She saw that the name of the bank was not signed to the note. This was some time in June or July, 1922. The note referred to was introduced in evidence, and the material parts thereof are as follows:

“One year after date I, we, or either of us promise to pay to Bank of Hatfield, Mrs. L. B. Bruce or order, the sum. of two hundred fifty and 54 dollars, for value received, with interest at the rate of 10 per cent, per annum from date, payable at the Bank of Hatfield.”

The note was signed L. H. Johnson and Gr. H. Johnson.

Witness asked for the money when she got the note, and Johnson said, “Mrs. Bruce, I am in hard shape now —I can’t pay it now, but I will pay it just as soon as I can. ’ ’ She did not ask Johnson for the money — asked the bank for it. She did not get the note from Johnson. She was asking the. bank to give her the note, and asking them for her money, and she was talking to the bank and Johnson. Holder wjas the member of the bank to whom she was talking1. She did not demand the money of any certain person, but demanded it of the bank. She took the note away and kept it. She wrote Dover the following letter:

“Hatfield, Arkansas, May 29,1922. Mr. M. J. Dover. Kind friend: Will you please look on the books and see if there is $250 that I had in the bank when I loaned my money to-Louis Johnson. I loaned him $250; look on the book and see if it is there; write it plain so I can understand it.”

She did not do the writing herself, but had her neighbor, Mrs. Miller, to write it for her. She never saw the letter after it was written. She did not have Mrs. Miller to pnt what was in the letter about Johnson. Mrs. Miller drew on her imagination in writing that. She told Mrs. Miller how much she had loaned the bank, and witness and Johnson were the ones that did the talking. Mrs. Miller is related to the witness. Witness asked Mrs. Miller to write the letter to Dover to see whether there had been any more money put in there besides the $75. She had been informed that $75 was all that had ever been put on the bank book for her. After the loan was made the first and only statement she received was the one introduced in evidence. She saw from the statement that the amount was in there that she put in the bank. She did not understand the balance of the statement— did not understand the bank.

Witness Henry Miller corroborated the testimony of Mrs. Bruce to the effect that he went with her to the bank when she got the note. When she got there, she first asked for the note. They gave her the note, and she asked for the money, and they paid no attention to her, and she turned and walked out.

E. D. McDaniels testified that he was in the bank with Mrs. Bruce in January, 1921, and heard the conversation between her and Johnson about the money. Johnson had been talking to Bruce, and Bruce came back to where Mrs. Bruce was and told her the bank would take her money and pay her 10 per cent.; that was said in the presence of Johnson. Johnson replied, “Yes, we will take all you have got and pay you 10 per cent. ’ ’ Johnson had been working at the bank for a long time, and was working there then, and witness supposed he was an officer, and it was here conceded that he was at that time the vice president of the bank.

E. D. Holder, who was a witness for the bank, testified that he was cashier for the bank in 1921. He remembered Mrs. Bruce coming and getting the note, but heard nothing said about paying the money. At that time witness and Carl Robins had the management of the bank and the borrowing and lending of money. Johnson’s duties at that time were making collections on the outside. Because of previous mismanagement Johnson had been displaced by the Banking Department at Little Bock and by the officers of the bank from his position as manager. Witness kept the books and records, in addition to his duties as the cashier. Johnson got the money, as shown by the deposit slip to him. The bank never received any of it. Johnson got credit for it. He had no authority to borrow money for the bank. The bank never borrowed money and paid 10 per cent, on it.

Johnson testified that he was connected with the bank in January, 1921, working in and out of the bank. Mrs. Bruce had the money in controversy on deposit, and was going to put it on time deposit at 4 per cent., so witness borrowed it at 10 per cent. After talking with Bruce, witness and Bruce then talked with Mrs. Bruce, and they loaned the money to witness. Witness gave his note. He was in the bank when Mrs. Bruce came and got the note. Witness made a payment on the note of $10 after he went to Muskogee, in January, 1923.

At the conclusion of the above testimony the defendant, in its prayer for instruction No. 1, asked the court to instruct the jury to return a verdict in its favor. The defendant also, in its prayer for instruction No. 4, asked the court to instruct the jury that, before they could find for the plaintiff, they would have to find by a preponderance of the evidence that Johnson had authority to contract with the plaintiff, as alleged by her, and borrow money for the bank, and that he did borrow for the bank the money in question. The court refused the above prayers for instructions, to which rulings the defendant objected and duly excepted.

The court instructed the jury, in defendant’s prayer for instruction No. 2, that, if they believed from the evidence that Johnson made an agreement with plaintiff to use the money sued for, and drew a check for said amount, and the same was charged to the account of plaintiff, and the money appropriated by Johnson to his own use, and that the bank received no benefit from the transaction, they should find for the defendant, unless they believed that, in dealing with the defendant, Johnson was acting for the bank and had authority to borrow the money and bind the bank for the payment of the amount; that the burden was on the plaintiff to prove such authority. And, in its prayer for instruction No. 3, the court told the jury that they should find for the defendant, unless they believed from a preponderance of the evidence that Johnson borrowed the money from the plaintiff for the Bank of Hatfield, and had authority from the directors of the bank to borrow the money, or had been publicly held out as having authority to borrow money for the bank.

The court gave plaintiff’s prayer for instruction No. 1, which, in effect, told the jury that, if they found from a preponderance of the evidence that plaintiff loaned a sum of money to the Bank of Hatfield, and that same was past due and unpaid, they should find for the plaintiff in whatever sum they found to be due, less any payment made thereon, with interest from the date of the loan, not exceeding the amount claimed in the complaint.

And in prayer for instruction No. 2 the court told the jury, in effect, that the mere fact that the plaintiff received and holds the note of Johnson, which she alleged to be due her by the defendant, would not constitute a defense to the action, unless the note was received by the plaintiff with the agreement and understanding between her and the defendant that the latter was to be .released from the obligation; that, before the jury could find for the defendant, they must find by a preponderance of the evidence that the plaintiff did receive and accept the note with the agreement and understanding between her and the defendant that the defendant was thereby released; that, unless they so found, they should return a verdict in favor of the plaintiff.

The jury returned a verdict in favor of the plaintiff in the sum of $240.54, with interest at 10 per cent, from the 19th of January, 1921. The court entered a judgment in favor of the plaintiff against the defendant in the aggregate sum of the principal and interest, as found by the verdict, amounting to the sum of $296.90, from which judgment is this appeal.

The principal contention of appellant is that there is no evidence to sustain the verdict, and that the court therefore erred in not directing a verdict in its favor. We cannot concur in this view of the testimony, but, on the contrary, w.e are convinced that the issue as to whether or not the appellant was indebted to the appellee for money loaned by the latter to the former, as alleged in the complaint of the appellee, was an issue for the jury under the evidence.

' The testimony is set out above, and speaks for itself. The jury could have found from the testimony of the appellee that she loaned the money to the bank on January 19, 1921. She testified that Johnson, who was the vice president of the bank, conducted the negotiations for the loan on behalf of the bank; that this transaction took place two or three weeks before the 25th of January, 1921; that on that day she received a statement of her account with the bank. The statement was identified by her, and was introduced, and it showed that she had on deposit in the bank in January, 1921, the sum of $250.54; that this sum liad been checked out, and there was no balance on January 25, 1921. Attached to the statement was a check drawn by the appellee, signed by the letter “L,” on the Bank of Hatfield, payable to the order of “B of H” in the sum of $250.54, dated January 19, 1921. The testimony showed that the letters “B of H” stood for Bank of Hatfield.

The jury were justified in finding, from the above testimony, that the loan was made to the bank, and not to Johnson. The statement, together with the canceled check, fully corroborates the testimony of the appellee that the bank received the sum of $250.54, the amount of money which she had on deposit in the bank at the time the loan was consummated. The testimony of the appellee Was to the effect that Johnson, at the time, was in the bank, where he had been working for several years, and it was shown that he had the management of the bank and that he was at the time the vice president thereof. Her testimony was to the effect that she agreed, at the request of Johnson, to loan the money to the bank at the rate of 10 per cent. The testimony of McDaniels, which was competent, tended to corroborate the testimony of the appellee as to the loan. Furthermore, the canceled check drawn by the appellee in favor of the bank, which the bank in the statement showed that it received, was proof as strong as holy writ that the bank received -the appellee’s money. If the bank afterwards loaned this money to Johnson, or if Johnson used the same, as the testimony tended to prove, that was no concern of the appellee, and did not relieve the appellant of its obligation to pay if it had borrowed appellee’s money. It could serve no useful purpose to discuss in further detail the testimony bearing on the issue a.s to whether or not the appellee loaned the bank the money, as alleged in her complaint. The appellant contends that the undisputed testimony showed that Johnson, and not the bank, got the money, but, as we have stated, the appellant was not correct in this contention. The jury might have found from the bank’s statement, including the canceled check, that the bank, and not Johnson, received the money.

The issue as to whether or not the bank received the money was submitted to the jury under correct instructions. At least the instructions were as favorable to the appellant as it had the right to ask, and, since there was substantial evidence to sustain the verdict, it is conclusive here. The court did not err in refusing appellant’s prayer for a directed verdict.

The court did not err in refusing appellant’s prayer for instruction No. 4, which asked the court to tell the jury, in effect, that, before they could find for the appellee, they must find that Johnson had authority to, and did, represent the bank, and did borrow the money from the appellee .for the bank, as alleged in her complaint. The instruction in this respect was fully covered by instructions Nos. 2 and 3, which the court gave at the instance of the appellant. These instructions were really more favorable to the appellant than it was entitled to, for the reason, as we have .already seen, that, if the bank received the appellee’s money, as the testimony tended to prove, under a promise by Johnson to pay 10 per cent, for same, then it was wholly immaterial whether Johnson had authority to 'represent the bank or not, for, by cashing the check and receiving the appellee’s money, the bank ratified Johnson’s unauthorized .act, and would be bound by the alleged contract under which the money was obtained.

The court, in its instruction No. 2 given at the request of the appellee, in effect put the burden of proof upon the appellant to show that the appellee received and accepted the note executed by the Johnsons to the bank and the appellee, with the agreement and understanding between the appellee and appellant to release the appellant from liability; that, unless the appellant made such proof by a preponderance of the evidence, the jury should return a verdict in favor of the appellee. The appellant contends that this instruction was erroneous because it was abstract, and that the court should have declared, as a matter of law, under the undisputed evidence, that appellee had waived her claim against the bank by accepting and keeping this note. Learned counsel for appellant say, “Her acceptance of this note, not signed by the bank, but by Johnson and his brother, and taking it away and keeping it, was certainly a waiver of any claim or pretended claim against the bank for it.”

We do not agree with counsel in this contention. It was an issue for the jury, under the evidence, to determine whether or not the appellee, by her conduct, waived the liability of the bank to her for the money obtained by it from her by accepting and holding the note of the Johnsons. This was a defense. The court correctly put the burden upon the appellant to establish the fact that appellee .accepted the note, and that she did so upon the understanding and agreement with the appellant that the latter was released from its obligation to pay the loan which, it had obtained from the appellee. If the appellant borrowed the money from the appellee, as the jury might have found, then the mere taking or acceptance of the note of the Johnsons, executed to the appellant and the appellee, would not relieve the appellant of its liability to the appellee for the debt, in. the absence of any understanding or agreement between them to that effect.

The law is well established that, when a creditor receives from his debtor the note or bill of a third party, the presumption is he takes it by way of security. Nevertheless, he may take it in absolute payment, if such is the agreement. Malpas v. Lowenstine, 46 Ark. 552; Aikin v. Peters, 45 Ark. 313; see also Brugman v. McGuire, 32 Ark. 733; Carlton v. Buckner, 28 Ark. 66; Costar v. Davies, 8 Ark. 213. Although the appellee received the note of the Johnsons, and accepted the payment of $10 made by Johnson after the institution of this action, yet there is ample testimony to sustain the finding by the jury that there was no contract or agreement between her and the appellant, at the time she received the note, that appellant was to be released from its obligation.

The court correctly submitted the issues of fact in this record to the jury, and there is ample evidence to sustain their verdict on these issues. The judgment is therefore correct, and it is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Great Western Land Company v. Barker.
    Opinion delivered June 9, 1924.
    1. Master and servant — assumed risk no defense when. — Where plaintiff and two fellow-servants were engaged in piling stumps, and, while they were attempting to lift a heavy stump, the fellow-servants without warning relaxed their hold, throwing the weight on plaintiff .and resulting in the injuries complained of, the issue- of assumed risk was not involved, and any error in submitting such issue was not prejudicial.
    2. Master and servant — personal injury — evidence.—In an action by a servant to recover for personal injuries, testimony that the injury affected plaintiff’s digestion and water passage was competent and relevant to the nature of the injuries and the amount of damages sustained.
    3. Evidence — statement op dependant’s physician. — It was not error to permit the plaintiff to testify that defendant’s physician, who treated him, told him of what his injury consisted.
    4. Evidence — expert testimony. — It was not error to permit medical experts to testify, after an examination of plaintiff, that he could not have been a malingerer.
    5. Appeal and error — conclusiveness op verdict. — A verdict on the issue of negligence is conclusive when sustained by substantial testimony.
    Appeal from Clay Circuit Court, Eastern District; W. W. Bandy, Judge;
    affirmed.

      W. E. Spence, for appellant.
    Appellee had been employed in this kind of work at various times, and was acquainted with the nature of the work 'and the risks, if any, attending it. He assumed the risk, and the verdict should have been directed against him. 97 Ark. 486.

      Ward & Ward, for appellee.
    1. The evidence will be viewed in the light most favorable to the verdict, to ascertain if there was any legally sufficient evidence to sustain it, and every legitimate inference in favor of the verdict will be drawn, that is deducible from the evidence. 48 Ark. 495; 76 Ark. 399; 70 Ark. -512; 73 Ark. 377; 74 Ark. 478; 76 Ark. 115; Id. 326.
    '2. On the question of assumed risk, the case cited by appellant, 97 Ark. 486, is not applicable to the facts in this case at all. As to whether or not the injury was the direct result of the negligence of plaintiff’s fellow-servants, was a question for the jury, as likewise the question of assumed risk. 156 Ark. 17; 138 Ark. 267; 129 Ark. 95. The same rule as to assumed risk applies in respect to fellow-servants as to masters, and the rule as to masters is that a servant, in entering the master’s employ, does not assume the risk of the dangers and perils that arise from the negligence. of the master. He has the right to assume that the master has exercised due care and diligence, and to act on the presumption that the master has exercised, and will exercise, that care for his protection. 93 Ark. 88; 89 Ark. 424; 85 Ark. 503; 83 Ark. 396.
   Wood, J.

This action was instituted by the appellee against the appellant, a Missouri corporation, doing business in Arkansas, to recover damages for personal injuries. The appellee alleged that he was in the employ of the appellant, engaged in' piling and hauling stumps, loading and unloading same on and off ground-sleds; that, because of the negligence and failure of appellant to supply necessary help and loading and unloading f aeil-. ities, appellee was injured; that the employees, engaged with the appellee in loading and unloading the stumps, permitted a stump to slip and break the hold of the appellee, and, by so doing, broke him down in the back, ■causing him severe injury, suffering, and medical bill, 'to his damage, as he alleged, in the sum of $2,900, for which he prayed judgment. The appellant, in its answer, denied the allegations of the complaint, and set up that any injury received by the appellee was the result of a risk which lie assumed when he entered appellant’s employ.

The testimony of the appellee was to the effect that he was in the employ of the appellant in May, 1921. He and his fellow-servants were hauling stumps on a ground-slide, piling them in heaps to be burned. They had a pile of stumps three feet high, .and got a stump to the pile, and started to put it on top of same. The appellee was at the back end of the stump. Two more fellow-servants were on each side of it. They got the stump partly up, and appellee’s fellow-servants turned loose to get a new hold, and, in doing so, let the weight of the stump fall back on the appellee, which injured him in his back and left hip. He testified, over the objection of the .appellant, that the injury had affected his digestion and water passage. The appellee described his injuries in. detail to the jury. He testified that he had received a slight injury before the one complained of in the small of the back, and did not present any claim for the same. He went back to work for the appellant as soon as he was well, and the company paid him for one-half of the time he had lost.

Physicians, who qualified as experts, testified on behalf of the appellee as to the nature of his injuries, and their testimony tended to show that he was injured as alleged in the complaint. One of them, Dr. F. E. Jones, testified that he saw the appellee in June or July of 1921, in connection with Dr. Joyner, and also had examined him a few days ago, at appellee’s request. He described the injuries to appellee, but it is unnecessary to set forth his testimony as to the nature of these injuries. Over the objection of the appellant, he was permitted to testify, after describing the nature of appellee’s injuries, that a normal man could not feign the condition testified to by the appellee. He could not become pale, sick at the stomach, and perspiration break out on him, without an injury.

A witness for the appellant testified that lie was working with the appellee at the time of -the alleged injury; that there was nothing extraordinary in the lift of the stump at that time; that they did not let go the stump at the time the appellee was injured. They each had hold of a part of the stump — had it about half-way up on the pile, when appellee said he was hurt, and let loose. After appellee let loose, the two fellow-servants of the -appellee, who were assisting him, put the stump on the pile.

Physicians, who qualified as experts, testified on behalf of the appellant. One of them, Dr. Scott Cook, stated that he treated the appellee for the injury about May, 1921. He found a strain on the left hip — some soreness and tenderness. He did not find anything out of the way, aside from the history and symptoms of the case given him by the patient; Witness had an understanding with the appellant that he would look after minor injuries to its employees. Witness could not find out what the trouble was with the appellee, and thought it was a case of malingering, and asked one of appellant’s men to send the appellee to some one else, because be thought the appellee was exaggerating his symptoms and wanted to see if the other physician was of the same opinion. When he sent the appellee away, he probably told him he was going to send him somewhere else for an examination. Witness thought appellee was hurt to a certain extent.

Dr. Rowe testified, for the appellant, that he examined the appellee in June or July of 1921 after his alleged injury. Appellee was complaining of his back. Witness came to the conclusion that appellee was malingering.

After appellee had closed his testimony and the appellant had introduced its testimony, the court permitted the appellee to testify that Drs. Rowe and Cook told him what was the matter with him. The appellant objected to this testimony, on the ground that it was not rebuttal. The court overruled the objection, and the appellee testified that Dr. Oook said that witness had a sprain or strain in the back, and that it would be some time before witness could do manual work. He told witness that he was going to send him to the hospital for treatment; that they could take better care of him, there. The appellant moved -to strike out all of this testimony, and the court overruled its motion, to which appellant duly excepted.

The court submitted the issues of negligence and assumed risk to the jury, in instructions to which appellant duly objected and excepted. The court told the jury, in effect, that, if the appellee was injured through the negligence and carelessness of the fellow-servants of the appellee, as alleged in his complaint, they should return a verdict in his favor, but, on the other hand, if the injury was not caused as alleged, or if the jury should find that the injury was one of the ordinary hazards of the work that appellee was engaged in, they should return a verdict in favor of the appellant; that the appellee assumed all ordinary dangers and hazards pertaining to such work, and, if they found that the injuries were sustained by the appellee in the performance of his work, and were a risk incident thereto, a risk known or patent as pertaining to the work itself, then the appellee could not recover. The court also told the jury that the effect of our statute is to make the negligent act of a fellow-servant or employee of the master the' act of the master or corporation itself. The appellant objected to the rulr ings of the court in giving the above instructions, and also presented prayers for instructions, including, among others, one for an instructed verdict, which, the court refused, to which ruling the appellant duly excepted. The jury returned a verdict in favor of the appellee in the sum of $1,500. Judgment was rendered in favor of the appellee in that sum, from which is this appeal. •

The appellant contends that the undisputed evidence shows that the appellee assumed the risk, and that the court erred in not so instructing the jury as a matter of law, and in not giving the appellant’s prayer for a peremptory verdict in its favor. We cannot concur in that view of the -testimony. To sustain its contention, appellant -cites Chicago, Rock Island & Pac. Ry. Co. v. Grubbs, 97 Ark. 486. In that case twio cars of creosoted cross-ties had been placed upon the sidetrack of the railroad company at the town of Lonoke. The ties were loaded on flat-cars, and had become disarranged while being transported. Grubbs was a member of the section crew whose duty it was, under the direction of the foreman, to straighten out the ties upon the cars. The foreman directed men to go upon the ties to straighten them out. He did not direct them as to the manner in which they should get upon the ties, nor did he warn them of any danger in so doing.. The ties were loaded upon the cars to a height of twelve or fourteen feet from the ground., Grubbs had worked with ties, which had been treated with creosote, and knew that they were made slick by reason of this treatment. The foreman left the matter of mounting the cars to Grubbs’ discretion, and did not see or know when he got upon the car until after the injury. Grubbs went to the encl of the flat-car and climbed upon the drawhead thereof, caught hold of a protruding cross-tie with his hand, and attempted to pull himself up. The tie slipped, and Grubbs loosened his hold and fell to the ground, receiving the injury for which he instituted ail action against the railroad company.

In that case we said: ‘ ‘ The plaintiff knew that the effect of the treatment of creosote upon cross-ties was to make them slick and therefore liable to slip. * * * Their condition was patent to him, and the manner in which they were disarranged upon the car was also patent. It was obvious therefore that these ties were liable to slip whenever any force or weight was applied to them. The risk of injury which might result by reason of the ties slipping or moving was obvious, and, when plaintiff undertook the service of straightening them out, he assumed that risk.”

The facts of that case clearly differentiate it from the case at bar. Here the appellee, together with two fellow-servants, was hauling and piling stumps. At the time of the injury they were all engaged in the act of rolling a stump and placing it upon a pile three feet high. Appellee was at the end of the stump and his two fellow-servants at the side. Without any signal or warning of any kind to the appellee, as they were all attempting to lift the stump, which was heavy, the two fellow-servants of appellee suddenly relaxed their hold to get a new hold, causing the entire weight of the stump to come back on the appellee, which, according to the testimony of the appellee, resulted in the injury of which he complains. According to the testimony of one of the fellow-servants of the appellee, they did not release their hold and let the weight of the stump fall on the appellee. There was therefore no testimony whatever in this case to justify the court in submitting the issue of assumption of risk to the jury. The appellant therefore was not prejudiced because the court, at its instance and also at the instance of the appellee, did submit such issue to the jury, and cannot' complain because the verdict was against it on this .issue. Tlie ruling of the -court was more favorable to the appellant than it was entitled to, because such issue should not have been submitted at all.

In the case of Railway v. Grubbs, supra, Grubbs knew and appreciated the danger of taking hold of the ties made slick with creosote, and, in attempting to mount the ties in the manner that caused his injury, he assumed the risk. But here the appellee did not and could not know that his fellow-servants, without any signal or warning to him, would loose their hold and let the entire weight of the stump suddenly fall upon him. If the fellow-servants of the appellee did this, which the testimony in his behalf -tended to prove, then the jury might have found that they were guilty of negligence, and the negligent act of the servants, so far as the appellee is concerned, was the negligent act of the master which the appellee did not assume. St. L. I. M. & So. Ry. Co. v. Burdg, 93 Ark. 88-92, and cases there cited; St. L. I. M. & S. Ry. Co. v. Birch, 89 Ark. 424. Under the undisputed facts of the record there is no room whatever for the doctrine of assumption of risk. It was a clear-cut issue of negligence, and nothing else. The court correctly submitted this issue to the jury, and there was substantial testimony to sustain its verdict on that issue.

The appellant next urges that the court erred in permitting the appellee to testify, over its objection, that the injury affected his digestion and water passage. This testimony was competent and relevant to the nature of the injury and the measure of damages, if any, which appellee sustained because of such injury.

The court permitted the appellee to testify that Dr. Cook told him of what his injury consisted. The testimony of Dr. Cook himself shows that he was in the employ of the company, and had treated appellee for the injury, and, having become -convinced that he was malingering, had sent him “on up the line” to the hospital. The court did not err in permitting the appellee to testify as above, and that Dr. Cook told him he was going to send him to the hospital to he treated. The record shows that appellee was asked the following- question: “When Dr. Rowe examined you, did he tell you what was the matter with you?” Upon appellant’s objection to the question, the court remarked: “Well, it is shown that the doctor was the company physician.” Appellant objected to this .remark of the court. The attorney for the appellee thereupon withdrew the question, and it was not answered. It does not therefore appear that the appellee was permitted to state that Dr. Rowe had told him what was the matter with him. There was no error prejudicial to the appellant in this ruling of the court.

The court did not err in permitting the expert testimony on behalf of the appellee to the effect’ that, after 'an examination, from the nature of the injuries the appellee could not have been a malingerer. The court permitted experts on behalf of the appellant to testify, after detailing the results of their examinations, that, in their opinion, the appellee was a malingerer. We find no error prejudicial to the appellant in the rulings of the court in admitting or excluding testimony. Giving the testimony its strongest probative force in favor of the appellee, which we must do, the appellant is concluded by the verdict of the jury on the issue of negligence, since there was substantial testimony to sustain its verdict. See St. L. I. M. & S. Ry. Co. v. Ogden, 76 Ark. 319; Thomas v. Baxter, 76 Ark. 326, and cases cited on this point in the brief of counsel for appellee.

There is no error in the record. Let the judgment he affirmed.


text:
    McLeod v. Purnell.
    Opinion delivered June 9, 1924.
    1. Municipal corporations — improvement district — publication OP ORDINANCE. — Crawford & Moses’ Dig'., § 5650, requiring the city clerk to publish the ordinance establishing an improvement district, is complied with when the body of the ordinance is published, without the title of the ordinance.
    2. Municipal corporations —■ passage op ordinance. An ordinance which was read three times and passed at the same meeting is not invalid because the record does not show the number of 'aldermen voting to suspend the rule, if it does show that two-thirds of the councilmen were present and voted to suspend the rule.
    3. Municipal corporations — description op improvement. — An ordinance establishing an improvement district is not void for designating the street to be improved as “Plum Street from the south side of Sixth Avenue to the south side of Eighth Avenue;” the word “side” meaning boundary line.
    4. Municipal corporations — appointment op commissioners op IMPROVEMENT DISTRICT. — Crawford & Moses’ Dig., §§ 5652, 5657, providing for the appointment by the city council of a board of commissioners and of a board of assessors of an improvement district, is sufficiently complied with where they are appointed by resolution of the council adopted by “aye” and “no” votes, without any roll call.
    Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor;
    affirmed.

      Wallace Townsend, for appellant.
    1. The ordinance creating the district is void for failure to comply with the statute regarding publication. The facts do not meet the requirements of C. & M. Digest, § 7502; but, even if it be conceded that the fact that the minutes of the council show a title which satisfies the above statute, the failure to publish the title is fatal, under § 5650, Id. The provisions of the latter named statute are mandatory.. 67 Ark. 30, 43; 104 Ark. 298; 115 Ark. 163. For the same reasons, the assessment ordinance is void.
    2. The ordinance is void for failure to comply with the requirements of § 7502, in its passage. The suspensi on of the rule is a matter that should affirmatively appear, and a two-thirds vote to suspend the rule is not sufficient. The record must show that fact.
    3. The district is void for uncertainty in the description of the improvement to be made. 118 Ark. 119.

      II. Jordan Monh and Danaher & Dcmaher, for appellee.
    The only object in publishing the ordinance was to notify the people interested in the property to be improved that a movement for that purpose was on foot. That object was accomplished by the publication of the ordinance without the title. It was sufficient. 124 Ark. 346-351; Id. 475-6; C. & M. Digest, § 7502, relates only to by-laws >and ordinances of a general nature. 153 Ark. 1.
   Wood, J.

This is an action by J. A. McLeod against the commissioners of Improvement District No. 72 of thp city of Pine Bluff, Arkansas. McLeod alleged that lie was the owner of property in the district which was attempting to be organized by the city council of the city of Pine Bluff by virtue of an ^ordinance passed August 6, 1923, as follows, to-wit: “Ordinance No. 1868' — An ordinance granting the formation of Paving District No. 72 of the -City of Pine Bluff, Arkansas; ’ ’ that the ordinance sets out correctly the property in the district and the streets to be paved; that the title, “An ordinance granting the formation of Paving District No. 72 of the City of Pine Bluff, Arkansas,” appears on the minutes of the city council, but was not published as part of the ordinance; that the omission of the title in the publication of said ordinance invalidated said ordinance and rendered all subsequent proceedings with reference to the formation of said district void and of no effect; that on March 17, 1924, the city council passed ordinance No. 1924, assessing the benefits of this district, and the minutes of the city council meeting show an ordinance entitled, “An ordinance assessing the cost-of benefits in Paving District No. 72,” but, in publishing this ordinance, no title was published, and therefore said ordinance did not become effective, and is null and void. Plaintiff further alleged that, in the passage of ordinance No. 1868, above mentioned, it was read three times and passed at the same meeting, and that, while there were more than two-thirds of the council members present and voting for the motion to suspend the rule, the minutes of the council meeting do not show the number of members voting to dispense with the rule, but merely show that, on motion duly seconded, the rules were suspended; that the failure of the minutes to show the number of members voting to suspend the rules and.permit said ordinance to be read a second and a third time and passed invalidates the ordinance. Plaintiff further alleged that the petition and ordinances for the district are void upon the ground of uncertainty of the improvements contemplated, in that they recite that the streets to be improved shall be as follows: Plum Street from the south side of Sixth Avenue to the south side of Eighth Avenue; ’Cedar Street from the south .side of Sixth Avenue to the south side of Eighth Avenue; Hickory Street from the south side of Sixth Avenue to the north side of Thirteenth Avenue; and so on through the list of streets; that the use of the term “side” is indefinite, and invalidates the petition.

Plaintiffs further allege that the board of improvement and also the board of assessors were appointed by the city council by resolutions which were adopted by “aye” and “no” votes, without any roll-call, which is contrary to the law in such cases made and provided, and such appointments are therefore void. Plaintiff alleged that the assessment levied by this district will be a lien on his property and cast a cloud upon his title, wherefore he prayed that the ordinance be declared null and void and defendants enjoined from proceeding with the improvements or from collecting any assessments.

The defendants demurred to the- complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and McLeod refused to plead further, but elected to stand on liis complaint. Whereupon decree was entered dismissing the complaint for want of equity. Prom that decree is this appeal.

The appellant contends that the ordinance is void for failure to comply with the statute regarding publication of the ordinance establishing the district. Section 7502 of Crawford & Moses’ Digest provides, inter alia, “no by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title.” Section 5650 of C. & M. Digest provides: “Within twenty days after the designation of such district or districts, the clerk of said city or town shall publish the ordinance of the council establishing the district, in some newspaper published in said city or town, for one insertion. ’ ’

Section 7502, supra, clearly contemplates that municipal ordinances shall have a title, and § 5650, supra, requires the publication of the ordinance. But, although § 7502 requires that an ordinance shall have ¡a title, still the title is no paid of the body of the ordinance, .any more than the title of an act of the Legislature is a part of the enactment. In La Prairie v. Hot Springs, 124 Ark. 346-351, we said: “However, the legislative form of affixing á title to a statute is a custom of such general nature in American legislation that it has been always followed here, regardless of any express requirement in the organic law. The title itself forms no part of the enactment.” And in Special School District No. 33 v. Howard, 124 Ark. 475, we said: “While the title of an act may be looked to to ascertain its meaning, it is still no part of the act, and is not controlling in its construction. ’ ’

Although, under the statute, it was necessary for the ordinance to have a title which should designate the subject-matter of the enactment, yet the statute, § 5650, requiring the publication of the ordinance, is fully complied with when the bod,y of the ordinance is published, and the ordinance establishing the district is not void because of a failure fo also include tbe title in tbe publication. Tbe only purpose of the statute requiring the publication of the ordinance is to give notice to the property owners in the district, whose lands are to be assessed to pay for the improvement, of the proceedings that are on foot as affecting them. This design of the lawmakers is fully accomplished when the body of the ordinance itself is set forth in the publication. Simply giving the title to the ordinance, which designates the number of the ordinance and the number of the paving district, without describing the bounds of the district, giving the several additions to the city and the lots and blocks included therein which constitute the district, could be of no possible practical use to the property owners affected. Such a publication would give the property owners no notice or information whatever such as the law intended they should have by the publication of the ordinance, and would be of no practical importance to the property owners, because it would merely designate the ordinance and the district by number, and would not delimit boundaries or describe the lands embraced in the district. The omission therefore of the title in the publication of the ordinance does not invalidate the order establishing the improvement district.

What we have said concerning the publication of the title of the ordinance establishing the district applies likewise to the ordinance assessing the benefits to the property constituting the district.

The appellant urges, in the nest place, that the ordinance was void because the record does not affirmatively show that two-thirds of the members of the council were present and voted to suspend the rules requiring the ordinance to be read on three different days, according to the provisions of § 7502, supra. The ordinance in question Was read three times and passed at the same meeting. More than two-thirds of the council members were present and voted for the motion to suspend the rule, and the record or minutes of the council shoAV that, on motion duly seconded, the rules were suspended, but do not show the number of members voting to dispense with the rule. There is no statute requiring that the minutes or record of the city council shall show the number of aldermen voting to suspend the rule. Two-thirds of the city council were present and voted to suspend the rule of the statute, and the records or minutes of the council show that the motion to suspend the rule was duly seconded, and the rule was suspended, and the ordinance read three times and passed at the same meeting. An ordinance thus enacted is valid.

The appellant also contends that the ordinance is void because of uncertainty in describing the improvement to be made, in that the petition for the creation of the district, in describing the improvement for paving, designated “Plum Street from the south side of Sixth Avenue to the south side of Eighth Avenue,” and used similar phrasing in describing that part of other streets included in the district. There is no vagueness or uncertainty in the language of the petition thus describing the improvement. The south side of an avenue or street means nothing more nor less than the south boundary line of such avenue or street, and no plainer terms could be used to express the area or distance covered by such description.

It is contended, in the last place, that the commissioners and assessors of the improvement district were appointed by resolution of the city council adopted by “aye” and “no” votes, but without any roll-call. It is sufficient to say, in answer to this contention, that there is no statute requiring that the city council shall appoint the board of commissioners and the assessors by resolution adopted on roll-call. The statute simply provides that “the city council shall at once appoint three persons to constitute the board of commissioners, and also three persons to constitute the board of assessors. ’ ’ Sections 5652 and 5657, C. & M. Digest. No method of procedure is prescribed for making the appointment, and, in the absence of a prescribed statutory method, the council could adopt its own usual method for making appointments in such, cases. The allegations of the complaint show that the assessors were appointed by the city council by resolution adopted by “aye” and “no” votes. This, in the absence of a statute requiring a roll-call, was sufficient.

The court did not err in sustaining the demurrer and in entering a decree dismissing the appellant’s complaint. The decree is therefore affirmed.


text:
    Moore v. Jackson.
    Opinion delivered June 9, 1924.
    1. Partition — adverse possession.- — Unless a tenant in common is in possession of the land or his title is admitted, he cannot maintain a bill in equity for a partition thereof.
    2. Deeds — uncertainty op description. — A deed describing the land as “part of the fractional NW14 of SW!4,” etc., is void for uncertainty of description.
    Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor;
    affirmed.

      A. D. Chavis, for appellant.
    The evidence of the marriage of James Jackson and Harriet Reynolds, and of the legitimacy of their children, is even stronger than that in Darlmg v. Dent, 82 Ark. 76, in which case, at page 82, it is said: “Whatever presumptions are indulged, are in favor of the legitimacy of .such relationship * * * When a man and a woman are living together as husband and wife, the law will hold them to be such, even against strong probabilities that they are not.” See also 1 Bishop, Marriage & Divorce, § 956; 126 Ark. 123; 26 Cyc. 872-i888; 131 Ark. '221, 225; 15 Ark. 555, 605; 121 Ark. 361, 367-8 ; 34 Ark. 518; -67 Ark. 281. As to whether or not Elijah Jackson, under the evidence in this case, is the legitimate child of James Jackson and Harriet, see C. & M. Digest, § 7040; 38 Ark. 487; 120 Ark. 209.

      Caldwell & Boss, for appellee.
    The agreed statement of facts shows that appellant got his deed from Harriet Reynolds while she was in a lawsuit over the title to, and for possession of, the lands involved in this action, and that appellant liad knowledge of the pendency of such suit, and that it‘was pending against this appellee. This is a partition suit in chancery, and in that court partition will not he decreed when the title of the petitioner is denied, and he is not in possession. 91 Ark. 26; 27 Ark. 77; 40 Ark. 155; 44 Ark. 334. Another reason why the chancellor may have concluded that the appellant failed to prove title, and that his complaint lacked equity, is the insufficiency of the description of the land contained in the deed on which he relies. It is a void description. 117 Ark. 151.
   Wood, J.

Robert Moore, plaintiff below, appellant, instituted this action on Jiily 8, 1920, in the chancery court of Jefferson County against Henry Jackson, defendant, appellee, for partition of certain lands, which appellant describes in his amended complaint. He claims title to an undivided half interest in the following manner: James Jackson, during his lifetime, homesteaded the lands in controversy from the United States Government. Appellant alleged that Harriet Reynolds was the common-law wife of James Jackson, and they lived on the lands in controversy as their homestead. James Jackson died leaving two children by Harriet Reynolds, to-wit: Elijah and Henry Jackson. Elijah died without issue. Appellant alleged that Harriet Reynolds lived on the lands as her homestead, after the death of James Jackson, until she was driven off in 1917 by her son, Henry Jackson. Appellant alleged that Harriet Reynolds conveyed her undivided half interest to him on December 8, 1919.

The appellee, in his answer, denied that James Jaclcson and Harriet Reynolds were ever married, and denied that they lived together as husband and wife before or during the year 1867. He alleged that Henry Jackson and Elijah Jackson were illegitimate, and incapable of inheriting through their father, James Jackson. .Me alleged that Harriet Beynolds was of unsound mind, and incapable of executing the deed of conveyance through which the appellant claims title. He further alleged that the deed from Harriet Beynolds to the appellant did not contain the legal description of the lands attempted to be conveyed. He denied that Harriet Beynolds had lived on the lands in controversy within seven years before the institution of this action, and set up that he had been in open, exclusive and adverse possession of the lands since 1895, and therefore claimed title to the same by the statute of limitations.

The court found that the appellant had failed to prove his title to the lands in controversy, and that the complaint should be dismissed for want of equity, and thereupon entered a decree quieting the title in the appellee, from which is this appeal.

There was an agreed statement of facts in the record to the effect that, on the 24th day of March, 19191, a suit in ejectment was instituted by Harriet Beynolds (Jackson) against the appellee, Henry Jackson, for the lands.in controvei^; that her deposition was taken and filed in that suit; that that action was submitted to the circuit court for consideration upon the 6th day of December, 1919, but, before any judgment was rendered therein, and about Christmas, 1919, Harriet Beynolds (Jackson) died. Whereupon, on the first day of March, 1920, a nonsuit was taken in that suit by the attorney, who represented Harriet Beynolds (Jiackson), and who wfas also the attorney for the appellant in the present suit. The deed from Harriet Beynolds to the appellant, under which he claims, was executed December 8, 1919. The testimony of the appellant in the present case shows that, at the time this deed was executed, he knew that a suit was pending by Harriet Beynolds against the appellee for the possession of the land in controversy and to establish her title thereto. The appellant alleged in his complaint that the action instituted by Harriet Beynolds against the appellee was dismissed by entering a nonsuit. There was not a final adjudication in the action to the effect that Harriet Reynolds had title to the land in controversy. Thus the undisputed facts of this record show that it had not been adjudged, prior to the institution of this action for partition by the appellant, that he had any title to the lands in controversy as against the appellee, who was in possession and claiming title by adverse possession.

This court in LaCotts v. Pike, 91 Ark. 26, held that, unless a tenant in common is in possession of the land or his title is admitted, he cannot maintain a hill in equity for a partition thereof. In -that case we said: “The party who is in possession claiming the land adversely has a right to have a trial of his cause in the law court, and, until the issue as to the title is determined, the court of equity has no jurisdiction to partition the land between alleged tenants in common.” See also other cases there cited.

Furthermore, the deed under which the appellant claimed title describes the land as “part of the fractional NW% of SV]4, section 18, T. 4 S, R. 10 W, containing 77.92 acres, more, or less.” The deed is void for uncertainty of description. Graysonia-Nashville Lbr. Co. v. Wright, 117 Ark. 151; Adams v. Edgerton, 48 Ark. 419; Doe v. Porter, 3 Ark. 18; Mooney v. Coolidge, 30 Ark. 640; Colonial & U. S. Mortgage Co. v. Lee, 95 Ark. 129; Scott v. Dunckel Box & Lbr. Co., 106 Ark. 83; Mays v. Blair, 120 Ark. 69.

For the above reasons the decree of the trial court dismissing the complaint for want of equity is correct, and'it is therefore affirmed.


author: Humphreys, J.

text:
    Morrow v. Lindsey.
    Opinion delivered June 9, 1924.
    1. Judgment — discretion as to setting aside default. — It was not an abuse of discretion to refuse to set aside a default judgment where defendant and his attorney understood that the case would be passed until latter’s return from the Legislature, but neither plaintiff nor the court agreed to such postponement.
    2. Continuance — absence of counsel. — Mere absence of counsel from court on account of other business engagement will not work a continuance of a pending cause nor entitle the defaulting party to set the judgment aside.
    Appeal from Conway Circuit Court; John T. Bullockf Judge;
    affirmed.

      J. Allen Eades, for appellant.
    Under the circumstances of this case, it was an abuse of discretion to refuse the relief prayed for. 126 Ark. 25; C. & M. Dig. § 6290, 7th subdiv.

      Gordon <£ Combs, for appellee.
    The mere failure of an attorney to appear and make defense for his client is not sufficient ground to set aside a judgment. .148 Ark. 598.
   Humphreys, J.

Appellee brought suit to the March term, 1923, of the circuit court of Conway County against appellant for $529.26, the value of 19,642 square yards of rock alleged to have been sold off appellee’s land by appellant to Road Improvement District No. 4 of Conway County. Appellant failed to appear in response to the summons, and judgment was rendered against him in favor of appellee for said sum. After the rendition of the judgment, and before court adjourned, appellant filed an original and an amended motion to set the judgment aside and for a new trial of the cause, upon the ground that appellant and his attorney, J. Allen Eades, who was a member of the Legislature, understood that the case would not be taken up until after the adjournment of that body. A meritorious defense to the cause of action was set. up in the motion. Affidavits were filed in support thereof, and, after a hearing, the court overruled the motion, over the objection and exception of appellant.

Ail appeal lias been duly prosecuted to this court to test the correctness of the ruling of the trial court in refusing to set the judgment aside and to grant appellant a new trial. The only plausible argument made by appellant, in Ms brief for a reversal of the judgment refusing to set aside the original judgment and grant Mm a new trial, is that the court promised Ms attorney not to take up any of the cases until the Legislature, upon which he was in attendance as a member, adjourned. There is no foundation, however, in the record upon which to base the argument. The original and amended motions to set the judgment aside and grant a new trial do not allege that the court promised Mr. Eades to continue the cases in which he was interested until after the adjournment of the Legislature. The affidavits filed in'support thereof do not contain a statement to that effect. The extent of the allegation and proof is that appellant and his attorney understood that this and other cases in which Mr. Eades was interested would be passed until the adjournment of the Legislature. The allegation and proof fail to show that appellee consented or the court agreed to a postponement of this case during Mr. Eades’ attendance on the Legislature. The mere absence of employed counsel from court on account of other business engagements is not such an unavoidable casualty as will necessarily Work a continuance of a cause pending in said court, or which will entitle the defaulting party to a new trial thereof. These are matters which appeal to the discretion of the court. Brickey v. State, 148 Ark. 595. It cannot be said that the trial court abused its discretion in the instant case in refusing to set the judgment aside and grant a new trial, for it was not alleged and shown that any arrangement had been made with appellee or the court for a continuance of the cause.

No error appearing, the judgment is affirmed.


author: Smith, J.

text:
    Fidelity Phenix Fire Insurance Company v. Roth.
    Opinion delivered June 9, 1924.
    1. Insurance — forfeiture—waiver.—Where an insurance company’s agent knew of mortgages on rice at the time of issuance of a fire insurance policy thereon, a provision in the policy avoiding it if the insured property was incumbered was waived.
    2. Evidence — proof of loss. — Where a proof of loss was not furnished as an offer of compromise, but as an original claim showing the loss sustained, it was admissible as an admission by insured as to the amount of loss, where he was suing for a greater amount.
    3. Insurance — penalty and attorney’s fee. — In an action for the face of a policy where the evidence sustained a recovery of a smaller amount, the insurer was not liable for the statutory penalty and attorney’s fee prescribed by Crawford & Moses’ Dig., § 6155.
    Appeal from Arkansas Circuit Court, Northern District; George W. Clark, Judge;
    modified.

      J. A. Watkins, for appellant.
    1. There is no proof in the record that appellant or its agent knew of the existence of the second mortgage, and that defense is not waived. The sworn proof of loss states that no other person had any interest in the property except the insured, yet the appellee knew of the existence of the mortgages. 65 Ark. 337.
    2. There was no proof justifying the imposition of the statutory penalty and attorney’s fee. If there is any liability in this case, it cannot be for a greater amount than was fixed by the plaintiff in his proof of loss. C. & M. Digest, § 6155; 92 Ark. 378.

      John L. Ingram, for appellee.
    1. We think the evidence justifies the finding that appellant knew of both mortgages; but if it did not know of the mortgages, it is still liable under the facts in the case.
    '2. The imposition of the statutory penalty was justified, even if the total damage did not exceed the sum of $3,728.05, as contended by appellant. 92 Ark. 378.
   Smith, J.

This is a suit on a fire insurance policy issued by the appellant insurance company. The property insured was described as two thousand or more bushels of rice, and it was consumed or damaged by fire. The policy contains the following provision: “This entire policy, unless otherwise provided by agreement indorsed herein or added hereto, shall be void if the subject of insurance be personal property and be or become incumbered by a chattel mortgage. ’ ’

At the time of the fire there were two mortgages on the rice, one in favor of the First National Bank of DeWitt and another in favor of the Arkansas Light & Power Company, but there was no notation in regard to either on the policy.

It is admitted that the insurance company knew of the mortgage to the bank before the policy was issued; in fact, the agent for the insurance company called on the cashier of the bank to inquire whether the bank would pay the premium, and the company’s agent was told that the bank would pay the premium because it had a mortgage on the rice. The company admits that its liability cannot be defeated on account of the mortgage to the bank, because its agent knew of this mortgage, but the company denies liability on account of the mortgage to the Arkansas Light & Power Company, of which it claims to have had no knowledge. We think, however, that the testimony sufficiently supports the finding of the jury that the agent of the insurance company who wrote the policy of insurance was also advised of this mortgage, and, this being true, the provision of the policy in regard to incumbrance will be held to have been waived. National Union Fire Ins. Co. v. Kent, 163 Ark. 7, and cases there cited.

The suit was brought for the face of the policy, which was $2,000, and judgment was rendered for that amount, to which was added the statutory penalty of 12 per cent, and an allowance for attorney’s fees. It is insisted that the undisputed proof shows that the damage from the fire was only $1,728.05, and that, this being true, no penalty should have been imposed, nor should an attorney’s fee have been allowed.

We think counsel for the insurance company is correct in these contentions. The testimony shows a loss of only $1,728.05. When the adjuster called to make a settlement of the loss, an itemized statement was prepared as follows:

2,140 bushels of Early Prolific and -Storm Proof Bice at 85 cents per bushel.......................................... $1,819.00

300 bushels red mixed rice at 50 cents........................ 150.00

Total............................................. 1,969.00

Credits.

100 bushels red rice sold at 50 cents............... 50.00

Less shrinkage..................................................................... 47..98

Less hauling........................................................................... 47.97

Value 190 bushels rice saved but damaged........................................................................... 95.00 240.95

Net loss..................... $1,728.05

Pursuant to the requirements of the policy, this statement of the loss sustained was sworn to by appellee, and at the trial he virtually conceded that the -statement was correct, although he did testify that the loss was $2,000, but he did not show in what respect his proof of loss was erroneous, and his testimony at the trial, when analyzed, does not show that the damage exceeded the amount there stated.

This statement was not an offer of compromise, as was the 'Case in National Union Fire Ins. Co. v. Kent, supra, in which ive held that the insured was not bound by the figures appearing in the proof of loss, for the reason that the loss there shown was arrived at by way of a compromise of the claim, which the company afterwards refused to abide by. The proof of loss in the instant case not having been furnished as an offer of ’compromise, but as an original claim showing the loss sustained, it was admissible in evidence as an admission on the part of the plaintiff, and, it not being shown that the loss exceeded the amount there claimed, judgment should not have been rendered for a larger amount.

This being trae, it follows that the statutory penalty should not have been imposed, and no attorney’s fee should have been allowed. In the case of Mississippi Life Ins. Co. v. Meadows, 161 Ark. 71, we said, that the purpose of the statute {% 6155, C. & M. Digest), authorizing a penalty and a fee for an attorney, was to require insurance companies to pay promptly the sums for which they are liable, and was not intended to require them to pay anything in excess of their just liability, and that one could not claim the benefit of the statute whose demand exceeded this liability.

Here the sum demanded in the complaint was $2,000, and, while judgment was rendered for that' amount, the penalty and attorney’s fee cannot be allowed, because that sum is in excess of the just liability of the company, as evidenced by the fact that the judgment cannot be affirmed by us for a sum exceeding $1,728.05. The judgment is therefore reduced from $2,000 to $1,728.05, and the allowances for penalty and attorney’s fee are disallowed, and the judgment as thus modified is affirmed.


text:
    McAlister v. Gunter.
    Opinion delivered June 9, 1924.
    Limitation op actions — assault and battery. — An action of dam- • ages for shooting another is barred by the statute of one year (Crawford & Moses’ Dig., § 6951).
    Appeal from Columbia Circuit Court; L. 8. Britt, Judge;
    affirmed.

      Henry Stevens and Wade Kitchens, for appellant.
    The action is not barred. It was brought under the provisions of C. & M. Digest, § 1070, and appellant had the right to bring the suit at .any time within three years after the infliction of the injuries complained of. 41 Ark. 298; 54 Ark. 360-361; 103 Ark. 361.

      McKay & Smith, for appellee.
    The action is barred. The complaint states a cause of action for assault and battery, and was therefore barred after the expiration of one year. C. & M. Digest, § 6951; 71 Ark. 71; 83 Ark. 6; 103 Ark. 366.
   Smith, J.

The question involved on this appeal is whether the cause of action sued on was barred by the statute of limitations at the time the suit was brought. John Gunter and two other men assaulted McAlister. Gunter shot McAlister. The shot broke McAlister’s jaw, and disfigured him and caused great physical pain, and impaired his capacity to earn money. The shooting occurred on August 13, 1918, and the suit was brought on January 29, 1922. The court below held that the cause of action was barred, and this appeal questions that ruling.

The cause of action was barred, and the court was correct in so holding. By § 6951, O. & M. Digest, it is provided that “the following actions shall be commenced within one year after the cause of action shall accrue, and not after: First. All actions for criminal conversa•tion, assault and battery, and false imprisonment * *

The defendants were guilty of an assault and battery. It is true, the circumstances of the assault were such that they might have been convicted of a higher crime, but they were guilty of an assault and battery, although they may also have been guilty of an assault to kill. This is true because the assault was accompanied by a battery, and the defendants could have been convicted of a battery under an indictment even for an assault to kill, because plaintiff was struck, and this constituted a battery.

In the case of Jones v. State, 100 Ark. 195, the defendant was charged with an assault to kill, it being alleged that he made an assault with a certain deadly weapon, to-wit, a knife, upon one McCreary. He was convicted of an assault and battery, and fined $25. Upon the appeal the judgment was modified by imposing a fine for simple assault. This was done for the reason, there stated, that “there is no allegation in the indictment that the violence threatened by the assault was actually done, even in the smallest degree, upon the person assaulted; there is no allegation in the indictment of a battery committed. Under this indictment, the defendant could not be convicted of an assault and battery, because the facts alleged therein did not constitute or include this offense.” But it was there also said that “one of the essential elements of assault and battery is a battery. The prosecutor must be touched by the accused himself or by the substance put in motion by him. There can be no offense of assault and battery without a battery; and this material fact of a battery must be alleged in the indictment in order to constitute a charge, or to include a charge, of assault and battery.”

Here there was a battery, because the person assaulted was in fact shot, and the cause of action was therefore governed by the statute from which we have quoted, and, not having been brought within one year, it was properly dismissed. See also Johnson v. State, 132 Ark. 128; Emrich v. L. R. Traction & Elec. Co., 71 Ark. 71; St. L. I. M. & S. R. Co. v. Mynott, 83 Ark. 6; St. L. I. M. & S. R. Co. v. Robertson, 103 Ark. 361.

Judgment affirmed.


author: .Hart, J.

text:
    Freeo Valley Railroad Company v. Rowland.
    Opinion delivered June 9, 1924.
    1. New trial — newly discovered evidence — discretion.—Much discretion is vested in the trial court in granting a new. trial where, after the trial, a witness recants his testimony given at the trial.
    •2. New trial — recantation of testimony — effect.—It was not an abuse of discretion to refuse a motion for new trial upon the ground that one of the adversary’s witnesses recanted his testimony where other testimony was ample to sustain the jury’s verdict.
    Appeal from Ouachita Circuit Court; L. S. Rritt, Judge;
    affirmed.

      G. Otis Bogle, Gcmghan & Sifford and E. E. Godwin, for appellant.
    House, whose testimony was the foundation stone of the plaintiff’s case, he being the only disinterested witness who testified in .her behalf, testified falsely at the trial, and afterwards repudiated that testimony and confessed its falsity. We think the jury’s verdict was based on that testimony; at least there is a probability that it was based thereon. The fact that he repudiated it raises such a doubt that, under the law, the verdict should have been set aside, and a new trial awarded. 72' Misc. 479, 131 N. T. Supp. 340; 69 Ark. 545; 74 Kan. 631, 87 Pac. 738; 103 Ind. 142; 2 N. E. 349; 11 Tex. App. 283; 34 Misc. 396, 69 N. Y. Supp. 655; 107 Ark. 498.

      D. D. Glover, Poivell, Smead $ Knox and Smead ■<& Meek, for appellee.
    It is well settled that a judgment will not be disturbed on account of the retraction of testimony by a witness, if such testimony is cumulative of other testimony, and there is other evidence to sustain the verdict. 69 Ark. 545; 111 Ark'399; 86 Ark 481; 143 Ark 523; 96-' Ark. 400; 161 Ark 345.
   .Hart, J.

Mrs. Mattie Rowland sued the Freeo Valley Railroad Company to recover damages for injuries sustained by her while attempting to board one of the defendant’s passenger trains.

Mrs. Mattie Rowland was a witness for herself, and lived at Eaglette, Arkansas, in June, 1919. The defendant has a line of railroad which runs through Eaglette and Richardson Crossing, Arkansas. On the 9th day of June, 1919, Mrs. Mattie Rowland went from Eaglette to Richardson Crossing on one of the defendant’s passenger trains, to visit her son, who was sick. She was accompanied by her three children, Viola, Jesse, and Mattie. Between seven and eight o ’clock on the morning of June 10 inst. she flagged the train for the purpose of taking passage on it for home. When the train stopped, her oldest daughter first got on it. Her two smaller children had got on the’ steps of the white passenger coach, when her little hoy commenced to cough. A lady in the car said to the conductor, “Whooping-cough; don’t let them come in here.” The conductor then told the plaintiff to stop, and asked her if her children had the whooping-cough. She told him that her little hoy did not have it; that he had had it about four years ago; but the baby had been exposed to it. The conductor then told •her that they could not ride on the train. He signaled the engineer to start the train, and the engine was started before Mrs. Rowland had time to- get the children off of the train. She had hold of the handle-bars, trying to get the children off, when the train started. She had one foot on the ground and the other on the foot-stool placed there for passengers. When the train started the conductor told the children to jump off, and the little boy of the plaintiff jumped and fell between her and the train. She reached out her left hand and swung him out of the way. The train gave another lunge forward, which seemed harder and faster than before, which prevented her from getting on the steps to keep the other two children from jumping off and falling under the train. She could not get on, and the train jerked her down on the ties and rendered her unconscious. The conductor then took her around the end of the train, through the negro coach, into the baggage-car, and she rode there until she reached her home. When the train arrived at Eaglette the plaintiff was jerking so that she could hardly get off of the train. She went from the station home, and immediately went to bed. She suffered violent pain for some time, and has not been able to walk any since that time. The accident happened -on the 10th day of June, .1919, and her testimony, as stated above, was given on the 27th day of April, 1923. At the time of the accident her youngest child was three years and eight months old. After the plaintiff was thrown to the ground, the conductor grabbed her youngest child off of the steps, and her daughter, Viola, jumped off of the train. She paid her fare on the train the morning she was injured. Slie has suffered continuously since that time, and.has not been able to walk since she received her injuries, and is carried about in a wheel-chair.

Viola Carroll was also a witness for the plaintiff, and testified that the injury happened in the way stated by her mother. She testified in detail about the train starting with a jerk and. pulling her mother down violently on the ties. Her mother at the time had her hand on one of the bars of the steps, trying to hold her baby on the steps. She also corroborated the testimony of her mother as to the character and extent of her injuries.

Will House was another witness for the plaintiff. According to his testimony, he was a passenger on the train, and saw the accident. He corroborated the plaintiff’s testimony as to the manner in which she received her injuries. House testified that the conductor refused to let the plaintiff come on the train because some of the passengers heard one of her children cough, and thought it had whooping-cough. The conductor signaled the engineer to start the train, and, when it moved, the plaintiff was knocked to her knees, and fell on the cross-ties. House further testified that one of the attorneys for the plaintiff was representing him in a claim he had against a lumber company, and that he heard the attorney speaking about Mrs. Rowland’s case to the county judge of his county, and he then told the attorney that he was on the train and saw the accident. The attorney then asked him to state how it occurred, and he told him. He had never heard the statement of how the injury to the plaintiff occurred until after he had made the statement in the presence of her attorney and the county judge.

A physician testified as to the character and extent of the injuries of the plaintiff. He testified that, in his opinion, Mrs. Rowland would never be able to stand or walk again. She was forty-eight years old at the time she received her injuries, and, according to her testimony, which was corroborated by others, she was a stout, able-bodied woman.

Other witnesses corroborated her testimony as to the severe pain she suffered for eleven days immediately after she received her injuries.

The conductor and engineer of the train were witnesses for the defendant. Each one admitted that Mrs. Rowland was a passenger 'on the train on the day in question, and that she rode in the bag*gage-car because one of her children had the whooping-cough. Each witness denied that the train was started suddenly on that occasion, or that Mrs. Rowland was in any wise injured.

Three other witnesses testified that they were passengers on the train on the day in question, and that Mrs. Rowland was not in any manner injured by the train starting up. They denied that the train started suddenly on that occasion, and denied that Will House was a passenger on the train.

The jury returned a verdict for the plaintiff in the sum of $12,500, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

The sole reliance of counsel for the defendant for a new trial is on the ground of newly discovered evidence in the nature of a disavowal by Will House of the testimony he had given at the trial. In support of their motion for a new trial, counsel for the defendant submitted a sworn affidavit of Will House to the effect that his testimony given at the trial was not true, and that he was not a passenger un the defendant’s train on the day in question. He said that he wjas persuaded by one of the attorneys for the plaintiff to give the testimony, and that he believed that he testified falsely at the trial of the case through ignorance. He stated further that he was making the retraction freely and voluntarily, and that he was telling the truth in the affidavit.

The plaintiff filed a response to the motion for a new trial of 'the defendant, which was accompanied by the affidavits of D. D, Glover, C. F. Berry, and D. M. Halbert.

■According to the affidavit of D. D. Glover, he was sitting in his office, talking to C. F. Berry, the- -county, judge of Hot Spring County, when Will House came into the office and sat down. He was telling Judge Berry .of his trip to see Mrs. Rowland, and that she was hurt getting on a train at Richardson Crossing. Will House then said that he was on the train the day she was hurt. Glover then asked House to tell him and Judge Berry how it occurred. He said that, when the train stopped at Richardson Crossing, some child outside of the car coughed, and a woman in the car said not to let the whooping-cough into the car. He, looking -out the window, saw a woman holding to one of the handle-bars of the car and being dragged1 along by the train. Her hold was turned lo-ose, and she fell across some ties on her side and back. Glover stated further that the statement of House that he persuaded him to make the statement relative to Mrs. Rowland’s injuries is absolutely and maliciously false.

The affiant further stated that, after he was notified by his co-counsel that they had been informed that House had made an affidavit retracting his testimony given in the case, he immediately took the husband of the plaintiff and D. M. Halbert with him in a car and drove to different places in search of House, but was unable to find him.

D. M. Halbert corroborated the testimony of Glover in his attempt to locate Will House. He told in detail the different places they went in search of House, and of their, failure to find him.

Judge C. F. Blerry in his affidavit corroborated the ■testimony - of- -H. D. 'Glover about Will House coming .■into the-latter-’s office and telling about how the injury occurred. Judge-Berry told of the occurrence in detail, ‘and-his -testimony - explicitly- corroborated that of Glover -on this-.point,.- ^ . ■ •

•’ The law on' the subject of -gra-nting a new trial on account of the disavowal or recantation by a witness is thoroughly reviewed and discussed in Little v. State, 161 Ark. 245.

It was the duty of the trial judge who saw and heard the witnesses to weigh the facts and determine where the clear weight of the evidence lay. His position gave him all the opportunities for forming an opinion of the credibility of the witnesses that the jury possessed, and, in addition to this, he had before him the conflicting evidence presented upon the motion for a new trial. In the fulfillment of his duty in this respect he has decided that the verdict of the jury was right, and ought to be permitted to stand. Much discretion is left with the trial court in granting applications of this sort, and great weight should attach to his opinion upon the evidence in a motion of this character.

On the one hand it is pointed out that, to g'rant a new trial in cases of this sort, would give the losing party another chance with the jury, and would open the doors for the introduction of perjury and thereby “poison the wells of justice.”

On the other hand it is pointed out that truth will ultimately prevail, and that the guilty person must answer for perjury, and that the granting of a new trial will promote justice and prove more satisfactory in general.

As above stated, the trial judge decided that a new trial should not be granted. He heard the witnesses testify at the trial and examined the affidavits on each side in the application for a new trial. In making his finding, he doubtless recognized that Will House was a confessed perjurer, and that his testimony was not entitled to any weight before the jury. House gives no reason whatever for testifying falsely at the trial, except that one of the attorneys for the plaintiff persuaded him to do it. The attorney whom he accuses filed an affidavit in which he stated that -the witness had testified falsely in this respect. The attorney was corroborated by the testimony of Judge Berry, who happened to be present at the time the witness made his statement about the case. House had not been solicited to- make a statement of the matter, and Glover did not know that he was a passenger on the train until he told him so and told how the accident happened. According to the testimony of Judge Berry and of Glover, House made his statement about the accident before he had heard any statement about it.

Glover made a diligent search for House, and was unable to find him, after he made his affidavit disavowing his former testimony. Mrs. Bowland and her daughter Viola made a plain case for her, and, while their testimony was contradicted by five witnesses, still the trial judge might have found that they were corroborated by the attending circumstances, and that, eliminating the testimony of House as being unworthy of belief, the weight of the evidence was not against the verdict of the jury.

The trial was not had until nearly four years after the accident happened. During all of this time the plaintiff suffered constant pain, and had to be carried about in a wheel-chair. A physician who examined her testified that .she would never be able to walk again. She was a stout, able-bodied woman before the accident happened. This tended to show that plaintiff was severely and permanently injured in some way. These circumstances might be considered by the trial judge in testing the credibility of the witnesses in deciding whether a new trial should be granted. The evidence given upon the trial, without the testimony of Will House, was ample to justify the verdict of the jury, and it cannot be said that the trial judge has abused his discretion in refusing to grant a new trial.

It follows that the judgment must be affirmed.