author: Smith, J.

text:
    Gunnels v. Farmers’ Bank of Emerson.
    Opinion delivered July 13, 1931.

      McKay $ Smith, for appellant.

      B. H. Peace and Henry Stevens, for appellee.
   Smith, J.

The Farmers’ Bank of Emerson brought this suit on the 17th day of October, 1929, to foreclose a deed of trust executed to E. L. Owen, as trustee for its benefit, by C. A. Richardson and his wife on May 20, 1920. The deed of trust secured a note executed by .Richardson to the order of the bank and any renewal thereof. The last renewal was executed December 19, 1925, and that renewal note was due November 1, 1926. The deed of trust was duly recorded July 3, 1920, but no notations were made on the margin of the record where the instrument was recorded showing the renewal of the note which it secured until May 9, 1929.

J. D. Gunnels was made a party to the foreclosure suit upon the allegation that he claimed to own the land described in the deed of trust under an invalid foreclosure of a second and subordinate deed of trust.

Gunnels filed an answer and cross-complaint, in which he alleged that on March 2, 1923, C. A. Richardson and wife had executed to E. L. Owen, as trustee, (the same party named as trustee in the deed of trust to the bank) securing the note of Richardson to the order of Gunnels, which fell due October 1, 1923.

The Gunnels deed of trust recited that it was a “second mortgage on” the lands described in the deed of trust to the bank, and Gunnels admitted that the deed of trust to which it was second was the one to the bank. Gunnels alleged that more than five years had expired after the maturity of the note of Richardson to the bank without any notation having been made upon the margin of the record where the bank’s deed of trust had been recorded, and he therefore alleged the bank’s deed of trust was barred by the statute of limitations.

The court held that the renewal of the note from Richardson to the bank had kept alive the deed of trust which secured it, and decreed accordingly.

This court held in the case of Mullins v. Wilcox, 124 Ark. 17, 186 S. W. 290, in an opinion delivered May 8, 1916, that the failure to make indorsements of payments upon a debt secured by a mortgage upon the margin of the record under Kirby’s Digest, § 5399 (§ 7408, Crawford & Moses’ Digest), does not operate to defeat the mortgage where it had been kept alive by a subsequent written agreement, or payments thereon. At the ensuing session o.f the General Assembly an act was passed (March 24, 1917, Acts 1917, page 1805), which appears, in part as § 7382, Crawford & Moses’ Digest, which provides that no agreement for the extension of a debt or note secured by mortgage, deed of trust, or vendor’s lien, or for the renewal thereof, whether made in writing or otherwise, should, so far as the same affects the rights of third parties, extend the operation of the statute of limitations, unless a memorandum showing such extension or renewal is indorsed on the margin of the record where the instrument was recorded, which indorsement should be attested by the clerk, the custodian of the record.

No such indorsement was made on the margin of the record where the deed of trust to the bank was recorded until 1929, and it is therefore insisted, upon the authority of this act of 1917, that the foreclosure of the bank’s deed of trust was barred, and the correctness of this contention is the controlling question in the case.

We think the decision of this question is ruled by the decisions of this court in the eases of Haney v. Holt, 179 Ark. 403, 16 S. W. (2d) 463, and of Wells v. Farmers’ Bank & Trust Co., 181 Ark. 950, 28 S. W. (2d) 1059. The facts in the Haney case were that S. H. Haney executed a chattel mortgage to W. H. Haney, which recited that “This mortgage is second to a previously recorded mortgage.” The mortgage referred to as being previously recorded was executed on the same property by S. H. Haney to H. H. Holt, but, as a matter of fact, the mortgage to Holt had never been recorded, and it was contended that the mortgage to W. H. Haney, which was duly recorded, was a superior lien to the Holt mortgage, for the reason that the filing or recording of a mortgage was essential to its validity as against third persons, even though the subsequent mortgagee had actual notice of the existence of the first mortgage. We held, however, that this rule- had no application to the facts stated, for the reason that the recorded mortgage had been made subject' to the unrecorded mortgage. Among the cases there cited in support of that view was the case of Young v. Evans-Snider-Buel Com. Co., 158 Mo. 395, 59 S. W. 113. That case involved the construction of ■the Arkansas statute with relation to the registration of mortgages, which was the law of the Indian Territory, where the mortgages in question had been executed. We quoted from that case as follows: “This agreement of plaintiffs, substantially recited in their mortgage, to take their security subject to the defendant ’s prior mortgages, which were an equitable lien upon the cattle, valid between the parties thereto, obviously takes the defendant’s case, upon this issue, out of the principle of the Arkansas ca-se aforesaid, upon which plaintiffs rely, and brings it within the well-settled doctrine recognized and enforced in that State, as well as in the other States of the Union, that ‘one who. takes a conveyance, absolute or conditional, which recites that it is second or subordinate to some other lien or incumbrance,- can in no: proper sense claim that he is a purchaser of the entire thing. He purchases only the surplus or residuum after satisfying the other incumbrance;’ and ‘a mortgage expressly providing that it shall be subject to a prior mortgage is subject to it, independently of the fact that the prior mortgage is not of-record; nor will it alter matters to record the subsequent mortgage first.’ Jones Chat. Mortg., § 494; 5 Am. & Eng. Enc. Law (2d ed.) 1015; 2 Cobbey, Chat. Mortg., § 1039; Clapp v. Halliday, 48 Ark. 258, 2 S. W. 853. The plaintiffs, by accepting their subsequent mortgage under the circumstances aforesaid, ceased to be strangers to the defendant’s prior mortgages, and were thereby brought into contractual relations with said -mortgages, and they imposed limitations upon the interest acquired by them in the property, to the extent of defendant’s equitable lien under said prior mortgages, subject to which'they agreed to take. There is nothing in the statutes of Arkansas, or in the rulings of the Supreme Court of that State thereupon, prohibiting the making or impugning the validity of such a contract.”

The bank’s deed of trust was taken May 20, 1920, and would not have been barred until five years after its maturity, and the deed of trust to Gunnels was executed March 2, 1923, so that Gunnels contracted with reference to a valid subsisting lien securing a debt not barred by any statute of limitations, and if, by agreeing, in the deed of trust to him, that that instrument should be second to the one held by the bank, Gunnels assumed a contractual relation with reference to the bank’s deed of trust, and ceased to be a stranger thereto, then he is in no position to say that the bank’s deed of trust was barred. The renewal of Richardson’s note to the bank had kept the bank’s deed of trust alive as between the parties thereto, and, if Gunnels is not a third party to that instrument, he is not protected by § 7382, Crawford & Moses’ Digest.

We think this view is not in conflict with our holding in the case of Wells v. Farmers’ Bank & Trust Company, supra. There the second mortgage contained no reference whatever to a prior mortgage, and it was not therein agreed that it should he second to another, although it was alleged that when the second mortgage was given it was agreed between the parties to that instrument that an outstanding mortgage should be first paid. But this contemporaneous ag*reement was not incorporated into the second mortgage, as was done in the case of Haney v. Holt, and it was pointed out in the Wells case that, when the alleged agreement was made, the ' earlier mortgage was then barred as to third parties. The bar of the statute had already fallen in that case as to third parties when the second mortgage was taken, and the second mortgage itself contained no reference to it.

In the instant case, as in the case of Haney v. Holt, supra, the second mortgage was taken while the first mortgage was a subsisting lien, and there was a contractual agreement incorporated in the second mortgage, which became a condition upon which the conveyance was made, that is, that it was second to a prior mortgage.

In the Wells case such agreement as existed was made after the first mortgage was barred as to third parties, and was not incorporated into the second mortgage and made a condition upon which the mortgage was given, and we said this difference was the controlling distinction between that case and such cases as Haney v. Holt, supra, and Merchants’ & Planters’ Bank v. Citizens’ Bank, 175 Ark. 417, 299 S. W. 753.

The instant case is like that of Haney v. Holt, supra, and unlike that of Wells v. Farmers’ Bank & Trust Company, supra, and we therefore hold that appellee bank’s debt was not barred, and that Gunnels was not a third party with reference thereto. -

The decree of the court ordered the sale of the property described in the bank’s deed of trust in satisfaction thereof as a first lien, and, as we think that order was proper, the decree must be affirmed, and it is so ordered.


source: Caselaw Access Project

license: Public Domain

text:
    Hazelrigg v. Board of Penitentiary Commissioners.
    Opinion delivered July 13, 1931.

      Hal L. Norwood, Attorney General, Robert F. Smith and Walter L. Pope, Assistants, for appellee.
   Smith, J.

This appeal questions the right of the State, acting through the Státe Penitentiary Board, to issue bonds pursuant to act No. 208, approved March 26, 1931.

Section 1 of the act reads as follows: “Section 1. The board having charge of the State penitentiary is hereby empowered and authorized to execute in the name of the State of Arkansas coupon bonds of the State of Arkansas in the sum or sums of not to exceed six per cent. (6%) per annum, payable annually, said bonds to run for a period of not more than five (5) years, and to be so arranged that the annual payments may be substantially equal. The full faith and credit of the State of Arkansas is pledged for the payment of said bonds.”

¡Section 2 of the act provides that the proceeds of the bond sale shall be credited to a fund to be known as the emergency penitentiary fund.

Section 3 appropriates $200,000, or so much-thereof as may be necessary, to be payable out of the emergency penitentiary fund, for the purpose of discharging certain outstanding obligations of the penitentiary commission.

It is insisted that the act does not fix any maximum limit upon the amount of bonds to be issued, inde.ed, does not specify any amount whatever, and is therefore so vague and indefinite that no authority to issue bonds in any amount has been conferred. On the other hand, it is insisted that, when the act is read in its entirety, it sufficiently and certainly appears that the obvious purpose of the General Assembly was to authorize a bond issue in a sum not to exceed $200,000, and the act should therefore be construed as conferring that power.

The courts of the country have been called upon many times to construe defective legislation, and their power in this behalf is well-defined. The annotated oases on the subject collect an almost innumerable number of cases, but it is unnecessary to review these cases,- as the law of the subject has been frequently declared and is well settled by the decisions of this court.

It has been well said that it is not the province of the courts to be present at the making of the law. This is the function of another department of government, and the courts have the power only to construe an act as it comes from the hands of the- lawmakers, in connection with other legislation in pari materia. Snowden v. Thompson, 106 Ark. 517, 153 S. W. 823; Reynolds v. Holland, 35 Ark. 56.

It is the duty of the courts to construe legislation as passed for the purpose of ascertaining the legislative intent, and to give effect thereto when the legislation is not inhibited by some constitutional restriction. But this intention must be ascertained from the act under review and other legislation in pari materia, and the courts cannot legislate under the guise of construction. If the Legislature has not declared its will, the courts may not do so. But, while this is true, it is true also, as is said in Lewis’ Sutherland Statutory Construction, vol. '2 (2d ed.), § 410, that “legislative enactments are not any more than any other ivritings to be defeated on account of mistakes, errors or omissions, provided the intention of the Legislature can be collected from the whole statute.”'

Another statement of the power and duty of the courts in this behalf appears in the chapter on Statutes, 25 R. C. L., page 975, where it is said: “But, while the courts cannot add to, take from or change the language of a statute to give effect to any supposed intention of the Legislature, words and phrases may be altered and supplied when that is necessary to obviate repugnancy and inconsistency and to give effect to the manifest intention of the Legislature. Especially will this be done when it is necessary to prevent a law from becoming a nullity.”

The annotated cases cited in the note to the text quoted fully sustain the text. See also Road Imp. Dist. v. Glover, 89 Ark. 513, 117 S. W. 544; Hodges v. Dawdy, 104 Ark. 583, 149 S. W. 656; Snowden v. Thompson, 106 Ark. 517, 153 S. W. 823; State v. Trulock, 109 Ark. 556, 160 S. W. 516; McDaniel v. Ashworth, 137 Ark. 280, 209 S. W. 646; Summers v. Road Imp. Dist., 160 Ark. 371, 264 S. W. 696; Gay Oil Co. v. State, 170 Ark. 587, 280 S. W. 632; Turner v. Edrington, 170 Ark. 1155, 282 S. W. 1000; Breashears v. Norman, 176 Ark. 29, 2 S. W. (2d) 53; Gill v. Saunders, 182 Ark. 453, 31 S. W. (2d) 748.

Applying these principles to the act under construction, we have concluded that it is valid legislation and authorizes a bond issue in a sum not to exceed $200,000.

Obviously, it was the intention of the Legislature to authorize the board having charge of the State penitentiary to issue bonds to discharge past-due obligations. This intention is so clearly expressed in the act that there can be no doubt upon that subject. It is also clear and certain that the proceeds of the bond sale were to be credited to a fund known as the emergency penitentiary fund, and out of this fund so created by the sale of the bonds $200,000, or so much thereof as was necessary to carry into effect the declared purpose of the act, was appropriated.

There appears to be no other provision of law relating to an emergency penitentiary fund and no other means to supply the money appropriated out of that fund except upon the sale of bonds. Bonds are to be sold under the authority of the act to supply the money appropriated, and no other source of supply exists, and we therefore conclude that the legislative intent, as deduced from the entire act, was to authorize a bond issue not exceeding $200,000 to supply the money appropriated, and, as the decree here appealed from was in accord with that view, it is affirmed.


author: Humphreys, J.

text:
    Midland Coal Mining Company v. Rodden.
    Opinion delivered July 13, 1931.

      A. M. Dobbs and John W. Goolsby, for appellant.

      Harper iffi Harper and George W. Johnson, for appellee.
   Humphreys, J.

This is an appeal from a judgment for $3,000 recovered in the circuit court of Sebastian County, Greenwood District, by appellee against appellant for the alleged negligent killing of its employee Thomas Rodden on the 20th day of July, 1930, by a gas explosion within its coal mine while he was engaged in operating the pump therein. The gist of the action was the alleged negligence of appellant in failing to prevent gas from accumulating in quantities sufficient 'to cause an explosion which resulted in the death of appellee’s intestate.

Appellant interposed the defenses that deceased was not its employee, that he was guilty of contributory negligence, and that he assumed the risk of his employment.

The testimony offered in support of the recovery is, in substance, as follows:

Thomas Rodden was killed by a gas explosion in appellant’s coal mine which was caused by gas coming in contact with fire at or about one-thirty a. m. on Sunday, July 2, 1930, when substituting as pumper for Bill White at his request. Bill White was and had been the regular pumper for a year, and, in addition to operating' the pump, it was his duty after shots had been fired to tear down coal to search for fire, and when found, to put it out so as to prevent gas explosions in the mine. At the time of the explosion, a fan which was operated by the company with steam had been stopped in order to clean out the boilers. This fan was operated in order to meet the requirements of § 7284 of Crawford & Moses’ Digest to carry air currents to sweep the gas out of the mine which was continually entering same through crevices commonly called gas feeders. When the fan was operating, it prevented an accumulation of gases sufficient to cause an explosion. G-as was constantly entering the mine and in the greatest volume in the third west entry room. It was a large room, and a “gob” was built eight feet wide and as high as the roof to hold the refuse and was filled with the debris. There was a large gas feeder behind the “gob wall” with a pocket around it, and, in order to reach this feeder, a passageway eighteen inches wide was cut through the “gob wall” the day before, of which Bill White had no knowledge. In firing the shots to tear down the coal, it frequently happened that the gas feeders would catch fire and burn until the fire searcher discovered same and put it out. When Bill White requested deceased to substitute for him, he directed him to go through the mine, search for, and put out all fire after the shots had been fired but did not tell him that a gas feeder was back of the “gob wall” and that there was a passageway leading to it. He told him the greatest quantity of gas accumulated in the west third entry and that he would have to wade through water to reach the gas feeders therein. In the .judgment of all the witnesses, the explosion was caused by an accumulation of gas coming in contact with fire in the west third entry. They came to this conclusion from the fact that the ‘ ‘ gob wall ’ ’ therein had been damaged and that the things in the mine indicated that the force of the explosion came from that direction. A search party was organized, and they found the deceased lying in the second east entry and his cap, carbide lamp, flashlight, and other belongings scattered about at different points. He was dead when they found him, and was the only man working in the mine at the time of the explosion. Deceased was White’s predecessor and was promoted to the position of machine runner, which position was filled by him until some two months prior to the explosion. He did not .take employment elsewhere and was used as a substitute by other employees at intervals. Bill White had used him as a substitute at least four times. Bill White procured several others to substitute for him during the year he was engaged as pumper whenever he did not want to work himself. When he procured a substitute, he wrote his name on a time sheet, which was handed to one of appellant’s directors, who transmitted it to the clerk who in turn made it the basis of the payroll. These substitutes were paid by John Conroy, the president and manager of appellant.

The first contention of appellant for a reversal of the judgment is that no evidence was introduced tending to show that appellant was its employee. We cannot agree with appellant in this contention. A custom had grown up in the operation of the mine to allow the regular pumper to select a substitute to temporarily take his place in ease he did not want to work. The president and manager of appellant company would and did pay such substitute for their work without question. In the instant case, he paid appellee after the death of deceased for several nights’ work including the night of the explosion without even suggesting that the employment was without authority. It was bound by the custom it allowed to grow up with respect to substitutes and cannot be heard to say that deceased was not in its employ.

The second contention of appellant for a reversal of the judgment is that the evidence failed to show any negligence on its part. Section 7284 of Crawford & Moses’ Digest requires that operators of coal mines shall maintain a current of air through the mine while men are at work in it. Appellant operated a fan for this purpose but stopped it in order to clean out its boiler and allowed deceased to remain at his post of duty before renewing the operation of the fan. The violation of the statute tended to show negligence oh its part, and this issue was submitted to the jury under a correct instruction.

The third contention of appellant for a reversal of the judgment is that the death of deceased was due entirely to his own negligence in failing to extinguish the fires after the blasting was finished. It is in evidence that the large gas feeder was behind a “gob wall” in the west third entry, to which a passageway had been cut for the purpose of reaching it and putting out the blaze in case it caught fire from the shot.

Although deceased was' directed to go to the west third entry and put out any fire that might be there after the blasting, he was not told of the crevice behind the “gob wall” or the passageway leading to it which had been cut through the “gob wall” the day before the explosion. This crevice' was in a manner hidden and was at the place where the witnesses concluded the explosion originated. The jury was warranted from this evidence in finding that deceased was not guilty of contributory negligence resulting in his death'.

The fourth cohtention of appellant for a reversal of the judgment is that deceased assumed the risk of his employment. He did not assume the risk or dangers resulting from the negligence of appellant in failing to notify him of gas feeders or crevices obscured from view. He had no knowledge of this negligence on the part of appellant, and could not have appreciated the dangers incident to his employment. Before an employee can assume the dangers incident to his employment, he must know of them and appreciate the dangers arising therefrom.

We have examined the instructions given by the court and have concluded that they are correct and that they have fully covered all the issues in the case.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    Wofford v. Twin City Brick & Tile Company.
    Opinion delivered July 13, 1931.

      Hill, Fitzhugh iS Brizzolara, for appellant.

      A. M. Dobbs, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that Wilkins, a trustee of the common-law trust, could not purchase for himself or his wife the property which was acquired for development and operation of the business of the trust, and that such purchase must necessarily operate for the benefit of the trust, and the land be held by him for it, as he agreed would be the case in the purchase thereof. Wilkins did not deny that he had agreed that it would be for the best interest of the trust to purchase the 10 acres of land from the lessor, nor that he later notified the appellant that he had purchased it, paying $800 therefor, and the trust could have it when they wanted it upon payment of the purchase price.

Within the doctrine and principles announced in Haskell v. Patterson, 165 Ark. 65, 262 S. W. 1002, and Oil Fields Corporation v. Dashko, 173 Ark. 533, 294 S. W. 25, a trustee under a common-law trust agreement is impliedly prohibited from purchasing on his individual account the property necessary for the use of the trust in the operation of its business for the purposes for which it was organized. The testimony herein shows that Wilkins acquired the title to the property in controversy under such circumstances as constituted a constructive trust, and that it would be a fraud upon the members of the trust to allow him to hold it in his individual right or to have the title conveyed to another to be so held against the interest of the trust, and he could not purchase said property for himself or another under such circumstances; hence it must be considered held for the benefit of the trust upon payment of the purchase price by it, as he gave assurance would be done upon making the purchase. In other words, the trust would be required to pay the amount of the purchase price of the land with interest to the purchaser, and this must be held to have been done in the payment to said purchaser of more than this amount in royalties for shales used off the tract of land in accordance with the terms of the lease under which it was first held. The court erred in decreeing otherwise, and, since the undisputed testimony shows that the holder of the title to the 10 acres of land so purchased has more than been paid, the entire amount of the purchase money with interest, it must be held to be the property of the trust and subject to the payment of its debts and liabilities. The chancellor’s finding otherwise is not supported by the preponderance of the testimony, and is contrary thereto.

The decree is accordingly reversed, and the cause remanded with directions to enter a decree in accordance with this opinion.


text:
    Kilmer v. Kilmer.
    Opinion delivered July 13, 1931.

      Tom J. Terral, for appellant.

      Carmichael Hendricks, for appellee.
   Kirby, J.,

(after stating the facts). The undisputed testimony shows that the land upon which the building was erected was the property of the son, W. H. Kilmer, and recognized as such by his father when the agreement to bnild thereon was made.

It is also virtually undisputed that there was no intention of either of the parties to the agreement that the building when erected upon appellant’s land should ever be removed, but only that it should be used and occupied by the father and mother during their lives and the life of appellant. The great weight of the testimony shows that there was no expression by either of the parties of any intention at the time of the agreement to the building of the residence on the land that it should be the property of the father or could be removed or separated from the land upon which it was built. It was the intention only that it should be erected thereon and used and occupied as a home by the father and mother of appellant during their lives; and the •statement that, if the land were sold during the life of the father, the son could repay him the value of the house is but confirmatory of the agreement that the father and mother should only have the right to the use and occupancy of the house and land during their lives; and the chancellor’s finding otherwise is contrary to the preponderance of the testimony.

Appellee, the widow of the deceased father, who married him after the building was constructed on the land, understood that he had no title to the land when she married him, or certainly could have acquired this information if she had made inquiry. Where the building was erected upon appellant’s land for the father, who knew it to be his son’s land, without any intention of it being separated or removed therefrom, or any agreement between the parties that it could be done, it became, of course, a part of the realty and the property of appellant, the owner of the land, subject only to the use and occupancy of his father and mother, which was enjoyed by them during their lives. 11 R. C. L., p. 1081, § 24; 26 C. J., p. 672, % 29 and 30.

In Ewell, Fixtures, p. 77, it is said: “It is a rule of great antiquity, that whatever is affixed to the soil becomes a part of the realty, and subject to the same rules of law as the soil itself. The rule is best expressed in the words of the maxim: Quicqmd plantatur solo eedit.”

In Ozark v. Adams, 73 Ark. 227, 83 S. W. 920, the court,'quoting one of the rules for ascertaining whether an article is a fixture as laid down in a former case, Choate v. Kimball, 56 Ark. 55, 19 S. W. 108, said:

“3. The intention of the party making the annexation to make the article a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, and the policy of the law in relation thereto, the structure and mode of the annexation and the purpose or use for which the annexation has been made.”

When the house in this case was erected on appellant’s land, there was no agreement nor presumed intention that it should ever be removed, in fact, the agreement and intention as expressed and all the surrounding circumstances indicate the contrary intention. The court erred in holding that the house so erected upon the land of appellant was personal property and subject as such to a claim of widow’s allowance and dower.

We think that the exception that the transcript did not contain all the evidence is without merit. It shows the introduction of certain witnesses by each party, their testimony and the announcement of each attorney after the introduction of the testimony that “We rest.” Also a proper certificate of the stenographer that the testimony was correctly transcribed and the order of the court reciting the names of the witnesses who testified in the case, that the testimony was reported by the court stenographer, “and the same, being examined by the court, is found to contain an accurate report of all the testimony of all the witnesses heard before the court at said time, and the same is therefore approved and ordered filed as the depositions of said witnesses and made a part of the record in this cause.” Neither is any testimony specified as omitted by appellee in its objection that the transcript does not contain all the evidence that was heard by the court in the trial of the case.

For the error designated, the decree is reversed, and the cause is remanded with directions to dismiss the complaint for want of equity.


text:
    Jones v. Vaughan.
    Opinion delivered July 13, 1931.

      John E. Miller and G. E. Yingling, for appellant.

      J. F. Holtsendorff and Emmet Vaughan, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists the court erred in not directing a verdict in his favor, which he urges is the only question for determination here.

The undisputed testimony shows the sale of the timber by appellee, to George Wright Jones, the terms thereof, and the purchase of the lumber in the open market by appellant, who paid the market price therefor without any actual knowledge that the timber had been cut from the lands of appellee, who retained the title thereto in the contract of sale until it was fully paid for. There was some testimony tending to show that George "Wright Jones, from whom appellant purchased the lumber, was reporting to appellee, the vendor thereof, the timber cut and lumber manufactured from it during the time it was being removed from the land. The timber contract was duly recorded, and was such an instrument as the law requires to be recorded in order to become effective as notice, since it conveyed an interest in lands. This sale contract, however, authorized the cutting of the timber by George Wright Jones in accordance with its terms, notwithstanding it reserved the title in the timber and logs and lumber until the obligations of the contract were fully paid and satisfied. Appellant, who purchased the lumber manufactured from the timber without actual knowledge of the terms of the contract and the reservation of the title and knowing nothing about where the timber came from, could not be held to the payment to the owner of more than the stumpage price of the timber as specified in the contract, unless George Wright Jones, who cut the timber and removed it, was a wilful trespasser, as the court correctly instructed the jury.

The jury might have found from the testimony that appellee, the owner of the timber, was informed by the purchaser thereof, during the time of its removal from the land, that it was being removed and manufactured; and under such circumstances that appellee was not entitled to recover the enhanced value of the timber when manufactured into lumber, even though it had been wrongfully done by a wilful trespasser. In other conditional sales of personalty, where the title is retained by the vendor, this court has frequently held that the buyer may dispose of his interest in the property purchased, and in doing so does not affect adversely the vendor’s right to the property so long as the purchase price therefor remains unpaid.

Since the purchaser of the timber could remove same and legally dispose of his interest therein, the vendor’s right to payment of the purchase money therefor, under the retention of title contract, not being adversely affected by such sale, the purchaser from the conditional vendee would only be bound to pay the balance of the purchase money due in order to protect his title therein, and could not be held liable for more than the purchase money, for the payment of which the title was retained.

The jury had the right to determine the conflicts in the testimony, and its verdict is supported by substantial testimony.

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


text:
    State Line Lumber Company v. Shults.
    Opinion delivered July 13, 1931.

      James D. Head, for appellant.

      Henry Moore, Jr., for appellee.
   Kirby, J.,

(after stating the facts). Appellant urges that the court erred in giving appellee’s requested instruction No. 1, which it claims is virtually a direction to the jury to find against appellant. Instruction No. 1 reads in part as follows:

“The testimony further shows that the defendant knew that the plaintiff claimed to have certain land adjoining the Temple land, and that the true boundaries between the Temple land and the plaintiff’s land were not ascertained and known by the defendant; the jury is further instructed that, if you find from a preponderance of the evidence that the defendant caused the plaintiff’s timber on his land to be out for the purpose of making same into lumber, without having the metes and bounds of the land on which it had purchased timber surveyed, marked and plainly established, you will find for the plaintiff.
‘ ‘ The jury is instructed to find the amount of timber cut by defendant or the amount of timber received or purchased by defendant cut from plaintiff’s land, and to find the value of such timber so cut; and the jury shall return a verdict in favor of the plaintiff and against the defendant for double the value of said timber.”

The cause of action for double damages is based upon the statute, § 7004, Crawford & Moses’ Digest. This instruction not only tells the jury that the evidence shows that the appellant knew that plaintiff claimed to have certain lands adjoining the Temple lands; that the true boundaries between the Temple lands and appellee’s lands were not ascertained and known by the defendant, but further that, if the jury found from the preponderance of the evidence that the defendant caused the plaintiff’s timber on his land to be cut for making it into lumber, “without having the metes and bounds of the land on which it had purchased timber surveyed, marked and plainly established, you will find for the plaintiff.” This was an instruction on the weight of the testimony, telling the jury it showed that the true boundaries of the Temple land upon which the appellant had the right to cut timber were not ascertained and known by the defendant, and that, if the defendant cut the timber without first having a survey of the lands on which he bought, the timber made and the boundaries located, they should find for the plaintiff. Appellee alleged that a survey showing the boundaries between the Temple and Shults lands was made by Ayers, an engineer, in 1923, and was agreed to and acquiesced in by both owners; and the testimony shows that this line was pointed out by Temple’s agent upon the sale of the timber to appellant company; and was also located by the county surveyor in making the survey after the timber was cut from the lands. It is undisputed in fact, notwithstanding which the court told the jury that appellant knew that plaintiff claimed to have certain lands adjoining the Temple lands on which the timber was purchased, and that the true boundaries of the land were not ascertained and known by defendant ; and that, if the timber was cut without a survey first made to locate the boundary line, when the .undisputed testimony shows that no such survey was made, they should find for the plaintiff.

The statute provides double damages for cutting timber from lands only where the trespasser had no probable cause to believe, and did not believe, the land on which he committed the trespass was his own, or that he had entered into a contract to purchase it. Rosengrant v. Matthews, 55 Ark. 441, 18 S. W. 541.

In Sawyer & Austin Lumber Co. v. State, 75 Ark. 311, 87 S. W. 431, the court, in construing the statute providing punishment for cutting timber from lands requiring a survey to be first made, “unless the same has been surveyed and the boundaries ascertained and known,” said: “The owner must-, before cutting timber for the purposes named, cause an official survey to be made by the county surveyor, whose certificate thereof is prima facie correct (Kirby’s Digest, §§ 1142, 1146; Jeffries v. Hargis, 50 Ark. 65, 6 S. W. 328; Hobbs v. Clark, 53 Ark. 411, 14 S. W. 652), unless a correct survey has already been made, and the true boundaries thereof ascertained and known.”

This instruction was given in the face of appellee’s allegation in his complaint that a correct survey of the lands establishing the boundaries thereof had been made by Ayers and agreed to by himself and Temple the owners thereof. The instruction was virtually peremptory and certainly erroneous.

The court also erred in not giving appellant’s requested instructions Nos. 1, 2, 3' and 6. In instruction No. 6, the jury was told that, if they found from the preponderance of the testimony that the timber was cut wilfully and intentionally after notice that it was the property of appellee, the jury might find appellant liable for double damages for such timber, although it could only recover actual damages, the market value of the timber at the time it was cut, in accordance with requested instructions Nos. 1, 2 and 3.

The court erred also in the admission of testimony showing that appellant’s grantor and appellee had, after the timber was cut and removed, agreed upon a boundary line between appellee’s land and the land upon which appellant cut the timber, which was different from the old boundary line established by Ayers, and which appellee alleged to be the true boundary in his suit for damages, and which the undisputed testimony shows was pointed out to appellant as such when the timber was pur- * chased. This memorandum or agreement had not been signed by Temple, appellant’s grantor, but only by appellee, and certainly it could have no effect to invalidate the sale of the timber already made to appellant, nor to reduce the quantity or area of the land included in his grant conveying it. Richardson v. Taylor, 45 Ark. 472; Hughes Bros. v. Redus, 90 Ark. 149, 118 S. W. 414; Cox Wholesale Grocery Co. v. National Bank, 107 Ark. 601, 156 S. W. 187; Collin County Grain Co. v. Andrews, 110 Ark. 597, 162 S. W. 1098; Wilkinson v. James, 164 Ark. 475, 262 S. W. 319. This agreement showing the line contrary to the boundary as established by Ayers’ survey, alleged to have been agreed upon as the correct boundary, under which the area of appellee’s land on that side of the river was a fraction more than 25 acres, could not have been helpful to the jury in ascertaining the true boundary line between the appellant’s timber lands and appellees land, and was certainly prejudicial.

It follows that the judgment must be reversed for the errors designated, and the cause remanded for a new trial. It is so ordered.


author: ¿Mehahfy, J.

text:
    Vaughan v. Brown.
    Opinion delivered July 13, 1931.

      S. Bnmdidge, for appellant.

      W. A. Leach, for appellee.
   ¿Mehahfy, J.

The appellant brought this suit on a contract entered into between him and C. B. Brown on August 28, 1918. He filed with his complaint a verified and itemized account, the items ranging from 75 cents to $1,813.05. The total amount sued for was $4,633.27. There was a great number of items making up this amount.

The appellees filed a demurrer, stating as grounds of said demurrer that the account showed on its face that each item was barred’ by the statute of limitations.

After these pleadings had been filed, the attorneys for the respective parties agreed to a judgment for $3,000.

A decree was entered for $3,000, and appellant insisted that interest should be added to the .judgment from the date that the services were rendered. Appellant states that the only question on appeal is whether or not the lower court, under the record in this case, erred in its refusal to decree interest with its judgment.

Appellant contends that in the absence of an agreement to waive the interest, the law fixes the rights of appellant in this regard, and that the lower court is not invested with power to arbitrarily fix them. He cites and relies on Rogers v. Atkinson, 152 Ark. 167, 237 S. W. 679. That was a suit on a promissory note for $250 with interest at 10 per cent, per annum from date until paid. The note constituted the contract and expressly provided for interest. The face of the note was for $250', and the jury returned the following verdict: “We, the jury, find for the plaintiff in the sum of $250.”

The court said in that case, that the right to recover interest follows as a matter of law, once the right to recover on the note itself is established.

The court quoted with approval the following: “By the weight of authority, when it is undisputed that, if a party is entitled to a verdict, he is entitled to interest, and the jury brings in a verdict for the principal sum without mentioning interest and this is a mere matter of computation, the court may correct the verdict by adding interest. ’1

As we have said, the contract in the case of Rogers v. Atkinson, supra, was for $250 and interest. The agreement between the parties in the instant case is as follows: “It is by consent of counsel and parties agreed that the1 plaintiff is entitled to judgment on said account in the sum of $3,000, and that said amount sued on herein is correct to the extent of $3,000.” Nothing was said about interest.

Where a suit was based on an account, the amount claimed being $193.22, for which amount the jury returned a verdict, no reference being made to any interest, the Oklahoma court said: “The court, so far as we are able to determine from the transcript, rendered judgment for $22.46 interest in addition to the amount of the verdict. This the court was without authority to do. * * * There is nothing in the record to indicate that the jury did not, in the assessment of damages, include the total amount that they deemed the defendant in error entitled to, and, in the absence of any indication to the contrary, the presumption is that they included in their award of damages, every element that the landowner was entitled to.” Wyant v. Beavers, 63 Okla. 68, 162 Pac. 732.

In a later case decided by the Supreme Court of Oklahoma, the court said, quoting from Wyant v. Beavers, supra: “The judgment of the court must follow the verdict, and where the verdict is general and for a sum in gross, and the question of interest was not reserved by the court, and there is nothing in the record to indicate that the jury omitted interest, it will be presumed that it is embraced in the amount on their finding, and the court cannot add interest to the amount found by the verdict of the jury.” Enterprise Seed Co. v. Leonard Seed Co., 96 Okla. 122, 220 Pac. 633.

In the instant case the parties agreed on a judgment for $3,000. This was a contract; a contract for $3,000 and not a contract for $3,000 and interest. Where a suit was brought in replevin for an automobile, the verdict of the jury, after finding the defendant to be entitled to the possession of the automobile, concluded as follows: “And we do find the value of said automobile to be $700.” There was no special mention of interest. In entering up the alternative money judgment, the clerk added interest.

The court said: “Although interest upon the value of the property from the date of the unlawful taking or detention to the date of the verdict is allowable as an element of damage, like all other elements of damage, such interest or its equivalent, if the latter be the measure appropriate to the property in controversy, is to be ascertained by the jury and assessed in the verdict. The clerk was therefore without authority to include in the alternative money judgment, interest from the date of the institution of the suit to the date of the judgment upon the value of the automobile as found and fixed by the jury, and the judgment is to that extent erroneous.” Cary & Co. v. Hyer, 91 Fla. 322, 107 So. 684.

In a case where the .jury assessed damages for the plaintiff in the sum of $542.62, and there was no specific mention of interest, the court said: “Although interest upon the amount found to be due by the jury, from the due date to the date of the verdict, is allowable as an element of damage, like all other elements of damage it must be ascertained by the jury and assessed in the verdict.” Shoup v. Waits, 107 So. 769.

Instead of submitting the question here to the jury, the parties agreed on the amount. They agreed that judgment should be entered for $3,000. They did not mention interest. Moreover it would be practically impossible, in a lengthy account like the one sued on, to say just what items were considered by the parties, and it would therefore be impossible to say for what length of time interest should be calculated, and on what particular items, but, even if the items are named, and the dates known, still, when the gross amount is agreed on, nothing could be added to it by the court.

“Had the jury found for the appellee the entire amount for which he sued, and dismissed appellant’s counterclaim and set-off, his position about being entitled to interest from April, 1919, might be sound. But the verdict of the jury is unquestionably a balancing of accounts. It credited the appellee’s claim by what it found for appellant on his counterclaim and set-off. The balance which it found for appellee was what it thought the appellant then owed him, and necessarily must have taken into account all matters of proper debit and credit appearing in the lawsuit. Interest was such a matter of proper debit and credit. Hence on the verdict of the jury, appellee was entitled to interest only from the date of judgment.” Parsley v. Parsley, 224 Ky. 254, 6 S. W. (2d) 234.

' In the instant case there was a lengthy account containing many items, and doubtless the parties considered and took into account all matters of debit and credit, and the amount agreed on, $3,000, must necessarily have taken into account all matters involved in the lawsuit.

“Judgment of this kind is to be distinguished from judgment by default; its special characteristics being the settlement between the parties of the terms, amount, or conditions of the judgment to be rendered.” 34 C. J. 129.

“Consent excuses error and ends all contention between the parties. It leaves nothing for the court to do, but to enter what the parties have agreed upon, and when so entered, the parties themselves are concluded.” Schmidt v. Oregon Gold Mining Co., 28 Ore. 9, 40 Pac. 406, 52 A. S. R. 759.

In the instant case, the parties had consented to judgment for $3,000, and there was nothing for the court to do but to enter what the parties had agreed upon.

The decree is affirmed.


author: Mehaffy, J.

text:
    Missouri Pacific Railroad Company v. Diffie.
    Opinion delivered July 13, 1931.

      B. E. Wiley and Bichará M. Byan, for appellant.

      Oscar Barnett, for appellee.
   Mehaffy, J.

This suit was instituted in the justice of the peace court by appellee to recover from the appellant $13.55, wages due him, and penalty for their nonpayment. On the day of trial the appellant paid the wages due, and judgment was entered against the appellant for $128.40 penalty.

An appeal was prosecuted to the circuit court, where the case was tried before a .jury, which returned a verdict in favor of appellee in the sum of $128.40, and judgment was entered accordingly. The case is here on appeal.

The appellee had worked about a month and a half for the appellant under C. E. Yannest, who was foreman in charge of an extra gang. Appellee worked until the 16th day of May, when, according to his testimony, he was discharged, and he requested the foreman to send his money or check to Malvern. The work was being done at Donaldson. The foreman testified that he did not discharge him.

The evidence was conflicting as to whether appellee was discharged in the manner described by him, and, being in conflict, it was a question of fact for the jury, and the jury’s verdict is conclusive.

There was evidence introduced tending to show that the extra gang went to another place to work and offered to give appellee the same kind of work there that he had been doing, but this is denied by the appellee. It is unnecessary to set out the evidence on this question, because, if the foreman discharged him, or refused to further employ him, it is immaterial where they worked. The evidence is also conflicting as to whether he was offered employment at the other place.

The evidence is undisputed that, at the time appellee claims to have been discharged, the appellant did not pay Mm Ms wages that were due. He claimed to have been discharged on the 17th day of May, 1930, and he filed suit on the 14th day of June, 1930. The trial was had in the justice of the peace court on July 30,1930, and his wages, $13.55, were paid him at that time. Appellant does not dispute that it owed the $13.55.

The suit is based on § 7125 of Crawford & Moses’ Digest. This statute reads in part as follows: “When a railroad company or corporation engaged in operating or constructing any railroad * * * shall discharge with or without cause or refuse to further employ any servant or employee thereof, the unpaid wages of any such servant or employee then earned at the contract rate, without abatement or deduction, shall be and become due and payable on the day of such discharge or refusal to further employ. Any such servant or employee may request his foreman or the keeper of his time to have the money due him, or a valid check therefor, sent to any station where a regular agent is kept, and, if the money aforesaid or a valid check therefor does not reach such station within seven days from the day it is so requested, then as penalty for such nonpayment the wages of such servant or employee shall continue from the date of discharge or refusal to further employ at the same rate until paid, provided such wages shall not continue more than 60 days, unless an action therefor shall be commenced within that time.” .

The evidence shows that appellee requested that his money or check be sent to Malvern. Appellant admits it owed him the money, and does not claim that it sent it to Malvern or anywhere else.

The burden of proof was upon the appellee. He was required to show, by a preponderance of the evidence, that the foreman discharged him, or refused to further employ him; that he requested that his money or cheek be sent to Malvern; and that it was not sent there within seven days.

All these questions, however, were questions of fact for the jury. The jury passes on the credibility of the witnesses and the weight to be given, to their testimony, and their verdict as to the facts is conclusive here, if based on substantial evidence.

Appellant insists that appellee was not discharged; that it did not refuse to further employ him; and that for these reasons the judgment should be reversed. No objection is máde to the instructions given by the court except, it is contended, that there was not sufficient evidence to justify the instructions, and that a verdict should have been directed for the appellant.

Appellant contends that, because appellee was working with an extra gang, he knew the work would not last long, and that the statute does not apply. The facts in this case are wholly unlike the facts in the case of Chicago, R. I. & P. Ry. Co. v. Russell, 173 Ark. 398, 292 S. W. 375. In that case the employment arose out of an emergency, and it was not contemplated that the employment would extend beyond the expiration of the emergency, and in that case he could not have been longer employed because the agreed statement of facts in that case shows that he was employed by the engineer to watch an engine until orders were received for said engine to proceed. He was employed for that specific purpose. He knew his employment would end as soon as the order came for the engine to proceed. He could not have been employed in the same class or kind of employment because, after the order to proceed with the engine, there was no such employment.

In the instant case there was no emergency; he was employed to work with the extra gang some time about the first of April, 1930, and the foreman was still with the extra gang according to his testimony, on the 31st day of January, 1931, and while appellee knew it was an extra gang, he did not know whether the work was permanent or not.

There is no evidence that there was any emergency; there is no evidence that the work of the extra gang was at an end; there was no evidence' that it was not permanent.

There was substantial evidence to support the verdict, and the judgment is affirmed.


author: McHaney, J.

text:
    Burford v. State.
    Opinion delivered July 13, 1931.

      S'himi é Henley and Shouse S Rowland, for appellant.

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

Appellant was convicted of murder in the second degree, on an indictment charging murder in the first degree, for the killing of it. O. Lawhorn,-and sentenced to ten years in the penitentiary.

• The first assignment of error urged for a' reversal of the case relates to the refusal of the court to permit the witness, Dr. C. M. Bouth to answer a question as to about how long, in his opinion, he thought appellant would live. It was developed in the testimony of this and other witnesses that appellant was afflicted with Hodgkin’s disease and had been so afflicted for about two years, and that a person so afflicted would probably live from eighteen months to four years. We do not see the importance of the testimony sought to be elicited by the above question, nor its relevancy. If it were sought to show the physical condition of appellant, that fact was fully developed by other testimony, as was also the fact of his mental condition. The length of time the witness might have thought appellant would live from the date of the trial was unimportant and properly excluded.

The next assignment of error relates to the refusal of the court to permit the witness, Pumphrey, son-in-law of appellant, to testify that the deceased had the reputation of having a violent and uncontrollable temper. The record reflects that the court permitted the witness to testify to the deceased’s reputation for having’ a violent and uncontrollable temper. For instance the witness was asked this question and gave this answer: “Q. Are you acquainted with his reputation in the community where he lives for being a man with a violent temper and uncontrollable? A. Yes, he had a right smart of temper.” He further answered that he was a high tempered man and quick to fly to pieces. It will therefore be seen that the witness was permitted to answer the question.

The next assignment of error relates to the refusal of the court to permit the witness, Dr. Gr. I. Jackson, to answer a question, based on his knowledge of appellant’s physical condition as to whether appellant had such control of his mental and nervous faculties as to be rationally responsible for his acts. The record reflects that this witness was permitted to testify concerning appellant’s affliction and its effect on his nervous system, and in his opinion that he did not have that control that a normal person would have. We think the court properly excluded the testimony called for in the question because it called for a conclusion of law. In Underhill on Criminal Evidence, § 269, p. 383, it is said: “A medical expert may testify as to the mental condition of one whom he has examined and give his opinion as to his sanity on the date of his alleged crime. But the expert who testifies as to the insanity of the accused should not he permitted to testify that in his opinion the accused was or was not capable of determining between right and wrong nor that he appreciated the enormity of the crime, nor whether the defendant was a fit subject for extreme punishment, nor that he was of weak mind when he was neither an idiot or insane person, nor whether he was mentally responsible while suffering from an insane delusion, nor to state the symptoms of one claimed to be shamming unconsciousness. ’ ’

Another assignment of error relates to the refusal of the court to grant a continuance on account of the physical condition of appellant, the motion for which alleged that he was incapacitated to stand trial and incapable of rendering to his counsel the necessary assistance for the preparation and trial of the case. Several physicians supported the motion by testimony tending to show his incapacity. At the suggestion of the prosecuting attorney, the court appointed three reputable physicians to examine appellant with the view of determining whether he was able to attend the trial. These physicians reported that appellant was able, and the court thereupon overruled the motion. 'He did attend the trial, testified in his own behalf, and there is nothing in the record to show his incapacity to do so or to lend the necessary aid and assistance to his counsel. He was ably represented by eminent counsel, and the verdict of the jury was not a harsh one, as it might have been much more severe under the testimony in the case. Motions for continuance rest in the sound discretion of the trial court, and this court does not reverse the trial court’s action in refusing to grant a continuance unless an abuse of discretion is shown. See Morris v. State, 102 Ark. 513, 145 S. W. 213.

Another assignment of error relates to the admission of certain testimony over appellant’s objection and to the giving of instruction No. 9. We have examined both assignments of error and find them without merit. The record reflects that appellant had a fair and impartial trial. We find no error, and the judgment is accordingly affirmed.


author: McHaney, J„

text:
    Bingham v. Williamson & Sons.
    Opinion delivered July 13, 1931.

      H. A. Northcutt and Oscar E. Ellis, for appellant.

      Williaonson >& Williaonson, for appellee.
   McHaney, J„

G. R. Gambill was a subcontractor of W. P. MeGeorge & Company in the construction of one mile of State Highway on the Salem-Ashflat road. He became indebted to appellees and others, and on April 21, 1930, gave them an order on W. P. MeGeorge & Company to pay appellees $500. The order reads as follows:

“You will please mail to R. P. Williamson & Sons, East Sylamore, Arkansas, check for $500, and deduct the same from my estimate on first mile completed on your Salem-Ashflat .job.
“Yours truly,
“G. R. Gambill.”

. McGeorge & Company accepted this order under date of May 2, 1930, as follows: “Replying to yours of April 29th, beg to advise that it is our intention to honor your order on Mr. Gambill’s next estimate, as outlined in same.” - ■

Thereafter on June 20, 1930, appellant sued Gambill for $1,316 and garnisheed McGeorge & Company. The garnishee answered that he was indebted to Gambill in the sum of $1,541.59, but that it had accepted orders from Gambill in favor of appellees for $500 and another in the sum of $480, and asked that they be made parties to the suit, which was done. McGeorge paid into court the sum of $1,084.28 and asked the court to determine the respective rights of appellant and appellee therein. On a trial the court allowed appellee the $500 claimed by him and the balance was awarded to appellant'in the sum of $584.28. This appeal challenges the correctness of this holding for two reasons: first, that there.was no unconditional acceptance of the order given to appellee; and second, that, even though there was an unconditional acceptance of the order, there is no proof that as much as $500 of the $1,084.28 was due out of estimate on the first mile completed on the Salem-Ashflat job.

We think appellant is wrong in both contentions. The order above quoted speaks for itself as well as the language of the acceptance. The giving of the order by Gambill and its acceptance by McGeorge constituted an assignment of that much money to appellees. McGeorge after accepting the order held that much of the indebtedness to Gambill for appellees, and it constituted a segregation of that amount from the amount due Gambill, and was not subject to garnishment for the- debt of Gambill to appellant. Samstag v. Orr, 101 Ark. 582, 142 S. W. 1127.

As to the second point, that' there is no proof that McGeorge owed Gambill as much as $500 on the first mile of the road, we think it is clearly established that this amount was due out of the first mile. McGeorge testified that the next estimate after the date of the order did not come in until July 30th, and in the meantime two garnishments had been served on them, and that he did not know to whom to pay the money. He further testified that he did not have the figures on the first mile until July 30th, which was to cover the balance due Gambill on the first mile. This was more than sufficient to pay appellee’s claim.

Affirmed.


author: Butler, J.

text:
    Missouri Pacific Railroad Company v. Paty.
    Opinion delivered July 13, 1931.

      R. E. Wiley and Henry Donham, for appellant.

      J. H. Loohadoo, for appellee.
   Butler, J.

This suit was brought by the appellee as administrator of the estate of J. W. Moss, deceased, for the benefit of his mother as next of kin and of his estate, for damages sustained because of his death, which occurred in a collision between a freight train on which he was riding and a switch engine in the Kenova yards of the appellant company in the town of Smack-over. It was alleged that at the time of the collision plaintiff’s intestate was riding on a flat car just in front of a load of poles where an employee of the appellant had directed him to ride, and where he was riding with the knowledge and consent of such employee; that the cause of his death was due to the gross negligence of the employee of appellant in running the freight train into a switch engine, such negligence consisting of the careless operation of the freight train and “in not knowing that the switch engine was just ahead,” in not having the train under control in the yards, and in not stopping the train before it ran into the switch engine.

The appellant answered denying all the material allegations of the complaint, including the allegation that the deceased was riding upon the freight train with the knowledge and consent of the servant of the appellant, and alleged that he was a trespasser on said train and was negligent in riding thereon. On a trial of the case there was a verdict and .judgment for the appellee, from which is this appeal.

At the close of the testimony in the case the defendant requested the court to instruct as follows: “Instruction No. 1. You are instructed to return a verdict for the defendant.” The court refused this instruction over the objection and exception of the defendant, which objection and exception were preserved in the motion for a new trial and which are here urged as the principal ground for a reversal of the case.

It is also assigned as error and here argued that the court erred in giving a number of instructions for the plaintiff over the objections and exceptions of defendant and in refusing to give an instruction requested by the defendant.

Our conclusion on the first assignment of error makes it unnecessary to consider the others. We are of the opinion that the court should have instructed the jury to return a verdict for the defendant as requested by it. The evidence is in conflict as to whether or not the deceased was known to be riding upon the freight train by the servants of the appellant operating the train. Each member of the train crew testified that it was against the rules of the company to allow any one to ride upon the freight car and that the deceased had boarded the train and was riding thereon without their knowledge and consent. But, in. view of the verdict of the jury, we must consider the evidence adduced on behalf of the appellee in its most favorable light and give it its strongest weight in favor of the appellee. When thus considered, it tends to show that the deceased was invited by one of the train crew to ride upon the train and to occupy the flat ear where he was at the time of the collision, and that the servant with whose knowledge and consent he was riding was either the fireman or the engineer on the locomotive of appellant. • It is admitted by the appellee that the deceased was but a licensee, and that the only duty devolving upon the servants of the appellant was not to be wilfully or wantonly negligent of his safety and only to exercise ordinary care to avoid injuring him after becoming aware of his peril.

We agree with the appellee that this is the true rule and that it is so held in a long line of our decisions, among which is the case of St. L. S. W. Ry. Co. v. McLaughlin, 129 Ark. 377, 196 S. W. 460, cited by appellee; St. L. I. M. & S. R. Co. v. Reed, 76 Ark. 106, 88 S. W. 836; Kruse v. St. L. I. M. & S. R. Co., 97 Ark. 137, 133 S. W. 841; Williams v. C. R. I. & P. Ry. Co., 139 Ark. 562, 215 S. W. 605; Ark. & La. Ry. Co. v. Sain, 90 Ark. 278, 119 S. W. 659; Prescott & N. W. Ry. Co. v. Hopkins, 122 Ark. 168, 182 S. W. 551; Webb v. K. C. S. R. Co., 137 Ark. 107, 208 S. W. 301; St. L. S. F. R. Co. v. Bley, 168 Ark. 814, 271 S. W. 455.

The deceased was a young man of about twenty years of age who appears to have been of average intelligence, and when he elected to' ride, on the flat car seated in front of a load of poles he assumed the perils incident to the situation, and there was no affirmative duty on the part of the servants of appellant to warn him of the dam gers which might ordinarily ensue.'

The evidence is undisputed that the freight train was a light one, described by the operatives as “half a train,” traveling at approximately twenty-five miles- per hour before it reached the confines of the yards; that, as it approached and passed the block signal at the yard boundary, it showed a green light which indicated that the way ahead was clear. The speed of • the train had been slackened as it passed the signal to about fifteen miles an hour, and this was the rate of its progress through the yards, which was the customary speed for trains of that weight. The engineer and fireman were keeping a lookout ahead, but, as they traveled along the yards,' the engineer’s view of the track was obscured because of a sharp left-hand curve in the track. Therefore, the engineer could not see the track ahead, but the fireman testified that he maintained a lookout and when at about 1,100 feet away he saw the switch engine and thought when he first observed it that it was on a siding, but when they had gone perhaps 400 feet further he -discovered that the switch engine ivas not on the siding but on the main line on Avhich the freight train was approaching. Upon this discovery the fireman immediately notified the engineer of that fact, who at once applied the emergency brakes in an effort to stop the train and prevent a collision.. On account of the rate of speed the train could not be stopped in time to keep from hitting the SAvitch engine, and the locomotive did strike the same Avith sufficient force to break the pilot of the engine and knock off its headlight and to damage some of the box cars of the train and to cause the poles on the flat car on which the deceased was riding to slide forward upon Mm, injuring’ Mm so that he died within a few minutes. Just preceding the time of impact and after the emergency brakes had been applied, the engineer stepped from the cab to the platform on the right, and the fireman to the platform on the left. While the shock was considerable, it was not enough to jar either of them from the platform or to injure any of the brakemen who were in the caboose or on the train. A short time after this occurrence and while it was being investigated by the railway authorities and the Interstate Commerce Commission, a test was conducted with the situation reconstructed as near as could be to that of the date and time of the collision in question for the purpose of ascertaining how quickly a train under proper control could be stopped. The one who conducted the test brought his train to a stop within a shorter distance than did the engineer at the time of the collision — approximately sixty feet from where the collision occurred. The engineer was laid off because of the collision for several months before being put back to work. These facts, perhaps, would be sufficient evidence of the improper movement of the train or want of an adequate lookout to support a finding of negligence in the operation of the train, but would not be sufficient to establish the liability of the appellant, for there is no testimony to the effect that there was "any element of wilfulness or wantonness on the part of the employees of the appellant in these matters, and, as the deceased was a mere licensee, his administrator, the appellee, is in no position to complain, for these were, at most, mere acts of negligence. The duty to the deceased must be estimated from the moment when the fireman first became aware of the engine on the track ahead, for it is only from that time that the operatives of the locomotive knew of any unusual and impending peril to themselves or any one on the train, including the deceased. Before that time there was no duty resting upon the employees with respect to the deceased except not to wilfully or wantonly injure him, but from this time there arose the duty when the obstruction ahead was discovered and the peril apparent, to use ordinary care to avoid the collision and prevent the injuries which might result therefrom to those upon the train. From the time of the discovery of the switch engine on the track the conduct of the fireman and engineer must have been moved by the instinct of self-preservation, and as reasonable men it was to be expected that they would do all in their power to prevent the collision and avoid injury. This the uncontradicted testimony shows they did. There is nothing in the evidence to indicate that there was any act possible for the engineer to perform other than he did that could have averted the collision when he was notified by the fireman of the danger, nor anything to dispute the testimony of the fireman that he gave the warning when he first became aware of the obstruction on the track. Therefore, since there was no negligence shown after the engineer and fireman became aware of the obstruction ahead which might cause a collision and imperil the safety of the deceased, but on the contrary the undisputed evidence showed that they exercised ordinary care to avoid the collision, under the rules above announced and supported by the authorities, supra, we hold that there was no liability shown. •

The judgment of the trial court is therefore reversed, and, as the facts appear to have been fully developed, the ease is dismissed.


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    Neal v. State.
    Opinion delivered July 13, 1931.

      Beinberger <é Beinberger, for appellant.

      Hal L. Norwood, Attorney General, and Bobert F. Smith, Assistant, for appellee.
   Butler, J.

The appellant, Emma Neal, was tried and convicted in the Jefferson County Circuit Court on a charge of keeping a disorderly house and has appealed to this court. The sole ground urged for reversal is that the proof is not sufficient to warrant conviction. The rule is laid down in the case of Thatcher v. State, 48 Ark. 60, 2 S. W. 343, where the court said: “The keeping of a common gaming house, bawdy house, disorderly ale house or inn, or any other disorderly house is a common-law offense on account, among other reasons, of its influence upon the public morals. The keeping of a disorderly house may consist in allowing the place to be so noisy and disorderly as to disturb the public peace and annoy the neighborhood. But it is not necessary to show such noise in all cases, because the keeping of such house may consist, in its drawing together idle, vicious, dissolute or disorderly persons engaged in unlawful or immoral practices, thereby endangering the public peace and promoting immorality. Such houses are prohibited, not only on account of noise, but because of their tendency to promote immorality and lead to breaches of the peace. ‘If the doors of a house,’ it is said, ‘are practically open to .the public, alluring the young and unwary into it, to indulge in or witness anything corrupting to their virtue or general good morals, the keeper cannot excuse himself by alleging that the public is not disturbed.’ ”

The testimony introduced at the instance of the appellant tended to show that she was a woman of family who made her living by taking in sewing, embroidery, and such like work, and supplemented her earnings by keeping boarders; that she was a woman of good reputation, and that those who lived in th.e -vicinity of her residence had not been disturbed by any disorderly conduct at her place of abode. A number of witnesses testified as to visiting her house both in the daytime and at night, and had seen nothing to indicate that she was engaged in any unlawful or vicious courses, or that she permitted others so engaged to frequent her house. In short, the testimony introduced in appellant’s behalf tended to fully exculpate her from the charge made. A number of local officers in the city of Pine Bluff and Jefferson County, however, testified that they had made frequent raids on appellant’s house, some of these stating that they had found no whiskey but a number of containers in which whiskey had been kept, and others stating that whiskey and home brew had been found. It was in testimony that on various occasions officers had found men and women there who had been imbibing freely of liquor. In the summer before the appellant’s arrest an officer had broken up 500, bottles of home brew and some crocks. A number of men known to the officers to be idle and vicious frequented the place, and on several occasions some of these men had been found by the officers in bed with women who- frequented appellant’s house. Poker chips and other articles used in gaming were found on the premises, and at a dance which occurred at the time of a raid on the house prior to the trial, liquor was thrown into a stove and a pistol shot fired and a number of people were arrested.

The officers testified that the horde of appellant had the general reputation of being a disorderly house. This testimony was in conflict with the evidence adduced on the part of the appellant. It tended to establish the truth óf the charge and brings the case within the- doctrine" announced in Thatcher v. State, supra. The jury are the sole judges pf the credibility of the witnesses, and in all cases where there is substantial evidence to support the.verdict of the jury it is conclusive.

The judgment of the trial court must therefore be affirmed. It is so ordered.


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    Arkansas Power & Light Company v. West Memphis Power & Water Company.
    Opinion delivered July 13, 1931.

      Wils Davis, Robinson, House Moses and Harry E. Meek, 'for appellant.

      Chas. E. Sullenger and Davis $ Brownback, tor appellee.
   Butler, J.

The appellant, Arkansas Power & Light Company, as assignee of a permit from the county court, and by virtue of an act of March 28, 1907, erected poles along the highway in Crittenden County which passed through, and was the main street of the village of West Memphis, with distribution lines and other equipment of the approximate value of $68,000. With this equipment so erected, the appellant power company, before and on March 21, 19'27, was serving with electric current seventy residents, seventy-four commercial customers and one gin in the said village, which" service had been increased by the 20th day of November, 1930, so as to furnish electricity to 109 residents, 97 business customers and one industrial consumer.

On the 21st day of'March, 1927, the aforesaid village became the incorporated town of West Memphis by order of the county court of Crittenden County, which order, on appeal, was affirmed by this court on July 2, 1928, in the case of Bragg v. Thompson, 177 Ark. 870, 9 S. W. (2d) 24. The appellant did not, and has not, procured any franchise from said incorporated town granting to it the privilege to use the streets, alleys and public grounds of the town in the conduct of its business, but continued to use said streets and alleys and to extend its lines thereon after the incorporation as before.

On May 14, 1930, at a meeting of the town council of said town, a grant of an exclusive franchise was made to Chas. E. Sullenger to erect and operate an electric light system, and at the same meeting and by separate ordinance he was granted an exclusive franchise to erect and operate a waterworks system. These franchises were assigned to the appellee, West Memphis Power & Water Company, on the 15th day of August, 1930, and appellant filed this suit on the 16th of August, following, setting up the above-mentioned facts and alleging that the.franchise under which appellee sought to operate was invalid because it was passed at a special meeting of the council, of which no notice had been given, and no notice given or received by one of the councilmen who did not attend said meeting, and who had no knowledge thereof .until after the meeting was had. Appellant further alleged that said ordinance granting the exclusive right to erect and operate equipment for the generation and distribution of electricity was an invasion of its rights, and that the appellee was threatening to proceed with the construction authorized by the franchises and, by virtue of the rights granted therein, to undertake to force the appellant to remove its equipment, etc., and prayed for an order enjoining the appellees from constructing the electrical equipment and from in any way interfering with the rights of the appellant. On the 20th of October, 1930, the appellant filed its motion for a temporary injunction restraining the appelleq, who at that time was proceeding with the erection of a light plant, from further proceeding, and from making any other expenditure until the final hearing of the case. This motion was overruled by the court, and the appellee proceeded with the erection of its equipment, completing the same about the 12th day of December, 1930, at a cost of approximately $50,000, and was on that date serving about sixty customers with electricity.

Much testimony was taken which established the facts above stated and which, in addition, was directed to the question of the validity of the franchise granted by the ordinance of May 14, 1930, but which will not be set out here because that question is immaterial, as will hereafter appear. On the final hearing the chancellor denied the relief prayed by the appellant, and dismissed its complaint for want of equity, from which decree is this appeal.

In the beginning of our investigation this question presents itself: Was the Arkansas Power & Light Company in a position to question the validity of the franchise under which appellee has acted? After a careful consideration, with the aid of such authorities as have been cited by counsel, we have concluded that that question must be answered in the negative, and such an answer renders all other issues raised unimportant. It is to be noted that the town of West Memphis is not contesting the validity of the ordinance of May 14, 1930, or attempting to disavow it in any particular. In an able and persuasive brief counsel for the appellant has contended that the right it acquired and asserted under the permit of the county court of Crittenden County and under the statute, supra, has invested it with property rights which would warrant its contesting an unwarranted intrusion by another on the premises it occupied. It is doubtful whether the permit of the Crittenden County court has any validity,, but, irrespective of that order, the appellant occupied the highway leading through West Memphis by virtue of the act of March 23, 1907, now § 4043 of Crawford & Moses’ Digest, which provides:

“Any corporation organized under the laws of this State for the purpose of generating, transmitting, and supplying electricity for public use may construct, operate and maintain such lines of wire, cables, poles, etc., necessary for the transmission of electricity along and over the public highways, and the streets of the cities and towns of the State or across or under the waters, and over any lands or public works belonging to the State, and on and over the lands of private individuals, and upon, along and parallel to any railroad or turnpike of this State, and on and over the bridges, trestles and structures of such railroads; and in constructing such dams as the corporation may be authorized to construct, for the purpose of generating electricity by water power, may flow the lands above such dams with backwater resulting from such construction. Provided, the ordinary use of such public highways, streets, works, railroads, bridges, trestles, or structures and turnpikes be not thereby obstructed, or the navigation of said waters impeded, and that just damages shall be paid to the owners of such lands, railroads and turnpikes; and provided further, that the permission of the proper municipal authorities shall be obtained for the use of such streets.”

It will be seen from this statute that when appellant erected its light poles and strung its wires along the highway leading through the village of West Memphis and served those with electricity who lived on the highway, it was rightfully doing so. When it entered on the streets of the village with its poles and other equipment, however, no right could be predicated on the statute, for at that time such streets and alleys were privately owned, and no one had the right to use them in any way except the permissive right of passage given to the public.

Appellant cites the case of Natural Gas & Fuel Corporation v. Norphlet Gas & Water Co., 173 Ark. 174, 294 S. W. 52, in support of its contention that the appellant in that case had made use of the streets and alleys of the village of Norphlet for the laying of its gas mains, as the power company in the instant case made use of them for the erection of its light poles, but in the Norphlet case the gas company obtained the right-of-way and used these streets and alleys under a contract with the owners, and was rightfully occupying the same. Such are not the facts in the case at bar. No contract is alleged or shown to have been entered into between the power company and the landowners, and therefore its occupancy was unauthorized and continued by sufference only. There are a number of cases holding that a public utility company is entitled to an injunction to prevent a competing utility from attempting to operate under a void franchise, a number of which have been cited and relied on by the appellant. Bartlesville E. L. & P. Co. v. Bartlesville I. R. Co., 26 Okla. 453, 109 Pac. 228; Lindsley v. Dallas Consolidated Street Ry. Co., (Tex.) 200 S. W. 209; Northern Tex. Utilities Co. v. Community Natural Gas Co., (Tex.) 297 S. W. 904; Citizens’ E. I. Co. v. Lackawana & W. V. P. Co., 255 Pa. 145, 99 Atl. 462; F. & M. Co-operative Tel. Co. v. Boswell Tel. Co., 187 Ind. 371, 119 N. E. 513; Millville Gas & Light Co. v. Vineland Light & Power Co., 72 N. J. Eq. 305, 65 Atl. 504; Springfield Gas & Elec. Co. v. Springfield, 292 Ill. 236, 18 A. L. R. 934; McQuillin on Municipal Corporations (2d ed.), p. 1016; Dillon on Municipal Corporations, (5th ed.) p. 1992; Kinder v. Looney, 171 Ark. 18, 283 S. W. 9.

We have read all these cases with care and discover that they can have no application to the instant case because in all of them the utility held entitled to proceed against a competing utility had itself the lawful right to operate in the streets and alleys by grant of a franchise, although this right was not an exclusive one. Illustrative of all of these eases is that of Bartlesville E. L. & P. Co. v. Bartlesville I. R. Co., supra, first cited by the appellant. In that case the plaintiff was operating an electric light and power plant under a franchise for a period of twenty-one years granted by the municipality, and the defendant, a competing utility, attempted without - authority from the city to use its streets and public places for the purpose of erecting a light and power system for supplying the town and its inhabitants with electric light and power. In that case the plaintiff did not claim that it had an exclusive franchise, and recognized the authority of the city to grant a similar franchise to others, but insisted that, because the defendant had no authority from the city to use its streets, and because plaintiff’s occupancy -and use was by lawful permission, it was entitled to the relief prayed, namely, that the defendant be enjoined from proceeding further in occupying and using the streets for a purpose similar to that of the plaintiff. In upholding plaintiff’s contention, the Supreme Court of Oklahoma held that, when plaintiff accepted its franchise, it did so subject to the power of the municipality to grant to others like franchises, and said: “But such cannot be said of the defendant who unlawfully occupies the streets and public grounds of the city In competition with the plaintiff.”

“By its unlawful act defendant can and will take from the plaintiff a portion of its business. At the same time defendant is under no obligation to the city or its inhabitants, and is all the while maintaining upon the streets and public grounds of the city a public nuisance and the loss plaintiff sustains is to the defendant its fruits from its violation of the law.”

As we have seen, the situation of the appellant here is quite different from the Natural Gas & Fuel Corporation in the Norphlet case, for it is not shown or alleged that it entered upon the streets and alleys of the village of West Memphis by authority from any one, but rather it would seem on the assumption that, as its services were needed and welcomed by the inhabitants of the village, its occupancy would not be questioned and neglected to secure by contract the right from the landowners. Later on, when these streets and alleys, by virtue of the incorporation, became a part of the property of the municipality and subject to its regulation, the appellant acquired no greater right than it had before until it obtained from the proper municipal authorities permission to use the streets.

We have been unable to find, neither has counsel cited, any decision or text which is directly in point, but we think the general principle that one cannot challenge any statute or ordinance where he has no lawful interest in the subject-matter is controlling under the facts of the case at bar. It is true that the appellant is interested and may have expended considerable sums of money in the streets, but it merely assumed the right to do so, and therefore is in no position to challenge the validity of the ordinance in this case granting the privilege of using the streets of the municipality to another. Thomas v. City of Missoula, 70 Mont. 478, 226 Pac. 213; Kansas City v. U. P. Ry. Co., 59 Kan. 427, 53 Pac. 468; State v. Hoffman, 159 Minn. 451, 199 N. W. 175; Hazelton v. Atlanta, 147 Ga. 207, 93 S. E. 202; Board of Commissioners v. Reeves, 147 Ind. 467, 46 N. E. 995; see also Coffeyville Mining & Gas Co. v. Citizens Natural Gas Co., 55 Kan. 173, 40 Pac. 326; Geneva-Seneca E. Co. v. E. P. & C. Co., 120 N. Y. Sup. 926; Rambo v. Donnelly, 9 Baxter (Tenn.) 418; N. E. R. Co. v. Central Ry. & E. Co., 69 Conn. 4, 36 Atl. 1061; Empire City, etc. v. Broadway, etc., 87 Hun 279, 33 N. Y. S. 1055; Butt v. Colbert, 24 Tex. 355; Arpin v. Valdes, 1 Porto Rico Fed. Rep. 394.

By act of the General Assembly, supra, any corporation organized for the purpose of generating, transmitting and supplying electricity for public use was permitted to construct its lines over the public highways. Therefore appellant’s rights to the use of the highway running through the village stands upon a different footing to its occupancy of the streets. Appellant rightfully used the highway for the erection of its lines and was rightfully using it at the time the municipality was formed. The statute, however, did not give it, or any other company of like character, the exclusive privilege, but any other company incorporated for a similar purpose or as many as might he formed might use the same highway, the only limitation to such use with respect to the appellant being that occupancy ought not to be allowed to injure or interfere with the physical property of the appellant. As appellee corporation was organized for the purpose of generating and transmitting electricity for public use, it, too, was privileged to use the highway, and the appellant cannot complain on that score.

Decree affirmed.

Humphreys, J., dissents.