author: Hart, C. J.,

text:
    Connecticut Fire Insurance Company v. Boydston.
    Opinion delivered April 4, 1927.
    1.- Insurance — authority of agent to waive provisions of policy. —Any condition inserted in a policy for the benefit of the insurer may he waived b.y it, and an insurance agent authorized to waive a forfeiture may do so orally, though the policy provides that the waiver must be indorsed on the policy.
    2. Insurance — nonwaiver agreement construed strictly. — An agreement providing that the insurance company might investigate the cause of fire and the resulting loss without waiving any rights, being written toy the insurance company’s adjuster, will be construed strictly against the insurer and liberally in favor of ' the. insured.
    3. Insurance — waiver of forfeiture. — Though a nonwaiver agreement stipulated that the insurer might investigate the cause of fire and the resulting loss without waiving any rights, the insurer will be held to have'waived the right to a forfeiture for failure of insured to keep his inventory and books in a fire-proof safe by requiring plaintiff to make a trip at his own expense for examination undei; oath.
    4.. Insurance — construction of conditions. — Conditions written in an insurance policy will be construed strictly against the insurer and liberally against the insured.
    5. Insurance — condition as to examination under oath. — A condition in a fire policy that the insured should submit to examination under oath as often as required, or that the property should be examined as often as deemed necessary, held to apply only while the policy was running and not after loss has occurred, and hence such provision did not prevent the insurer from waiving a warranty clause by requiring insured to submit to examination after loss.

      6. Insurance — proof of extent of loss. — Any competent evidence ' which tends to prove the extent or amount of loss for which an insurance company is liable is admissible:
    7. Evidence — secondary evidence on proof of loss of best. — • Where the evidence showed, in an action on Are insurance policies, that the invoices and books' showing sales were lost, it was proper to admit secondary evidence to prove the loss.
    8. Evidence — best and secondary evidence. — Where it was shown that primary evidence of the extent of insurance loss has been burned, secondary evidence of the inventory and cash sales and estimates of other merchants familiar with insured’s stock were admissible to prove insured’s damages.
    Appeal from Poinsett' Circuit Court; O. E. Keck, Judge;
    affirmed.
    STATEMENT 03'' FACTS.
    W. H. Boydston instituted separate áctions against the Connecticut Fire Insurance Company and the National Union Fire Insurance Company to recover the sum of $1,000 in each case upon a policy of insurance upon a stock of merchandise. The suits were consolidated, and defended on the ground that the insured .had forfeited his policies hv noncompliance with the conditions thereof.
    The policies were introduced in evidence. They are very lengthy, and need not be set out in full. Each policy is for $1,000 upon the stock of merchandise of W. H. Boydston, at Tyronza, in Poinsett County, Arkansas. The policies are practically alike in their terms. Each one contained what is called a “record warranty clause,” requiring an inventory to be made at least once a year, and that a set of books be kept showing completely the business transacted since the date- of the inventory, and also requiring the inventory and set of books to be securely kept in a fireproof safe at night, when the store was not opén for business. The policy also contains the following:
    “The insured, as often as required, shall exhibit to any person designated by this company all that remains of any property herein described, and submit to examination under oath by any person named by this company, and subscribe to the same; and, as often as required, shall produce for examination all books of account, bills, invoices and other vouchers, or certified copies thereof if originals be lost, at such reasonable place as may be designated by this company or its representative, and shall permit extracts and copies thereof to be made.”
    The policy also contains a clause that the company shall not be deemed to have waived any conditions of the policy unless by written agreement, or unless there is an indorsement upon the policy of the terms of the waiver.
    The -storehouse containing the stock of merchandise insured during the life of the policy caught on fire by a (ire communicated to it from adjoining buildings, and thereby burned the stock of merchandise. After the fire loss occurred, the adjuster of the companies came to the scene of the fire, and, on the 7th day of May, 1925, made with W. Hi Boydston a nonwaiver agreement, which reads as follows:
    “It is mutually agreed and understood by and between Boydston Bros., of the first part, and the named - below insurance company of as below, and other companies signing this agreement, parties of the second part, that any action taken by any adjuster or representative of the said parties of the second part in investigating the cause of or investigating or ascertaining the amount of loss and damage to the property of the party of the first part caused by fire alleged to have occurred on April 26, 1925, shall not waive or invalidate any of the conditions of the policies of the parties of the second part, held by the party of the. first part, and shall not waive or invalidate any rights whatever of either of the parties to this agreement. The intent of this agreement is to preserve all the rights and defenses of all parties hereto, and to provide for an investigation of and the determination of the amount of the loss or damage only, for the interest of 'whom it may concern,’ without regard to the liabilities of the parties of the second part.”
    Subsequent to this time the adjuster required Boyds-ton to appear before him for the purpose of being examined under oath. W. H. Boydston, at his own expense, made a trip from Tyronza, in Poinsett County, ■where he lived and where the loss occurred, to Jonesboro, Arkansas, and there, on the 30th day of June, 1925, submitted to an examination by a representative of the defendant.
    At the time of the fire the books and invoices of the plaintiff were not in a fireproof safe. He had been using them during the day, and, being very tired that night, went home, and forgot to put them in the safe. His inventory was at the home of his son, where it was being-used in the preparation of his income tax report. Before the non-waiver agreement was executed, the adjuster of the companies had been informed of the facts with regard to the breaking of the Record Warranty Clause. At the trial of the case the plaintiff introduced in evidence duplicate invoices, which he had obtained from the persons from whom he had purchased the goods, and, from the testimony of himself and other merchants who were familiar with his stock of goods and the prices of such goods, he proved- the value thereof.
    Others facts will be stated or referred to in the opinion.
    The jury returned a verdict in each case for the sum of $1,000, and from the judgment rendered each defendant has duly prosecuted an appeal to this court.

      Mardis & Mardis and R. Lee Bartels, for appellant.

      Hawthorne, Iiaivihorne <& Wheatley, for appellee.
   Hart, C. J.,

(after stating the facts). It is the contention of counsel for the plaintiff that the forfeiture of the policy occasioned by the failure of the plaintiff to comply with the record warranty clause was waived when, after the loss by fire occurred, the adjuster, with knowledge that the plaintiff had failed to comply with the conditions of the policy with regard to keeping his books and inventory locked in a fireproof safe when the store was not open for business, required the plaintiff to be put to the trouble and expense . of going from Tyronza, in Poinsett County, where the fire occurred, to Jonesboro, in Craighead County, for the purpose of being examined under oath with regard to the conditions of the policy. It is the settled law of this State that any condition inserted in a policy-for the benefit of the insurer may be waived by it, and that an insurance agent authorized to waive a forfeiture in a policy may do so orally, though the policy provides that the waiver must be indorsed on the policy. German-American Ins. Co. v. Humphrey, 62 Ark. 348, 35 S. W. 428; Phoenix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187, 37 S. W. 959; Queen of Arkansas Ins. Co. v. Forlines, 94 Ark. 227, 126 S. W. 719; and Queen of Arkansas Ins. Co. v. Malone, 111 Ark. 229, 163 S. W. 771.

It is also settled by these decisions that an adjuster with the authority of the adjuster in this case may waive the performance of the conditions of the policy. But it is contended 'by counserfor the defendants that, under the provisions of the non-waiver agreement, there .was no waiver of the conditions of tire policy in respect to the issue involved in this case. We have set out the non-waiver agreement in our statement of facts,-and do not deem it necessary to repeat it here. It specifically states that it was the intention of the parties to provide for an investigation of and a determination of the loss or damage only. By its terms it merely gives the adjuster or any other representative of the company the right to investigate and ascertain the cause of the fire and the loss or damage to the property, without being in any danger of waiving any rights under the policy. The rights of the plaintiff and the defendants were settled by the terms of the policy when the fire occurred and the property was damaged or destroyed by the fire. The parties simply agreed that no waiver of the terms of the policy should be implied from an investigation of the cause of the fire and of the amount of the loss or damage to the property insured. The non-waiver agreement was written by the adjuster of the companies, and its. stipulations and agreements, like the provisions of the policy, should be considered strictly against the insurer and liberally in favor of the insured. Penn. Fire Ins. Co. v. Draper, 187 Ala. 103, 65 So. 923; Tinsley v. Ætna Ins. Co., 199 Mo. App. 693, 205 S. W. 78; Modlin v. Atlantic Fire Ins. Co., 151 N. C. 35, 65 S. E. 605; Beaucamp v. Retail Merchants’ Assn. M. F. I. Co., 38. N. D. 483, 165 N. W. 545; German Alliance Ins. Co. v. Ft. Worth G. & E. Co. (Tex.), 257 S. W. 273; Springfield F. & M. Ins. Co. v. Fine, 90 Okla. 101, 216 Pac. 898: Henderson v. Standard F. I. Co., 143 Ia. 572, 121 N. W. 714; Corson v. Anchor Mut. F. I. Co., 113 Ia. 641, 85 N. W. 806; McMillan v. Ins. Co. of N. A., 78 S, C. 433, 58 S. E. 1020; and German Ins. Co. v. Allen, 69 Kan. 729, 77 Pac. 529.

The non-waiver agreement is, by its terms, limited lo investig'ating the cause of the fire or ascertaining the amount-of the loss .and damage to the property caused by the fire. It contemplated action on the part of the companies and gave them the lull right lo make such investigation, through its adjusler or claim agent, or in any other way, it might, deem proper. In the present case, however, the .plaintiff was required to go from his residence and place of business lo another city for the purpose of being examined under oath. He was thereby put to trouble and expense which, under the authorities we have cited above and many others which might be cited, show that the company waived the conditions of the policy with regard to the record warranty clause. If the insurance companies wished to avoid a waiver or forfeiture of the policy because the insured had not complied with the record warranty clause, they should not have required him to he put to the trouble and expense of going to Jonesboro for examination under oath. They knew all the facts with regard to the non-compliance to the record warranty clause that they could know from an examination under oath. In other -words, they knew, before they required the plaintiff to go to Jonesboro for examination under oath, that he had not complied with the record warranty clause and that they had a right, under the terms of the policy, to forfeit it for that reason. The plaintiff had a right to assume that they had -waived any forfeiture on this ground, and that he was required to go to Jonesboro to be examined as to tlie cause of tlie fire and the amount of loss sustained by him. The undisputed evidence shows that the lire did not originate in the store of the insured and that he did not in any manner, directly or indirectly, aid or have anything to do with starting the fire. It originated from causes with which he had nothing whatever to do. At the trial of the case the plaintiff introduced his inventory and duplicate invoices,_of goods received since the taking of the inventory. He also produced his bank book, showing the amount of his cash sales, and, in every way possible, attempted to make a correct estimate of the amount and value of the goods destroyed by fire. As we have already seen, he had a right to assume that this was the purpose of requiring him to go to Jonesboro for examination under oath; and, under the terms of the 11011-waiver agreement, there was nothing to prevent the insurer from waiving any grounds of forfeiture which it knew about before such 11011-waiver agreement was executed.

Again, it is insisted that the act of the companies in requiring the plaintiff to go to Jonesboro for examination does not waive any ground of forfeiture, because, under the terms of his policy, the plaintiff was required to submit to examination under oath. As we have already seen, these conditions were written in the policy by the insurer, and should be construed liberally in favor of the insured. Lord v. Des Moines F. I. Co., 99 Ark. 476, 138 S. W. 1008, and Great Southern F. I. Co. v. Burns, 118 Ark. 22, 175 S. W. 1161, L. R. A. 1916B, 1252 Ann. Cas. 1917B 497.

Here again we refer to our statement of facts for the exact provisions of this clause of the policy. It is fairly inferable that the parties had in mind an examination of the stock of goods and of the insured himself under oath in order to ascertain whether or not he was over-insuring his stock of goods. This is shown bv providing that he should submit to such examination as often as required, or that the property should be examined as often as deemed necessary. If, by this provision, it bad been meant to provide for an examination after tbe fire, it would bave been very easy for tbe policy to bave provided that, in case of loss by fire, tbe boobs of tbe plaintiff should be open to tbe insured, or that tbe plaintiff should submit to an examination for tbe purpose of ascertaining tbe cause or extent of tbe loss. Such was tbe case in Phoenix Insurance Co. v. Flemming, 65 Ark. 54, 44 S. W. 465, 39 L. R. A. 789, 67 A. S. R. 900. If tbe insurance companies wished tbe policy to contain a provision requiring’ tbe insured, as often as demanded, to submit to examination under oath relating to all matters material to tbe adjustment of tbe loss, it should bave used language which plainly meant that, instead of using language which was susceptible of a construction that it was to apply to tbe policy while it was running instead of after tbe loss bad accrued.

Counsel for tbe defendant also seek a reversal of tbe judgment on tbe ground that, tbe court erred in the admission of evidence to tbe jury. It is elementary that any competent evidence is admissible to prove the extent or amount of tbe loss for which tbe defendant-is liable, which'tends to prove that fact. Tbe object of tbe clause requiring tbe plaintiff to keep an inventory, including invoices of the goods purchased since bis last inventory, and a book containing a record of bis sales, was to enable tbe insurer to have record evidence upon which it might adjust tbe loss after the fire. Tbe evidence on the part of tbe plaintiff shows that such a record was kept by him. Tbe invoices and tbe books showing the sales made were destroyed when tbe fire occurred. As we have already seen,'tbe fire was communicated to tbe property from other buildings, and tbe plaintiff was in no wise at fault in tbe matter. By inadvertence he bad omitted to put bis books in tbe iron safe that night, and they were destroyed when bis goods were burned. Proof of these facts was sufficient to let in secondary evidence. Arkansas Mutual Fire Ins. Co. v. Woolverton, 82 Ark. 476, 102 S. W. 226. The plaintiff found tbe last inventory which be had taken at tbe house of bis son, after tbe fire. He-obtained duplicate copies of the invoices of the goods purchased by him since his last inventory. He obtained from the bank an account of his cash sales. From the testimony of himself and other merchants, who were familiar with his stock of goods and the prices of same, he made as near an estimate as possible of the value of "the goods at the time of the fire. This was the best evidence obtainable after it was shown that the record had been burned, and the court properly admitted it to go before the jury to establish the extent of the loss.

We find no reversible error in the record, and the judgment will therefore be affirmed.


source: Caselaw Access Project

author: Haet, 0. J:,

license: Public Domain

text:
    Kull v. Dierks Lumber & Coal Company.
    Opinion delivered April 4, 1927.
    1. Corporations — representation by officers. — A corporation can act only through its officers and agents, and therefore an affidavit by a corporate officer on its behalf is regarded as the act of the corporation itself.
    2. Mechanics’ liens — affidavit—compliance with statute.— Where, in a suit by a corporation to enforce a mechanics’ lien, the statutory affidavit was filed by its manager without stating that he was manager, the affidavit wifF’be treated as amended to conform to proof that he was such officer, if no objection was made to the form of the affidavit in the trial court, as substantial compliance with the statute is all that is required.
    3. Mechanics’ liens — notice. — Where materials are furnished under a direct contract with the owner of land, who.is liable on an original undertaking, the notice required by the statute is not necessary.
    4. Mechanics’ liens — evidence.—In a suit to enforce a mechanic’s lien, evidence held to warrant a finding that the materials were furnished to the owner of the premises, and that a verified account was filed by -the lienor within 90 days after the last item of materials was furnished.
    Appeal from Sevier Chancery Court; C. E. Johnson, Chancellor;
    affirmed.

      STATEMENT OE EAOTS.
    This action was instituted in the chancery court by the Dierks Lumber & Coal Company against F. H. Kull to enforce a materialman’s lien in the sum of $175.32 for material furnished and used in the construction of a boiler plant on the defendant’s land.
    J. F. Hinds was the manager of the Dierks Lumber & Coal Company at DeQueen, Arkansas, and represented it in the transaction involved in this casé. According to his testimony, F. H. Kull and Dick Adams came to the company’s place, of business at DeQueen and made-arrangements to purchase certain material to be used in the construction of a boiler plant. ' Kull stated that he was the owner of the plant, and directed the material ordered to.be delivered to a driver, who would be sent for it. The materials were furnished as directed, and the last item was purchased on March 5, 1924. The sales ticket on this purchase is as follows:
    “Office Record.
    Dierks Lumber & Coal Company.
    Retail Yard.
    DeQueen, Ark.,
    March 5, 1924.
    “íáell lo K. Sperling & Son. Ordered by Knox. Del. by Knox.
    “11 pcs. 8-ft. gal'v. iron, 312 ft. at $4.90.$15.28.”
    The Dierks Lumber & Coal Company filed with the clerk of the circuit court of Sevier County, in which the boiler plant was erected, a just and true account of the demand due, after allowing* all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit. The account was signed “Dierks Lumber & Coal Company, by J. F. Hinds,” and was sworn to before a notary public and duly filed in the office of the circuit clerk of Sevier County on June 3, 1924.
    John Seals, bookkeeper of the Dierks Lumber & Coal Company, was a witness for it, and corroborated in all respects the testimony of J. F. Hinds.. The material was delivered and the witness duly posted the materials purchased, as shown by the sales tickets on the books of the company.
    Dick Adams and F. H. Kull were witnesses for the defendants. According to their testimony, the defendant, Kull, did not have anything to do with purchasing the material in question. They admitted that he was present at the time the arrangement was made for the purchase of the material, but stated that he had nothing to do with the transaction. They admitted that the material was used in the replacement of .a boiler plant on the land of the defendant, Kull, but said that, the material was ordered and used by the lessee of the defendant in the construction and replacement of a boiler plant, which had become worn out by use by the lessee during the term of his lease.
    Other, facts will be stated or referred to in the opinion.
    The chancellor found the issues in favor of the plaintiff, and a decree was entered of record, providing for the foreclosure of the plaintiff’s lien as materialman for the materials furnished. The case is here on appeal.

      J une R. Morrell, for appellant.

      Abe Collins and Lake, Lake & Carlton, for appellee.
   Haet, 0. J:,

(after stating the facts). The first ground upon which it is sought to reverse the decree is that the account was verified by the affidavit of J. F. Hinds, and that it does not appear that he had authority to make the affidavit. The record shows that the account was signed “Dierks Lumber & Coal Company, by J. F. Hinds.” Now, the manager of the corporation had charge of its business at DeQueen and represented it in the particular transaction under consideration. In the eye of the law a corporation can only act through its officers or agents, and therefore an affidavit by a corporate officer is regarded as the act of the corporation itself. In such a case the officer is exercising the corporate powers of the corporation in the only way in which they can be exercised at all. Wales-Riggs Planta tions v. Caston, 105 Ark. 641, 152 S. W. 282, and American, Soda-Fountain Co. v. Stolzenbach, 75 N. J. Law 721, 68 Atl. 1078, 16 L. E. A. (N. S.) 703, and case-note, 127 Am. St. Rep. 822.

Bnt it is insisted that the affidavit does not show that J. F. Hinds was the manager of the Dierks Lumber & Coal Company. It is true that the affidavit itself does not show that fact, but the deposition of J. F. Hinds was taken by the plaintiff, and this deposition shows that he was not only the manager of the plant of the plaintiff at DeQueen but that he represented it in the sale of the materials to the defendant. This court has held that an affidavit for attachment may be amended. The court said that swearing the affiant was the essential fact, and that, if this were done and the officer administering the oath neglected to attest the fact, this would not render the affidavit a nullity, but that the defect might be cured by amendment. Fortenheim v. Claflin, Allen & Co., 47 Ark. 49, 14 S. W. 462. It would be putting form ahead of substance to hold that the affidavit should not be treated as amended to conform to the facts when J. F. Hinds was put upon the stand and testified that he was the manager of the corporation and had authority to act and did act for it in the transaction under consideration; and this is especially true when we consider' that no objection was made by ‘the defendant to the form of the affidavit in the chancery court. A substantial compliance with the statute 'is all that is required, and this was done when the manager of the corporation actually made the affidavit to the account in compliance with the terms of the statute. Eockel on Mechanics’ Liens, § 1Í9, page 318.

The next ground on which it is sought to reverse the decree is that the ten days ’ notice required by the statute' was not given. This court has held that, where the material was furnished under a direct contract with the owner, who is liable as on an original undertaking, the notice required by the statute is not necessary. Leifer Mfg. Co. v. Gross, 93 Ark. 277, 124 S. W. 1039, and Hess v. A. L. Ferguson Lbr. Co., 155 Ark; 240, 244 S. W. 5. The chancellor found that the materials were furnished to the owner, and we do not think that his finding in this behalf can be said to be against the clear preponderance of the evidence. It is true that the defendants, Null and Adams, both testified that the material was not purchased by Kull himself, but they both admit that he was present when arrangements were made for the material to be furnished, and that he was asked to go to the place of business of the' plaintiff for that purpose. The manager of the plaintiff and its bookkeeper both testified that Kull purchased the material in question, and told the manager of the plant that he was the owner of the boiler plant to be erected with the material. There would seem to have been no use for the defendant to have gone with his lessee to be present when the arrangement was made for the purchase of the material if he had no interest.

Another ground for reversal of the decree is that the account was not filed within ninety days after the last item of the material was furnished. On this point we have again a direct conflict in the evidence. Kull and Adams testified that the last item was furnished more than ninety days before the verified account was filed. On the other hand, the plaintiff introduced in evidence the sales tickets, and the one in question shows that the item was furnished on the 5th day of March, 1924, and the verified account was filed on the 3rd day of June, 1924. The oral evidence for the plaintiff showed this to be true. The chancellor also found this issue for the plaintiff, and we think correctly so.

The result of our views is that the decree of the chancellor was correct, and should be affirmed.


author: Hart, 0. J..

text:
    Powell v. State.
    Opinion delivered April 4, 1927.
    1. Burglary — sufficiency of evidence. — In a prosecution for burglary under Gen. Acts, 1923, p. 69, evidence held sufficient to authorize the jury to find defendant guilty.
    2. Criminal law — expression of opinion in argument. — In a prosecution for burglary, a remark of the prosecuting attorney in argument that this was no ordinary case, an opinion warranted ■by the evidence, was not ground for reversal.
    3. Criminal law — statement by ' prosecuting attorney. — In a prosecution for burglary, a statement by the prosecuting attorney that a newspaper dated prior to the burglary and addressed to defendant’s father-in-law was found in the abandoned car used by the burglars was not objectionable where the newspaper was introduced in evidence though not read to the jury, and showed that it was addressed to defendant’s father-in-law.
    4. Criminal law — statement by prosecuting attorney. — In a prosecution for burglary, remarks of the prosecuting attorney, not intentionally misleading, that certain witnesses had made certain statements, when they had not done so, was not reversible error, where the court instructed the jury that they were the judges of the evidence and should consider only the evidence and not the argument of the attorney on evidence not introduced.
    6. Criminal law — statement by prosecuting attorney. — In a prosecution for burglary, a statement by the prosecuting attorney that he did not know what sort of coat defendant wore, but that the jury could notice that he was in his shirt sleeves at that time, was not erroneous as a comment on defendant’s failure to testify.
    6. Criminal law — argument of prosecuting attorney. — The prosecuting attorney should not be prevented from commenting on the testimony given by other witnesses because defendant refrained from testifying as a witness.
    Appeal from Miller Circuit Court; James II. McCol-lum, Judge;
    affirmed.

      II. W. Applerjale, Attorney General, and Carden Moose, Assistant, for appellee.

      Will Steel, Jot appellant.
   Hart, 0. J..

Nig Powell prosecutes this appeal to reverse a judgment of conviction against him for the crime of burglary. Under our statute, burglary is the unlawful eulerino’ a house, tenement, railway car or other building, boat, vessel or watercraft with the intent to commit a felony. General Acts of 1921, page 69.

The first assignment of error of the defendant is that the evidence is not legally sufficient to support the verdict.

G. E. Atkins, cashier of the Garland City Bank, at Garland, in Miller County, Arkansas, was a witness for the State. According to his testimony, on August 9, 1926, about ten o’clock in the morning, two men entered the bank, and, pointing a gun at him, made him put up his hands. They then went over to the cash drawer and took $360, and left the bank by the rear door. The money belonged to the bank. One of the men wore, a blue suit and the other wore a khaki or gray suit. The defendant is practically the same size and his hair is the same color as one of the men who held him up and took the money. The defendant looks like one of the men.

'According to the testimony of Dr. Cook, he left the bank a short time before it was held up, and went home. He saw a car with two men pass his -house at a rapid rate of speed, and, about that time, lie was told that the bank had been robbed. The car was a Baby Overland touring ear, and was being driven as fast as it could-go. The defendant looks mighty like the man who was driving the car. The witness knew where Bud Ward lives in the country, and had seen the defendant there a number of times. The defendant is a son-in-law of Bud Ward.

Ralph Stokes was also a Avitness - for the State. According- to his testimony, he had known the defendant about two years, and suav him on the morning of the 9th of August, the day the bank Avas robbed. The defendant was in a Baby Overland car traveling towards Garland. The car aaus being driven at a moderate rate of speed.

Another witness for the State testified that he saAv two men Avalking along in Garland on the day the bank aaus robbed. One of them had on a blue suit and was carrying a pistol. The Avitness did not lniOAv the defendant at that time, but the man Avitli the blue suit on, carrying ilie pistol, looked like the defendant.

Another witness testified that she was working in the postof6.ee, and saw an Overland car parked there. The bank is just around the corner from the postoffice.

Another witness testified that he could recognize the defendant when he saw him, and that he saw him standing back of the postoffice, by an Overland car, on the day the bank was robbed'. The defendant had on a bine serge suit.

Another witness, who had known the defendant about two years, testified that, a short time after the robbery occurred, and on the same morning, he saw the defendant and another man coming from Garland and going towards McKinney. The defendant was driving the car, and it was going about thirty miles an hour. In a few minutes the witness met an officer, who told him about the bank being robbed, and asked him if he had seen a car. The witness replied that he had, and the officer went on in the direction that the car had been going. In a short time the officer found an abandoned Baby Overland car near the residence of Bud Ward. It contained a paper of the issue of August 7, 1926, addressed to Bud Ward. It also had two or three khaki shirts in it. On the next day the officer saw one of Bud Ward’s boys wearing a shirt just like the*ones found in the Baby Overland car.

This evidence was sufficient to warrant the jury in convicting the defendant. The undisputed evidence shows that the bank was robbed on the morning in question by two men. One of them wore a blue serge .suit and the other a khaki suit. The defendant was recognized by a person who had known him for two years, going towards the town of Garland in a Baby Overland car, with a companion. The car was being driven at a moderate rate of speed. This same kind of a car was seen parked near the postoffice in the town of Garland on the same morning. The defendant was seen standing by the car. He had on a blue suit. Another witness saw him walking along the streets of Garland that morning with a pistol in his hands. Soon after the robbery the' defendant was seen driving hurriedly away from Garland with a companion in a Baby Overland car. The car was abandoned near the home of the father-in-law of the defendant. One of the witnesses testified that he had seen the defendant at his father-in-law’s house several times. This witness thought the defendant was one of the men who drove rapidly by his house in a Baby Overland car, a few minutes after the robbery. The jury might legitimately infer from this evidence that the defendant was one of the persons who entered the bank and took the money from it on the morning in question.

It is next insisted that the judgment should be reversed because the prosecuting attorney told the jury that this was no ordinary case. It is apparent, from the brief history of the case given above, that the prosecuting attorney was correct in his remarks to the jury, and it is no reversible error for him to express to the jury his opinion derived from the evidence in the case. Blackshare v. State, 94 Ark. 548, 128 S. W. 549, and Sanders v. State, 164 Ark. 491, 262 S. W. 327.

It is next insisted that the judgment should be reversed because of the statement of the prosecuting attorney that the newspaper dated August 7, 1926, was found in the abandoned Baby Overland car. The basis of this objection is that the newspaper was not introduced in evidence; but the record shows that the newspaper was introduced in evidence before the jury, although it was not read to them. The newspaper showed that it was addressed to Bud Ward, who, according to the testimony of one witness, was the father-in-law of the defendant; and the abandoned car was found near his house. Therefore we hold that this objection was not well taken.

It is also insisted- that the judgment should be reversed because the prosecuting attorney argued to the jury that certain witnesses had testified to certain facts, when such was not the case. On this point the court told the jury that it was the judge of what evidence had been introduced, and that it should not consider any evidence except that introduced before it, and tliat they should not consider the argument of the prosecuting attorney based on evidence that was not introduced. It -was not shown that the prosecuting attorney willfully referred to evidence that was not in the record, and we think that the remarks of the court removed any prejudice that might have resulted from the misstatement of'the testimony b3r the prosecuting attorney. Adams v. State, 165 Ark. 308, 264 S. W. 858.

It is also insisted that the judgment should be reversed because the prosecuting attorney referred to the fact that the brother-in-law of the defendant was in the court room, when this fact had not been proved in evidence. One witness, in testifying, referred to the fact that this boy was in the court room. The court again told the jury not to consider any argument of the prosecuting attorney based upon matters that had not been introduced in evidence. Hence we conclude that there was no prejudicial error resulting to the defendant.

Finally, it is insisted that the judgment should be reversed because the prosecuting attorney commented upon the fact that the defendant had not testified as a witness in the case. Hence, under the authority of Davidson v. State, 108 Ark. 191, counsel for the defendant insist upon a reversal of the judgment. The remarks complained of in the present case which are construed by counsel for the defendant as a comment on the failure of the defendant to testify is that the prosecuting attorney stated to the jury that he did not know what sort of a coat the defendant had on on the day of the robbery, but that the jury could notice that he was in his shirtsleeves at that time. We do not think that this could, by any means, be construed as a comment on the failure of the defendant to testify. The jury could see whether the defendant was in his shirtsleeves on the day of the trial or not. That fact was apparent to any one. The witnesses who knew the defendant and saw him on the day of the robbery testified that he had on a blue coat. It certainly should not be said that the prosecuting attorney should refrain from commenting on the testimony given by other witnesses because the defendant refrained from testifying as a witness.

We haATe carefully examined the record, and find no reversible error in it. It follows that the judgment will be affirmed.


author: Smith, J.

text:
    St. Louis Southwestern Railway Company v. Jones.
    Opinion delivered April 4, 1927.
    1. Appeal and error — conclusiveness op verdict. — A verdict based upon conflicting evidence is conclusive upon appeal.
    2. Appeal and error — Necessity of motion for new trial.— Refusal to grant service of a summons is not reviewable bn appeal where it was not assigned as error in the motion for new trial.
    3. Appeal and error — necessity of specific objection. — In an action by an employee for injuries received while loading ice into a car, where it was a question whose negligence caused the fall of ice and the injury therefrom, an instruction that, before the jury could find for plaintiff, they must find that a fellow servant on top of the car negligently let the' ice fall, to which only a general objection was made, cannot be objected to on appeal for not requiring that plaintiff should have exercised ordinary care.
    4. Appeal and error — harmless error — modification of instruction. — It was not prejudicial error to strike out a portion of a requested instruction which was fully covered by the remainder of the instruction which was given.
    Appeal from Miller Circuit Court; James II. McCol-him, Judge;
    affirmed.

      T. J. Gaughan, J. T. Siffnrd, J. E. Gaughan and E. E. Godwin, for appellant.

      J. M. Garter and B. E. Garter, for appellee.
   Smith, J.

Appellee brought suit in the Miller Circuit Court against ihe St. Louis SoutliAVCstern Railway Company of Texas to recover damages to compensate an injury sustained by him in the State of Texas Avhile employed by the defendant railroad company. He alleged, and offered testimony tending to show, that, while in the. discharge of his duties as a coach cleaner, be was assisting- another employee in loading ice into a dining-car. The method employed was for appellee, while standing.on the ground, to pitch pieces of ice to the other employee, who stood on top of the car. The employee on the car negligently allowed one of the pieces of-ice so pitched to fall from the top of the car as appel-lee was getting another piece of ice from his truck, and the piece of ice so allowed to fall struck the forefinger on appellee’s left hand and injured it so severely that its amputation became necessary. Appellee- recovered a judgment which is not assailed as being excessive if the railroad company is liable at all in this action, and this appeal is prosecuted to reverse that judgment.

Appellee’s injury occurred in Texarkana, just across the State line, in the State of Texas, and this suit was begun by service had on both the baggage agent and the ticket agent of the railroad company in the city of Texar-kana, the offices of these employees being on the State line, that of the 'baggage agent in Arkansas and that of the ticket agent in Texas.

A motion was filed to quash the service upon the ground that, the defendant railroad is a foreign corporation organized under the laws of the State of Texas, and does not engage in any business in the State of Arkansas, and has no agent in this State upon whom service of process can be had. Testimony was offered tending to support these allegations, but the trial court overruled the motion to quash the service.

Reserving this question in its answer, the defendant railroad company alleged that appellee’s injury was occasioned by his own negligence, and denied that it was guilty of any negligence. Testimony offered in support of these allegations was to the effect that appellee pitched a block of ice, 'which slipped from his hand and struck the eave of the car, and, falling back, struck appellee’s hand. •

The question of fact in the case is whether appel-lee ’s own negligence caused the injury, or whether it was caused by the negligence of the employee on top of the car. The evidence was in irreconcilable conflict on this question, and the verdict of the jury in appellee’s favor is conclusive of this conflict.

The action of the court in refusing- to quash the service of summons was not assigned as error in the motion for a new trial, and, this being true, the correctness of that ruling is not presented to us for review.

In the case of Prairie Creek Coal Mining Co. v. Kittrell, 106 Ark. 138, 153 S. W. 189, it was said: “The appellant also assigns as error the rulings of the court in refusing io grant its motion to quash the service, and in refusing to grant motions to have the complaint made more specific, and to strike out certain portions thereof. These assignments are the proper subjects for bills of exceptions, and they are not made grounds of the motion for a new trial, and hence we cannot review them” (citing cases).

The court gave, at'appellee’s request, an instruction numbered 1, reading as follows:

“If the jury find from the evidence that plaintiff, Tom Jones, was in the employ of the defendant railroad, and that he was in the discharge of his duties* in such employment, loading ice into a dining-car of the defendant, which car was to be used in one of the defendant’s trains which carried interstate passengers, and that another employee of defendant negligently let fall a piece of ice from the top of the car, which ice struck and injured plaintiff, then you will find for the plaintiff.”

Only a general objection to this instruction was made at the trial, and it is now insisted that the instruction was erroneous in that it did not require the jury to find, before returning a verdict in appellee’s favor, that appellee was in the exercise of ordinary care for his own safety at the time of his injury.

This is an objection which we think should have been specifically made at the trial, and especially so in view of the issue of fact here joined. The question of fact in the case is, “Whose negligence was responsible for the falling of the piece of ice?” It is not contended that there was concurring negligence, and the instruction required the jury to find that the employee on top of the ear negligently let the piece of ice fall before returning a verdict in appellee’s favor.

The court, after correctly defining negligence, gave, at the request of the defendant railroad company, an instruction which told the jury that there could be no finding for the plaintiff unless he had proved, by a preponderance of tlié evidence, "first, that the defendant’s servant on'top of the car actually caught the piece of ice alleged to have been thrown up to him by the plaintiff, and, second, that, after catching it, the said servant on top. of the car negligently let the said piece of ice fall out of his hands and on to the plaintiff’s hand.” This instruction fully and fairly submitted the issue of fact to the jury. The instruction as requested contained a third essential for the jury to find before returning a verdict for the plaintiff, which reads as follows: "and, third, that such piece of ice fell out of the hands of the servant on top of the car, if it did fall out of his hands, as a result of negligence on the part of such servant. ” An exception was saved to the action of the court in striking out the language last quoted, and it is argued that the requirement there stated should also have been imposed. We think there was no prejudicial error in ' striking-out this third condition, for the reason that it was substantially covered in the other two conditions stated as essential to a recovery which were given by the court.

We think the instructions as a whole fully presented the issue of fact to the jury, and correctly declared the law applicable thereto, and, as no other errors are assigned except those herein discussed, the judgment must be affirmed, and it is so ordered.


author: Smith, J. Smith, J.,

text:
    McGregor v. Miller.
    Opinion delivered April 4, 1927.

      1. Counties — fiscal year. — Under Amendment 11 to the Constitution authorizing counties, cities and towns to refund their existing- indebtedness by issuing- bonds, and prohibiting- them from making- any contracts or issuing any warrants in excess of the revenue for the current fiscal year, held that, the Legislature having-declared, by Acts 1925, p. 608, that the fiscal year for issuing bonds shall beg-in on January 1 and end on December 31, the fiscal year-as thus declared will be held to be the fiscal year for all purposes, including the determination whether allowances by the county court exceeded the county revenues during the fiscal year.
    2. Counties — negotiability of county warrants.- — County warrants are not negotiable instruments within the law merchant, and persons taking them take with notice of the purpose for which they were issued and of the order of the county court authorizing their issuance.
    3. Counties — warrants in excess of revenue, — Under Const., Arndt. 11, county warrants issued, as well as contracts made, in excess of revenues for a fiscal year, are void, and the action of the county court in issuing such a warrant or in making an allowance on which such a warrant might later be issued is cor am non judice.

    4. ' Counties — warrants partly in excess of county revenue.— A warrant for $30, issued by the county court, which was $12.50 in excess of the county’s revenue for the fiscal year, was not entirely void, but was void only to the extent of such excess, and the county court could reissue a warrant for $17.50.
    5. Counties — warrants in excess of revenue. — Under Const., Arndt. 11, a county warrant issued for an obligation incurred in the preceding year in excess of the revenues for that year is void, though the revenues for the year in which it \jas issued had not been expended when it was issued.
    6. Counties — rights of holder of valid warrant. — The holder of a valid county warrant, may, by appropriate action, compel the receipt and payment of his warrant to the exclusion of an invalid warrant, and may, if necessary, enjoin the redemption of an invalid warrant, and a collecting officer of the county receives an invalid warrant at his peril, and is not entitled to take credit for it in his settlements.
    Appeal from Woodruff Circuit Court, Northern District; IF. D. Davenport, Judge;
    affirmed.

      W. J. Dungcmi, for appellant.
    ■ R. D. Smith, J. F. Summers and Roy D. Campbell, for appellee.
   Smith, J.

The judgment here appealed from was rendered upon ail agreed statement of facts. After declaring as a matter of law that the fiscal year for determining whether allowances made by the county court, under Amendment No. 11 to the Constitution, exceeded the county revenues, begins on January 1 and ends December 31, the court recited in the judgment the following facts:

Warrants for the fiscal year 1926 were issued in excess of the revenues for that year, and certain of these warrants found their 'way into the hands of the collector of the county, who sought, by mandamus, to compel the treasurer of the county to receive them from him in settlement of his collections for the county’s account. Warrant No. 622, which was for the sum of $30, was $12.5.0 in excess of the 1926 revenues. The court found that this warrant was void, as to this excess, but might be reissued for the sum of $17.50. ' That certain warrants were issued in 1926 upon claims arising in 1925, and, when issued, were in excess of the 3926 revenues. Certain other warrants were issued for such claims as the construction of a bridge (the necessity therefor being urgent), the fees of a juror, and electric current for lighting the courthouse, etc. All these warrants were declared invalid for the reason that their allowance and issuance made the county’s expenses exceed the county’s revenues, and this appeal is prosecuted to review that judgment.

The present appeal involves the further construction of Amendment No. 11 to the Constitution, it being contended that the cases of Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782, and Nelson v. Walker, 170 Ark. 170, 279 S. W. 11, in which the amendment was interpreted, are not decisive of the questions raised on the present appeal.

So much of the amendment as it is necessary here to consider reads as follows: “The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and no county court or levying board or agent of any county shall make or authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any county judge, county clerk, or any other county officer, sign or issue any scrip, warrant, or make any allowance in excess of the revenue from all sources for the current fiscal year; nor shall any city council, board of aldermen, board of public affairs,or commissioners of any city of the first or second class or any incorporated town, enter into any contract or make any allowance for any purpose whatsoever, or authorize the issuance of any contract or warrants, scrip or other evidences of indebtedness, in excess of the revenue for such city or town for the current fiscal year; nor shall any mayor, city clerk, or recorder, or any other officer or officers, however designated, of any city of the first or second class or incorporated town, sign or issue any scrip, warrant or other certificate of indebtedness in excess of the revenue from all sources for the current fiscal year.”

It is pointed out that neither of the opinions above referred to define the “fiscal year” mentioned in the amendment, and we are asked to decide when this year begins and ends.

The amendment .was adopted by the people at the general election in 1924, as declared in the case of Brickhouse v. Hill, 167 Ark. 513, 268 S. W. 865, the opinion in that case being delivered February 16, 1925. Thereafter the General Assembly, which was in session at the time of the rendition of this opinion, passed act No. 210, which was an act entitled “An Act to facilitate the funding of the debts of counties, cities and incorporated towns.” This act was approved March 23,1925. Acts 1925, p. 608.

This was an enabling act to make effective the provisions of the amendment authorizing counties, cities and towns to refund their existing indebtedness by issuing bonds. Section 7 of this act reads as follows* “The fiscal year of each county, city and town in this State shall begin with the first day of January and end at midnight on the 31st day of December of each year. ’ ’

Having declared when the fiscal year shall begin and end for one purpose, we perceive no reason why, within the meaning of the amendment, the year designated should not be the fiscal year for all purposes of the amendment. Wo do not think the amendment contemplated that there avouM be one fiscal year for some purposes of the amendment and a different fiscal year for other purposes. The amendment itself did not provide Avhen the fiscal year should begin and end, and this was done by the enabling act herein referred to, and, having declared that the fiscal year should begin on the 1st day of January and end December 31 for one purpose, avo. hold that the year thus defined is the fiscal year for all purposes of the amendment.

Counsel recognizes the effect of our decisions in the cases of Kirk v. High and Nelson v. Walker, supra. Indeed, there appears to be no reason to misapprehend their purport. They construe the amendment to mean what it plainly says, that is, that counties, cities and towns shall not expend in any Amar or make allowances covering obligations incurred in excess of the revenues for the year in which such expenses Avere incurred or obligations made. We recognized and declared the drastic effect of the amendment, and it is unnecessary to repeat here Avhat Avas there said.

Counsel for appellant argues that these former deci-' sions do not relate to AA-arrants actually issued, although they were in excess of the revenues. It is argued that these warrants are negotiable instruments and that title thereto passes by delivery, and that, if the county issues these negotiable obligations to pay, many innocent purchasers may acquire them, and that it avouIoI bo a fraud to declare such warrants Amid.

• In ansAver to these contentions it mav be first said that county warrants are not negotiable instruments in the sense of the law merchant, and persons acquiring them take them with, notice of the purpose for which they were issued and of the order of the county court authorizing their issuance. Vale v. Buchanan, 98 Ark. 299, 135 S. W. 848; Watkins v. Finger, 120 Ark. 476, 179 S. W. 653.

But another and more effective answer is that warrants issued, as well as obligations incurred, which are in excess of the revenues, are void, and the action of the court in issuing a warrant, or in making an allowance upon which a warrant might later' be issued, is cora/m non juclice, and said warrants and allowances are void.

We think the court was correct in holding that tlie $30 warrant was not entirely void, hut was void only to the extent that it ivas in excess of the revenues of the county for the year in which it ivas issued, and the county court may therefore reissue that warrant, as ordered by the court heloiv.

The judgment of the court below accorded with the views here expressed, and the judgment to that effect is affirmed.

Smith, J.,

(on rehearing). Counsel, in the petition for rehearing, calls attention to the fact that one of the county warrants here involved was issued in 1926 for a claim arising in 1925, and points out that,, at the time this allowance was made, the 1926 revenues had not been .expended. This doe« not alter our conclusion. This claim was void because it ivas an obligation incurred in the year 1925 in excess of the revenues of that year. We think we have made it plain that a county cannot incur any obligation in any year which exceeds the revenues of that year, and, if this is done, such obligations are-void, and cannot he paid out of the revenues of a succeeding year. Tf this could he done, obligations could thus he carried from one year to another. The revenues of one year would he applied to the discharge of obligations of a previous year, and one of the purposes of the. amendment was to prevent this from being done.

The brief on the petition for rehearing discusses the question of priority of warrants issued by a county where the total amount of warrants issued exceeds the revenues. .This is a condition -which, the amendment was intended to prevent.. If such a condition arises, those warrants issued in excess, of revenues are void. Those warrants are valid which, at the time of their issuance, do not exceed the revenues. All others are void. The holder of ia valid warrant may, by an appropriate action, compel the receipt and payment of his warrant, to the exclusion of an invalid warrant, and he may, if necessary, enjoin the redemptiomof an invalid warrant. More than that, the invalid warrant cannot be received by any collecting officer of the county, and the officer who does receive it does so at his peril, and is not entitled to take credit for it in any settlement of his accounts, because the warrant is void. It is issued without authority, and the action of a collecting- officer in receiving- it cannot give it validity.

It is argued that this construction will in some cases work hardships, and has done so in the instant case. If this is true, it can only be answered, as we said in the original opinion herein as well as iii the previous cases there cited, that the plain and ofbvious purpose of the amendment was to prevent counties from expending in any year, for any purpose, any sum in excess of the' revenues for that year.

The petition for rehearing is therefore overruled.


author: Humphreys, J.

text:
    Huff v. Udey.
    Opinion delivered April 4, 1927.
    1. Statutes — passage op act — PRESUMPTION.—Where the legislative journals recite the final passage of an act in legal form by a yea and nay vote, .it will be presumed that the act was read in conformity to Const, art. 5, § 22, providing that every bill shall be read three times, unless the journal entries show the contrary; and this presumption cannot be overcome by oral testimony that the bill was not read at length.
    2. Statutes — act broader than title. — The fact that an act is broader in effect than is indicated by its title does not render the act invalid, as the Constitution does not require that the caption should indicate all oi the subject-matter of the act.
    3. Statutes — construction with reference to title. — The fact that the title of an act is more restricted than the act itself will not be considered in determining the legislative intent where the act itself is unambiguous.
    4. Statutes — construction of statutes adopted at same session. —Sp. Acts 1923, p. 1562, relating to prohibition of the running of live stock at large, cannot be read together with Sp. Acts 1923, p. 843, passed at the same session, relating to hogs, sheep and goats • only, the subject-matter, territory and dates of passage being different.
    Appeal from Pulaski Chancery Court; John E. Mar-tineau, Chancellor;
    affirmed.

      Mehaffy & Mehaffy, for appellant.

      Rose, Hemingway, Cantrell S Loughborough, for appellee.
   Humphreys, J.

Appellant, a citizen of Pulaski Restricted District No. 3, in Pulaski 'County, Arkansas, brought suit in the chancery court of said county against appellee,- impounder of said district, to enjoin him from impounding the stock of appellant and other taxpayers, upon the alleged ground that act 639 of the Acts of the General Assembly of 1923, under which the district was created, is void. The district was established by order of the county court of Pulaski County on November 20,' 1925, under § 4 of said act, and embraced certain territory in Pulaski County south of the Arkansas River.

The validity of the act is first attacked because the journals of the Legislature failed to show that the act was read at length on three different days in each House, or that the rules were suspended so that it might be read a second or third time on the same day, as required by § 22, article 5, of the Constitution. The Constitution does not require that the journal show that the act was read at all, provided the journal recites the final passage of the act in legal form by a yea and nay vote, for the court will presume that the act was read in conformity to the Constitution. Glidewell v. Martin, 51 Ark. 559, 11 S. W. 882; Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844; Pelt v. Payne, 90 Ark. 601, 30 S. W. 426; Helena Water Co. v. Helena, 90 Ark. 597, 216 S. W. 26; Rice v. Road Imp. Dist., 142 Ark. 457, 221 S. W. 179; Ewing v. McGehee, 169 Ark. 448, 275 S. W. 766. This presumption is conclusive, unless tlie journal entries themselves show to the contrary. The presumption cannot be overcome by oral testimony, as has been attempted, in this case. State v. Crowe, 130 Ark. 272, 197 S. W. 4, L. R. A. 1918A, 567 Ann. Cas. 1918D, 460; Harrington v. White, 131 Ark. 291, 199 S. W. 92; Perry v. State, 139 Ark. 227, 214 S. W. 2; Booe v. Sims, 139 Ark. 595, 215 S. W. 659; Road Imp. Dist. No. 16 v. Sale, 154 Ark. 551, 242 S. W. 825; Ruddell v. Gray, 171 Ark. 547, 285 S. W. 2.

The records of both houses not only show that the bill was read a third time and passed by a majority vote on a call of the yeas and nays, but also reflects that the act was read the flrst time on a different day, and on the day of the first reading the rules were suspended and the act was read a second time. There is nothing in the record reflecting* that it was not read at length. The record does not state that it was read by title only.

The validity of the act is next assailed on the ground that the title was not as broad as the subject-matter of the act. The title or caption of the act is a& follows:

“An act to prohibit the running* at large of live stock in certain portions of Pulaski County, north of the Arkansas River.”

Section one of said act not only prohibits running at large of cattle, horses, hogs, sheep or goats in that portion of Pulaski County, Arkansas, lying north of the Arkansas River and east pf the main line of the Missouri Pacific Railway, but it also prohibits them from running at large in any stock-restricted district in Pulaski County created bv order of the countv court of Pulaski County, as provided for in § 4 of said act. Section 4'of said act is as follows:

“Upon the petition of a majority of the owners of acres in anv area of Pulaski Countv containing* 640 acres or more of land in one body, it shall be the duty of the county court to lay off into a stock-restricted district the territory described in the petition, for the purpose of preventing the running at large in said area of any cattle, horses, hogs, sheep or goats, and to name as impounder of the district the person whose name appears in the petition, if the petition contains the name of an impounder recommended by the property holders, and, if not, then some one whom the county court thinks fitted for the place. All or any portion of any incorporated towns or cities may be included in such district.”

It is obvious that the title is not as broad as -the act, but there is no provision in our Constitution to the effect that the caption of an act must indicate all the subject-matter embraced in the act itself. Dickinson v. Cypress Creek Drainage Dist., 139 Ark. 76, 213 S. W. 1; Ewing v. McGehee, 169 Ark. 453, 275 S. W. 766.

Lastly, appellant assails the validity of the order of the circuit court creating the restricted district upon the alleged ground that, if said act is valid, it does not apply to territory in Pulaski County south of the Arkansas River. The contention is that, when the title of the act is considered along with the act itself, and read in connection with act 698, relating to the same subject and passed at the same session of the Legislature, the manifest. intention of the lawmakers was that said act 639 should not apply to or affect any territory south of the Arkansas River. The title or caption of act 639 is repugnant to the act itself and cannot be considered in arriving at the intention of the Legislature. If the act contained any ambiguity with reference to the territory covered, and the title was not repugnant to the provisions of the act, it might be looked to as an aid in arriving at the intent of the Legislature. The act, however, is not ambiguous as to the territory covered by its terms. Under § 3. thereof the county court is permitted to create a restricted stock district in Pulaski Oountv, except the territory therein north of the Arkansas River and east of the main line of the Missouri Pacific Railway, in the manner provided by § 4 of the act. 'By reference to § 4 it will be observed that the restricted district may be created by the court on petition of a majority of the owners of acres in any area of Pulaski County containing 640 acres or more of land in one body, meaning' in'any part of the county not north of the river and east of the railway. By reference to act No. 698, it will be observed that it does not cover the entire subject-matter covered by act 639, but related to hogs, sheep and goats only, in townships in the county lying south of the Arkansas River, and exempting a number of townships in the county entirely from its provisions. The acts cannot be read together as one .act in arriving at the intention of the Legislature in either or .both, because they cover different subjects and apply to different territory. Act 639 was a later act than act 698, and for this reason, as well as the reason given above, was not repealed by act 698.

No error appearing, the decree is affirmed.


text:
    American Investment Company v. Hill.
    Opinion delivered April 4, 1927.
    1. Highways — validity op ordeR levying improvement assessments. — An order oí the county court levying road improvement assessments against lands, pursuant to Road Acts 1919, p. 1251, § 9, is not void because entered in a separate record hook from the regular hook in which the court’s orders were entered, which separate record was for road improvement district matters, and contained no opening or adjourning orders, and was not signed by the judge.
    2. Courts — signing records. — .The requirement that the judge- sign this record before final adjournment cannot avoid orders made and judgments rendered by him without signing the record, as such requirements are directory.
    3: Judgment — failure to enter. — Orders made and judgments rendered by courts .of record are not void on account of failure to enter them in the record book, since, if actually made, they may be entered nunc pro tunc at any subsequent time.

      4. Appeal and ERROR — question not raised below. — In a suit to cancel a sale of land for improvement tax, contention that the order levying the tax was void because it did not show the estimated cost of the improvement cannot be raised for the first time on appeal.
    5. Appeal and error — question not raised below. — In a consolidated suit to foreclose a mortgage and to cancel a sale of land for highway improvement tax, the question whether a lis pendens was filed in the tax foreclosure proceedings, not raised in the trial court, cannot he raised for the first time on appeal.
    6. Equity — decree in vacation. — Under Crawford & Moses’ Dig., § 2190, the chancery court is authorized, under Crawford & Moses’ Dig., § 2190, to render "opinion and sign decree in vacation, where the cause was submitted and tried in term time.
    7. Equity — requirement op signing decree. — Parties held to have waived the requirement that the chancellor sign a decree by approving it.
    Appeal from Prairie ■Chancery Court, Northern District; John E. Martmeau, Chancellor;
    affirmed.

      Craig & Wirmner and Evans & Evans, for appellant.

      Emmet Vaughan, for appellee.
   Humphreys, J.

This is an appeal from a decree rendered by the chancery court of Prairie County, Northern District, and entered in vacation, in consolidated cases Nos. 752 and 773. Case numbered 752, entitled American Investment Company v. Robert Hill, is- a foreclosure suit, and case numbered 773, entitled R. W. Kenyon and American Investment Company v. Robert Hill, is a suit to cancel a tax sale of the real estate described in the mortgage sought to be foreclosed, made on the 31st day of December, 1922, by E. E. Stock, commissioner in chancery, for road improvement taxes assessed against same for the year 1920.

The consolidated case was heard upon the pleading-s, exhibits thereto, and oral and documentary testimony, which resulted in a finding that the tax sale was valid, and a -decree in words and figures as follows :

“Thereupon it is considered, ordered and adjudged and decreed by the court that the plaintiff, the American Investment Company, have and recover of and from the defendant, R. "W. Kenyon, the sum of $431.41, and all cost of this proceeding, for which execution may issue at law. It is further considered, ordered, adjudged and decreed by the court that the complaint of the plaintiffs against the defendant, Robert Hill, be and the same is dismissed for want of equity, and the cost as to the proceedings against the said Robert Hill be and the same are hereby adjudged against the plaintiff, the American Investment Company and R. W. Kenyon, and that the title to the said north half of the southeast quarter and south half of the northeast quarter of section 30, township 4 north, range 5 west, be and the same is hereby forever quieted in the said Robert'Hill as against said plaintiffs, the American Investment Company and R. W. Kenyon, and that the said Robert Hill is entitled to a writ of possession thereto, upon application to the clerk of this court.”

Appellants seek a reversal of the decree upon the alleged grounds, first, that there was no legal levy of improvement assessments; second, that no lis pendens was filed in the suit foreclosing the lien for improvement taxes; and, third, the decree was void because entered in vacation and not signed by the chancellor.

(1). The contention is made that the order of the county court levying the improvement assessments on the 29th day of March, 1920, against the lands in the district, is rmid because entered in' a separate record book from the regular record book in which decrees and orders were entered, which separate record contained no opening nor adjourning orders of the court, and which was not signed by the county judge; it also appeared that the county judge did not sign the order of adjournment which Avas found on the regular record of the county court of date-March 29, 1920.' Section 9 of act 302 of the Acts of the Legislature 1919, Road Acts, vol. 1, page 1251, requires that the county court shall, at the time the assessment of benefits is filed, or at some subsequent time, enter upon its records án order, Avhich shall have the force of a judgment, providing that there shall be assessed upon the real property of the district a tax sufficient to pay the estimated cost of tlie improvement, with 10 per cent, added for unforeseen contingencies. It appears that the order in question was spread on the road improvement district record. We know of no good reason why the county court could not provide a separate record for the entries of orders pertaining to road improvement district matters, for purposes of convenience, rather than spreading them upon the same record hook provided for entering- orders made and judgments rendered by him. The requirement that a judge sign the record before final adjournment cannot void the orders made and judgments rendered by him, because such requirements are directory, and not mandatory. Fernwood Mining Co. v. Pluna, 136 Ark. 107, 205 S. W. 822. Orders made and judgments rendered by courts of record are not void on account of a failure to enter same in a record book. If actually made, such orders and judgments may be entered mine pro tnne at any time subsequent to making the orders or the rendition of-judgments.

Appellant also contends that the order is void because the testimony of the county judge was to the effect that he did not approve the original order of March 29. 1920. levying the taxes in said road improvement district. We do not so construe the testimony of the county .judge. He seems to have at first thought that the district was organized before he became county judge, but finally stated that he supposed he approved the assessments against the lands filed with the county clerk.

The further contention is made that the order is void because it did not show the estimated cost of the improvement contemplated. We do not understand that act 302, Acts 1919, makes such requirement. Section 7 of the act provides that the assessment list shall be filed with the clerk, and the record reflects that this was done. The question, however, may be disposed of on the ground that it was not raised in the court below and that it is too late to raise it on appeal,

(2). We are unable lo determine from the record' brought up whether a lis pendens was filed pending the tax foreclosure proceedings. As we understand, that question was not raised in the trial court, and is raised here for the first time. It is too late to raise the question for the first time on appeal. Keller v. Whittington, 106 Ark. 525, 153 S. W. 808.

(3). The record reflects that the consolidated case was submitted on November 3, 1925, which was a regular day of the November term of court, and that the decree was rendered in vacation, and, after being approved by the attorneys for appellants and appellee, was spread of record. We think that, when the record shows that the case was submitted and tried in term time and decided in vacation, it necessarily follows that the court took the cause under advisement. Having taken the cause under advisement, the court was authorized by § 2190 of Crawford & Moses’ Digest to render an opinion and sign a decree in vacation. It is true that the decree was spread of record without being signed by the chancellor, but appellants waived this requirement by approving the decree. The decree was approved by the attorneys for both appellants and appellee.

Appellants did not bring this suit and offer to redeem from the tax sale within the time provided for redemption from tax sales.

No error appearing, the decree is affirmed.


text:
    McClure v. Harrington.
    Opinion delivered April 4, 1927.
    Trial — instruction assuming disputed pact. — In a suit for damages to an automobile and contents, alleged to have been negligently pushed off a ferryboat into the river, it was error to assume total destruction of the car in submitting the issue as to the value of the property damaged, where the evidence showed that the car was recovered and had some value.
    Appeal from Miller Circuit Court; James H. McCol-lum, Judge;
    reversed.

      Will Steel, for appellant.
   Humphreys, J.

This suit was brought by appellees against appellant in the circuit court of Miller County to recover $1,000 damages for a second-hand Buick automobile, valued in the complaint at $400, and certain cooking utensils, clothes and suitcases, valued in the complaint at $600, alleged to have been negligently pushed off appellant’s ferryboat by his ferryman, after same had been received or accepted by said ferryman for transportation across Bed Biver at the McClure ferry. It was alleged that the property belonged to Hill Harrington, one of the appellees, and that the other appellee, Motor Mart Company, held a lien upon the car for a part of the purchase money.

Appellant hied an answer, denying seriatim the material allegations in the complaint, and interposing contributory negligence on the part of appellee, Hill Harrington, in further defense of the cause of action. Appellant also alleged in his answer that appellees made no effort to minimize their damages by taking or disposing of the car and its contents after being pulled out of the river by appellant.

The cause was submitted upon the pleadings, testimony adduced by each party, and the instructions of the court, which resulted in a verdict and consequent judgment in favor of appellees for $400, from which is this appeal.

The testimony adduced presented three issues of fact for determination by the jury, as follows:

First. Whether or not appellant, as a ferryman and common carrier, had received the property for transportation and had exclusive, custody of it at the time i+ fell into the river.

Second. Whether the automobile and its contents fell into the river through the contributory negligence •on the. part of appellee, Hill Harrington; and,

Third. Whether or not the car and its contents were lost and destroyed, or merely damaged by falling into the river.

The first and second issues of fact were submitted to the jury on conflicting- testimony, under proper instructions, and the trial court did. not err in refusing to set the adverse verdict to appellant aside.

The third issue of fact was not submitted to the jury for determination, under proper instructions, as it should have been. The court assumed that the property was totally lost or destroyed, and instructed the jury, if they found for appellees upon the issue of liability, that they should return a verdict in their favor for the value o£ the property at the time it was lost. In other words, the court submitted this issue to the jury upon the assumption that appellant had totally destroyed the property by allowing* it to fall out of the ferryboat into the river. This was error, for the undisputed evidence did not reflect that the property was totally destroyed by falling into the water. At the time the automobile fell into the river the water -was high. The river fell sufficiently, after two weeks, for appellant to pull the automobile and contents out of the water, which he did. The automobile was standing upright in the water on its four wheels, when reclaimed, and about the only injury it had sustained, in addition to the wetting and the time it remained in the water, was to the fenders. They were bent to some extent. One of the -witnesses who helped pull the ear out of the water said that he had had about two years’ experience with second-hand automobiles, and the automobile in question was worth about $75 or $100.

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


author: Kirby, J.,

text:
    Old American Insurance Company v. Eskue.
    Opinion delivered April 4, 1927.
    1. Insurance — age of insured — presumption.—The presumption that the age of insured in his application was truly stated was not overcome by a recital of a greater age in the proof of death by the beneficiary, signed by her, as she states, without reading and without knowing his age.
    2. Insurance — settlement under mistake. — A settlement and release executed by the beneficiary to the insurer, under a mutual mistake as to the insured’s age, thereby reducing the amount payable under the policy, was not binding.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    Appellee, tlie beneficiary in the policy of $1,000, brought suit against the insurance company for recovery ot‘ the amount thereof, -with penalty and attorney’s fees; alleged that the settlement made with her by the adjuster of the company for $45 was procured by false and fraudulent representations made in reaching the settlement, and denied that she was bound thereby.
    Demurrer to the complaint ivas filed and overruled, and the company answered, alleging the settlement of the claim for $45 in payment thereof, and exhibited with the answer its paid check made to the order of Mary Eskue, beneficiary, and the full release executed by her.
    It appears from the testimony that the policy was issued and delivered, was in force at the death of the insured, and that there was due under its terms, it the settlement was not effective, $423.25.
    The testimony also shows that, in the application for insurance written by the beneficiary at the request of the insured, who could not write, it was stated that he was born the 29th day of June, 1873, and his age at the next birthday was 53 years. The application signed September 1, 1924, also showed that a person over fifty-five years of age could not become a member of the company. Certificate and proof of death by the beneficiary, Mary Eskue, stated that the insured was born on the 29th day of June, 1866. In the physician’s certificate as to the proof of death, he answered question 3, “Give apparent age of deceased? 59 the 29th day of this month,” which was sworn to on the 8th day of June, 1925.
    When the proofs of death were received, showing that the insured was more than fifty-five years of age at the time of the application and issuance of the policy, an adjuster was sent to the beneficiary, who told her the company was not liable for payment of the policy, because the insured was more than fifty-five years of age at the time of the application therefor and issuance of it, and offered to return the premiums paid in settlement.
    The beneficiary stated she did not know the age of the insured, had never known it, and asked that she have some little time to look into the matter. The adjuster insisted upon immediate settlement, and she finally accepted $45 in settlement, with the statement of the adjuster that the insured was too old to become a member of the association.
    She testified that she did not make out or write her answer in proof of loss, and did not state that deceased was born on June 29, 1866; that she did not know his age, did not have the application for insurance by her when the agreement for settlement was made and the money paid; that, when she wrote the application,' she wrote down the statement'of deceased correctly and as he gave it, according to which he was within the age for insurance when the application was made and the policy issued.
    There was also some other testimony tending to show that deceased was not beyond the insurable age at the time of taking out the policy.
    The adjuster stated that he told the beneficiary that the proof of loss showed that the insured was over the insurable age when application was made and the policy issued, and there Avas no liability at all for the payment of the policy, but that the premiums would be returned.

      The beneficiary acquiesced in his. statement, bnt insisted that she ought to have $45, as that would pay. off a mortgage on their mules, and she agreed to this, a check was given in payment, and the release executed.
    Another witness stated that she was present, when the settlement was agreed upon; that the adjuster offered $18.20 as the premiums and $25 more, and that it was finally agreed to pay and accept $45 on account of the mortgage on the mules.
    Appellant, at.the conclusion of the plaintiff’s testimony, moved the court to instruct a verdict in its favor, because the evidence introduced was not sufficient to warrant a verdict for the plaintiff, and because of no evidence of fraud or duress in procuring the release. The court thereupon asked if there were any allegations in the complaint on mistake of facts, and, being answered in the negative, said that the plaintiff could allege either fraud, duress or mistake of fact, whereupon plaintiff asked to amend the complaint to show that the release was given on account of a mistake of fact, and the amendment was made and the motion to instruct the verdict overruled.
    Testimony was introduced by defendant, the policy itself being exhibited, showing a memorandum written on the margin: ‘ ‘ This policy canceled and surrendered to company; settled in full for $45,” signed by the adjuster.
    ■Mr. Judd, president of the company, testified that insured died on May 31,1925; that the blanks of proof of death were' sent out, and the physician’s certificate returned showed the answer already stated above. He then sent an adjuster to the beneficiary to make settlement under the policy by return of the premium, $18.20, which was all she was entitled to, and that, upon the age represented in the application, the maximum amount of the policy would have been $423.25. He said, too, that he was an expert on handwriting, and believed that the date of birth written in the proof of loss was written by the beneficiary, insured’s wife.
    It was conceded that Mr. Judd had stated correctly the amount that could be recovered under the terms of the policy, if it was valid.

      Appellant asked for a special finding by the jury, which was denied, and the court instructed the jury, which returned a verdict in appellee’s favor for the amount ag’reed which was the maximum that could be recovered under the policy, and, from the judgment thereon, the appeal is prosecuted.

      John L. Crank, for appellant.

      George G. Stockard, for appellee.
   Kirby, J.,

(after stating the facts). The appellant contends that the testimony shows conclusively that the insured was over the insurable age of fifty-five years at the time of the application for and issuance of the policy and that the verdict is not supported by the evidence.

If the statements of the proof of death was the only evidence in the case, this contention would be correct, since the undisputed testimony would show such to be the fact; but there was other testimony, and the positive statement in the application made by the insured himself, according to the testimony of the beneficiary, who wrote it, giving the day and year of insured’s birth, which showed him within the insurable age, and there was also other testimony tending to show that he was not beyond the insurable age, and the jury found in appellee’s favor on the conflicting testimony.

In Joyce on Insurance it is said: “A presumption exists that the applicant has truly stated his age, in the absence of proof to the contrary, and the burden is upon assurer to disprove such statement, and such presumption is not overcome by the statements made in proofs of death furnished by one of the beneficiaries under the policy. This presumption will, however, be overcome by proper evidence; * but a misstatement as to age is not established by insufficient evidence.”

Mrs. Eskue, the appellee, stated that she signed the proof of death, which was not written by her and which she did not read, but that she made no such statement as written therein relative to insured’s age, which she said she did not know and never had known. It is urged, in any event, that there was a settlement in full of all liability under the policy and a release executed to the company by the beneficiary, that it was a compromise settlement of a disputed claim, and binding.

It is true that an agreement of settlement for $45 was made, the money paid and the release executed, and that no fraud was perpetrated hv the insurance company in its procurement, but the undisputed testimony also shows that this was done under the mistake of facts by both parties as to insured’s being over the insurable age at the time of issuance of the policy, and the settlement avou]d not have been made otherwise. It is stated in 5 Joyce on Insurance, §■ 3319: ‘Els a general rule, the statements made in the proofs of loss or of death are not conclusive upon the claimant, where, they am made in good faith and with no attempt at fraud, and mistakes therein may be corrected.”

This court has allowed releases consummating settlements of claims for damages set aside and held no defense to an action for the injury,- where the settlement was based upon mutual mistake of fact. St. L. I. M. & S. R. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803; St. L. I. M. & S. R. Co. v. Morgan, 115 Ark. 529, 171 S. W. 1187.

The jury having found, under proper instructions, that the release was executed under a mutual mistake of fact, the settlement had no effect as a compromise settlement of a disputed claim, and did not bar appellee’s right to recover, having no such effect as a compromise of a disputed claim.

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