author: Mehaepy, J.

text:
    Kansas City Southern Railway Company v. Fort Smith Suburban Railway Company.
    Opinion delivered November 25, 1929.

      F. E. Moore, James B. McDonough and George W. Dodd, for appellants.

      Edward J. White and Thomas B. Pryor, for appellees.
   Mehaepy, J.

The appellants brought suit in the chancery court of Sebastian County against the appellees, praying for a mandatory injunction enjoining the appellees from further refusing to receive and switch cars, as set forth in the complaint, and compelling them to receive, switch and deliver cars within the city of Fort Smith, as the Fort Smith Suburban Railway Company was obligated to do under its franchise and charter. It also asked for the sum of $37.80 damages.

The Kansas City Southern Railway Company is a common carrier, organized under the laws of the State of Missouri, owning- and operating a line of railroads extending through several States, and has a station and lines of railroad within the city of Fort Smith, Arkansas. It receives and transports goods, wares and merchandise in intrastate and interstate traffic, and transports from other States and 'from other parts of Arkansas goods, wares and merchandise for delivery within the city of Fort Smith, Arkansas.

The Missouri Pacific Railroad Company is also engaged in interstate and intrastate traffic and transportation, and it also receives and transports goods, wares and merchandise in intrastate and interstate traffic, and transports from other States and from parts of Arkansas goods, wares and merchandise for delivery in the city of Fort Smith.

The Fort Smith Suburban Railway Company is a corporation organized under the laws of the State of Arkansas, and has its principal place of business within the city o'f Fort Smith, Arkansas, and owns and operates a railroad approximately six miles in length, and it was organized for the purpose of constructing, maintaining and operating a switch line, generally known as a switching line railroad, extending through the city of Fort Smith, and the principal purpose was the construction of a switching line railroad to receive and transport carload freight arriving in Fort Smith from the point of its reception in the city of Fort Smith to the point of its destination in said city of Fort Smith. It was organized and constructed for switching purposes. It secured the right-of-way for the purposes named, and was granted the right to lay its track in the city of Fort Smith by an ordinance of said city, § 6 of which reads as follows:

“The city council reserves to itself full power and authority to control and regulate the speed of all cars, engines, trains and other rolling stock, and to pass, enact and enforce such ordinances as they may see fit to protect the property, secure the lives, safety and welfare of its inhabitants; also reserves the right to lay sewer pipes, water mains, etc., and overhead wires under and over their tracks; (provided that said railway company shall receive and deliver all cars that may be offered to it by other railroads, individuals or corporations, and that the charges 'for such handling, known as switching charges, shall not exceed two dollars per car).”

The Missouri Pacific Railroad Company, through stock ownership, controls and operates the Fort Smith Suburban Railway Company, which receives and switches all cars for the Missouri Pacific Railroad Company in carloads or merchandise and articles moving in interstate commerce, and transports the same to points within the city of Fort Smith, and refuses to receive, switch and deliver the cars handled by the Kansas City Southern Railway Company, and it is alleged in the complaint that the appellees received, switched and delivered cars at Kinkead Spur, on the Fort Smith Suburban Railway Company, for the Missouri Pacific Railroad Company, and refused to receive carloads of merchandise and articles transported to the same points within the city of Fort Smith of the Kansas City Southern Railway Company. It is alleged in the complaint that there are a number of other ordinances of the city of Fort Smith, and other shipments of the Kansas City Railway Company have been refused at places where they receive, switch and deliver cars for the Missouri Pacific.

The appellees filed a demurrer as follows: (1). That said complaint does not state facts sufficient to constitute a cause of action against the defendants; (2) that said complaint does not state facts sufficient to constitute a cause of action against the defendants within the jurisdiction of this court; (3) that the complaint shows that the shipments involved are interstate, the cars being shipped from Dewey, Oklahoma, to Fort Smith, Arkansas, and therefore are governed by the rules and regulations of the Interstate Commerce Commission under the provisions of the Interstate Commerce Act, as amended; (4) that the Interstate Commerce Commission has exclusive jurisdiction of the matters alleged in the complaint herein.

The court below sustained the demurrer and dismissed the complaint, and, to reverse the decree of the court in sustaining the demurrer and dismissing the complaint, appellants have prosecuted this appeal.

The appellee’s first ground of demurrer is that the complaint does not state facts sufficient to constitute a cause of action against the defendants. The demurrer, of course, admits the truth of the allegations in the complaint. Appellee quotes from I. C. C. Reports, vol. 24, 292, as follows :

‘ ‘ There is no industry located upon the track in question at Fort .Smith. It is not denied that it is a team track, and therefore the tariff referred to had no application to the service demanded.”

The complaint, however, in the instant case states that Kinkead Spur is a spur track on the line of the Fort Smith Suburban Railway Company, at which point the appellees deliver carload freight. The complaint also states that the said Suburban, during that time, received and switched all cars moving over the Missouri Pacific Railroad Company; it performed the service fully for the Missouri Pacific, hut refused to perform it for the Kansas City Southern. The allegations above set out, together with the other allegations in the complaint, are sufficient on general demurrer.

“This court has frequently held that, in testing the sufficiency of a pleading by general demurrer, every reasonable intendment should be indulged to support it; and that, where facts are defectively stated, the remedy is by motion to make more definite and certain, and not by demurrer.” Driesbach v. Beckham, 178 Ark. 816, 12 S. W. (2d) 408; Tolbert Bros. & Co. v. Molinder, 178 Ark. 888, 12 S. W. (2d) 780; Wright v. Lake, 178 Ark. 1184, 13 S. W. (2d) 826; Choctaw, Okla. & Gulf Ry. Co. v. Doughty, 77 Ark. 1, 91 S. W. 768.

The next ground of demurrer is that the complaint does not state facts sufficient to constitute a cause of action against the defendant within the jurisdiction of this court. The complaint alleges a continuing wrong, and, if the allegations in the complaint are true, there would necessarily be a multiplicity of suits, and therefore the chancery court had jurisdiction. If the suit was improperly brought in equity, the defendant might have filed a motion to transfer to the law court, and, if the court sustained the demurrer because the suit should have been brought in the circuit court, instead of the chancery court, it should have transferred the cause to the proper court, instead of dismissing it. -Section 1041, Crawford & Moses’ Digest.

‘ ‘ The demurrer should not have been sustained and the complaint dismissed for the error of the complaint as to the kind of action, but the court should have treated the demurrer as a motion to transfer to equity, and the action should have been transferred to the chancery court.” Grooms v. Bartlett, 123 Ark. 255, 185 S. W. 282.

Appellee’s grounds for demurrer numbers three and four raise the question thait the Interstaté 'Commerce Commission has exclusive jurisdiction of the matters alleged in the complaint, and that these shipments are interstate shipments, and are governed by the rules and regulations of the Interstate Commerce Commission under the provisions of the Interstate Commerce Act as amended.

Appellee first calls attention the case of Spratlin v. St. Lends Southwestern Ry. Co., 76 Ark. 82, 88 S. W. 836, to support the contention that a State statute or a municipal ordinance in conflict with the Interstate Commerce act is invalid. There is, however, in this case no question of any conflict. The ordinance of the city of Fort Smith requires the .Suburban Railway Company to receive and deliver all cars that may be offered it by other railroads, individuals or corporations. 'There is not only no conflict between this provision of the ordinance and the Interstate Commerce act, but this is exactly what the interstate act itself requires of the switching railroad company.

There is no contention that the Suburban Railway Company is not a railroad company and a common carrier, but it was organized for the special purpose of receiving, switching and delivering cars in the city of Fort Smith, and this it must do under the Federal statute. And the question is not one for the exercise of administration on the part of the commission, but is a question of law for the courts. The Fort Smith Suburban Railway Company is not an extension of the Missouri Pacific’s railroad or a branch of that railroad, nor is it a spur of the Missouri Pacific Railroad Company. It is not an industrial, team or switching track of the Missouri Pacific Railroad Company, but it is an independent corporation organized for the purpose of switching cars, and, being a common carrier and public utility, it must treat all alike. If Kinkead .Spur is a place for the delivery of freight, as alleged in the complaint, then freight must be received by the Fort Smith Suburban Railway Company offered from any of the railroads. And, whether the Fort Smith Suburban Railway Company is operated-by the Missouri Pacific or not, whoever operates it is bound to receive shipments of 'freight from all persons alike.

The question of rates, fares, charges or the value of services rendered is not involved in this case. These questions are, under the Federal statute, questions for the Interstate Commerce Commission. Of course the Fort Smith Suburban Railway Company would not be required to receive cars at a place other than a depot or switch or track provided for the purpose, but the allegations of the complaint are that the Fort Smith Suburban always receives and handles the cars of the Missouri Pacific, and refuses to receive and handle the cars of the Kansas City Southern. Appellee is correct in stating that a railway company has the right to earn a fair return on the value of the property which it devotes to the public service, but, as we have already said, there is no question of remuneration or fares involved in this case.

It would serve no useful purpose to discuss or refer to the many authorities cited and relied on by the parties, for the reason that the cases relied on by appellee are cases where the factá" are wholly unlike the facts alleged in the complaint in this case. The Fort Smith Suburban is not a terminal, branch, or a spur of the Missouri Pacific, and is not operated as a part of the Missouri Pacific system. It is an independent corporation, and it is wholly immaterial who owns the stock. As long as if operates as a switching railroad, it must serve all parties alike.

As said by the court in the case of Missouri Pacific Railroad Company v. Larabee Mills: “Whenever one engages in that business, the obligation of equal service to all arises; and that obligation, irrespective of legislative action or special mandate, can be enforced by the courts. Neither is there any significance in the absence of a special contract between the Missouri Pacific and the mill company. * * * There is no suggestion that the amount of this charge was changed in favor of any other shipper, and, so long as that was so, it was the charge which the Missouri Pacific was entitled to make for cars transferred at the instance of the mill company. If in the 'future a change is made in behalf of shippers generally, undoubtedly that change can be made operative in respect to the mill company. Indeed, all these questions are disposed of by one well-established proposition, and that is that a party engaging in the business of a Common carrier is bound to treat all shippers alike, and can be compelled to do so' by mandamus or other proper writ.” Missouri Pac. Ry. Co. v. Larabee Mills, 211 U. S. 612, 29 S. Ct. 214.

The appellee, however, argues that the case of the Missouri Pac. Ry. Co. v. Larabee Mills presented a different question; that a different question was involved in that case to that in the case at bar. It says that there is no allegation in the complaint that any industry is located upon what is termed the Kinkead Spur. It is true that the complaint does not allege any industry, but it does allege tfyat the Kinkead 'Spur is a place where the Suburban receives cars, and that it receives all the Missouri Pacific ears there, and refuses to receive the Kansas City Southern. As we have already said, this is sufficient on demurrer.

It is further contended that the above-mentioned case was decided by the Supreme Court of the United States before the later amendments to the Interstate Commerce Act, and before the passage of the transportation act. But appellee itself calls attention to § 3 o'f the Interstate Commerce Act, which provides: ,,

“Every common carrier subject to the provisions of this act shall, according to their respective powers, afford all reasonable, proper and equal facilities for the interchange of traffic between their respective lines, and for the receiving’, forwarding and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines; but this shall not be construed as requiring any such common carrier to give the use o'f its tracks or terminal facilities to another carrier engaged in like business.”

The Missouri Pacific and Kansas City Southern are both railroad companies, interstate carriers, and the Suburban line is located in the city of Fort Smith, organized for the purpose of switching. It is a switching railroad, and, while it is a common carrier, it is not engaged in the same business as either of the others, hut is engaged in switching exclusively.

The whole question is summed up in the statement in the case of Missouri Pac. Ry. Co. v. Larabee Mills, supra, and there oould be no useful purpose served in extending this opinion or commenting on the authorities relied on by the parties. It follows, from what we have said that the decree must be reversed, and the cause will be remanded, with directions to overrule the demurrer. It is so ordered.


source: Caselaw Access Project

author: M cHaney, J.

license: Public Domain

text:
    Firemen's Insurance Company v. Simmons.
    Opinion delivered November 25, 1929.

      McMillen & Scott, for appellant.

      Marveline Osborne, Robert Bailey and Mays, Priddy & Rorex, for appellee.
   M cHaney, J.

On November 13, 1928, appellee, Simmons, applied to the Pope County Real Estate Company, general agents for a large number of fire insurance companies, for a policy of fire insurance on his store building' and fixtures, located about fourteen miles north of Russellville. Mr. Luck, acting for the Pope County Real Estate Company, issued and delivered to him on the same date a policy in appellee company, the Bankers’ & Shippers’ Insurance Company, covering $600 on the building and $200 on the fixtures, for which the premium was paid by Simmons in cash. The issuance of this policy was reported by the agency in Russellville to the company’s general agents in Memphis, who directed a cancellation of the risk. Just when this was done is not shown. However, this policy was not immediately canceled by Mr. Luck, who attended to the matter, but on December 20, without the knowledge of the insured, he issued another policy in appellant company covering this same risk. The insured had not directed him in what company to place the risk, and he wrote it, in accordance with his custom, in any company he wished — one he thought would carry the risk. Luck had not. notified Simmons that the Bankers’ & Shippers’ had instructed him to cancel the policy, or that he had done so, or that he had rewritten it in appellant.

A fire occurred on December 21, 1928, which destroyed the property insured. Notice o'f loss was given both companies by Simmons, both denied liability, and this suit followed. It was tried before the court sitting as a jury, which resulted in a judgment against appellant for the full amount, with penalty and attorney’s fee. The court found for appellee Bankers’ & Shippers’ and dismissed the complaint as to it. The Firemen’s Insurance Company has appealed from the judgment against it, and Simmons has taken a cross-appeal as against the Bankers’ & Shippers’ Insurance Company.

It is first argu,ed by appellant that the complaint failed to state a cause of action against it, and that its demurrer should therefore have been sustained. The complaint was directed against both companies, a kind of double-barreled action, with the hope that, if one escaped liability, the other might not. And while it is true the complaint, as to appellant, alleged that its policy was issued by the agent “without the knowledge or consent of the plaintiff, who still had charge of the first policy,” we do not think this allegation had the effect of negativing a cause of action against appellant. It was alleged that the policy was issued covering the risk, and judgment was prayed against it.

Neither was appellant prejudiced by being sued jointly with the Bankers’ & 'Shippers’. If it is liable for the loss sustained, and the other company is not, as the circuit court held, certainly appellant could not complain because another not liable was jointly made a defendant with it.

The real question in the case is whether appellant is liable at all under the facts and circumstances developed. The policy of the Bankers’ & Shippers’ contained a clause providing that the company might cancel the policy on five days ’ notice to the insured. This notice was not given. But we have many times held that this clause is 'for the benefit of the insured, and may be waived by him, and that the agent of the company may also be the agent of the insured to accept notice of cancellation, and keep' the property insured by writing it in another company. Phoenix Ins. Co. v. State, 76 Ark. 180, 88 S. W. 917, 6 Ann. Cas. 440; Allemania Fire Ins. Co. v. Zweng, 127 Ark. 141, 191 S. W. 903; Insurance Underwriters’ Agency v. Pride, 173 Ark. 1016, 294 S. W. 19; Home Fire Ins. Co. v. Parker, 177 Ark. 678, 7 S. W. (2d) 324. In most of the cases coming before this court, where the rule above stated'has been announced and followed, there appears to have been an agreement between the insured and the agent that the agent would keep the property insured, and this agreement may be either express or implied from the circumstances under which the policy was issued, or from continued course of conduct of the parties; as, for instance, where the agent renews on expirations, and accepts notices o'f cancellations and issues other policies in their stead, which is either known or acquiesced in by the insured. Take, for instance, the case of Ins. Underwriters’ Agency v. Pride, supra, the court said: “Both Pride and Howard conferred authority in the beginning upon Burns to insure their property in any company he represented, leaving the selection or designation of any company to him. Our court is committed to the doctrine that authority of such breadth and scope has the effect of constituting the agent of the insurer the agent of the insured also to accept the policy when written, and to waive the cancellation notice clause, and to accept a new policy in lieu of the old one.” Citing cases. Also, in the more recent case of Home Fire Ins. Co. v. Parker, 177 Ark. 678, 7 S. W. (2d) 324, we said:

“It is first insisted that the court committed error in refusing appellant’s request for a peremptory instruction. This contention is based on the ground that the policy of the Home Fire Insurance Company of New York was still in effect on the date of the fire, by reason of the five-day cancellation' clause heretofore mentioned, and that, under the concurrent insurance clause in its policy, same never became effective and binding on it, because of the prior insurance existing in the Home of New York. We do not agree with counsel in this contention, as the letter of Mr. Mixon.to appellee shows clearly that he had canceled the policy of the Home of New York, and that he had renewed the risk in appellant company. The five-day clause referred to does not apply to a situation of this kind. It is for the benefit of the policyholder. While the company has the right to cancel it, it cannot do so until the expiration of five days, without the consent of the policyholder, which gives him this time in which to secure additional insurance. Being for the benefit of the policyholder, it is a provision that can be waived by him, and was waived in this case by the acquiescence of appellee in the action of Mr. Mixon, who stated that he had canceled the policy in the Home of New York and had rewritten it in appellant company, to run one year from date, and it makes no difference that the policy was actually countersigned and delivered after the fire, because the appellee rested under the assurance of Mr. Mixon that his risk was covered. Mixon was the general agent for both companies, holding blank policies, with the power to execute and deliver and bind his companies immediately on fire insurance risks. Milwaukee Mechanics’ Ins. Co. v. Fuquay, 120 Ark. 330, 179 S. W. 497.”

So, in this case, we think an agreement may be fairly implied between appellee Simmons and the agent to keep his property insured, to accept notice of cancellation, to waive the five-day clause, and to write another policy in a company that would carry the risk. He applied for insurance, and left it to the agent to place it with any company he represented. He paid his premium for a year’s insurance, showing conclusively that he wanted insurance continuously for a year. He was willing to accept any company the agent represented, and we think it fair to assume that, if the company canceled its policy, he would expect the agent to write it in another. The agent .so understood Ms authority, and Simmons acquiesced in the agent’s action, for, after the fire, when advised that the first policy had been canceled and a new one written in appellant, he surrendered the one for cancellation and accepted delivery of the other, thereby ratifying the action of the agent. We therefore hold that the trial court did not err in holding appellant liable.

It is finally insisted that appellant is not liable for the reason that the building insured was on ground not owned by Simmons in fee simple, in violation of a clause in the policy providing that it should be void if the building be on ground not so owned by insured. This is not a suit to try title to the land on which the bmlding is located. Appellant and his grantors have been in possession of the land, paying the taxes thereon for many years, more than seven. There does not appear to be any adverse claimant, and, for the purposes of this litigation at least, he is the owner of the property.

We find no error, so the judgment must be affirmed. It is so ordered.


author: Butler, J.

text:
    Plunkett v. Hays.
    Opinion delivered November 25, 1929.

      Isaac McClellan and H. K. Toney, for appellant.

      Coleman & Gantt, for appellee.
   Butler, J.

Suit by J. P. Plunkett against George A. Hays for damages because of negligence resulting in the death of plaintiff’s child; verdict directed for defendant; judgment entered in accordance therewith, from which this appeal is prosecuted.

The testimony in this case presents a most unusual and tragic occurrence. The defendant in the court below was and is a practicing physician in charge and control of the Jefferson County Clinic. In October, 1928, the wife and two children of the' appellant, having been exposed to typhoid infection, visited the Jefferson County Clinic, where they were administered the preliminary treatment for the prevention of typhoid by having a serum injected hypodermically in the muscular tissues. These injections were made by a Mrs. Ferguson, one of the nurses in attendance at the clinic, and, after an interval of a few days, Mrs. Plunkett and her two children visited the clinic for a second administration of the anti-typhoid serum. They had spent the night before with relatives in Grant County, and, on their return to Pine Bluff, where they lived, went to the clinic, at about 2:30 o ’clock in the afternoon, where a nurse gave each of them a treatment for the prevention of typhoid. One of the children was a girl about five years of age, who, within a short time after the injection of the typhoid serum, began to suffer great pain. Her mother conveyed her and the other child in their car to their home, and a physician was immediately called. Not only was the little girl, Chlorine, very sick by that time, bnt the mother and the other child also. They all developed a high temperature, Mrs. Plunkett’s temperature registering about 104 degrees, the other child being very ill, while Chlorine was suffering from a temperature of about 108 or 109 degrees, accompanied by convulsions, and died about seven o’clock the following morning. After a time Mrs. Plunkett and the other child recovered from their illness.

The testimony of the mother and of the father, the appellant, was to the effect that all these persons were and had been in good health at the time of the administration of the typhoid shots, and that the child, Chlorine, who died, had never before that time been ill at all. The physician arrived at the home of the Plunketts some time in the afternoon, and remained in attendance upon the child during the night. Upon the death of the child the physician certified that the death was caused by protein poison. This, as explained by the physician, would be caused by “some food substance getting into the blood current.” A sample of the child’s blood was taken by the physician and given to a bacteriologist for examination, whose report showed that it contained no malarial parasites, and the count of the blood cells proved that the white blood cells were in greater amount than normal, which he explained would have been caused, among other things, from infection, but that such infection would not have been caused by typhoid. After the death of the child the appellant visited Dr. Hays’ clinic and made inquiries of the doctor in an effort to ascertain the identity of the nurse who administered the typhoid shots. This information was refused by the doctor, the appellant stating in his testimony that the doctor gave as a reason for refusing this information that “I was looking for trouble, and that he (the doctor) did not want to get his nurses into any trouble, and that he was liable for what they did. ’ ’

Appellant thereupon brought this suit, alleging in his complaint and amendments thereto that the “appellee (defendant) was negligent by injecting said serum in a vein, or by injecting the wrong serum, or by injecting some poison, tbe name of which is not known to the plaintiff, or by using a needle which was infected with poison, or by injecting said serum too deep in the arm, or by failing to properly sterilize said arm, or by failing to properly sterilize said needle, or by not exercising ordinary skill practiced by persons giving serum injection;” and further, that the defendant “did not use ordinary care, and was negligent in employing an incompetent nurse or employee, who gave the shots which caused the death of the said 'Chlorine Plunkett. ’ ’

On the trial of the cause the testimony above was adduced, and other testimony to the effect that the puncture made by the hypodermic needle showed no signs of inflammation, that it was administered at the proper place, and, from outward appearances, seemed to have been administered in a proper and skillful manner, and that the death of the child might have been occasioned by pernicious malaria.

In testing the action of the court in directing a verdict the testimony must be given its highest probative value in favor of the party against whom the verdict is directed, and must be viewed in the light most favorable to the appellant, and, where there is any evidence tending- to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury. Cruce v. Mo. Pac. Ry. Co., 167 Ark. 88, 266 S. W. 981. Applying this rule to the testimony in this case, we think that there was sufficient evidence to submit the question of the appellee’s negligence to the jury. It was shown that typhoid shots had been administered to the child by Mrs. Ferguson without any ill effect, and it is a matter of common knowledge that typhoid serum, when properly administered, results in only a temporary inconvenience, and in no serious illness. The fact that the child had been well until the time of the second administration of the serum, and that immediately thereafter she became violently ill, with a temperature which could not ordinarily be attributed to malaria, that she had convulsions, and in a short time became “profoundly unconscious, ’ ’ that the physician who attended her gave at one time as his opinion that the death was caused by protein poisoning, that no malarial parasites were found in the blood, that the count of blood cells revealed a greater amount of white cells than the normal quantity, and that this might have been because of infection, and that defendant refused to disclose the identity of the nurse who gave the shots, and offered no explanation as to the manner in which the treatment had been given, might have warranted the conclusion that typhoid serum was not in fact administered, but some other and different injection which was destructive to the human organism; or that, due to the negligence of the nurse in not properly sterilizing the instrument used, or because of its improper use, the germ of some malignant infection was intruded into the circulation. At least it cannot be said, under the facts presented in this case, that the minds of reasonable men, without difference of opinion, would have concluded that there was no testimony from which an-inference of negligence might be drawn. Negligence cannot be inferred from the mere- fact that the child died, yet the fact of the child’s death is a circumstance, taken together with the other circumstances in the case, 'from which the jury might have concluded that the negligence in the treatment complained of was the cause of the child’s death.

The appellee cites the cases of Arkansas Midland Railroad Co. v. Pearson, 98 Ark. 399, 135 S. W. 917, 34 L. R. A. N. S. 17, Norton v. Hefner, 132 Ark. 18, 198 S. W. 97, L. R. A. 1918C, 132, and Runyan v. Goodrum, 147 Ark. 481, 228 S. W. 397, 13 A. L. R. 1403, and, under the holding in those cases, asserts that, even though, the nurse might have been negligent in maldng the hypodermic injection, appellee is not liable-, because the act could be performed by the nurse as well as by a physician, and that he was not present and did not designate the nurse to administer the treatment. The cases cited have no application to the present state of this case, for, according to the testimony of the appellant, which is all the evidence on that matter, the appellee not only refused to give the name of the nurse, but expressly avowed his responsibility for her action.

For the reasons given it is apparent that the court erred in directing a verdict for the defendant, for which error the judgment is reversed, and the cause remanded for a new trial.


text:
    Williams v. Sewer Improvement District No. 86.
    Opinion delivered November 25, 1929.

      Berry H. Randolph, for appellants.

      Murphy <& Wood, for appellees.
   Butler, J.

An improvement district was organized in the city of Hot Springs, Garland County, Arkansas, in the year 1926, designated as Sewer Improvement Dis.trict No. 86, for the purpose of constructing a system of sewers for the use of the inhabitants of said district, which district was perfected and completed in that year. The appellants are the owners of five lots in said district, fronting on Grove Street, along which the sewer was laid. The first installment of improvement assessments became due May 1, 1927, and in September, 1927, the appellants filed this suit, attacking the validity of the organization of the district and praying that the assessments made against their property be canceled and the officers and employees restrained from acting under said assessments.

The appellees filed an answer and cross-complaint, asking judgment against the property for the 1927 and 1928 installments of the assessments, for penalty of 20 per cent, and attorney’s 'fees, and that the property be sold to pay the delinquent assessments, etc. On the hearing the court dismissed the complaint of the appellants for want of equity on the ground that plaintiffs (appellants) “failed to begin legal proceedings within thirty days after the publication of the ordinance fixing the assessments of benefits in the said Sewer Improvement District No. 86, to correct or invalidate said assessments, and the plaintiffs are therefore barred and pre-. eluded from questioning said assessments or benefits, and that said Sewier Improvement District No. 86 of the city of Hot Springs is a duly -organized and existing local improvement district under the laws of the -State o-f Arkansas.” The court further found on defendants’ cross-complaint that the assessments for the years 1927 and 1928 were delinquent, and gave judgment against the property for the same, but failed to -give judgment for the statutory penalty and attorney’s fees. From this decree the plaintiffs (appellants) prosecute their appeal, and the defendants (appellees) prosecute a cross-appeal from that part of the decree eliminating the statutory penalty and attorney’s fees.

The appellants, for grounds for reversal, insist, first, that the district had not been properly formed, and that no petition of a majority of the owners of real property in Sewer Improvement District No. 8-6 was ever filed with the city council, or proof of the same offered or filed in this cause; second, that the district was formed and the improvements made and completed and the assessments levied on the property before any attempt of any kind had been made to establish the grades, as provided by law, and that no street grade was fixed by ordinance before the district was created and the contract was let; and fhird, that the assessments of benefits are invalid by reason -of the fact that the assessments are not made upon the benefits actually received, either present or future, but are based wholly on a foot-frontage basis.

The appellees, on their cross-appeal, insist that, as the court gave judgment against the property for the delinquent installments of assessments, it necessarily should have included in the judgment the twenty per cent, penalty provided by § 5673 of Crawford & Moses’ Digest, and attorney’s fees, as provided for in § 5678 of Crawford & Moses’ Digest, and on their cross-appeal pray that the judgment be corrected so as to include these items.

On the trial of the case it was agreed by the parties “that the improvement district was organized, perfected and completed in the year 1926; that no- ordinance establishing a grade on Grove Street was ever offered or passed until November 21, 1927, nor was the grade as provided by the statutes of the State of Arkansas ever established until November, 1927, and that the plaintiffs in the case are the owners of the property in controversy herein.” Certified copies of the records were introduced in evidence, showing that the first petition for the formation of the district provided for by § 5649 of Crawford & Moses’ Digest was filed and acted on by the city council by ordinance No................, entitled, “An ordinance laying off a portion of the city of Hot Springs into a sewer improvement district, to be known as Sewer Improvement District No. 86,” and that the petition of a majority of the landowners had been duly published. The council found that the'petition contained a majority in value of the owners of real property in said district, and afterward by resolution appointed assessors to assess the estimated benefits, which assessments were duly filed with the city council, and published in a newspaper published in said county for one month nest before the date of the first publication of the advertisement. There was no other evidence introduced relative to the filing of the initial petition, the second petition, or the assessments, and publication of notice thereof.

With the admissions made by the parties, and on proof of the filing of the initial petition and the record as to the action of the council with reference to the majority petition of the landowners and of the ordinance fixing the assessments and the publication thereof, the burden was on the appellants to prove noncompliance with the requirements of the statute necessary for the creation of the improvement district. In the case of Board of Improvement Dist. v. Carman, 138 Ark. 339-346, 211 S. W. 170, where it was contended that an improvement district for the construction of waterworks and electric lines were invalid, among other «things, because a majority of the property owners had not petitioned for tlie formation of the district, the court, in passing upon that question, said: “ It is very earnestly insisted that neither the initial nor the majority petition contained the requisite number of signers, and in support of this contention it is asserted that 'it does not affirmatively appear that all the testimony offered at the trial is included in the transcript, and that we must therefore indulge the presumption that omitted testimony would support a finding that the petitions did not contain the requisite number of signers.’ * * * The court below made no finding on the question of majorities, and it may be true, as counsel contends, that such a finding cannot be made from the record before us. But the districts are not to be defeated on that account. No burden rested upon the districts to show affirmatively that they had 'been established upon majority petitions. Under the statute the assessments of benefits could not have been levied as liens upon the lands within the districts until the precedent finding had been made by the town or city council that the improvements had been petitioned for by a majority of the_ property owners in the districts; and, while this finding was not conclusive, it was prima facie correct, and imposed the burden of showing that the districts had not been petitioned for by a majority of the property owners upon him who attacked the districts on that g-round. ”

Having failed to discharge this burden, it follows that the presumption must be indulged that the district was legally established. Moreover, the record of the ordinance and resolutions kept by the city clerk under the direction of the city council, and the by-laws and rules of the city, disclose the fact that the council found, on the 19th day of March, 1926, that a majority in value of the owners of real property in the district had signed a petition praying that the improvement be made, etc., and that the notice of said petition had been duly given. Section 5652, Crawford & Moses’ Digest, relative to the petition of a majority of landowners, after providing for what should hebetated in the petition and for its publication, contains the following language: “At the meeting named in the notice the owners of real property within snch district shall he heard before the council, which shall determine whether the signers of said petition constitute a majority in value, and the finding of the council shall be conclusive, unless, within thirty days thereafter, suit is brought to review its action in the chancery court of the county where such city or town lies.” No suit was filed questioning the action of the city council in this particular until September 3, 1927, when plaintiffs (appellants) filed this action. Therefore, the suit not having been brought within thirty days, plaintiffs are precluded from questioning the correctness of the finding of the city council in determining whether those signing the petition constitute a majority in value of the owners of property within the district.

The appellants argue that the proceedings are void because no street grade was fixed by ordinance before the district was created and the contract was let. Appellants mistake the effect of the language of § 5656 of Crawford & Moses’ Digest, upon which they rely for support of this contention. That section is as follows: “Immediately after their qualification the board shall form plans for the improvement within their district as prayed in the petition, and shall procure estimates for the cost thereof; but .all such improvements shall be made with reference to the grades of streets and alleys as fixed, or may be fixed, by the ordinance of said city. For this purpose said board may employ such engineers and other agents as may 'be needful, and may provide for their compensation, which, with all other necessary expenditures, shall be taken as a part cost of the improvement. If, for any cause, the improvement shall not be made, said cost shall be a charg-e on the real property in the district, and shall be raised and paid by assessment in the manner hereinafter prescribed.”

This section was construed by this court in the case of McDonnell v. Improvement District, 97 Ark. 334, 133 S. W. 1126, where the court said:

“Another contention is that the proceedings are yoid because no street grade was fixed by ordinance before the district was created and the contract was let. The statute merely provides that ‘all such improvements shall be made with reference to the grades of streets and alleys as fixed or may be fixed by the ordinances of said city.’ It does not require that the grade shall be established before the district is formed or the plans made. On the contrary, it clearly contemplates that the grades may be established at any time when the improvement may be made in conformity therewith.

The assessments were filed on August 7,1926, and on August 18, 1926, the city council passed an ordinance approving and fixing the assessments, which ordinance was published, the first insertion being on the 20th day of August following. Section 5668 of Crawford & Moses’ Digest provides as follows: “Within thirty days after the passage of the ordinance mentioned above (ordinance approving and fixing the assessments, § 5667), the recorder or city clerk shall publish a copy of it in some newspaper published in such town or city for one time. And all persons who shall fail to begin legal proceedings within thirty days after such publication, for the purpose of correcting or invalidating such assessment, shall be forever barred and precluded.” Not having brought their action within the thirty days, appellants are barred from questioning the validity of the assessments, and their contention that the assessments were not made upon the benefits actually received, but on a foot-frontage basis, cannot be asserted now because of the provisions of the section above quoted, and their failure to bring their action within the time specified. See Ingram v. Thames, 150 Ark. 443-447, 234 S. W. 629, and cases cited.

A careful examination of the record in this case and a consideration of the briefs filed convince us that the action of the court in upholding the validity of the improvement district must be sustained. The court found that the assessments for the years 1927 and 1928 were delinquent, and that the cross-complainant district was entitled to judgment and decree for sale of the property involved to satisfy same, hut failed to give .judgment for the statutory penalty and attorney’s fee. In this we think the learned chancellor erred. Section 5673 of Crawford & Moses’ Digest provides as follows: “If any assessment, made under this act, shall not he paid within the time mentioned in the notice published by the collector, the collector shall add thereto a penalty of twenty per centum, and shall at once return a list o'f the property on which the assessments have not been paid to the board of improvement as delinquent.” Section 5678 of Crawford & Moses’ Digest provides: “Summons shall be issued, and the defendant shall he required to appear and respond within five days after service; and upon default a decree shall be rendered against such property for the amount of such assessment, penalty and cost, and an attorney’s fee.”

We think by these sections the clear legal right to have a judgment for the penalty and attorneys’ fees is conferred, and that, wherever it is found that the assessments have been delinquent on suit filed, the penalty and costs must be assessed, together with a reasonable attorney’s fee.

It follows from what we have said that the cause as to the appellants will be affirmed and, on the cross-appeal of the appellees, will be remanded for further proceedings in conformity with the views herein expressed. It is so ordered.


author: Hart, C. J.,

text:
    Rust v. Kelley Brothers’ Lumber Company.
    Opinion delivered December 2, 1929.

      George A. Hurst and C. D. Atkinson, for appellant.

      John Mayes, for appellee.
   Hart, C. J.,

(after stating- the facts). We will first consider the relation that the state of the record shows that appellee bore to W. L. Elam, as owner of the property now in controversy, for the enforcement of its lien. The amount of the materials furnished by the Kelley Brothers’ Lumber Company was in the aggregate $6,944.69. Although the itemized account attached to the complaint was not sworn to, the amount of materials furnished and the dates thereof were established by the evidence of appellee, and were not attempted to be contradicted. The record also shows that suit was commenced by appellee to establish its lien within ninety days after the materials were furnished, but it is insisted that appellee was not entitled to a lien because it failed to verify its account as required by § 6922 of Crawford & Moses ’ Digest. This does not make any difference. This court has uniformly held that, in an issue between mechanics or materialmen and the owner of the property, that a substantial compliance with the statute is all that is necessary. The result is that the bringing of a suit by the lien-claimant against the owner gives the latter all the notice that could be required as to the claim for a lien against his property. The neglect to comply fully with the requirement of the statute was intended for the protection of third persons who might acquire rights in or liens upon the same property. Murray v. Rapley, 30 Ark. 568; Anderson v. Seamans, 49 Ark. 475, 5 S. W. 799; McFadden v. Stark, 58 Ark. 7, 22 S. W. 884; and Standard Lumber Co. v. Wilson, 173 Ark. 1024, 296 S. W. 27.

In the last case the court said that the statute was wholly remedial in its nature, and that, when the controversy is between the holder of the lien and the owner of the land, an exact compliance with the statute at all points is not indispensable. So it will be seen, in so far as rights between appellee as the material furnisher and Elam as owner of the land are concerned, the bringing of the suit by the former against the latter for the purpose of asserting a lien for materials furnished and used in the construction of the houses within the period required by statute was all that was necessary to fix the lien of appellee.

Now, Bust purchased from Elam after the materials were furnished by appellee and used in the construction o'fi the houses. His deed is dated July 18, 1928, and expressly recites that it is made subject to all material and labor liens for the construction of the seven houses now located on the above-described lots. This was notice to Bust that appellee was entitled to_a lien on the lands for materials furnished and used in the construction of the houses. Hence Bust was not a bona fide purchaser for value, and acquired no greater rights than those possessed by the owner of the property. The last item of materials was furnished by appellee less than ninety days before appellee instituted this suit against Elam to establish its lien. Elam conveyed the lots to- Bust after the materials were furnished, and within the time allowed by statute to app-ellee to bring suit to enforce its lien for material. Hence Bust was not an innocent purchaser for value, and acquired the title to the lots subject to appellee’s lien for material. Bell v. Koontz, 172 Ark. 870, 290 S. W. 597.

Montgomery purchased from Bust, and was affected with notice in the title deeds of his vendor, so the notice recited in the deed that the conveyance was made subject to the liens of materialmen and laborers affected him equally with Rust. Union & Planters’ B. & T. Co. v. Simmons, 166 Ark. 285, 265 8. W. 963. Therefore we hold that Rust aud Montgomery stand in the shoes of Elam, their grantor, and that appellee has a lien for materials furnished by it in so far as they are concerned.

This brings us to a consideration of the question as .to whether there was any priority between the lien-claimants. It will be remembered that Ona Hudson and others had liens for labor performed on the seven houses, some of the laborers working on one house and some on another. Appellee furnished the lumber and other materials for all seven of the houses. It furnished the lumber under an oral contract for all the houses, and asserted its lien against all the lots. This contract was an entire contract, and appellee might assert and establish its liens in one suit against all of the lots for the material furnished in the erection of all of the houses. Burel v. East Arkansas Lumber Co., 129 Ark. 58, 195 S. W. 378, 10 A. L. R. 1017, and cases cited.

But it is urged upon us that the rule would not apply to the laborers, for they performed labor upon the houses separately. This does not make any difference. Section 6920 of Crawford & Moses’ Digest provides that the lien for work and labor done or things furnished as specified in the act shall be on an equal footing, without reference to the date of filing the account or lien, and that, in cases where the property is sold, the proceeds of the sale, when not sufficient to discharge in full all the liens against the same, without reference to the date of filing the account or lien, shall be paid pro rata on the respective liens; provided such account or lien shall have been filed and suit brought as provided by the act. It was the evident intention of the framers of the statute to establish the equality of liens as between claimants for work and labor done and those furnishing material for the construction of the building.

In the application of the statute in the present action the court properly determined that the proceeds of the sale of the property should be distributed pro rata among the various lien claimants. Therefore the decree will he affirmed.


author: Hart, O. J.,

text:
    Bogert v. Wade.
    Opinion delivered December 2, 1929.

      G. D. Atkinson, for appellant.

      W. N. Ivie and John Mayes, for appellees.
   Hart, O. J.,

(after stating the facts). It is first sought to uphold the decree upon the theory of Dierks Special School District v. Van Dyke, 152 Ark. 27, 237 S. W. 428, where the court held that, while parties to a written contract may prove that, 'after its execution, they substituted a new agreement for it, they cannot prove that, at the time the contract was entered into, they had an understanding not expressed in the written contract nor reduced to writing.

Again counsel seek to uphold the decree upon the theory of Barfield Mercantile Co. v. Connery, 150 Ark. 428, 234 S. W. 481, where the court held that the rule that parol evidence is inadmissible to contradict or vary a written instrument is confined to the parties to the instrument or to those claiming some right or interest under it.

Counsel insist that the first case is applicable, because the oral agreement testified to by the Fallins and Martin was entered into at the time the written contract was executed between Wade and Wood, and for that reason they cannot vary the terms of the written contract, because the oral contract was necessarily a part of the written one executed on the same date. We do not agree with counsel in this contention. The written contract was entered into between Wade and Wood for the purpose of enabling Wood to purchase back the property which had been foreclosed under the mortgage, within a certain and fixed time. It is true that it recites, as additional security for the performance of the contract, the assignment of the two notes executed by R. T. McClinton to Wood, but the Fallins and Martin were not interested in this contract at all. It was not made for their benefit, and it did not concern them whether Wood purchased the mortgaged property back or not. They were only concerned in being released from the deficiency judgment. They performed their part of the contract to secure their release from the deficiency judgment by procuring Wood to transfer the two McClinton notes to Wade. The two contracts, while executed at the same time, were between different parties and were for different purposes. In any event it cannot be said that the oral contract testified to by the Fallins and Martin in any wise tended to contradict or to vary the written contract between Wade and Wood.

In the second place, it is claimed that the Fallins and Martin claimed some right or interest under the written contract executed between Wade and Wood. We cannot perceive how the Fallins and Martin were in any wise interested in the contract between Wade and Wood. They did not claim any rights under it, and it did' not concern them in the least whether or not that contract was carried out. Their rights became vested under the oral contract which they made with Wade for a release from the deficiency judgment against them upon procuring Wood to assign to Wade the two MoClinton notes for $500 each. They carried out their part of the contract by procuring Wood to indorse the notes to Wade, and it did not make any difference to them that Wood did this in order to secure the right to purchase back the property within a limited time.

This brings us to a consideration of the case upon the merits. On the one hand, the two Fallins and Martin and Wood all testified that Wade agreed to release the Fallins and Martin from the deficiency judgment if they would procure Wood to assign to Wade the two McClinton notes for $500 each as collateral security for his part of the deficiency judgment. All four of these parties testified in positive terms that this was the agreement. It is true that Wade in equally positive terms testified that this was not the agreement, but, so far as the record discloses, the parties were all credible persons, so that there is no reason why the testimony of one of them should equal or outweigh the testimony of the other four. We are of the opinion that the chancellor erred in finding the facts on this branch of the case in favor of appellees, and that a preponderance of the evidence was in favor of appellant upon this branch of the case.

The case seems to have been fully developed upon this point. It follows that the decree will be reversed, and the cause will be remanded, with directions to grant the prayer of the complaint for a permanent injunction restraining appellees from proceeding further in the levy and sale of the property under the execution against the grantors of appellant, and for further proceedings in accordance with the principles of equity. It is so ordered.


author: Smith, J. Hart, O. J.,

text:
    Pioneer Reserve Life Insurance Company v. Smith.
    Opinion delivered December 2, 1929.

      Taylor Roberts and H. B. Stubblefield, for appellant.

      Marveline Osborne and Robert Bailey, for appellee.
   Smith, J.

L. G. Morgan, the authorized agent of the Pioneer Reserve Life Insurance Company, took the application of A. M. Reed for a $5,000 life insurance policy, and issued what is called an advance premium receipt, which recited that, if the policy was not issued pursuant to the application, the premium would be returned by the insurance company. Reed obtained the money to make the payment from Smith, and gave Smith, at the time, a check payable ninety days later, and indorsed thereon the words, “with interest.” Morgan did not forward the application, and made no report of the collection to the insurance company. Failing to receive the policy applied for, Reed notified the company, and received from it a letter acknowledging Morgan’s agency and expressing surprise and regret at his conduct. This letter directed Reed to' report for the physical examination to a physician who was named, and stated that the policy applied for would be issued upon receipt of a favorable report from the physician. In his testimony at the trial from which this appeal comes Reed stated that he was disgusted, and decided that he did not want to proceed with his application, and that he did not apply for the examination as he had been directed to do. Reed stopped payment of his check, and it was not paid when presented. Smith died, and his administrator brought suit upon the check at law against both Reed and the insurance company, and recovered judgment against both defendants for the amount of the check, with interest, and the insurance company alone has appealed from this judgment.

Reed testified, as a witness on behalf of the plaintiff, that when he gave Smith the check, Smith paid Morgan the money, and Morgan gave witness a receipt, and that he would have permitted the check to be paid upon its maturity, had the policy as originally applied for been issued. After the controversy arose, Reed turned the receipt over to Smith.

Certain preliminary questions have been raised, which we find it unnecessary to discuss, as, in our opinion, no right to recover against the insurance company was shown.

It is conceded that Morg'an was the agent of the insurance company, with authority to receive the money paid him, and to issue the receipt which was delivered to Reed, and the right of Reed to recover the premium, had he paid it, cannot be questioned; but there was no privity of contract ¡between Smith and the insurance company. He was not a party to the contract for the issuance of the policy. He merely loaned Reed a sum of money, and the fact that he paid this money to the company’s agent did not alter his relation to the transaction. Smith was Reed’s creditor, and nothing more, and in paying the money to the company’s agent he himself acted as the agent of his debtor in so doing, and did not thereby enter into any personal contractual relation with the insurance company. Had he paid and delivered the money to Reed, instead of to Morgan, his attitude would not have been different, for this, in effect, is what he did.

The right of -Smith to recover from Reed is not questioned, and no- appeal was prosecuted from the judgment in Smith’s favor against Reed. The plaintiff does not seek by this suit to impound any sum of money which may be due from the insurance company to Reed, resulting from the failure to deliver the policy, as .might have been done 'by garnishment proceeding's; bnt the suit was brought upon the theory that Smith had an original cause of action against the insurance company, because the money loaned to Reed was paid to the insurance company’s agent. This right does not exist, because there was and is m> contractual relation or privity olf any kind between Smith and the insurance company.

In the case of Donaghey v. Williams, 123 Ark. 411, 185 S. W. 778, the facts were that Williams sued Donaghey to recover money paid by Williams at Donaghey’s request, and we said that: “to sustain a cause of action for money thus paid, the previous request must be proved, or else it must be shown that the party for whose benefit the money was paid ratified such payment after it was made.”

Here the testimony does show that Smith paid the money at Reed’s request, and this proof entitled him to a .judgment against Reed, and this he had, but such a request conferred no right to sue the insurance company upon the misappropriation of the money by the insurance company’s agent.

The transaction was a mere loan of money by Smith to Reed, which was made to Reed for his accommodation, and upon the faith of Reed’s credit, and upon Reed’s promise' — implied, if not expressed — to repay the loan.

At § 24 of the chapter on “Money Received,” in 41 C. J.; page 42, it is said: ‘ ‘ One in whose behalf money is borrowed without authority, but to whose use it is applied by the borrower, is not liable to the lender as for money had and received. ’ ’ This statement of the law is copied from a syllabus in the case of Kelley v. Lindsey, 73 Mass. 287.

A syllabus in the case of Stephens v. Board of Education, 79 N. Y. 183, 35 Am. Rep. 511, reads as follows:

‘ ‘One G-, who was a member of the board, defendant herein, as attorney for it received $3,600.84 of its money, which he wrongfully appropriated to his own use; he subsequently procured from plaintiff on a forged mortgage $4,129.34, which he deposited in a bank to his credit, and on the same day drew his check on said bank to defendant’s order for the amount so- appropriated, and delivered the same to defendant, who received it, without notice or knowledge of the fraud perpetrated upon plaintiff, and gave G credit therefor; the check'was paid, and the money received thereon used by defendant. In an action to recover the amount so received by defendant from Gr, held thajt defendant, having received the money in good faith, and in the ordinary course of business, for a valuable consideration, was not liable. The possession of money vests the title in the holder, as to third persons dealing with him and receiving it in due course of 'business and in good faith, upon a consideration good as between the parties. ’ ’

In the ease of Di Orio v. Venditti, 39 R. I. 101, 97 Atl. 599, a syllabus reads as follows: “Where a wife participated in borrowing money with her husband, and the credit was given to both, both are liable for the debt; but, if she did not -so participate-, and the loan was made to her husband, the wife is not liable, even if she obtained the money from her husband after he borrowed it. ”

In the case of Combest v. Glenn, 142 S. W. 112, the facts were that Grisham was the agent of Combest in the location and development of a town-site, and borrowed from Glenn $15, which he spent in buying material to be used in the construction of one of Combest’s buildings. In reversing- a judgment which Glenn had recovered for the money so loaned, it was said: ‘ ‘ The bare fact that the money loaned was used to obtain door shutters for the commissary on defendant’s land would not render him liable to plaintiff therefor.”

If we should hold that Smith could recover against the insurance, company because he had made a loan to Reed of the amount of money necessary to pay Reed’s premium, which Reed had the right to recover in the event the policy was not issued as applied for, a principle would be announced which would be endless and uncertain in its ramifications and applications.

The judgment against the insurance company will therefore be reversed, and the canse of action as to'it will he dismissed. It is so ordered.

Hart, O. J.,

(dissenting). M'organ, the agent of the insurance company, gave Reed an advance premium receipt for the $242.40. The receipt provides that, if for any reason the application is denied, the company will notify the applicant, and return the premium upon the surrender of the receipt. When Reed failed to get his policy, and got into a wrangle, as he terms it, about the non-delivery of it, he turned the receipt over to Smith. This practically amounted to an assignment to Smith by Reed of his claim against the insurance company for a return of the advance premium, although it is not so called in express words. Reed admits that Smith is entitled to recover $242.40' from either the company or himself. This amounts to an admission that he, Reed, is. not entitled to recover against the company. He is a party to the present suit and is bound by the judgment,'so that the insurance company cannot again be compelled to pay the claim in a suit by Reed. If it be conceded that the court should not have rendered judgment against Reed, that error would not result in any prejudice to the insurance company, and would not call for a reversal of the .judgment, because Reed has not appealed.


author: Smith, J.

text:
    Meyers Stores, Inc., v. Wurzburg Brothers.
    Opinion delivered December 2, 1929.

      Smith <& Blackford, for appellant.

      Cooley $ Adams, for appellee.
   Smith, J.

Appellant, a corporation engaged in the business of selling shoe polish to jobbers, committed a breach of a contract to purchase a large quantity of bottles from appellees, and a controversy arose as to the amount of damage it should pay on that account.

Appellees brought this suit to recover the damages, and in support of their claim Reginald Wurzburg, a member of their firm, testified that a settlement was effected whereby appellant agreed to pay the sum of $177.96 on account of the bottles on hand, and the additional sum of $161.83 for freight on the shipment from the factory where the bottles had been made.

The correspondence between the parties which appears in the record was ineffectual in settling the controversy, and a telephone conversation occurred in regard to a settlement, and the member of the appellee firm above mentioned testified that appellant agreed, in this conversation, to pay both items. Appellant denied this, and testified that it was agreed that the entire controversy might 'be settled by paying the sum of $177.96. After the telephone conversation, appellant remitted to appellees a check for $177.96, and attached to the check as a part thereof was an invoice showing items aggregating- the amount of the check, and accompanying the check was the following letter:

“We are inclosing cheek for $177.96 as per our conversation over the telephone. I agreed to pay 36c per gross, or stand a loss of 36c per gross on all bottles that you had on hand and those that you claim were made up at the factory, which we did. There was nothing said about freight. Consequently we are not going to stand any loss whatever on these freight items.”

Immediately upon receipt of the letter, appellees wrote a reply, which was registered, in which it was stated that the check was not sufficient, and would not be accepted in full settlement of the demand, as it did not cover the item of freight, which appellant had agreed in the telephone conversation to pay as a part of the settlement. The letter further advised that the check had been deposited for collection, and that appellees would sue for the balance unless it was remitted promptly.

The cause was submitted to the jury under instructions which are not abstracted, and it will therefore be conclusively presumed that the instructions contained correct declarations of the law; but it is earnestly insisted that an accord and satisfaction was shown by the undisputed testimony on the payment of $177.96, and that a verdict should have been directed in appellant’s favor, whereas the verdict of the jury was against it. The correctness of this contention is the only question presented by this appeal, which has been duly prosecuted to reverse the verdict and judgment of the court below.

It may be first said that these two items do not arise out of separate transactions, but are 'both elements of damage arising out of the breach of the contract to purchase the bottles. The items may have been equally meritorious, and both may have been valid as elements of damage which might have been recovered; but the question here presented is whether there has been an accord and satisfaction whereby both were settled.

It is apparent from what we have said that there was a controversy, not only as to the merit of appellees’ claim, but also as to the telephone conversation concerning it, and the writer begins the letter copied above by stating his understanding of'the telephone conversation in which the settlement was arrived at, and concludes the letter with the statement that appellant .will not pay the freight item, and does not understand that it is expected to do so. The letter appears to us to be an unambiguous tender of $177.96 in full settlement of the controversy, with the condition plainly and necessarily implied that, if accepted, the controversy would be thereby settled.

Counsel for appellees cite a number of our cases which discuss the essentials of a valid accord and satisfaction, but we do not review them, as the law on the subject is well settled. The difficulty is in the application of these settled principles to the facts of particular cases. The case chiefly relied upon by appellees to sustain the action of the court in submitting the question to the jury is that of Knight v. Wolpert, 172 Ark. 937, 290 S. W. 933. There the parties dealt with each other face-to-face, and, while the opinion reflects the facts that the debtor tendered the sum paid in full settlement of the controversy, it also reflects the fact that the creditor declined to receive it as such at the time the money was paid him. The debtor in that case had therefore the opportunity and the option to> refuse to make the payment only after the acceptance of the condition which he sought to' impose, yet he paid the money, knowing at the time that the creditor did not accede to his condition. The jury was warranted in that case in finding — as it did find — that there had been no accord and satisfaction; but, although we held that the facts of that case presented a question for the .jury as to whether there had been an accord and satisfaction, we quoted with approval from the chapter on “Accord and ¡Satisfaction,” 1 R. C. L., page 194, the following statement of the law: “To constitute an accord and satisfaction in law, dependent upon the offer of the payment of money, it is necessary that the offer of money be made in full satisfaction of the demand or claim of the creditor, and be accompanied by such acts or declarations as amount to a condition that, if the money is accepted, it is to be in full satisfaction, and be of such a character that the creditor is bound to SO' understand the offer.”

Here the letter was written by appellant at Walnut Ridge to appellees in Memphis, and we think its tenor was such that appellees must have known that the tender of payment was made on condition that it be accepted in full satisfaction of the controversy, and, when appellees indorsed and deposited the check in their bank at Memphis for collection for their account, their acceptance of the condition will be conclusively presumed.

The verdict should therefore have been directed in appellant’s favor, and for this error the judgment must be reversed, and, as the case appears to have been fully developed, it will be dismissed.


author: Humphreys, J. Smi^h, J.,

text:
    Fore v. New York Life Insurance Company.
    Opinion delivered December 2, 1929.

      Carmichael <& Hendricks, for appellant.

      LovÁs H. Cooke and Rose, Hemingway, Cantrell <& Loughborough, for appellee.
   Humphreys, J.

Appellant instituted this suit against appellee on April 5, 19'29, in the circuit court of Pulaski County, Third Division, to recover $2,999 (waiving statutory penalties) as beneficiary in a life insurance policy issued by appellee to her husband, Peter J. Fore, on the 7th day of July, 1926, which provides that, in consideration of the payment of an annual premium, it would pay her $5,000 in the event her husband should die a natural death, and double- indemnity under certain conditions. The policy of insurance was made the basis of the suit, and contained self-destruction and incontestable clauses. The self-destruction clause is as follows:

“In case of self-destruction during the first two insurance years, whether the insured he sane or insane, the insurance under this policy shall be a sum equal to the premiums thereon which have been paid to and received by the company, and no more.”

The incontestable clause is as follows: “This policy shall be incontestable after two years from its date of issue, except for nonpayment of premium and except as to provisions and conditions relating to disability and double indemnity benefits.”

It was alleged in the complaint that the insured died on March 15, 1928, at which time the policy was in force, and that notice and proof of death had ¡been furnished appellee in accordance with the terms of the policy.

On the 15th day of April, 1929, appellee filed an answer to the complaint, alleging that Peter J. Fore, the insured, came to his death on the 15th day of March, 1928, by suicide, and tendering the amount of premiums paid by the insured, with interest thereon, into the registry of the court, and interposing the self-destruction clause contained in the policy as a defense to a recovery of any additional amount.

Appellant filed a demurrer to the answer, upon the alleged ground that the policy sued upon was incontestable for any purpose after two years, except as to provisions and conditions relating to disability and double indemnity benefits, and for that reason failed to state a defense. The court overruled the demurrer, over the objection and exception of appellant. Appellant stood on her demurrer, and refused to plead further, whereupon the court rendered judgment against appellee for $818.14, the ¿mount tendered and deposited in the registry of the court, in full of its liability under said policy, from which is this appeal.

■ Appellant contends for a reversal of the judgment and the entry of a judgment here for the amount sued for, with interest and attorney’s fee, upon the ground that the incontestable clause in the policy relates to the self-destruction clause, and the suicide of Fore within two years from the date of the policy could not be pleaded after the expiration of two years from the date thereof as a defense to a recovery of the amount specified in the face of the policy. Appellant cites the case of Standard Life Ins. Co. v. Robbs, 177 Ark. 275, 6 S. W. (2d) 520, in support of her contention. In that case it was ruled that the incontestable clause, in substance the same as the incontestable clause in the instant case, had reference to the self-destruction clause, and was a short statute of limitations which precluded the insurance company after one year from pleading the suicide of the insured, which occurred within one year from the date of the policy, as a defense. The Robbs case was decided upon authority of the case of Missouri State Life Ins. Co. v. Cranford, 161 Ark. 602, 257 8. W. 66, and the cases cited in support of the rule announced in the Cranford case, to the effect that:

“The modern rule is that a life insurance policy, containing a provision that it shall be incontestable after a specified time, cannot 'be contested by the insurer on any ground not excepted in that provision. It is said that the practical and intended effect of such a stipulation is to create a short statute of limitations. By the stipulation the insurance company agreed that it would take a year to investigate and determine whether it would contest the policies of insurance, and that, if it failed within that time to discover any grounds for contesting the same, it would make no further investigation, and would not thereafter contest the validity of the policies.”

In overruling the motion for a rehearing in the Robbs case, this court approved and reannounced the rule laid down in the Cranford case in-the following language :

‘ The fact of suicide or not could only be established by proof, and this would bring on a contest, which is the very thing the insurance company has agreed not to do after a certain time. As Mr. Justice Holmes so aptly expressed it, after the period of time expressed in the incontestable clause has expired there can be no dispute of fact, except the fact of death, unless other conditions are imposed in the incontestable clanse itself. The canse of death has, by the agreement of the parties, ceased to be an issue of fact. In short, after the period of time prescribed in the incontestable clause has expired, the insurance company cannot contest the fact of suicide. While there are authorities to the contrary, we think the better reasoning is in accordance with the decisions of the courts above cited. The incontestable clause constitutes, as the courts generally put it, not an assurance against the results of crime, but an assurance against the hazards o'f litigation; and we are of the opinion that the insurance company could not contest the policy before or after the death of the insured, after the period of time prescribed in the incontestable clause had expired, except for the conditions set out in the incontestable clause itself.”

Appellee argues that the instant case is not ruled by the' Robbs case, because the self-destruction clause in the policy in the Robbs case was different from the self-destruction clause in the policy issued by appellee to Fore, in that under the former the act of suicide by the insured within a specified time avoided or annulled the policy in toto as to a recovery by the beneficiary, whereas under the latter the policy remained in full force and effect in favor of the beneficiary for a recovery of premiums paid by the insured. In other words, the contention is that, in tendering the premiums and interest, appellee was carrying out the terms of the policy and not. attempting to contest it, and for that reason the incontestable clause is not applicable to the self-destruction clause contained in the policy involved in the case at bar. This conclusion is reached by appellee on the theory that the contract of insurance contemplates two separate and distinct risks. This exact theory was advanced as a defense in the case of Mareck v. Mutual Reserve Fund Life Assn., 62 Minn. 39, 64 N. W. 68, 54 Am. St. Rep. 613, in which the self-destruction and incontestable clauses in the policy involved are in substance the same clauses contained in the policy in the case at bar, and the court in the Mareck case said:

“The only question in this case is whether the company is bound to pay the $5,000 or only a ‘sum equal to the amount of the assessment paid by said member, with six per cent, interest. ’ Defendant’s contention is that the contract contemplates two separate and distinct risks — ■ death by suicide, and death from any other cause; that in the latter case it promised to pay $5,000, and in the former only the amount of premiums paid, with interest; that the ‘incontestable clause’ is inapplicable because the company is not contesting the policy, but only proposing to pay according to its terms; that death by suicide was not a risk which they assumed, except to the extent of the premiums, with interest. While the literal language of the contract lends an air of plausibility to this argument, yet we do not think it is sound. There is nothing in the policy contemplating two distinct and separate risks. The assured applied for an insurance on his life of only one sum, viz., $5,000. The amount for which the policy was issued was $5,000, payable at his death, but coupled with numerous conditions, the breach of any one of which, if not waived, relieved the insurer from liability. Counsel for defendant admits, correctly, and no doubt advisedly, that, if death had occurred from any of the causes enumerated in the eleventh paragraph, the ‘incontestable clause ’ would have applied. But these risks were no more assumed by the company than was death by suicide.”

What the court said in the Mareck case, quoted above, is a complete answer to- the assertion that the invocation of the self-destruction clause as.a defense to a. suit on the policy is not a contest. The Mareck case, which holds that there is no real difference or distinction between the self-destruction clauses, was cited in and made a basis for the court’s decision in the Cranford and Robbs cases. We'are unable to see why the incontestable clause would not apply to both alike when interposed as a defense to a suit upon the policy for the full amount thereof.

Appellee contends that the instant case is ruled by the case of Interstate Business Men’s Association v. Adams, 178 Ark. 856, 13 S. W. (2d) 591, instead of the Robbs case. The incontestable clause and its effect on the self-destruction clause or other conditional clauses, which might relieve the insurer from liability, in whole or in part, was not an issue or involved in the case referred to, so it does not control or govern the case at bar.

On account of the error indicated the judgment is reversed, and judgment is directed to be entered here for $2,99'9, with interest, and $300 as an attorney’s fee.

Smi^h, J.,

(dissenting). Although it is my opinion that the Robbs case, cited and relied upon by the majority for the reversal of the judgment of the circuit court, is unsound in logic and contrary to the overwhelming weight of authority, I do not write this dissenting opinion to criticise that case. I accept it as declaring the law, and it is my purpose only to attempt to show that it does not apply to the policy here sued on.

Upon the authority of the Robbs case, it may be assumed that, as the provision against suicide does not appear in the incontestable clause in the policy sued upon, and more than two years have expired since the issuance of the policy before the institution of this suit, the policy is now an unalterable contract to discharge the obligation which the insurer contracted against. But is it a contest of the policy to inquire what these obligations are, or to resist the enforcement of a liability which the insurer says the policy does not impose?

Stripped of all superfluities, this is the question in the case. What axe the facts? For a fixed annual premium the insurance-company, hereinafter ref erred to as the company, issued a policy on the life of Peter J. Fore, for the sum of five thousand dollars. The policy provided that if the insured died a natural death, the sum payable should be five thousand dollars; but if death resulted from an accident, there should be paid twice that amount. There was also a provision that, in case of the disability of the insured, there should be paid ten dollars per month for each thousand dollars of the policy. The policy also provided that in the event of death by suicide during the first two years the policy was in force, the insurance should be for a sum equal to the premiums which had been paid to and received by the company, and no more.

It appears, therefore, that the liability assumed by the company (except as to disability ¡benefits) depended entirely upon the manner of the insured’s death. It might have been ten thousand; or five thousand dollars; or the amount of the premiums paid. Did the company not have the right to stipulate what amount should be payable in any of these contingencies ? It would appear that it has the right to do so, provided it be conceded that the right exists to contract as to what obligations the company will assume in a 'given contingency.

We cannot make a contract for parties. We may, and properly do, resolve all doubts as to the meaning and construction of an insurance contract against the insurer; but when this has been done and the meaning' of the contract has been thus ascertained, we should enforce the contract, whatever the result may be.

Suppose during the period of contestability or after its expiration, the insured had asserted his disability and had claimed the disability benefits, would a denial of the existence of disability by the company be a contest of the policy? Suppose further, that when the proof of the death of Mr. Fore had been presented, the claim had been made that death had resulted from an accident, and that the sum payable was not the face of the policy, but twice that amount, would a denial that the insured’s death was the result of an accident be a contest of the policy? We apprehend that no one would be so bold as to make this contention.

If, therefore, the insurer may contract to pay a certain sum upon the death of the insured from a natural cause, or a larger sum iff the death be accidental, why is it not permissible to contract that upon death from, suicide a less sum .shall be payable? The amount to be paid in any event is of no controlling- importance. The principle that is vital and important is the right to contract, because, if the right to contract is conceded, the parties thereto may-stipulate in the contract what sum of money shall be paid in one contingency, and what sum shall be paid in another.

Just here, let us compare and distinguish the suicide clause in the Robbs case from that in the instant case. In the former it reads as follows: ‘ ‘ Suicide. Self-destruction, sane or insane, within one year from the date of this policy, is a risk not assumed by the company u/nder this policy. In such event the company will return the premiums actually received. ’ ’ In the instant case it provides: “Self-destruction. In the case of self-destruction during the first two insurance years, whether the insured be sane or insane, the insurance under this policy shall be a sum equal to the premiums thereon which have been paid to and received by the company, and no more.”

It thus appears that in the one case it is provided that death by suicide is a risk not assumed by the company under the policy; whereas in the other case the liability upon death from suicide is expressly recognized and a sum named which shall be payable in that event.

It will also be observed that in the Robbs case the policy provided that in the event of suicide the company will return the premiums actually received, and nothing more. The beneficiary gets nothing. The contract is rescinded, and the premiums are returned, and these return premiums would be payable to the administrator of the estate and become a part of the estate.

Under the .suicide clause in the instant ease the policy is not rescinded, and the beneficiary named in the policy, and not the administrator, is entitled to the sum payable upon the happening- of the event insured against. The policy is in force, and not rescinded, and there becomes payable the agreed amount. It is true the sum payable is the amount of the premiums received, but what of that? It could have ¡been for a larger or a smaller amount, and the validity of the contract does not depend upon the sum to be paid, if the company has the right to contract as to the amount it will pay upon the occurrence of the contingency insured against.

Is it a contest of the policy ¡for the company to insist that under the terms of th¿ policy a given amount, and that only, should be payable in a particular circumstance? .Suppose the policy had provided that in the event of death by suicide the sum payable should'be one hundred dollars, or one thousand dollars, would it be insisted that a denial of a’greater liability than that provided by the policy was a contest of the policy? Does the insistence of the company that the obligations of the contract be enforced according to what it insists is the plain letter thereof constitute a contest? Would a denial of double liability upon the ground that the insured had not died from an accident be a contest of the policy? We think these questions answer themselves, and that it is not a contest of the policy to insist that only that liability be enforced which under the contract the company assumed.

We do not concur in the view of the majority that the case of Interstate Business Mens’ Accident Assn. v. Adams, 178 Ark. 856, 13 S. W. (2d) 591, has no application here. We think it has. That case was a suit upon a two-thousand dollar policy, and the application of that case to this is that the recovery of one hundred dollars only was there permitted because the policy provided that in the named contingency only that amount should be payable. The incontestable clause would have no more relevancy to that case than it has to this, because the controlling question in both cases would be, and is, what was the amount of insurance to. be paid upon the happening of the contingency insured against?

In the case of Myers v. Liberty Life Ins. Co., 124 Kan. 191, 257 Pac. 933, 55 A. L. R. 542, was a case identical in all essential respects with the instant case. The headnotes in that case read as follows:

“A life insurance company issued a policy on September 10,1923, in which it agreed to pay to the insured’s wife, as beneficiary, the sum of $3,000, immediately on receipt of proof of death of the insured, provided premiums had been paid and the policy was in force. The policy contained these provisions:
“ ‘This policy shall be incontestable after one year from the date of issue, if premiums have been duly paid.’
“ ‘ In case of suicide of the insured, whether sane or insane, within two years from the date of this policy, the liability of the company shall be limited to the amount of the premium actually paid. ’
‘ ‘ The insured committed suicide by hanging, on August 27,1924. The policy was in force, the premium had been paid, and proof of death was made. Held, the entire policy considered, liability of the company is limited to the amount of premium actually paid.”

The case just quoted from was decided by the Supreme Court of Kansas in an opinion which was unanimous, and the reasoning of the court is so logical and convincing and the conclusions of the court so fortified by authority that we think it should be followed here.

Another very similar case is that of Stean v. Occidental Life Ins. Co., 24 N. M. 346, 171 Pac. 786, 24 N. M. 346. The headnotes in that case read as follows:

“The word ‘incontestable,’ as used in life insurance policies providing that the policy shall be incontestable, means indisputable and amounts to a guaranty that no objection shall be taken to defeat the policy on the death o'f the person whose life is insured.
“An incontestable clause in a policy of insurance does not preclude the defense of suicide, where the suicide clause in the policy is a part of the contract to pay, providing how much shall be due and payable in the event of death by self-destruction. ’ ’

The brief of counsel for the company cites the following additional cases to the same effect: Childress v. Fraternal Union of America, 113 Tenn. 252, 82 S. W. 832, 3 Ann. Cas. 236; Howard v. Missouri State Life Ins. Co., (Tex. Civ. App.) 289 S. W. 114; Scarborough v. Am. Nat. Ins. Co., 171 N. C. 353, 88 S. E. 482, L. R. A. 1918A, 896, Ann. Cas. 1917D, 1181.

We are of the opinion, therefore, that the circuit judge was correct in holding that this was not a contest of the validity of the policy, in violation of the incontestable clause, but was an endeavor on its part to limit its liability under the policy to the amount which it agreed to pay in the event the insured ‘died by his own-hand, as it is admitted he did, and we think the judgment of the circuit court below so holding was correct and should be affirmed.

In this connection, it may be said that the case of Hearin v. Standard Life Ins. Co., 8 Fed. (2d) 202, reviews the law of this case in an opinion written by the late Judge Trieibef. The reasoning in that case, upon the numerous authorities therein cited, is so clear and forcible as to demonstrate, not only the error in the majority opinion in the instant case,- but the unsoundness of the Robbs case as decided by this court as well'. The Robbs case was, in fact, as appears from the opinion of Judge Trieber and that of this court (177 Ark. 275, 6 S. W. (2d) 520), the same case.

I am authorized to say that Justices Kirby and MoHaney concur in the views herein expressed.


author: Humphreys, J.

text:
    Cook v. Harrison.
    Opinion delivered December 2, 1929.

      V. D. Willis, for appellant.

      Woody Murray, for appellee.
   Humphreys, J.

This is an appeal from the judgment of the circuit court in Boone County, finding appellants guilty of violating ordinance No. 108 of the city of Harrison, and imposing a fine upon each of them for the violation. Appellants were convicted and fined- under §§ 13 and 31 of said ordinance. The title, enacting clause and the sections referred to are as follows:

“Ordinance No. 108 — An ordinance to better regulate licenses in the city of Harrison. Be it ordained by the council of the city of Harrison: That it shall be unlawful for any person or persons to engage in, exercise or pursue any of the following avocations or businesses without first having obtained and paid for a license therefor from the proper city officials, the- amount o'f which license is hereby fixed as follows, to-wit. * * * Section 13. For each book, picture or picture frame peddler, five dollars per month, or twenty-five dollars per year. * * *
“'Section 31. Whoever shall engage in any business for which a license is required by this ordinance, without first obtaining and paying for same as above required, shall be deemed guilty of misdemeanor, and upon conviction shall be fined in any sum not exceeding $300.”

The record reflects that appellants traveled from house to house within the corporate limits of Harrison, immediately before their arrest, carrying, selling and de>livering books in sets of five each, published by the International Bible Students’ Association. The books were shipped to appellants by said Bible Students’ Association in cartons, containing twelve sets, at a cost to appellants of fifty-six cents a set. They sold the books for $1.98 a set. Tbe names of tbe several books are “Deliverance,” “Reconciliation,” “Recreation,” “Government,” and tbe “Harp of God.” Each book contains 368 pages, and is bound substantially. They are interpretations of tbe Scriptures according to tbe beliefs of said association. Those selling or distributing the 'books were and are regarded and treated by said association as ministers of the Gospel. Appellants traveled over the territory assigned to them in an automobile, slept in a tent which they carried with them, and did their own cooking. The profit they derived from the sales of the books did not entirely cover their living expenses. They had been engaged in selling these books for about five years, and supplemented the deficiency in their living expenses with money derived from other sources. They testified that their purpose was, not to realize a financial remuneration, but to disseminate the teachings of the association purely and solely from religious motives; that their hope for reward was the salvation that comes from endurance to the end.

Appellants contend for a reversal of the judgment upon the ground that the facts detailed did not constitute them peddlers and hawkers within the meaning of the ordinance, but reflected that they were colporteurs at the time they sold and delivered the books in the city of Harrison. It is argued that the words, “peddlers and hawkers,” as used in § 5 of article 16 of the Constitution of the State, § 7’618, 'C. & M. Digest, and the ordinance under which they were convicted, have relation to an avocation or business. Even so, appellants were engaged in the business of selling and delivering books of a religious character when arrested. It is true, as argued, that the- business in which they were engaged did not produce enough for them to live upon, but many vocations are followed and businesses prosecuted at a loss, and they are no less businesses or vocations on that account. It is also true, as argued, that appellants were prompted to sell and deliver the books on account of religious convictions or from religious motives, but the convictions or motives inspiring their acts are not controlling in determining whether the acts constituted them peddlers or hawkers. The purpose of the ordinance was to require all parties engaged in the business of peddling or hawking to pay a license. It is true, perhaps, as argued, that appellants were colporteurs, but “this did not exempt them from the penalties of the ordinance. A “colporteur,” as defined by Webster, is 'a hawker; specifically, one who distributes or sells religious tracts or books.

“Peddlers and hawkers,” as used in our Constitution and statutes, have been defined by § 9793 of C. & M. Digest as follows: “Whoever shall engage in the business of selling goods, wares or merchandise of any description, other than articles grown, produced or manufactured by the seller himself or by those in his employ, by going from house to house or place to place, either by land or water, to sell the same, is declared to be a peddler or hawker. ’ ’

This court, in the case of Conway v. Waddell, 90 Ark. 127, 118 S. W. 398, followed the statutory definition, and defined a peddler as one “who goes from place to place and from house to house carrying for sale and exposing for sale the goods, wares and merchandise he carries.”

The gist of appellants’ contention for a reversal of the judgment is that the ordinance does not forbid the hawking or peddling of religious tracts or books, especially if the parties distributing them are prompted by religious motives. We find no such exception in the ordinance. No distinction appears in the ordinance between the character of books distributed or the motives prompting the distribution thereof. The 'Constitution of the State authorizes the imposition of a tax or license on hawkers or peddlers, irrespective of the kind of goods, wares or merchandise distributed by them, and there is no inhibition in the Constitution of the United States against the imposition of a tax or license upon them. The imposition of such a tax is not an abridgment of religious freedom or an infringement upon the constitutional guaranty of religious liberty.

No error appearing, the .judgment is affirmed.