text:
    Milton v. Jeffers.
    Opinion delivered July 10, 1922.
    1. Wills— capacity of testator — evidence.—Evidence held to sustain a finding that a will was the act of one mentally incapable of making it.
    2. Wills — undue influence — question for jury. — Evidence held not to warrant submission to the jury of the question of undue influence in procuring the execution of a will.
    3. Wills — undue influence defined. — Fraud or undue influence which will avoid a will is not the legitimate influence which springs from natural affection, but the malign influence which results fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property;-and this influence must be specially directed toward the object of procuring a will in favor of particular parties.
    4. Trial — instruction invading jury’s province. — In a proceeding to probate a will, an instruction that “mental powers decline with advancing years” invaded the jury’s province.
    5. Wills — statement of testator’s wife held inadmissible. — In a proceeding to probate a will where the issue of undue influence was raised, evidence that testator’s wife advised him to make his will and that his sons, the proponents, knew best, was inadmissible; there being no evidence of a joint undertaking between proponents and testator’s wife to induce the making of a will.
    6. Wills — statements of testator. — -In a will contest the statements of the testator are competent only to show his mental status, but not to show an independent fact, such -as undue influence or fraud.
    Appeal from Franklin Circuit Court, Ozark District; Jmnes Cochran, Judge;
    reversed.
    . Hill & Fitshugh, for appellants.
    The court erred in not directing a verdict for appellant and in failing to set aside the verdict of the jury as being against the weight of the evidence. 126 Ark. 427. The evidence does not sustain the contention of mental incapacity when measured by the rule laid down in 49 Ark. 367 and repeated in 114 Ark. 69. -Old -age and physical infirmities alone are not sufficient to establish a “partial eclipse of the mind.” The circumstances detailed in 66 Ark. 623 made a stronger case of mental incapacity than the present one, yet the will there was not set aside.
    There was no .testimony whatever of undue influence on the part of appellants over their father, and it was error to submit that issue to the jury. 122 Ark. 407. The undue influence which is required to avoid a will must be directly connected with its execution. There was none shown. 49 Ark. 367; 87 Ark.' 148; 94 Ark. 176. Neither courts nor juries can arbitrarily disregard undisputed, unimpeached, disinterested witnesses, but when done it is the duty of this court to set aside the verdict. 101 Ark. 532; 53 Ark. 96; 67 Ark. 511; 80 Ark. 396.

      Willard Pendergrass, June P. Clayton and Evans & Evans, for appellees.
    Instruction No. 9 given by the court correctly defined senile dementia according to the text-books and cases. Gardner on Wills, sec. 43, p. 125; 2 Clevenger’s Med. Juris, of Insanity 910. Beaver v. Sprangler, 93 Iowa 576; 61 N. W. 1072; Davis v. Denny, 94 Md. 390; 50 Atl. 1037. See also 145 Ark. 247.
    The declarations of the father, both before, at the time of the execution of the will and after, were admissible for the purpose of enabling the jury to pass upon his mental capacity and his susceptibility to undue influence. 122 Ark. 407; 115 Tenn. 73; 5 A. & E. Ann. Cas. 601, 3. L. 8 A. (N. S.) 749 and note, citing a number of cases.
    The court did not err in submitting to the jury the question of undue influence. Gardner on Wills, sec. 63, p. 192; 13 S. W. 1098.

      .Hill & Fitshugh, for appellant in reply.
    Instruction No. 9 was clearly erroneous in that it was an expression of an opinion by the court on the weight of the evidence. The instruction is practically a copy of a statement in Gardner on Wills, sec. 43, p. 125, but the statement is not sustained by either of the court decisions cited by him. There is no presumption against a will because made by a person of advanced age, and incapacity cannot be inferred merely from an enfeebled condition of mind and body. 3. Witthaus & Becker on Med. Juris, p. 406 and cases cited. 1 Wharton & Stille’s Med. Jnr. sec. 975.
   McCulloch, C. J.

Appellants were the proponents of the last will and testament of W. C. Milton, and they have prosecuted an appeal from the judgment of the circuit court of Franklin County sustaining a contest of the will by appellees.

The instrument in controversy was executed by W. C. Milton on January 26, 1918, and he died on June 11, 1920. Appellants are the three sons of the testator, and appellees are his two daughters.

By the terms of the will, the testator gave the whole of his estate to his wife Eliza, and gave the remainder of his real estate at the wife’s death to his three sons to the exclusion of the daughters, and gave to all of the children an equal part of the remainder of the personal property after the death of testator’s wife.

The testator was the owner, at the time of his death, of a farm, on which he resided, of the value of about $12,000, and he left personal property of. the aggregate value of about $1,200.

The testator’s wife died after the execution of the will, and prior to the death of the testator.

Appellees allege that- at the time of the date of the will the testator was not of sufficient mental capacity to make a will, by reason of the fact that his mind, on account of age, had been reduced to a state of senile dementia, and also -allege that the execution of the will by the testator was induced by coercion and undue influence of the three sons, who were the chief beneficiaries under the will. The issues were joined upon these two allegations, and, as before stated, the verdict, and judgment resulted in favor of the contestants.

It is undisputed that the testator was a farmer and was about ninety-two years old at the time of the execution of the will. He had been a strong man, both physically and mentally, all of his life, and it is conceded that much of his physical and mental vigor were preserved np to the time of Ms death. Bnt the contention of appellees was, at the trial below, that on account of old age his mental vigor had been reduced to the extent that he was incapable of disposing of his property. There was much testimony introduced by appellants to the contrary, tending to show that the testator remained in full and complete possession of his mental faculties up to the time of Ms death, and that he was capable of executing the testament. The court submitted both of the issues to the jury as to his mental capacity and undue influence. Appellants requested the court to give a peremptory in.struction, contending that the evidence was insufficient to submit either of the issues, and they also contend, especially in regard to the issue of undue influence, that there was no evidence to sustain the finding and that the court should not have submitted that issue to the jury. Objections were made to the instruction submitting the issue of undue influence.

Several witnesses introduced by appellees testified that, the testator was weak-minded and childish on account of his advanced age, and they gave instances of forgetfulness on his part and of childish acts and conduct. "Witnesses also testified to conversations with the testator about the time of the execution of the will, in which he stated that he wanted his children to share equally in his estate. Many witnesses were introduced by appellants, nearly all of them being men of prominence in 'the community, who had been acquainted with the testator a great many years, and they all testified that he was a man of strong mentality and positive convictions, not easily led away — in other words, that up to the time of his death he was a quiet, determined man with strong convictions, and in complete possession of his mental faculties. "We cannot say, however, that there is an entire absence of testimony of a substantial nature tending to show that at the time of the execution of the will the testator did not have sufficient mental capacity to execute the will. Considering his extreme old age and his physical condition, as described by some of the witnesses, together with his forgetfulness in regard to ordinary transactions, and the opinions of those witnesses, given in connection with these circumstances, we think there is enough to warrant the inference that the testament was not the act of one mentally capable of making it.

Our conclusion is, however, that there is absolutely no testimony in the record justifying the submission of undue influence on the part of appellants in procuring the execution of the will. The circumstances concerning the execution of. the will are undisputed, and are detailed by L. R. A. "Wallace, then a practicing lawyer at Ozark, the county seat of the county wherein the testator resided. Judge Wallace testified that he had been acquainted with the testator for many years, though he had had few business transactions or conversations with him. He testified that in January, 1918, the testator came to his office in Ozark and requested him to prepare his will, and gave him the data from which the will was to be framed. Witness stated that he made memoranda of the statements of the testator, and informed him that he would prepare the will and send it to him by mail. He stated that he prepared the will, in accordance with the directions of the testator, and sent it out by mail, and that a short time thereafter — not more than two weeks, and perhaps only a few days — the testator came back to the office with the will and expressed himself as being satisfied with it, and that they went to a business house in Ozark and requested two business men there to witness the will. The witnesses were both men who had known the testator for a great many years, and both of them, as well as Judge Wallace, testified that the testator was, to all appearances, in his usual mental state and fully capable of- understanding the will and executing it.

There is no testimony at all tending to show that either of the appellants had requested the testator to make the will in their favor, or that they resorted to any kind of influence or device to induce the execution of the will. The evidence shows that appellants, the three sons of the testator, were men in middle life and were engaged in different kinds of business, and at times some of them looked after their father’s business, particularly the youngest son, Walker. The evidence also shows that the relation between the testator and all of his children were most cordial. We are therefore unable to find any testimony at all tending in the slightest degree to show that the execution of the will was induced by improper influence. The law on this subject, so far as necessary to invoke it in the present controversy, is very well settled by decisions of this court. The rule on that subject, as announced by this court in McCulloch v. Campbell, 49 Ark. 367, and approved in later cases, is as follows:

“The fraud or undue influence which is required to avoid a will, must be directly connected with its execution. The influence which.the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which springs from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property. And the influence must be specially directed toward the object of procuring a will in favor of particular parties. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relations with them at the time of its execution.”

In the case of Miller v. Carr, 94 Ark. 176, Judge Battle, delivering the opinion of the court and applying the rule announced in. McCulloch v. Campbell, supra, said:

“It Avas necessary for them (contestants) to show that the will was procured by undue influence, that is to say, the undue influence that will avoid a will must be directly connected with, its execution, must be the procuring cause.”

The error of the court in submitting this issue to the jury necessarily calls for a reversal of the judgment, for we have no means of determining upon what issue the verdict of the jury was based.

It is also insisted that the court erred in giving, at the request of the contestants, instruction No. 9, which reads, in part, as follows: “Senile dementia is a form of insanity peculiar to aged people, marked by a decay of the mental faculties, and in consequence of which testamentary capacity may disappear. Old age is not inconsistent with testamentary capacity. But, as a general thing, the mental powers decline with advancing years, and when the insanity characteristic of and peculiar to old age appears — and this is what is meant by senile dementia — testamentary capacity cannot longer exist.”

This instruction stated to the jury as a fact that “mental powers decline with advancing years,” and this was tantamount to an instruction on the weight of the evidence. It is a matter of common knowledge that generally, or, at least, frequently, mental powers decline in a more or less degree with advancing age, but it is not always true, and it is a question of fact in a given case for the determination of the trial jury. A trial court in this State, which is prohibited from instructing on the weight of the evidence, should not tell the jury that, as a matter of fact, “mental powers decline with advancing years,” for this could only be interpreted by the jury as a statement of a fact by the court, and that their only province was to determine the extent to which the testator’s mental powers had declined. The jury should have been left free, without intimation from the court, to decide whether or not, notwithstanding the testator’s advanced age, there had been any substantial decline in his mental faculties.

Learned counsel for appellees rely upon statements of eminent text-writers and of judges in delivering opinions as to the theory advanced by the court in this instruction. Such discussions and statements are appropriate in opinions of courts and in text-books, which are discussions of facts in determining the weight of evidence, but where it is the exclusive province of the jury to determine the weight of the evidence, the court has no right to undertake to state the facts, or the weight of the evidence, to the jury.

There is another assignment of error, which will be. mentioned in view of the fact that the case will be reversed for a new trial. Appellees introduced as a witness J. E. MeGree, who testified, over the objection of appellants, concerning a conversation between the testator and his wife, about the time of the execution of the will. He testified that he was living at the house of the testator, and that he noticed the envelope in which the will was received by mail by the testator, and that the testator read the instrument to him. He testified to the following conversation between the testator and his wife:

“Mrs. Milton asked, ‘Are you going to town today?’ She said, ‘You had better go while I am well and fix up those papers. Wallace and Eddie (referring to the two sons, W. G-. Milton and E. B. Milton) know best.’ He looked out and said: ‘How can I go? Yonder goes the buggy.’ ”

The objections of appellants were to the statements of Mrs. Milton to her husband, and we are of the opinion that those statements were incompetent. They had no bearing upon the mental capacity or incapacity of the testator, and they had no tendency to establish undue influence on the part of appellants to induce the execution of the will. If there had been any testimony at all tending to show undue influence by appellants, or a joint undertaking between Mrs. Milton and appellants to induce the testator to make the will, then the statements of Mrs. Milton to the testator might have been competent as tending to show an exertion of influence in connection with her three sons, but, as before stated, there is no evidence tending to show any influence by the sons, and these statements of the mother were without effect in that direction. The statements of the testator himself were only competent to show his mental status, and not for the purpose of establishing an independent fact such as undue influence or fraud. Mason v. Bowen, 122 Ark. 407.

For the errors indicated, the judgment will be reversed and the cause remanded for a new trial.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Truemper v. Thane Lumber Company.
    Opinion delivered July 10, 1922.
    1. Contracts — waiver op breach. — Where a party to a contract, with knowledge of a breach by the other party, accepts money in performance of the contract, he will be held to have waived such breach.
    2. Sales — sufficiency of evidence as to damages. — In an action for breach of a contract to deliver logs, evidence as to the amount of damages held to support the verdict.
    3. Sales — instruction as to measure op damages — general objections. — In an action for breach of a contract to sell logs, court’s instruction that the measure of damages was the difference between the market value of the timber at the time and the contract price, without stating that the market value at the place of delivery was to be considered, was not open to a general objection.
    Appeal from Phillips Circuit Court; J. M. Jackson, Judge;
    affirmed.
    STATEMENT OE PACTS.
    The Thane Lumber Company brought this suit against Joseph Truemper to recover damages for an alleged breach of contract in failing to deliver to it 200,000 feet of cottonwood logs and also for certain amounts advanced by the plaintiff to the defendant under said contract.
    The defendant Truemper denied the allegations of the complaint, and by way of counterclaim sought to recover damages against the plaintiff for an alleged breach of the contract on its part.
    On the 15th day of May, 1917, Joseph Truemper entered into a written contract with the Thane Lumber Company to sell it 200,000 feet of cottonwood logs to be cut, hauled and rafted in the Mississippi River along the banks of the Montezuma Towhead in Phillips County, Ark. The price was $12.50 per thousand feet for the logs when placed in the raft.
    Evidence was introduced by the plaintiff tending to show a breach of the contract on the part of the defendant and- also to show the amounts advanced by the plaintiff to the defendant under the contract.
    Evidence was adduced by the defendant tending to establish a breach of the contract on the part of the plaintiff.
    The jury returned a verdict in favor of the plaintiff in the sum of $1,162.50 for money advanced by the plaintiff to the defendant under the contract, and for $400 damages.
    The defendant has appealed.

      John I. Moore, Sr., J. G. Burke and John I. Moore, Jr., for appellant. ;
    The letter was admissible, and the trial court committed reversible error by refusing to permit same to be introduced. 127 Ark. 385.
    The testimony of Geo. W. Reese was not sufficient to sustain the finding of the jury as to the value of the logs in controversy. 1 Wigmore on Evidence, sec. 718, p. 815; 62 Ark. 1.
    The court erred in its instruction as to the measure of damages. It should have instructed the jury that the measure of damages would be the difference between’ the market value at the time of the breach at the place of delivery and the contract price. 134 Ark. 300; 57 Ark 257.

      E. E. Hopson, for appellee.
   Hart, J.,

(after stating tlie facts). The first assignment of error urged by the defendant for a reversal of the judgment is that the court erred in refusing to admit the carbon copy of a letter written by tlie defendant to the plaintiff. The letter is dated October 29, 1917, at Helena, Ark., and is addressed to the Thane Lumber Company at Arkansas City, Ark. The letter notified the plaintiff that the defendant had commenced rafting the logs and expected the plaintiff to take them up not later than the 2nd day of November. The letter tended to corroborate the defendant’s claim that the plaintiff had committed a breach of the contract on its part by not sending for the logs after being notified to do so.

The undisputed evidence shows that the plaintiff advanced to the defendant, under the contract, the sum of $600 on the 23rd day of November, 1917, and that the defendant accepted that sum of money under the contract. This was subsequent to the alleged breach of contract by the plaintiff, and amounted to a waiver of it. The money was accepted with full knowledge of all the facts, and this calls for an application of the well-known rule that where a party to a contract, with knowledge of a breach by the other party, receives money in the performance of the contract, he will be held to have waived such breach. Alf Bennett Lumber Company v. Walnut Lake Cypress Co., 105 Ark. 421; Friar v. Baldridge, 91 Ark. 133, and Tidwell v. Southern Engine & Boiler Works, 87 Ark. 52.

The next assignment of error is that the evidence is not sufficient to support the verdict. It is contended that the evidence of the amount of damages suffered by the plaintiff is not sufficiently definite to support the verdict.

The witness for the plaintiff on this point was George W. Reece, its secretary. He stated that he was familiar with the market price of cottonwood logs during the months of November and December, 1917, and knew the general' price that prevailed along the Mississippi River near Montezuma Towhead. He stated that most of his buying was up and down White River in and around Rosedale and in that vicinity. He also stated that his operations hardly ever extended up to Montezuma. Hence it is contended that his testimony does not warrant the verdict.

The witness stated further, however, the following:

“Q. Would you say you are familiar with the prices in the vicinity of Montezuma Towhead in the months of November and December, cottonwood logs — ? A. Yes sir, I think I am familiar with it. Q. And you would say that was a fair market price at that time? Yes sir. Q. What was? $17 to $18 — depending on the logs.”

The contract price of the logs was $12.50 per thousand feet, and the amount of damages found by the jury was $400. We think the evidence is sufficiently definite to warrant the finding made by the jury on this point.

The next assignment of error is that the court erred in instructing the jury that, in the event of a recovery by the plaintiff, the measure of damages would be the difference between the market value of the timber at the time and the contract price.

It is contended that the court should have told the jury that the measure of damages was the difference between the market value of the timber at the place of delivery at the time the contract was broken and the contract price.

The jury must 'be credited with common sense, and, when this is done, we do not- think that any prejudice resulted to the defendant. As we have already seen, in discussing the preceding assignment of error, the secretary of the plaintiff finally stated that he was familiar with the price of cottonwood logs in the vicinity of Montezuma Towhead in November and December 1917, and stated what the price was. The jury could not have misunderstood the testimony on this point.- It is true the witness said that his company had bought most of its logs about this time at a point lower down on the river, but he fixes the price of cottonwood logs not upon what he paid, for logs lower down the river, but on what he considered they were worth in the vicinity of Montezuma Towhead. The jury based its finding on his testimony, and could not have been misled by the instruction given.

Counsel for the defendant excepted to the instruction, but not on the ground now urged. If counsel deemed the instruction faulty, the defect should have been pointed out at the time by a specific objection, and doubtless the court would have amended the instruction to conform thereto.

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


author: Hart, J.

text:
    Vaughan v. Hill.
    Opinion delivered July 10, 1922.
    1. Appeal and error — order transferring cause. — An order transferring a cause from the chancery to the circuit court is not final or appealable.
    2. Attorney and client — leen on judgment recovered. — An attorney has a statutory lien on his client’s cause of action for the percentage of the amount recovered which his contract with his client entitles him to receive.
    3. Attorney and client — lien on recovery. — Parties are entitled to make a settlement, but must consider the fact that the attorney has a statutory lien on the cause of action.
    4. Attorney and client — lien—jurisdiction.—The lien in favor of an attorney on a judgment recovered by him in the circuit court may be enforced in that court, under the statute; but the remedy given by statute is cumulative to his rights to enforce his lien in equity.
    5. Equity- — jurisdiction.—Where a case within the jurisdiction of equity is brought within that court, the control of that court over the case continues until the matter is disposed of in the appellate court.
    6. Appeal and error — trial of chancery causes. — Appeals from chancery courts are tried de novo¡ and the appellate court will reverse a decree therefrom where the findings of fact are against the clear preponderance of the evidence.
    Appeal from Prairie Circuit Court, Northern District; George W. Glarh, Judge;
    reversed.
    STATEMENT OE EAOTS.
    Emmet Vaughan brought this suit in equity against Lillie Mae Webber and the Farmers & Merchants’ Bank at Des Arc to foreclose an attorney’s lien.
    It appears from the record that the Modern Woodmen of America issued a beneficiary certificate on the life of George Webber in the sum of $2,000 in which Mark Webber, his father, was named as the beneficiary. Subsequently G-eorge Webber married and undertook to transfer the policy to his wife. G-eorge Webber died, and the insurance association paid the amount of the policy to Mark Webber. Lillie Mae Webber employed Emmet Vaughan to bring suit against Mark Webber for $2,000, the amount of the policy.
    The case was tried in the circuit court and Vaughan secured a verdict for $2,000 in favor of the widow. Subsequently Mark Webber satisfied the judgment against him in the favor of the widow by the payment thereof. The payment was made by a check which was deposited in the Farmers & Merchants’ Bank at Des Arc, Ark. •
    Vaughan brought this suit in equity against Lillie Mae Webber to recover his fee. and to have the same declared a lien upon the fund recovered. An equitable garnishment was issued and served upon the Farmers & Merchants’ Bank at Des Arc, Ark.
    Upon motion of Lillie Mae Webber the case was transferred to the circuit court. Vaughan objected to the transfer of the case, and duly saved his exceptions to the ruling of the chancery court in transferring it to the circuit court.
    The case was tried before a jury in the circuit court and a verdict was returned in favor of Vaughan for $200. Lillie Mae Webber died about a week before the trial, and the case was revived in the name of Robert Hill as special administrator of her estate.
    According to the testimony of the plaintiff Vaughan, he made a contract on a contingent basis with Lillie Mae Webber to sue Mark Webber for the $2,000 received by him on the benefit certificate on the life of George Webber. Vaughan was to pay all the expenses of the litigation and was to receive one-half of the amount recovered as his attorney’s fee. He spent between $100 and $150 in preparing the case for trial. He did a good deal of work in preparing the case for trial and in trying it. He recovered the full amount sued for, and one-half of that amount was a reasonable contingent fee.
    Two other attorneys testified that such a fee was a reasonable one.
    ■ According to the evidence adduced in favor of the defendant, Vaughan was only to receive 10% of the amount recovered, which was $200.
    As we have already stated, the jury returned a verdict in favor of Vaughan for this amount, and he has duly prosecuted an appeal to this court from the judgment rendered.

      Gregory d$ Iloltsendorff, for appellant.
    The court erred in transferring the cause to the circuit court. The chancery court has jurisdiction to enforce a lien in favor’ of an attorney upon land of his client recovered by him. 85 Ark. 101; 28 Ark. 385; 37 Ark. 86; 33 Ark. 233. The court lost jurisdiction of the cause upon lapse of the term. 92 Ark. 388. The question of jurisdiction of the chancery court to enforce a statutory lien of an attorney for his fees was upheld by this court. 133 Ark. 430; 85 Ark. 101.
    ■ F. E. Brown, for appellee.
    The chancellor did not err in transferring the cause to the circuit court. 44 Ark. 478. The appellant had no interest in the judgment, had only a lien upon it, and Lillie'Mae Webber had a right to collect the judgment and satisfy the record. 120 Ark. 389; 117 Ark. 504. The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount involved; but a jury trial may be waived by the parties in the manner prescribed by law. Constitution, art. 2, § 7.
   Hart, J.

(after stating the facts.) It is first earnestly insisted by counsel for the plaintiff that the court erred in transferring the case from the chancery court to the circuit court, and in this contention we think counsel are correct. At the outset it may be stated that the plaintiff duly saved his exceptions to the action of the chancery court in transferring the case to the circuit court. An order transferring a cause from a chancery to a circuit court is not a judgment from which an appeal may be taken. Therefore Vaughan had to wait until final judgment was rendered in the circuit court before he could appeal to this court. Womack v. Connor, 74 Ark. 352.

Under our statute an attorney has a lien upon his client’s cause of action for the percentage of the amount recovered which his contract with his client entitles him to receive, and a statutory liability is thereby created.

The parties to the suit had a right to make a settlement, but the act requires that they shall take into consideration the fact that the attorney has a lien upon the cause of action. The lien created in favor of the attorney is a specific lien on the subject-matter of the controversy, and under the statute it may be enforced in the same court in which the judgment is recovered. St. L. I. M. & S. R. Co. v. Hays & Ward, 128 Ark. 471.

Although the plaintiff might have enforced his lien by an application to the circuit court in the case in which it arose, this did not exclude the jurisdiction of equity to afford relief. Gist v. Hanly, 33 Ark. 233, and Lane v. Hallum, 38 Ark. 385. In the latter case, the court said that the right- of the attorneys to resort to a court of equity to enforce their lien was unquestionable.

Hence it will be seen that these remedies are cumulative, and the remedy given by statute in no wise prevents the attorney from seeking his remedy in a court of equity, ■ which, on account of its more enlarged remedial powers, may be the more appropriate tribunal. This is an application of the well-settled doctrine in this State that, where courts of equity have jurisdiction, they do not lose it by jurisdiction being given by statute to the courts of law. In such cases courts of equity and courts of law exercise concurrent jurisdiction in the premises. For instance: our statute provides for a mechanic’s lien and its enforcement in the circuit court. This court has held that chancery courts have concurrent jurisdiction with circuit courts in the enforcement of our mechanic’s lien law which is created by statute. Carr v. Hahn & Carter, 126 Ark. 609.

In the present case the plaintiff elected to bring his suit in equity, as he had a right to do. When a case is brought in a court of competent jurisdiction, the authority and control of that court over the case continues until the matter is disposed of in the appellate court. The principle is essential to the proper and orderly administration of the law. Dunbar v. Bourland, 88 Ark. 153.

It cannot be said that in any event the chancellor should have found the facts in favor of the defendant, and that therefore no prejudice resulted to the plaintiff from the transfer of the case to the circuit court. Appeals from chancery courts are tried de novo in this court, and it is our duty to reverse the decrees of chancery courts where the findings of fact made by a chancellor are against the clear preponderance of the evidence.

On the other hand, this court reviews a judgment from the circuit court for error only, and the finding of fact made by the circuit court is in the nature of a special verdict and must be upheld on appeal if there is any evidence of a substantial character to support such finding.

Therefore the plaintiff, having elected to bring his suit in the chancery court, had a right to have it tried in that court and to be tried de novo in this court.

It follows that the chancery court erred in transferring the case to the circuit court, and the judgment will he reversed and the cause remanded, with directions to the circuit court to transfer the case to the chancery court for further proceedings in accordance with principles of equity and not inconsistent with this opinion.


text:
    Carpenter v. State Bank of Siloam Springs.
    Opinion delivered July 10, 1922.
    1. Partnership — complaint held to allege a partnership. — A complaint by a bank against the payee of a check and another alleging that defendants were engaged in raising, buying and marketing cattle and other live stock, that the payee, acting on behalf of himself and the other defendant, sold cattle belonging to the latter and received a check which was cashed by plaintiff bank and was subsequently dishonored, was sufficient to allege a partnership between defendants in raising cattle.
    2. Partnership — evidence.—A finding that a partnership in the cattle business existed between two defendants is sustained by proof that one of the defendants furnished the cattle and money to run the business, that the other defendant was to run the business, and that the increase of the cattle was to be divided between the two.
    3. Trial — instruction.—In an action against an indorser of a check and a codefendant, an instruction as to liability on the theory of partnership held not misleading and prejudicial, in view of other instructions given.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    affirmed.
    STATEMENT OE PACTS.
    The State Bank of Siloam Springs sued Robert H. Els and F. H. Carpenter to recover- $788.24 alleged to be the amount of a check alleged to be due plaintiff by defendants for a check cashed by the plaintiff, together with protest fees and the accrued interest. The defendant Carpenter denied liability.
    According to the testimony of W. L. Lineback, he was the cashier of the plaintiff bank, and in March, 1919, Robert H. Els came into tlie bank and presented a check to be cashed, signed by C. H. Harris, drawn on the Mc-Ilroy Banking Company of Fayetteville, Arkansas, and payable to R. H. Els. The check came back in seven or eight days protested for nonpayment, and the protest fees amounted to $3.85.
    According to the testimony of Robert H. Els, he cashed the check in question at the bank of the plaintiff and got $20 in money and a cashier’s check for the balance, $680. With the balance he paid a bill of the defendant, F. H. Carpenter, for $200, and deposited the balance in a bank to the credit of Carpenter. At the time the plaintiff cashed the check he told the cashier that the check was for cattle which had been sold to Harris, the drawer of the check. The witness had known F. H. Carpenter for about twenty years and had lived with him in Texas. When the witness’ wife died, Carpenter sent him up to his farm in Benton County, Ark., to run it, and sent about ten head of cattle to the farm at the same time. It was the understanding that Els should have one-half of the increase of the cattle. Carpenter furnished the money with which to run the place. Els liad been on the place about ten years when the transaction in question occurred. Els was accustomed to drawing checks on Carpenter when he needed money with which to run the place. They usually divided the cattle when they sold them. On the occasion in question Els took twenty-one head of the cattle and sold them as his own. He considered them as his part of the cattle and the purchase money as belonging to himself. Els said nothing to Carpenter about taking out any of the cattle and selling them as his own. Carpenter knew nothing about the transaction until it was over. Els left a like number of cattle on the place as Carpenter’s share. Els sold the cattle to Harris as his own, and the plaintiff bank cashed the check given by Harris for the purchase price. Els paid a debt of 'Carpenter’s for $200 with part of the proceeds and deposited the balance in a bank in Carpenter’s name because he owed Carpenter that amount of money. Carpenter did not have any interest in the proceeds of the cattle.
    Carpenter was a witness for himself, and testified that he had no interest whatever in the cattle sold to Harris or in the proceeds thereof.
    The jury returned a verdict in favor of the plaintiff against both the defendants. The defendant, Carpenter, alone has prosecuted an appeal to this court from the judgment rendered.

      Rice, Rice & Elrod, for appellant.
    Instruction No. 1 given on the court’s own motion was erroneous, as it refers to the cattle .as partnership cattle. There were no pleadings or proof as to the partnership. A share-cropper is never a partner. 39 Ark. 280; 44 Ark. 427. The instruction also refers to Els being the agent of appellant. The proof was to the contrary. The instruction was further erroneous because it told the jury that if appellant had received an interest in the proceeds of the check by reason of having a beneficial interest in the cattle, they should find against him.

      A. L. Smith, for appellee.
    Appellant’s objection as to the pleadings on the question of partnership should have been made by motion to make more definite. Pleadings will be treated as amended to conform to the proof. 98 Ark. 529; 91 Ark. 292; 98 Ark. 312; 97 Ark. 576, and other cases cited in brief. His specific objections to instruction No. l.were not made at the proper time. The motion for new trial cannot serve this purpose. 104 Ark. 409; 84 Ark. 81; 103 Ark. 391; 126 Ark. 567; 128 Ark. 559.
    Participation in profits of an enterprise is conclusive of a partnership, where the rights of third parties are involved, unless there are some circumstances altering the nature of the contract. 63 Ark. 518, and cases cited; 145 U. S. 611.
    There was sufficient testimony to establish agency on the part of Els. 227 S. W. (Ark.) 753; 169 S. W. 967; 65 Ark. 385. ' One who deals with an agent for an undisclosed principal may treat the after-disclosed principal as the person with whom he contracted. 44 Ark. 367; 50 Ark. 433; 87 Ark. 374.
   Hart, J.,

(after stating the facts). It is first contended by counsel for the- defendant that the judgment ■should be reversed because the complaint does not allege or attempt to allege any partnership relation in the cattle between Els and Carpenter. We cannot agree with counsel in this conclusion. The complaint alleges that said defendants are engaged in raising-, buying-, and marketing cattle and other live stock; that Els, acting for and on behalf of, the defendant Carpenter and himself, sold to C. H. Harris cattle belonging to the defendant Carpenter and received from him a cheek for $700, which was cashed by the plaintiff bank. This allegation is sufficient to allege a partnership between Els and Carpenter in raising the cattle. According to the testimony of Els, the original stock of cattle amounting to ten head belonged to Carpenter, and Els was to have one-half of the increase. His testimony is in accord with the allegation of the complaint, and the complaint in effect alleges a partnership between Els and Carpenter in the increase of the cattle of the original herd. Hence it cannot be said that the .case was submitted upon proof at variance with the allegations of the complaint.

It is next insisted that the verdict is not supported by the evidence. This is a very close question, but we are of the opinion that the evidence, together with all legal inferences that might be drawn from it, warranted the jury in returning a verdict for the plaintiff.

It is true that, according- to the testimony of Carpenter himself and that of Els, the jury might have returned a verdict for Carpenter. It is fairly inferable from the evidence that the cattle sold to Harris were partnership cattle. The bare statement of Carpenter and that of Els to the effect that such was not the case does not overcome the inference deducible from the attending circumstances, Els and Carpenter were to share equally in the increase of the cattle. They usually divided the cattle when they sold them. The cattle in question had not been set apart to Els by any agreement with Carpenter at the time he sold them. Els took the proceeds and paid a debt of Carpenter with $200 of the amount and deposited the balance to the credit of Carpenter. These circumstances speak for themselves and tend to show that the cattle sold were partnership cattle, and it cannot be said that the undisputed evidence showed that they belonged to Els.

Again, it is insisted that the court erred in giving instruction No. 1, which is as follows:

“If you find from a preponderance of the evidence that the check given by C. H. Harris to B. H.- Els on the Mcllroy Banking Company was not paid by Mcllroy Banking Company or by any one for it, and you further find that the check was given for cattle belonging to B. H. Els and defendant Carpenter as partners, or for cattle belonging to F. H. Carpenter, and Els was the agent of Carpenter in making the sale, or that Carpenter had and received an interest in the proceeds of said check by reason of having a beneficial interest in the cattle, you should find for the plaintiff as against Carpenter, and in determining these issues you will take into consideration all of the facts and circumstances in evidence.”

There was only a general objection made to this instruction at the time it was given. When considered in connection with the other instructions given by the court, we do not think it was misleading and prejudicial to the rights of the defendant Carpenter. In other instructions the jury was expressly told that if the cattle belonged solely to Els, and that Carpenter had no interest in them and did not receive any part of the proceeds of the check, the jury should return a verdict for Carpenter.

The court also told the jury that the mere fact that a part of the proceeds of the check was paid to Carpenter was not sufficient in itself to make Carpenter liable.

On the other hand, the jury was told that it must appear that some part of the. check was paid to him by reason of his having an interest in the cattle sold before it could find for the plaintiff. The jury was also expressly told that the declaration of Els to the cashier of the bank in the absence of 'Carpenter could not be considered for the purpose of establishing a partnership between Els and Carpenter.

The sole issue to be determined by the jury was whether or not Els and Carpenter were interested in the cattle at the time Els sold them and .cashed the check for their purchase price at the plaintiff bank.

We think that the question was fairly submitted to the jury, and that the evidence warranted the verdict in favor of the plaintiff.

The judgment will therefore be affirmed.


author: Wood, J.

text:
    Denton v. Young.
    Opinion delivered July 10, 1922.
    1. Forcible entry and detainer — right op defendant to recover damages. — Under the statutes, defendant in an action for unlawful detainer, where his occupancy is without right, cannot recover damages from the owner; it is only where he disputes the plaintiff’s right of possession . that he can introduce evidence showing he was damaged by being dispossessed.
    2. Judgment — sufficiency of plea of res judicata. — A motion to dismiss a cross-complaint which set forth that the issues raised by the cross-complaint had been determined by the judgment in an-action of ejectment between the same parties, though informal, was sufficient as a plea of res jvMoata.

    3. Judgment — conclusiveness when rendered after commencement of other suit. — Judgment, in an action of ejectment, is conclusive in'an action of forcible entry and detainer, though it was rendered after the latter action was commenced.
    Appeal from Fulton Circuit Court; Archie F. House, judge on exchange;
    affirmed.

      C. E. Elmore and Oscar E. Ellis, for appellants.
    The judgment in the ejectment suit which was pleaded as a bar by appellee in his motion to dismiss the cross-complaint herein, and which was held by the court to constitute a bar, could not be a defense to the cross-complaint. 33 Ark. 801; 2 Ark. 578; 7 Ark. 502.
    The former ruling of this court (145 Ark. 147), reversing the case with directions to reinstate the answer and cross-complaint, is the law of this case. Appellee should have pleaded the judgment in the ejectment suit as a defense to the cross-complaint on the former trial, and not having done so, he is estopped. .122 Ark. 491.

      J. M. Burrow and John 3. Caldwell, for appellees.
    The judgment in the ejectment suit, from which appellants took no appeal, is a bar to the present suit, since the same issues were therein adjudicated. 65 Ark. 469; 57 Ark. 500; 55 Ark. 292; 66 Ark. 336. Since appellants cannot dispute appellees’ right of possession under this judgment, they cannot maintain the present suit under sec. 4854, C. & M. Digest; 128 Ark. 277. Although the judgment in the ejectment suit was rendered after appellants filed their cross-complaint in the present action, still this does not prevent its being a bar. 76 Ark. 423; 55 Ark. 633. The judgment in the ejectment suit settled the issues in this.
   Wood, J.

This is the second appeal in this case. See Denton v. Young, 145 Ark. 147. We refer to that opinion for a statement of the issues set forth in the pleadings. Concluding the opinion in that case, we said: ‘ ‘ Appellees ’ action was for forcible entry and unlawful detainer of the property in controversy. Appellants, in their answer, dispute appellees’ right of possession to said property, and in their cross-complaint allege that they were in the possession, and entitled to the possession thereof, as purchasers at a tax sale for delinquent taxes for the year 1918; that, although appellees had no right to the possession of said lands, they wrongfully dispossessed them through proceedings for forcible entry and unlawful detainer, and, in doing so, damaged their household effects. One wrongfully and unlawfully ousted from the possession of real estate is entitled to have any damages sustained by him assessed by the jury trying the main issue and to a judgment for the amount so assessed. Sec. 3646, Kirby’s Digest. Appellees contend, however, that this statutory right in favor of appellant was swept away by their confession in the judgment rendered in the ejectment suit between the same parties. The judgment relied upon in support of this contention was not introduced in evidence in the instant case and was not, and could not have been, brought into this record by bill of exceptions. It was improperly brought into this transcript by writ of certiorari. Appellants’ motion to strike it from the files is sustained. For the error in sustaining the demurrer to the answer and crossbill of appellants to appellees’ last amended complaint, the judgment is reversed and the cause remanded, with directions to reinstate the answer and cross-complaint and for further proceedings not inconsistent with this opinion.”

Upon remand of the cause the appellee, Jas. R. Young, filed a motion to dismiss the cross-complaint, in which he set up that Ross Denton and Mrs. Ross Denton, the cross-complainants, obtained permission of Jas. R. Young, as administrator of the Harrison estate, to enter upon and take possession of the premises described in their cross-complaint, and thereby became tenants at will of the said Young, but later refused to surrender and vacate the premises when Young demanded them to do so, and wrongfully and unlawfully held the same against said Young, who, as such administrator, on July 17, 1919, instituted a suit in ejectment against these cross-plaintiffs. They attached to their motion a copy of the complaint in ejectment and the answer and cross-complaint of the Dentons thereto, in which they set up that they had the lawful right and legal possession of the premises. The motion then alleged that Young and Niles filed a supplementary or amended complaint, asking for a writ of possession, which writ was issued and executed on the 29th of September, 1919. The motion then alleged that the question of whether Mr. and Mrs. Denton were rightfully or wrongfully in possession of the premises, together with other questions, were raised in that suit, and that, upon a final hearing of the same, the circuit court, at its February term, 1920, adjudged that the Dentons were in unlawful possession of the property and rendered against them a judgment of ouster. The motion then, by way of explanation, recites the history of the litigation in the present action of unlawful detainer as is set forth in the statement of facts in our first opinion. (See Denton v. Young, supra). The motion concluded by pleading that the judgment in the ejectment suit was res judicata of the rights of the Dentons in the present suit, and asked that their cross-action be dismissed.

The appellants filed a demurrer to this motion, which was overruled. The appellants then filed an answer in which they denied the allegations of the motion and set up that, while the suit in ejectment instituted by Young and Files against the Dentons on July 17, 1919, was still pending, the present action for unlawful detainer was •instituted and the judgment in the ejectment suit was not rendered until the 24th of February, 1920; that in the meantime the proceedings and judgment in the circuit court in the present action of unlawful detainer and the judgment of this court reversing the judgment of the circuit court operate as a bar to appellees’ motion to dismiss the appellants’ cross-complaint.

The issues presented by the motion and the answer thereto were heard on the records showing the orders made in the respective actions of ejectment and unlawful detainer. The trial court sustained the appellee’s motion to dismiss the cross-complaint in the present action, and entered a judgment dismissing such cross-complaint, from which is this appeal.

The judgment of the trial court is correct. In White River Land & Timber Co. v. Hawkins, 128 Ark. 277, we held (quoting syllabus): “Under the statutes, defendant, in an action for unlawful detainer, where his occupancy is without right, cannot recover damages from the true owner. It is only where defendant disputes the right of possession that he can introduce before the jury evidence showing that he has sustained damages by being dispossessed.” It will be observed that this court, on the former appeal, held that the answer and cross-complaint of the Dentons in the present action of unlawful detainer stated a cause of action against the appellees. On the former appeal the judgment in ejectment was not brought into this record. ' On remand of the cause for further proceedings the appellees moved to dismiss the cross-complaint of the appellants in this action. The motion to dismiss set up the judgment in the ejectment suit between these same parties, and, although inartistically drawn, was in legal effect tantamount to a plea of res judicata. On the issues raised by this motion and the answer thereto, the judgment in the ejectment suit was introduced in evidence and is properly brought into the record before us.

The appellants contend that this judgment in ejectment is not a bar to the maintenance by them of the cause of action set up in their answer and cross-complaint, be-' cause the judgment in the ejectment suit was rendered after their cross-complaint in the present action of unlawful detainer was filed. But in Church v. Gallic, 76 Ark. 423, we held: ‘ ‘ The fact that a judgment was obtained after the commencement of the suit in which it is pleaded does not prevent its being a bar. It is the first judgment for the same cause of action that constitutes an effective defense, without regard to the order of time in which the suits were commenced. * * *' * All of the rights and matters asserted in this suit by appellant could have been adjudicated in the ejectment suit, or she could have pleaded the pendency of this suit in bar of appellee’s rigid to maintain that suit. Having failed to do either, she is barred by the final judgment in that case from seeking further to adjudicate the question in this case.” The doctrine here announced precludes the appellants from maintaining the action set up in their answer and cross-complaint in this action of unlawful detainer. In this action of unlawful detainer the appellants did not plead the pendency of the suit in ejectment as a bar to this action. The judgment in the ejectment suit settled the issue that the appellants were in possession of the land without right. Hence it now appears that, since this judgment was brought into the record, the appellants had no cause of action against the appellees, because appellants were not in lawful possession of the property and were not unlawfully ousted therefrom. See White River Land & Timber Co. v. Hawkins, supra.

There is no error in the record, and the judgment is therefore affirmed.


text:
    Holcomb v. Bowe.
    Opinion delivered July 10, 1922.
    1. Equity — mortgages—foreclosure of deed absolute intended as mortgage. — Where a deed absolute in form is held to be a mortgage, at suit of the grantor, in foreclosure, the court applying the equitable rule that he who asks equity must do equity, will charge the grantor with the grantee’s expenditures, including water bills, insurance and taxes paid, and will credit the grantor with the rental value of the land during the grantee’s possession.
    2. Cancellation of instruments — duress—subrogation.—Where plaintiff seeks to have a deed given to defendant set aside entirely upon the ground of duress, he cannot complain because the court treated the deed as a mortgage and charged plaintiff with a previous mortgage indebtedness on the land which defendant had paid, as, had the deed been set aside, the court would have given similar relief by way of subrogation.
    Appeal from Garland Chancery Court; Jethro P. Henderson, Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    Mary Holcomb, by her next friend, Jennie Gyce, brought this suit in equity against Justus Bowe to set aside a deed on the ground of the mental inoompetency of the grantor.
    It appears from the record that Mary Holcomb owned certain real estate in the city of Hot Springs, Ark., which she had mortgaged to M. H. Pemberton for $1,000, and upon which there was a balance due of principal and interest of $1,150. Mary Holcomb executed a deed to said property to Justus Bowe, and the consideration recited in the deed was $1,150.
    Evidence was introduced on the part of the plaintiff tending to show that Mary Holcomb was not mentally competent to transact business in general at the time the deed in question was executed, and that the execution of a deed absolute in form was procured by the undue influence of Justus Bowe over her.
    It was further shown that Bowe had promised to pay off a mortgage which Pemberton held on the property, and that it was the intention of the parties that the deed from Mary Holcomb to Bowe .should be a mortgage.
    On the other hand, there was evidence in behalf of Bowe tending to show that the transaction was a conditional sale and not a mortgage. Inasmuch as the court found the facts on this branch of the case in favor of the plaintiff, and no appeal has been taken by the defendant, it is not necessary to set out the testimony in detail.
    The chancellor found that the transaction was a mortgage, and a decree of foreclosure was entered of record.
    The plaintiff has duly prosecuted an appeal to this court.

      B. G. Davies, for appellant.
    To invalidate a deed on the ground of insanity, the insanity must show inability to exercise reasonable judgment in regard to the matter involved. 115 Ark. 436. Where the consideration of a deed is the undertaking by the grantee to support the grantor, and he fails to comply with such undertaking, the grantor’s remedy is either to sue at law for the amount of the consideration, or else treat the contract as void and sne in equity to cancel the deed. 103 Ark. 464'.

      G. T. Gotham and Fratienthal & Johnson, for appellee.
   Hart, J.,

(after stating the facts). The court found that, although the deed was absolute in form, it was intended as a mortgage. The deed was treated by the court as a mortgage, and a foreclosure thereof was granted for the balance due.

The undisputed evidence shows that Mary Holcomb owed M. H. Pemberton $1,150, the balance due on a mortgage which she had executed to him on the property. The mortgage indebtedness bore interest at the rate of ten per 'sent, per annum.

In the present case, judgment was rendered in favor of Bowe against Mary Holcomb for the balance due on the mortgage indebtedness. The defendant was allowed credit in certain amounts for water bills, insurance, and taxes which he had paid on the property and the further sum of $60 which he had furnished Mary Holcomb for her support. He was charged with the rental value of the property while he had it in his possession, and judgment was rendered in his favor against the plaintiff for the balance of the mortgage indebtedness.

There was no error in the action of the court in this respect. The court followed the rule that he who asks equity must do equity, and properly decreed that relief against the deed should be granted the plaintiff on condition that she pay off the mortgage indebtedness against the property. This was treating the transaction between the plaintiff and the defendant as a mortgage, and was strictly in accordance with the prayer of the complaint.

The action of the court was in accord with the rule laid down in Bryan v. Hobbs, 72 Ark. 635. In that case it was held that where a mortgagee by duress compels the mortgagor to execute an absolute deed to his wife in satisfaction of the mortgage debt and a further indebtedness which the mortgagor was willing to secure, equity will treat the instrument as a security merely, and grant relief on condition that the mortgagor pay the debt he intended to secure.

Here it is claimed that the deed was procured by the undue influence of the defendant, and the plaintiff was granted the same relief as was granted in the above case where the deed was procured by duress. '

Again, if the contention of counsel for the plaintiff to the effect that the transaction should be set aside entirely be sustained, the relief granted would be the same. It was proper for the chancery court, under the doctrine of subrogation, after setting the deed aside, to charge Mary Holcomb with the money advanced in paying off the mortgage on the land to Pemberton and to subrogate the defendant to Pemberton’s rights in the premises.

In Hudson v. Union & Mercantile Trust Co., 148 Ark. 249, it was held that, under the doctrine of subrogation, one lending money to an insane woman to buy land may have a lien thereon for the amount of such purchase money. One who pays a debt at the instance of the debtor is not a volunteer; and if at the time of payment he manifests an intention to keep the lien alive for his protection, he will in equity be subrogated to the rights and remedies of the' creditor. Rodman v. Sanders, 44 Ark. 504.

The undisputed.evidence shows that Bowe paid off the mortgage indebtedness of Mary Holcomb, and it is manifest that he at least intended to keep the lien alive by taking a deed to the property absolute in form, although the instrument should in equity be treated as a mortgage, and although Mary Holcomb should be considered insane at the time of its execution.

The chancellor only allowed the defendant interest at the same rate the mortgage indebtedness bore. He also allowed him credit for insurance, taxes, and water bills paid by him, and properly charged him with the rental value of the premises after the execution of the-deed to him by Mary Holcomb.

Bowe had charge of the property for about two years, and the chancellor found that its rental value was $24 per month. After deducting the expenses above men-' tioned, the chancellor applied the rents on the mortgage indebtedness and rendered judgment in favor of the defendant against the plaintiff for the balance due.

It would serve no useful purpose to discuss these specific findings of the chancellor in detail. It is sufficient to say that the chancellor’s finding of facts is supported by the evidence, and the decree must be affirmed.


text:
    Webb v. Waters.
    Opinion delivered July 10, 1922.
    1. Death — wrongful killing — right to recover for decedent's suffering. — The widow and children of one wrongfully killed are not entitled to recover for his pain and suffering, in the absence of allegations bringing the ease within Crawford & Moses’ Dig., § 1.
    2. Appeal and error — prejudicial error. — In an action for wrongful killing where the jury were erroneously instructed to consider decedent’s pain and suffering in fixing damages, and there was nothing to show what amount, if any, was allowed for pain and suffering, a new trial will be granted, as the presumption is the jury were influenced by the erroneous instruction.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    reversed.

      James B. Gray, and Trimble S Trimble, for appellants.
    A continuance should have been granted on account of the sickness of Dudley Webb, which prevented him from being present at the trial. 195 S. W. 682; 99 Ark. 394.
    Instruction No. 1 was erroneous in that it allowed damages to the widow and children for conscious pain and suffering of the deceased. Recovery for this element of damage can only be had in the name of an administrator for the benefit of the estate. Sec. 1070, C. & M. Dig.; 146 Ark. 562, S. W. 165.

      Oscar H. Winn, Oscar E. Williams and Guy E. Williams, for appellees.
    The so-called instruction No. 1 given on the court’s own motion could hardly be called an instruction. It was merely a preliminary statement. None of the instructions asked for by plaintiffs contained any mention of the element of damage for conscious pain and suffering, and this feature was not relied on. The verdict was based on deceased’s contributions to his family for his life expectancy, or nearly so.
   Wood, J.

This is an action by Mrs. Julia Waters, widow of King Wafers, for herself and minor children against the appellants to recover judgment for damages for the alleged assassination of King Waters, late husband of Julia Waters and father of the minor children. It is alleged in the complaint that the appellants did assassinate King Waters on the 11th day of June, 1920, by wrongfully and unlawfully shooting him with a shotgun loaded with gunpowder and buckshot. It was alleged that during the time that Waters lived after he was shot he suffered excruciating physical pain and mental anguish. Mrs. Waters asked judgment for herself in the sum of $50,000 and for her children in • the sum of $60,000 and for the benefit of the estate in the sum of $10,000, making the aggregate sum of $120,000, for which she prayed.

The appellants, in their answer, denied all the material allegations of the complaint, and set up that, on the 11th day of June, 1920, they were attacked by King Waters while they were in the field looking at their crops; that King Waters fired upon them with a 44-calibre pistol; that the attack was without any provocation whatever, and that they returned the fire in self-defense and without any fault or carelessness on their part; and they alleged that, if King Waters died from wounds received in the combat, his death was by reason of his own fault. There was testimony to sustain the allegations of the complaint that King Waters was assassinated by the appellants, and also testimony to sustain the. allegations of the answer to the effect that King Waters was the aggressor, and that the appellants shot him in self-defense.

It was purely a question of fact under the evidence as to whether the appellants unlawfully killed King Waters. There was testimony to sustain the verdict that King Waters was unlawfully killed.

In one of its instructions, the court told the jury that they (the plaintiffs) “are entitled to recover such a sum as would reasonably, fairly and justly compensate for any physical pain and mental anguish suffered by the deceased, if any, between the receiving of these wounds and his death, or to the period of time where he lost consciousness, or was no longer capable of feeling any physical pain or mental anguish as the result of these wounds. ’ ’ The record shows the following: “ The defendants * * * especially except to instruction No. 1, given by the court on its own motion, because no letters of administration have been taken out in this suit, and the suit was not brought by an administrator, and the elements of the damages for the benefit of the estate are improper in said suit.”

The plaintiff and one of the children testified, without objection on the part of the appellants, substantially as follows: That from the time Waters was shot until he died “he was suffering and complained of hurting in his chest and legs — asked for a pillow under his legs, and that his shoes be pulled off because his feet were hurting him so bad; that he was conscious up to the time of his death.”

There was a verdict in favor of the plaintiff in the sum of $15,000. One of the grounds of defendants’ motion for a new trial is that the court erred in giving instruction No. 1 on its motion. The motion for new trial was overruled, judgment was entered in favor of the plaintiff in the sum of $15,000, from which judgment is this appeal.

In Hines v. Betts, 146 Ark. 555-563, the court, in one of its instructions, “permits the jury to find for plaintiff for conscious pain and suffering, if any, suffered by the decedent by reason of the injury.” In commenting upon this instruction we said: “It clearly authorized the jury to allow the widow and children damages for the conscious pain and suffering of Andy Betts. This was wrong. The widow and minor children were only entitled to sue for damages which they sustained by reason of the death of the husband and father, and this was the financial loss to them of his comfort and support. They could not sue for damages for the conscious pain and suffering of decedent. Such suits must be brought, under our statute, by the personal representative of such deceased person.” See secs. 1070, 1074, 1075, C. & M. Digest. The Legislature, by act of March 31, 1893, p. 229, sec. 1, C. & M. Digest, passed an act providing that “when all the heirs of any deceased intestate and all persons interested as distributees in the estate of such intestate are of full age, it shall be lawful for them to sue for, recover and collect all demands and property left by the intestate, and to manage, control and dispose of such estate without any administration being had thereon in all cases where the creditors of such estate consent or agree for them to do so, or where they have paid or satisfied all valid debts and demands against such intestate,” etc.

Neither the allegations of the complaint nor the proof brings the appellees’ cause of action within this section. The burden was upon the appellees to do this before they could maintain this action for damages for the benefit of the estate. Therefore the case of Hines v. Betts, supra, is controlling here.

While there, were other separate and correct instructions on the measure of damages, yet it is impossible for us to say that the jury were not governed by the above erroneous instruction in fixing the measure of damages. The presumption, in the absence of an affirmative showing to the contrary, is that the jury were influenced by such instruction. The record discloses no facts which would justify us in eliminating the error by reducing the verdict. There is nothing to show to what extent the erroneous instruction influenced the jury; that is, what amount, if any, they allowed on account of the conscious pain and suffering of Waters. For the error indicated, the judgment is reversed and the cause remanded for a new trial.


author: McCulloch, C. J.

text:
    Road Improvement District No. 16 v. Sale.
    Opinion delivered July 10, 1922.
    1. Statutes — -presumption op regularity. — That one page of an enrolled bill for an act was in different typewriting and on a different kind of paper from that of the other pages of the bill does not overcome the presumption of the regularity of its introduction and passage.
    2. Statutes — presumption op regularity. — An enrolled statute, signed by the Governor and deposited with the Secretary of State, raises the presumption that every requirement was complied with, and this presumption is conclusive unless the records of which the courts can take judicial knowledge show to the contrary.
    2. Evidence — judicial notice. — The courts take judicial notice of the records of the General Assembly.
    3. Statutes — immaterial alteration of bill. — The substitution of the word “embrace” for “abolish,” in an act entitled “An act to embrace Road Improvement District No. 2 of the Northern District of Woodruff County in, and to create, Road Improvement District No. 16 of Woodruff County,” after the bill was passed by the Senate and before it.was passed by the House, did not affect its validity, since the real object of the act was to abolish District No. 2 and embrace it in District No. 16.
    4. Statutes — special session of legislature — scope of proclamation. — The act of Special Session of 1920 entitled “An act to embrace Road Improvement District No. 2 of.the Northern District of Woodruff .County in and to create Road Improvement District No. 16 of Woodruif County, and for other purposes,” was within . the terms of the Governor’s proclamation calling the session “for the purpose of enacting laws establishing special or local road improvement districts.
    5. Evidence — parol evidence as to notice op special bills. — Extrinsic evidence outside of the legislative records is inadmissible to show that the notice of the introduction of a special bill had not been published for the requisite length of time.
    Appeal from Woodruff Chancery Court, Northern District; J. E. Martineau, Chancellor;
    reversed.

      E. M. Woods, Roy D. Campbell and Coleman, Robinson & House, for appellants.
    The finding by the court that the title to the act had 'been changed by substituting the word “embrace” for the word “abolish,” and was a material variation in the bill, was not justified by the record. 44 Ark. 549; 110 Ark. 273; 34 Ark. 283; 40 Ark. 200.
    In concurring in amendments, the Constitution does not require that it shall be done by yea and nay vote, and that the same shall be entered upon the journal. 61 Ark. 226.
    Before a bill, which has been duly enrolled, shall be declared invalid, the record must show conclusively that the constitutional requirements have not been met. 43 W. Y. 523; 64 Am. St. Rep. 878; 26 Kan. 723; 139 Ark. 598.
    In determining whether an act has been properly passed, the court will not look beyond the records of the General Assembly. 72 Ark. 565; 40 Ark. 200; 131 Ark. 291; 139 Ark. 227.
    While the title of an act may be looked to to ascertain its meaning, it is no part of the act and is not controlling in its construction. 124 Ark. 476; 130 Ark. 505.
    While the journals furnish evidence of legislative proceedings so far as they go, yet courts are not bound by what appears therein. 40 Ark. 215.

      It is not necessary that the vote on amendments be recorded. Const. 1874; 61 Ark. 230; 130 Ark. 276; 61 Ark. 227; 110 Ark. 269; 4 Neb. 503; 11 Ind. 424.

      R. M. Hutchins and Mchaffy, Bonham & Mehaffy, for appellees. ^'
    The constitutional provision limiting the scope of legislation at special sessions is mandatory, and any law enacted not embraced within the Executive’s call is void. Jones v. State, 25 R. C. L. 806; Lewis, Sutherland, Statutory Construction, 2nd ed. sec. 65, p. 11.
    The Legislature cannot indirectly do that which it is prohibited from doing directly. 5 Ark. 412.
    The act does not fall within the range of the subjects submitted by the Governor in his proclamation. 19 S. W. 530. The approval of the act by the Governor could not make it valid. 110 Mo. 286; 58 Tex. Cr. R. 209.
    The duty having been placed on the Governor to specifically name the legislation in which the General Assembly was engaged Avhen called together in special session, that duty can alone be dischaged by him. 107 S. E. 765; 25 R. C. L. sec. 56; 110 Mo. 286; 19 S. W. 530; 15 L. R. A. 847; 40 L. R. A. (N. S.) 28; 28 Olda. 94; 113 Pac. 921; 58 Tex. Cr. R. 209; 127 S. W. 208; 130 Cal. 82; 128 Tenn. 456.
    Duly enrolled acts, properly authenticated, approved by the Governor and deposited with the Secretary of State as existing laAvs, are presumed to have been enacted in accordance with constitutional requirements. 3 Nev. 233; 34 S. W. 769; 174 S. W. 1108; 161 S. W. 1006; 187 Fed. 393.
    If a statute is divisible, and is partly unconstitutional, that part may be rejected and the balance upheld; but if it is not divisible, and any part is unconstitutional, the entire statute falls. 25 Ark. 236; 34 Ark. 224; 49 Ark. 110.
    Any material change in either house renders it null and void. 72 Ark. 565; 41 Ark. 471; 90 Ark. 174; 103 Ark. 109; 132-Ark. 240.

      The courts will take judicial knowledge of enrolled bills as found in tbe office of tbe .Secretary of State. 72 Ark. 563; 132 Ark. 240; 90 Ark. 174; 103 Ark. 109; 130 Ark. 503.
    Tbe act was passed in violation of sec. 26, art. 5 of tbe Const. 141 Ark. 140; 48 Ark. 82; 8 Cyc. 762; 93 Ark. 339; 156 Pa. 1121.
   McCulloch, C. J.

Road Improvement District No. 2 of Woodruff County was formed by order of the county court of tbat county, pursuant to tbe general statute authorizing the formation of road improvement districts (Crawford & Moses’ Digest, sec. 5399 et seq.), and progress seems to have been made in preparing for tbe construction of tbe improvement, though it is not shown in tbe pleadings or proof in tbe present case to what extent tbe proceedings progressed.

The General Assembly, at tbe extraordinary session convened in January, 1920, pursuant to tbe proclamation of tbe Chief Executive, enacted a special statute bearing tbe title as follows: “An act to embrace Road Improvement District No. 2 of tbe Northern District of Wood-ruff County in, and to create Road Improvement District Number 16 of, Woodruff County, and for other purposes.” Tbe first section of tbat statute reads as follows: “That all assessments now levied on lands in Improvement District Number 2 of tbe Northern District of Woodruff County are hereby set aside and revoked, and tbat the territory of Road Improvement District Number 2 be and is hereby embraced in and made a part of the hereinafter created Road Improvement District Number 16 of tbe Northern District of Woodruff County; and tbat said District Number 16, hereinafter created, is benefited by tbe preliminary work, estimates and surveys made on account of District Number 2, and that District Number 16 shall assume tbe burden of payment of all preliminary expenses in tbe matter of formation, surveys, estimates, fees, etc., of District Number 2, and assessments are hereby authorized to cover tbe payment of said benefits by said hereinafter created District Number 16; and the commissioners hereinafter appointed shall have control, as provided by law, over all the road improvements and territory herein embraced in Boad Improvement District Number 16.”

The subsequent sections designated the boundaries of the district, specified the road or roads to be improved, named the commissioners, and contain other provisions with reference to assessing benefits, levying taxes, borrowing money and constructing the improvement.

Appellees are residents and owners of real property within the boundaries of the old district as well as the new district created by the special statute above referred to, and they instituted this action in the chancery court of Woodruff County to restrain the commissioners of Boad Improvement District No. 16 from proceeding under the statute. The validity of the special statute creating Boad Improvement District No. 16 is assailed on the grounds that it was not legally enacted, in that the bill was changed without authority during its progress through the House of Bepresentatives; that it was not embraced within the Governor’s proclamation for the extraordinary session, and that notice of the introduction of the bill was not given for the length of time required by the Constitution. The points of attack upon the validity of the statute will be discussed in the order in which they are made. .

The charge that the bill was changed without authority during its passage through the House is sought to be established from inspection of the original bill, with indorsements thereon, as it now appears on file in the office of the Secretary of State. It is shown by the inspection that the first page, which is typewritten, is in different type from that of the other pages of the bill and on different kind of paper. The bill cannot be stricken down on this ground, for the fact that one of the pages appears in different typewriting and on a different kind of paper does not overcome the presumption of the regularity of its introduction and passage through the two Houses of the General Assembly. The rule is firmly established in this State that an enrolled statute “signed by the Governor and deposited with the Secretary of State raises the presumption that every requirement was complied with, unless the contrary affirmatively appears from the records of the General Assembly,” etc., and that this presumption is conclusive “unless the records of which the courts can take judicial knowledge show to the contrary.” State v. Crowe, 130 Ark 272; Harrington v. White, 131 Ark. 291; Perry v. State, 139 Ark. 227; Booe v. Sims, 139 Ark. 595; Booe v. Road Imp. Dist. 141 Ark. 140.

The further inquiry then presents itself whether there is anything appearing upon the preserved records of the General Assembly which overcomes the presumption arising from the enrolled statute in the office of the Secretary of State. We take notice of these records (Butler v. Kavanaugh, 103 Ark. 109; Mechanics’ Bldg. & Loan Assn. v. Coffman, 110 Ark. 269), ¡but, in addition to that, counsel have brought into the record certified copies of all the journal entries and a copy of the original bill with all of its indorsements.

The contention of appellees is that the title of the bill as introduced and passed in the Senate contained the word “abolish,” instead of the word “embrace” as now appears in the original bill and in-the enrolled statute, and that this change was made without proper amendment after the bill had been read the first and second times in the House. Counsel rely upon the journal entries of the two Houses to establish this charge.

The Senate Journal recites that Senate Bill No. 4, by Senator Roddy, “An Act to abolish Road Improvement District No. 2 of the northern district of Woodruff County in, and to create Road Improvement District Number 16 of, Woodruff County, and for other purposes”, was read the first time on January 26, 1920, the rules suspended and read the second time, and made a special order for January 27. The entry on the Senate Journal on January 27, 1920, recites the title of the bill in the same language as in the entry on the previous date. It states that the bill was read the third time and placed on final passage and passed, the aye and nay vote being set forth on the record, showing the affirmative vote of a majority. The entry on the House Journal on January 27, recites that “Senate Bill No. 4, being .a ‘bill to abolish Road Improvement District No. 2 of the northern district of Woodruff County, and'to create Road Improvement District No. 16, and for other purposes,’ was read the first and second time and placed on the calendar.” The entry in the House Journal on January 30, showing the final passage of the bill, recites that “Senate Bill No. 4, by Senator Roddy, the same being a bill for ‘ an act to embrace Road Improvement District No. 2 of the northern district of Woodruff County in, and to create Road Improvement District No. 16 of, Woodruff County, and for other purposes,’ was read the third time and placed on final passage.” The entry further recites the aye and nay vote in detail, showing the affirmative vote of a majority of the House. The last entry in the two Houses is on the Senate Journal on February 2, 1920, reciting that “Senate Bill No. .4, by Senator Roddy, the same being a 'bill for an act to be entitled, ‘An act to embrace Road Improvement District No. 2 of the northern district of Woodruff County in, and to create Road Improvement' District No. 16 of, Woodruff County, and for other purposes,’ was received by the Senate from the House.” The bill was then enrolled and approved by the Governor on February 18, 1920, and the title of the act as enrolled corresponds witli the language of tlm original bill as it now appears.

If the alleged change in -the original bill, by substituting the word “embrace” for the word “abolish” should be held to be material so as to defeat the validity of the bill, the recitals of the journal are not sufficient to overcome the presumption of the regularity of the enactment. At most, there is only silence of the record with respeot to the substitution of the word, and the presumption must be indulged that the change was régular and was authorized. Mechanics’ Bldg. & Loan Assn. v. Coffman, supra; State v. Crowe, supra. But the change, if made irregularly, was not material and did not affect the validity of the bill. The title of a bill has no controlling force (Special School Dist. No. 33 v. Howard, 124 Ark. 475), and the substitution of the word “embrace” for the word “abolish” did not, if made, change the bill from its original purpose as introduced. When the two words are considered in the light of the body of the statute, the use of either one would be appropriate, for the statute itself, in fact, abolished Road District No. 2 and embraced it in the new district. In other words, under the statute the old district was swallowed up in the new district, and, speaking even in the strictest sense, it not only embraced the old district, but abolished it. Moreover, the use of the words, when we consider the immateriality of the change, must be construed to be merely a clerical misprision, for the difference in the journal entries in this instance is not sufficient to overcome the presumption arising from the enrolled statute approved by the Governor, especially since its language is in exact conformity with the original bill now on file in the office of the Secretary of State. Desha-Drew Road Dist. v. Taylor, 130 Ark. 503.

Our conclusion therefore is that this attack upon the validity of the statute is not supported by the record and is unfounded.

That part of the Governor’s proclamation which specifies the legislation to be undertaken at the extraordinary session reads as follows:

“For the purpose of enacting laws establishing special or local road, bridge, drainage and levee improvement districts, and school districts, and conferring special powers thereon, and amending and curing defects in existing special or local laws for the same, and ratifying, confirming and validating special or local improvement districts organized under general laws or special or local laws and enlarging the powers thereof, and to enact such laws as will permit the completion, reconstruction or extension of waterworks systems and other improvement districts in cities or towns.”

The records of the General Assembly do not show that the extraordinary session was extended for the purpose of considering general legislation, and it therefore follows that, unless the bill for the statute now under consideration fell within the terms of the Governor’s proclamation, the enactment was -unauthorized and invalid. Jones v. State, ante p. 288. The contention is that the statute, in fact, abolished a 'road improvement district, that a bill for such a purpose was not embraced within the proclamation of the Governor, and that the whole statute being inseparable, was invalid, and that the effect of the statute is to abolish the old district. But it will be observed that no express words.of negation are used in the proclamation, there being only an affirmative expression describing the subject-matter of legislation to be considered.

The Constitution (sec. 19, art. VI) in providing that “no other business than that set forth therein shall be transacted until the same shall have been disposed of, after which they may, by a vote of two-thirds of all the members elected to both houses, entered upon their journals, remain in session.” etc., contains no restriction upon the power of the lawmakers except to confine themselves to the legislation specified in the proclamation until that business is finished. The power of the lawmakers •with regard to legislation at the extraordinary session is therefore full and complete so far as it relates to the subjects specified in the proclamation. The language of the proclamation confines the legislation to “laws establishing special or local road, bridge, drainage and levee improvement districts, and school districts,” and the power to carry out such enactments is complete. The fact that the statute incidentally amends, or even abolishes, another local district does not hamper the power of the Legislature in creating a new district which brings about that result.

Having clearly the power, under the Constitution and the proclamation of the Governor, to pass special laws establishing local districts, the power to pass such legislation to abolish or embrace other districts is a necessary incident to the exercise of the power conferred. If it be conceded that the enactment of a statute abolishing a road district and doing nothing more would not be within the Governor’s proclamation, the present instance is not one of that kind, for the provisions of the bill with respect to the old district constituted, as before stated, the exercise of incidental powers in enacting legislation that falls expressly within the language of the proclamation.

Learned counsel for appellees rely upon the recent case of Jones v. State, supra, but we do not think the decision has any bearing on the question now before us. The statute considered in that case was held to be a general statute affecting all improvement districts, and that it was not within the subjects specified in the proclamation of the Governor.

The last contention in support of the chancellor’s decree declaring the act unconstitutional is that notice of the introduction of the bill was not published for the length of time required by the Constitution. In support of this contention appellees introduced extrinsic evidence outside the legislative record showing that notice was not properly published for the requisite length of time. There is a conclusive presumption in favor of the legislative determination that notice of the introduction of a special bill had been properly published for the requisite length of time. That was the rule established by this court in Chicot County v. Davies, 40 Ark. 200, and has been adhered to down to the present date. We overruled a certain portion of that decision, not material to the present controversy, in the case of Booe v. Road Imp. Dist., supra, .but the doctrine in Chicot County v. Davies, supra, was reaffirmed in that case so far as it related to the conclusiveness of the legislative determination in regard to notice, except in the case of an extraordinary session, where the proclamation of the Governor was not made a sufficient length of time before the convening and adjournment of the session to give time for publishing the notice. We are asked to overrule the former cases on this subject, but the court declines to do that.

It follows that all of the attacks on the validity of the statute are unfounded, and that the' decree in declaring the statute invalid was erroneous. The decree is therefore reversed and the cause remanded, with directions to dismiss the complaint for want of equity.

Hart, J., dissents.