author: Wood, J.

text:
    Western Union Telegraph Company v. Baltz.
    Opinion delivered October 31, 1927.
    1. Trial — province op jury. — -The jury are the sole judges from the weight of evidence and the credibility of witnesses.
    2. Evidence — presumption as to the receipt op message. — Where a railway agent telephoned a message to the telegraph agent at another town, it was presumed that the latter heard and received the message as it was telephoned to him, and it was not necessary for plaintiff, suing for damages for failure to deliver message, to prove affirmatively that such operator heard or received the message as it was telephoned.

      3. Telegraphs and. telephones — transmission of message — jury question. — In an action for damages for failure to deliver a telegram which an operator telephoned to another agent at another town, the question whether the agent gave the address of the sendee as Pocahontas, Arkansas, instead of Pocahontas, Oklahoma, held for the jury.
    4. Telegraphs and telephones — receipt of message. — Where a telegraph operator receives a message over a telephone line, and writes the same down, the operator is acting for the company in writing the message, especially where it has been the custom to receive messages in such manner.
    5. Evidence — presumption . of receipt of message — rebuttal.— Where there is no statute on the subject, it is a rebuttable presumption that the message as spoken was heard over the telephone.
    6. Telegraphs and telephones — failure to deliver telegram— evidence. — In an action for failure to deliver a telegram because sent to Pocahontas, Oklahoma, instead of Pocahontas, Arkansas, where a message was given to the railway agent, who telephoned it to a telegraph agent at another town, and defendant claimed that the railway agent was not its agent, and that the telegram was delivered as given, evidence held to sustain a verdict for plaintiff.
    7. Telegraphs and telephones — damages for mental anguish for non-delivery of TELEGRAM. — Under Crawford & Moses’ Dig., § 10,249, there could be no recovery against the telegraph company for negligence in handling a message concerning a last illness and death, unless plaintiff proves that she could and would have attended the deathbed or funeral, if the message had been duly delivered, and therefore that she was deprived of such right and privilege by negligence of such company who handled the message.
    8. Telegraphs and telephones — .jury question. — Whether or not plaintiff would have attended the deathbed or funeral if the telegram concerning the last illness and death had been delivered, is a question of fact for the jury, even though the plaintiff testifies that she could and would have gone, and her testimony is not affirmatively controverted, since plaintiff is an interested witness, whose testimony the jury is not compelled to believe.
    9. Trial — conflicting instructions. — In an action for failure to deliver a telegram, regarding the last-illness of plaintiff’s mother, an instruction permitting plaintiff to recover for mental anguish without the jury’s finding that she could and would have gone to her mother’s bedside, if the telegram had been delivered, held not cured by an instruction providing that such damages .might be assessed provided plaintiff’s failure to be with her mother at that time was caused by negligent failure of the defendant to deliver the message, since the two instructions were in irreconcilable conflict, and the jury had no correct guide.
    10. Telegraphs and telephones — failure to deliver telegram— instruction. — In an action for failure to deliver a telegram concerning plaintiff’s mother’s last illness, an instruction permitting plaintiff to recover for mental anguish, without finding that plaintiff could and would have gone to her mother’s bedside if the telegram had been delivered, held reversible error.
    Appeal from Randolph. Circuit Court; John C. Ashley, Judge;
    reversed.

      Francis R. Starh, Bloch & Kirsch, and Rose, Hemingway, Cantrell é Loitghborough, for appellant.

      John L. Bledsoe and Schoonover & Schoonover, for appellee.
   Wood, J.

Mrs. Phillip (Agnes) Baltz instituted this action against the Western Union Telegraph Company. She alleged that on July 1, 1925, a brother of hers,- Lee Lehnen, acting on her behalf, delivered a telegTam to John Daniels, the railway station agent at Scranton, and also the defendant’s agent. The telegram is !as follows: “Please notify Agnes mother very low.” She alleged that the messagé was signed by Lehnen and addressed to Joe Baltz, who was her brother-in-law, and acting for her. She alleged that she was the “Agnes” mentioned in the telegram, and that same was sent for her benefit; that the telegram was delivered over the railway company’s telephone line to the agent of the defendant at Paris, Arkansas; that the defendants and its agent were negligent in receiving, transmitting and delivering the said telegram, and, because of such negligence, the telegram was never delivered; that her mother died on July 5, 1925, and that, because of the aforesaid negligence of the defendant and its agent, she had suffered and is continuing to suffer great mental anguish, due to the fact that she was unable to be with her mother during the last days of her life. She alleged damages in the sum of $2,500, for which she prayed judgment.

The defendant, in its answer, denied the material allegations of the complaint, 'and set np that, on July 1,1925, Lehnen and Berg applied to John Daniels, agent of the railway company at Scranton, Arkansas, to send a message via defendant’s line to Joe Baltz, at Pocahontas, Oklahoma; that John Daniels informed them that he was not the agent of the defendant and that he was not authorized to receive messages for transmission, and told them that they could telephone the message to defendant’s agent at Paris, Arkansas; that Lehnen and Berg thereupon requested Daniels to do the telephoning for them; that Daniels telephoned the message set forth in plaintiff’s complaint to the defendant company at Paris, Arkansas, addressed to Joe Baltz at Pocahontas, Oklahoma, and repeated the message to the agent of the defendant at Paris, Arkansas, naming Joe Baltz as the addressee and giving his address as Pocahontas, Oklahoma; that the defendant promptly transmitted the mess'age to its agent at McAlester, Oklahoma, being the nearest office of the defendant to Pocahontas, Oklahoma; that the defendant, not being able to locate the addressee and to deliver the message by telephone, mailed the same from McAlester, Oklahoma, addressed to Joe Baltz, Pocahontas, Oklahoma; that Pocahontas, Oklahoma, was what is known as a free star station — that is, a station where messages are delivered only by telephone. The defendant alleged that, if the message was intended by the plaintiff to be delivered to the addressee at Pocahontas, Arkansas, instead of Pocahontas, Oklahoma, the mistake was due to the negligence of the plaintiff or her agents; that, if the message had been properly addressed to the addressee at Pocahontas, Arkansas, where the defendant maintains an office and. agent, the same could and would have been delivered to the addressee without any delay whatever. The defendant alleged that the message, as delivered to land received by it, was an interstate message from Paris, Arkansas, to Pocahontas, Oklahoma, and that a recovery of damages for mental anguish for failure to deliver such a message would be contrary to article 1, § 8, of the Constitution of the United States and the acts of Congress, which the defendant pleaded in bar of plaintiff’s right to recover in this action.

After the filing of the answer the plaintiff amended her complaint, and alleged that the message mentioned was delivered over the telephone to the agent of the defendant at Paris, Arkansas, and that the failure to deliver the same to the plaintiff was because of the negligence of defendant’s agent at Paris and defendant’s other agents.

The witnesses, Lehnen and Berg, testified for the plaintiff. Their testimony tended to sustain the allegations of the complaint. They stated, in substance, that they went to the railroad depot at Scranton, Arkansas, and requested the company’s agent, John Daniels, to send the- message mentioned. The agent wrote out the message. They. told him to send it to Pocahontas, Arkansas, and repeated it to him twice, and he repeated it over the phone twice. Witnesses heard him give the address over the phone as Pocahontas, Arkansas. They did not know whether the operator of the phone at Paris repeated the message back to Daniels or not. Witness paid the station agent a fee of $1.10 for the transmission of the message. Witnesses were about ten feet from Daniels, and, although he held the receiver about four inches from his mouth, he talked loud and plain, and they could hear what he said. Daniels told the witnesses that it was not a telegraph office, but that he would telephone the message as a matter of accommodation.

The undisputed evidence showed that it was the custom of the railway station agent at Scranton to collect for telegraph messages originating at that station. It is conceded that the telegram was not delivered.

The plaintiff testified, in substance, that she was the Agnes referred to in the telegram mentioned in her complaint. She had made arrangements to be notified in case her mother became seriously ill. She was to go down there right away in case something serious should come up. She was to be notified by telegram, which was to be sent to Joe Baltz, who wás to deliver the message to her. If the message had been delivered on the- diay of its date, Jnly 1, she would have got to her mother’s bedside on Jnly 2 by three o’clock. Witness went to Scranton, where her mother lived, on July 6, and found that her mother was dead. They were making preparations for the funeral, and were about ready to take her out to be buried. Her mother talked about witness all the time during her last illness. The failure to get the telegram had an awful effect on witness. She would not have taken any money and nothing would have kept her from going to see her mother if she had known her mother was so ill. Witness was the youngest child, and stayed with her mother the longest, and was her favorite. Witness stayed with her mother four years after witness wlas married, and witness ’ mother seemed to think more of her than she did the rest of the family. Nothing would have kept witness from going to see her if she had known she was so low. Witness fainted when she realized she could not see her mother alive — became unconscious. The thought that her mother was dying and wanted to see witness and witness not getting to see her affected witness more than her mother’s death. Witness had not seen her mother for about a year, but heard from her each week two or three times, until the last week. After they had sent the telegram they thought that witness would come, and witness did not hear from them.

The testimony of the witnesses on behalf of the defendant tended to prove the allegations of its answer. John Daniels testified, and his testimony was substantially the same las that of the witnesses for the plaintiff, as to the receipt by him of the message to be telephoned to the defendant’s agent at Paris, but he contradicted them flatly as to the place the message was to be sent. He states that the message was addressed to Mrs. Phillip Baltz at Pocahontas, Oklahoma; that is the way he wrote the message down and that is the way he phoned it to the Western Union operator at Paris. The defendant’s operator at Paris repeated the message to witness in that form. Witness did not tell him to change it in any way, nor was he notified by Berg or Lehnen at the time of any error that was being made. Witness does not know whether they heard the telephone message or not, bnt they were at the window, possibly ten feet away; that was the only message that Lehnen and Berg brought to the witness. The message was addressed to Mrs. Phillip Baltz, Pocahontas, Oklahoma. On cross-examination the witness testified that the message was addressed to Joe Baltz, and the substance of the message was, “Please notify Agnes mother very low and come at once,” Lehnen and Berg paid the witness the fee for sending the message, and witness sent the fee to the operator at Paris. Witness generally did that when he sent telephone messages. Witness had been agent there for two years, and had been receiving and sending messages in that manner during that time.

Defendant’s telegraph operator at Paris was a witness. ■ He testified that he handled telegraph messages at that point. He remembered receiving the message from Daniels at Scranton by phone on July 1, 1925. He didn’t remember exactly the contents, but the message was to notify somebody of the serious illness of a woman at Scranton. It was addressed to Joe Baltz at Pocahontas, Oklahoma, Witness took the message down as it Was dictated to him. After refreshing his memory by •an examination of the message, he stated that the message was the same as that set out in the complaint. Witness relayed the message to Port Smith, and from there it was forwarded to its destination at Pocahontas, Oklahoma. Witness repeated the message back to Daniels over the telephone, and gave the address as it was given to him as Pocahontas, Oklahoma. No correction was made in the address given. Witness never received any message by telephone or otherwise from John Daniels addressed to Joe Baltz at Pocahontas, Arkansas. Witness sent the message right off after he received the same. Witness received the fee for sending the message. Witness had nothing to do with the fee for the telephoning of the message; witness’ company did not collect for that.

The district consulting superintendent of the defendant, having supervisory jurisdiction over the defendant’s offices in Arkansas and Oklahoma, stated that the defendant did not maintain an office at Scranton, Arkansas, on July 1, 1925, or at any other time during that year. John Daniels was not in the employ of the defendant, and was not authorized by it to receive messages for transmission on July 1, 1925, or at any other date.

The court, at the instance of the plaintiff, gave, among others, the following instruction:

“No. 1. You are instructed that, if you believe from the evidence that Lee Lehnen, on or about the date of July 1, 1925, through one John Daniels, delivered a telegraphic message from Scranton, Arkansas, to the agent of defendant at Paris, Arkansas, over the telephone as follows: ‘Please notify Agnes, mother very low. Lee Lehnen,’ and addressed ‘Joe Baltz, Pocahontas, Arkansas,’ and that, through the negligence of defendant or the defendant’s agent, the said message was not delivered to Joe Baltz at Pocahontas, Arkansas, and that because of the said message not being delivered, the plaintiff received no notice of the serious condition in which her mother was, in time to arrive at her bedside prior to her death, and if you further believe that the Agnes referred to in the said telegram was .the plaintiff, then it would be your duty to render a verdict in favor of the plaintiff for whatever damage you may think she suffered because of the mental anguish experienced by her, caused by the failure to receive the said message, not to exceed the sum of $2,500.”

The plaintiff objected generally and also specifically on the ground that it authorized a recovery in favor of the plaintiff “without requiring the jury to find that the plaintiff would and could have gone to the bedside of her mother if the telegram had been delivered. ’ ’

At the request of the defendant the court, among others, gave the following instruction:

“No. 7. If your verdict is for the plaintiff, then you should assess her damages in such sum as will compensate her for the mental anguish she suffered, if any, by reason of being deprived of the opportunity of being with her mother prior to her death, provided you believe her failure not to be with her at said time was caused by the negligent failure of the defendant to deliver the message in question.”

The jury returned a verdict in favor of the plaintiff, awarding her damages in the sum of $500. Judgment was rendered in her favor for that sum, from which is this appeal.

1. The appellant contends that there is no testimony to sustain the verdict. This contention is bottomed upon the testimony of McAllister and John Daniels. McAllister testified that the message as received by him over the telephone was directed to Pocahontas, Oklahoma, and that he sent the message as directed. Daniels testified, in substance, that he, at the request of Lehnen and Berg, agents of plaintiff, wrote down the message in evidence, “Mother very low, come at once,” and phoned it to appellant’s operator at Paris, Arkansas, to be sent to the addressee at Pocahontas, Oklahoma. He did not think he could be mistaken as to which State the message was sent. He sent it the way he got it from Lehnen and Berg. Counsel argue that the testimony of these witnesses was reasonable, consistent, and uncontradicted, and therefore the jury had no right to arbitrarily disregard it. They invoke the rule recognized by our own court and by the authorities generally, so far as we are advised, “that when a disinterested witness, who is in no way discredited, testifies to a fact within his own knowledge, which is not of itself improbable or in conflict with other evidence, the witness is to be believed and the fact is to be taken as legally established, so that it cannot be disregarded by a court or jury.” Kavanaugh v. Wilson, 70 N. Y. 177-179. The numerous authorities recognizing this rule are collated in note to Brown v. Peterson, 4 A. & E. Ann. Cases, 981. See also St. Louis, I. M. & S. Ry. Co. v. Ramsey, 96 Ark. 37, 131 S. W. 44, Ann. Cas. 1912B 383; Osborne v. Hittson, 118 Ark. 319-353, 176 S. W. 318.

The case in hand does not come within this rule, for the reason that it cannot be said that the testimony of the witnesses, Daniels and McAllister, as set forth, is uncontradicted. Both Berg and Lehnen testified unequivocally that they heard Daniels telephone the message to Paris, Arkansas, and that he gave Pocahontas, Arkansas, as the place to which the message was to be sent. This was testimony from which the jury might have found that the witnesses, Daniels and McAllister, were mistaken, or else testified falsely, when they stated that the address phoned to Paris was Pocahontas, Oklahoma, instead of Pocahontas, Arkansas. The jury were the sole judges of the weight of the evidence and the credibility of these witnesses. But it is insisted that, even if the testimony of Berg and Lehnen contradicted that of Daniels, there is, nevertheless, no contradiction of the testimony of McAllister to the effect that he understood the address given as Pocahontas, Oklahoma, instead of Pocahontas, Arkansas. Counsel urge therefore that, since the burden was on the appellee to prove by a preponderance of the evidence that the appellant’s agent at Paris, Arkansas, received the correct information, appellee’s ease must fall because there is no testimony to show that appellant’s agent at Paris understood that the message was to be sent to Pocahontas, Arkansas, instead of Pocahontas, Oklahoma, and that, until the appellee makes such proof, there is no testimony tending to establish negligence on the part of the appellant.

It was not essential that the appellee prove 'affirmatively by the testimony of some witness that the operator of the appellant at Paris heard or received the message as it was telephoned to him by the station agent at Scranton. If the message, as set up in the complaint, was communicated by the station agent at Scranton over the telephone to the appellant’s operator at Paris, the presumption would be that the appellant’s agent at Paris heard and received the message as it was phoned to him by the station- agent at Scranton, and, in the absence of proof to the contrary, the jury would be justified in so finding. True, the appellant’s agent at Paris and likewise the station agent at Scranton testified that the address of the sendee was given over the telephone as Pocahontas, Oklahoma, and not Pocahontas, Arkansas. The appellant’s agent at Paris does not claim that any mistake was made by him in hearing the message; he testified unequivocally that he heard 'and received the message as it was telephoned to him, and that the address of the sendee given him over the phone was Pocahontas, Oklahoma. The testimony of Daniels was to the same effect, but the testimony of appellee’s witnesses, Lehnen and Berg, was just as positive land unequivocal that the station agent at Scranton telephoned to the operator at Paris the message as set forth in the appellee’s complaint, and gave the address of the sendee as Pocahontas, Arkansas. It was therefore a question for the jury, under the evidence, as to whether the railway station agent at Scranton, in the telephone message to appellant’s operator at Paris, gave the address of the sendee in that message as Pocahontas, Arkansas, instead of Pocahontas, Oklahoma. While the appellant’s superintendent 1 «stifled that appellant did not have an agent at Scranton, Arkansas, and while the station agent at Scranton also testified that he was not employed by the appellant as its agent at Scranton, nevertheless the uncontroverted testimony is that it was the custom for the railway station agent at Scranton to receive and telephone messages to the appellant’s operator at Paris and to collect appellant’s charges for such messages.

In Jones on Tel. & Tel., p. 449, § 327, it is said':

“It has generally been held that, where an operator writes the message for the sender at the latter’s request, he acts as agent for him and not for the company in this particular matter. His duties toward the company are to receive the messages and the charges for the same, and then to transmit them; when he goes beyond this duty, he does not act as the company’s agent. While'this is the general holding, it seems there is, and ought to be, an apparent exception to the general rule. Thus, if the message is received by the operator over a telephone line and written down by him, the operator then acts for the company, especially if it has been the custom to receive messages. Where the party desiring to send a message is unable to write on account of ignorance, or because he cannot see how to write, or when otherwise-unable to write, the company should not refuse to serve him for this purpose, but the scope of the operator’s agency under such circumstances should, it seems, be enlarged so as to devolve upon him the duty to perform this service.” See especially Carland v. West. U. Tel. Co., 118 Mich. 369, 376, 76 N. W. 762, 764, 43 L. R. A. 280, 74 Am. St. Rep. 394, where, among other things, it is said, page 399: “We cannot conclude, in the absence of proof, that the telegraph companies expect their operators to turn away patrons who cannot write, or that they keep telephones in the office but do not permit their use in their business by patrons who send and receive messages.”

In the case at bar the appellant did not refuse to receive messages that were telephoned to it through the railway station agent at Scranton, but, on the contrary, accepted and received messages originating in this manner and collected its fee through the railway station agent for such messages. Appellant therefore, having adopted the instrumentality of the telephone for receiving messages -originating at Scranton, is not in an attitude to repudiate as a matter of law the accuracy of such instrumentality. The burden, to be sure, was upon the plaintiff to prove that the message as set forth in her complaint was delivered to the railway station agent, and that, as such agent, he telephoned the message as it was delivered to him, to appellant’s operator at Paris. Having made this proof, she established a prima facie case which entitled her to recover, unless the appellant could show that its operator at Paris, without fault or carelessness, liad misunderstood llie message. Having adopted the telephone as its agency to receive messages from Scranton, appellant cannot say, as a matter of law, or as an indisputable presumption, that this method of sending messages is unreliable and that the burden of proof was upon the appellee, under the circumstances, to show by affirmative testimony that the appellant’s agent at Paris understood the message as it was received at'Scranton. Counsel for appellant cites the cases of Cameron v. Telg. Co., 90 S. C. 503, 74 S. E. 929, and Painter v. West. U. Tel. Co., 100 S. C. 65, 84 S. E. 293, which seem to hold that there is “no presumption that people speaking over the telephone understand each other.” That possibly may have been sound doctrine when the telephone was in its infancy and a crude and undeveloped instrumentality of verbal intercommunication; but, with all due deference to the learned court that first announced this rule, it certainly cannot be accepted now, when the telephone has been brought to such a state of perfection that it is in almost universal use as a reliable means of intercommunication in the social and business world. The presumption now is that when people talk over the telephone they do understand each other.

As is well said by the Supreme Court of Kentucky in Holzhauer v. Sheeny, 127 Ky. 28-36, 104 S. W. 1034, 1036, “the telephone is an instrument of such common — -indeed, almost necessary — use in mercantile and social affairs of this day that, to deny such evidence probative effect, would be to seriously cripple the utility of this -great modern instrument of communication. That ■ which is generally accepted in the everyday affairs of life, and customarily in business transactions, as evidence, may safely be, and generally is, -adopted by the courts also as evidence.” In Star Bottling Co. v. Cleveland Faucet Co., 128 Mo. App. 517, 109 S. W. 802, it is held that telephone communications stand upon the same footing as conversations as to admissibility in evidence. It seems to us, the sound doctrine to apply to these agencies is that they are “subject to the operation of tlie disputable presumptions and inferences applicable to like affairs.” Where there is no statute upon the subject, when a message has been spoken over the telephone, the presumption will be that it was heard as it was spoken. Such presumption is a rebuttable one, to 'be sure, but, when the plaintiff introduced proof tending to show that the message addressed to the sendee at Pocahontas, Arkansas, was sent over the ’phone to appellant’s operator at Paris, the other end of the telephone line, appellant has established, prima facie at least, that the telephone message was heard by appellant’s agent at Paris as the same was telephoned to him from Scranton, and the burden was shifted to appellant to show otherwise. See Union Construction Co. v. West. U. Tel. Co., 163 Cal. 298, 125 Pa. 242, 245; also Wolf v. Railroad Co., 97 Mo. 473, 11 S. W. 42, 3 L. R. A. 539, 10 Am. St. Rep. 331; K. C. Star Co. v. Standard Warehouse Co., 123 Mo. App. 13, 99 S. W. 765; Star B. Co. v. Cleveland F. Co., 109 S. W. 802, 128 Mo. App. 517; West. U. Tel. Co. v. Rowell, 153 Ala. 295-314, 45 So. 73; Jones, Tel. & Tel. Co., p. 645, § 509. We conclude therefore that there was evidence to sustain the verdict

2. The damages recoverable for mental anguish, under our statute, § 10249, C. & M. Digest, must be such as result proximately from the negligence of the telegraph company in receiving, transmitting and delivering messages. The negligence of the company must be the proximate cause of the mental anguish. The anguish resulting from the illness or death of a relative cannot, per se, be caused by the negligence of a telegraph company in handling a message announcing such illness or death. .Such anguish is caused by the fact of the illness or death, and exists entirely independent of anything the telegraph compairy may or may not do in communicating the fact of the illness or death. Hence in our own and other jurisdictions, where damages for mental anguish are recoverable, the well-established doctrine is that there can be no recovery against the company for negligence in handling a message pertaining to last illness and death unless the plaintiff proves that he could, and would, have attended the death-bed or funeral if the message had been duly delivered, 'and that he was therefore deprived of such right and privilege by the negligence of the company in handling the message. See Thorpe v. West. U. Tel. Co., 94 Ark. 530, 127 S. W. 730, 37 Cyc. 1782-3, IV, and cases cited in note; 27 Am. & Eng. Ency. of Law, 1075-6, and note. Some cases directly in point cited by counsel for appellant are: West. U. Tel. Co. v. May, 8 Tex. Civ. App. 176, 27 S. W. 760; Kernodle v. West. U. Tel. Co., 141 N. C. 436, 54 S. E. 423, 8 Ann. Cas. 474; Cumberland Tel. Co. v. Brown, 104 Tenn. 56, 55 S. W. 155, 50 L. R. A. 277, 78 Am. St. Rep. 906.

Whether or not, in any case, the plaintiff could and would have attended the death-bed or funeral is an issue of fact for the jury, even where the plaintiff testifies that he could and would have gone to the death-bed or funeral if the message had been promptly delivered. See above cases. Even though the plaintiff’s testimony be not affirmatively controverted, still the issue of whether the plaintiff could and would have g'one to the death-bed or funeral is one of fact and not of law, for the reason that the plaintiff is an interested witness, whose testimony the jury is not compelled to believe. Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52, 12 Ann. Cas. 243; Lilly v. Robinson Merc. Co., 106 Ark. 571, 153 S. W. 820; Salmon v. Boyer, 139 Ark. 236, 213 S. W. 383; Business Men’s, etc. Assn. v. Sanderson, 144 Ark. 271, 222 S. W. 51; Oyler v. Semple, 163 Ark. 620, 260 S. W. 744.

Appellee’s prayer for instruction No. 1 completely ignored the law that the jury must find that she could and would have gone to her mother’s bedside if the telegram had been delivered. The appellant specifically objected to the above prayer for instruction, because it did not contain the essential qualification mentioned. The court erred in granting appellee’s prayer No. 1 without adding the above qualification, because, under the prayer as granted, if the jury found the other issuable facts mentioned therein in favor of the plaintiff, they were told that “it would be their duty to render a verdict in favor of the plaintiff.” True, the court granted appellant’s prayer for instruction No. 7, which is as follows:

“If your verdict is for the plaintiff, then you should assess her damages in such a sum as will compensate her for the mental anguish she suffered, if any, by reason of being deprived of the opportunity of being with her mother prior to her death, provided you believe her failure not to be with her' at said time was caused by the negligent failure of the defendant to deliver the message in question.”

Appellee contends that the granting of appellant’s prayer for instruction No. 7 cured the error, if any, in appellee’s prayer f or instruction No. 1. But not so; these instructions were in irreconcilable conflict, and the charge of the court was thus made inconsistent, inharmonious and contradictory. The jury had no correct guide. Marianna Hotel Co. v. Livermore F. & M. Co., 107 Ark. 245, 154 S. W. 952; St. L. I. M. & S. Ry. Co. v. Bright, 109 Ark. 4, 159 S. W. 33; Turquett v. McMurrain, 110 Ark. 197, 161 S. W. 175, and numerous cases collated in 4 Crawford’s Arkansas Digest, page 4990, “Trial,” § 89. The appellee’s prayer for instruction No. 1 should have been corrected to meet appellant’s specific objection thereto, or else should have been withdrawn altogether. See May v. West. U. Tel. Co. supra; Baker v. Ashe, 80 Tex. 356, 16 S. W. 36.

For the error of the court in granting appellee’s prayer for instruction No. 1 without modification, the judgment is reversed, and the cause is remanded for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    Dunn v. Bradley.
    Opinion delivered October 31, 1927.
    1. Wills — fraud in procuring probate of will. — A complaint asking that the probate of a will be set aside for fraud on the court, which did not allege any facts showing that a fraud was committed upon the court in procuring a probate of the will, held insufficient to show grounds for vacating the judgment admitting the will to probate on account of fraud, under Crawford & Moses’ Dig., § 6290, subd. 4.
    2. Wills — judgment probating will in common form. — The probate court is. a court of record, and its judgment probating a will in common form, under Crawford & Moses’ Dig., § 10526, is, after lapse of term of the court, a final judgment until vacated or set aside as provided by law.
    3. Wills — fraud in procuring judgment. — The fraud for which a judgment will be vacated under Crawford & Moses’ Dig., § 6290, by a probate court in which a judgment was rendered, must be fraud practiced by the successful party in the procurement of the judgment itself.
    4. Wills — complaint alleging fraud. — Allegations that, at the time a testator made a will, he was so weakened by' disease and narcotics that he did not have testamentary capacity, and that his second wife took advantage thereof, and by undue influence, fraud, and duress, induced him to execute a will disinheriting petitioner and his daughter, held sufficient on demurrer to constitute a cause of action.
    5. Wills — judgment admitting will to probate — vacation.—The probate court is without jurisdiction, after 11 years, to vacate its judgment probating a will on account of fraud practiced on the court, such judgment being final.
    Appeal from Union Circuit Court, Second Division; W. A, Speer, Judge;
    -affirmed.

      Powell, Smead <& Knox, Smith & Little and Gaughan & Sifford, for appellant.

      Mahony, Yocum é Saye, for appellee.
   Wood, J.

Blanche Bradley Dunn instituted this action on October 13, 1925, by filing her petition in the Union County Probate Court, in which petition she set up that J. P. Bradley died on the 18th day of November, 1913, leaving his widow, Ida Bradley, and the petitioner, his only child and heir at law; that an instrument purporting to be the last will and testament of J. P. Bradley, hereafter called Bradley, was file'd in the office of the clerk of the probate court soon after the death of Bradley, and was admitted to probate on the 13th of April, 1914; that Bradley gave his wife, Ida, all his property, real and personal, during her life, and bequeathed and devised to Robert William Bradley, an adopted son of Ida Bradley, all Ms property, subject to tbe life estate of Ida Bradley; tbat he gave to the petitioner the sum of only $5; that one Frank Murph was named as the executor, and qualified as such; that the widow took possession of the property and continued in possession thereof until her death. After her death W. J. Murph qualified as administrator of her estate, and, by order of the probate court, paid the surplus of funds remaining in his hands as administrator to John Murph, the guardian of Robert Bradley, a minor. The petition then sets forth that, under the terms of the will, a large .sum of money went through the hands of the guardians of Robert Bradley and, after he became of age, into his hands. The petitioner sets forth that Bradley, her father, was twice married, she and her deceased brother being the only children of the first marriage; that, after the death of her mother, her father married Ida Bradley; that her stepmother, through hatred of the petitioner and by undue and sinister influence, induced petitioner’s father to disinherit her. She alleged, in substance, that, at the time the will was made, her father was so weakened by disease and narcotics given him to relieve his suffering and to enable him to sleep that he did not have testamentary capacity; that her stepmother took advantage of this condition and, by reason of the undue influence and fraud and duress practiced upon petitioner’s father, he was induced to execute the purported will which had been admitted to probate; that she had not discovered that the purported will was executed under the above conditions and circumstances until a few weeks before the filing of her petition; that the purported will was not executed and signed in the presence of attesting witnesses, and was not attested as the law requires. She further sets forth that, at the time of the probate of the will, petitioner resided in Calhoun County, and was not present when the application for probate was made, and had no notice of the proceedings until more than one year after the probate of the will. She alleged by an amendment to her petition that the filing of the paper purporting to be the last will and testament of Bradley-under the circumstances was a fraud upon the court because the beneficiaries under the will knew at the time of the fraud, duress, and undue influence that had been practiced upon Bradley to induce him to sign the paper purporting to be the will, and they knew at the time the paper was executed that Bradley did not have the mental capacity to mlake a will. Petitioner prayed that Robert Bradley and his former guardians be summoned into court and that the former probate of the will be set aside and held for naught, and that Robert Bradley and the former guardians be required to account to the petitioner for all money and property of every description which had come into their hands from the estate of 'Bradley and his wife, Ida, and for all proper relief.

Mary Saunders and Percy Saunders intervened, setting up that they were heirs-at-law and next of kin of Robert ¡Bradley and the owners of his estate. They filed a demurrer to the petition; also R. E. Wood, a former guardian, filed a demurrer to the petition, alleging: icl. That the petition shows on its face that this court is without jurisdiction of the subject-matter mentioned in the said petition. '2. For the reason that the petition does not state facts sufficient to warrant the court in setting aside the judgment rendered by it herein on April 33, 1911. 3. The petition shows on its face that Blanche Bradley Dunn is barred by the statute of limitations.”

The probate court sustained these demurrers, and the petitioner refused to plead further, and the petition was dismissed. She duly prosecuted her appeal from the judgment of the probate court to the circuit court. In the circuit court the cause was dismissed as to R. E. Wood, the former guardian, and Robert Bradley, whose disability of minority had been removed by the court, was authorized to defend the action in his own name, and he filed a demurrer in which he set forth the following :

“1. The petition does not allege facts sufficient to give the probate court jurisdiction of this matter, and, the probate court having no jurisdiction, none was acquiréd by the circuit court upon appeal. 2. That the petition does not state facts sufficient to constitute a cause of laotion against the appellee. 3. That the petition does not allege facts sufficient to show that a fraud was perpetrated upon the probate court of Union County in obtaining the order of April 13, 1914, admitting to probate the will of J. P. Bradley, deceased. 4.' That the petition shows upon its face that the appellant has not acted with that degree of diligence required of her by law in moving the court to set aside the order of the Union Probate Court of April 13, 1914. 5. That the petition shows upon its face that the appellee and Ida Bradley have had the control, management and possession of the property involved in this controversy for a period of more than seven years, under claim of ownership, and have acquired good title to said property by limitations, even if it should be found that the will of J. P. Bradley, deceased, is void. 6. That the petition shows upon its face that appellant’s cause of action herein, if any she has, was in existence when act No. 10 of the Acts of the General Assembly was approved on February 20, 1919, and that she failed to institute this suit within one yeiar from the passage of said act, and she is therefore barred by said act from maintaining this action.”

The court sustained the demurrer on the ground “that the facts stated in said petition are not sufficient to constitute a cause of action against the respondent, Robert William Bradley.” The petitioner refused to plead further, and stood upon her petition, whereupon the court dismissed her petition, from which judgment is this ¡appeal.

1. There is an allegation in the petition “that said purported will was not signed by the said J. P. Bradley in the presence of each of the attesting witnesses, both being present together, and that said attesting witnesses did not attest said will at the request of the testator.” The original will itself is brought into the record as a part of the pleadings and the record of its probate, and these show that the will bore the signature of the testator, J. P. Bradley, and the signatures of two witnesses, as the statute requires, and the order of the court showing that, after examination and proof, the will was found to be regular and was admitted to probate and ordered recorded.

2. In the amended petition it will be observed that the petitioner alleged that the application for probate and the hearing and proceeding had was a fraud upon the court, the beneficiaries therein well knowing at the • time that fraud, duress and undue influence had been practiced upon the said J. P. Bradley to induce him to sign said paper, and that, at the same time, the said parties well knew that the said testator was not of sound and disposing mind and memory. The probate court is a court of record, and its judgment probating a will in common form, under § 10526 of C. & M. Digest, is, after the lapse of its term, a final judgment until vacated or set aside in some manner authorized by law. One of the grounds for vacating a judgment of the court after the expiration of the term is “for fraud practiced by the successful party in the obtaining of the judgment or order.” § 6290, 0. & M. Digest, subdiv. 4.

The will named Murph as executor. It was the moral, if not the legal, duty of the executor to present the will for probate. In Schouler on Wills, vol. 2, § 730, it is said: “The first and most pressing duty of every executor nominated as such is to have the will, by virtue of which he claims the rights of representative, admitted to probate.” And in 40 Cyc., at page 1226, it is said: “There is a moral obligation, if not an imperative legal duty, resting upon the person named in the will as executor to produce the will for probate.” See also 28 R. C. L., § 361. We have no statute declaring it to be the duty of the executor to present the will for probate, but, in the absence of a statute, such at least would be his moral duty. There is no allegation in the petition as to who filed the will for probate, but there is an allegation that, after the probate of said purported will, the said Frank Murph, executor, qualified as such, etc. We cannot assume, in the absence of allegation, that the beneficiaries named in the will presented the same, land that the same was not presented for probate by the executor. The above allegation rather tends to show that the executor presented the will for probate. We only know from the record that proof was made and the will, on examination, was found regular and duly admitted to probate.

Now, the beneficiaries named in the will were Ida Bradley and Robert William Bradley. It is not alleged that they, knowing’ that the testator, at the time the will was executed, did not have sufficient mental capacity to make the will, presented the will for probate and withheld and suppressed such fact from the court; nor is it alleged that the executor presented the will knowing such fact, and suppressed and withheld the same from the court at the time the will was admitted to probate; nor is it alleged that the beneficiaries land the executor, having knowledge of such, entered into a collusion to suppress and withhold such fact from the probate court at the time the will was presented for probate, and that they did withhold such fact' from said court. On the contrary, the proof of the will by the clerk, which was made an exhibit to the petition herein, recites as follows: “C. W. Smith and D. R. Young, to me well known, who, being duly sworn, slay: That they are the subscribing witnesses to the foregoing instrument of writing, purporting to be the last will and testament of J. P. Bradley, deceased; that .said instrument was executed at the time, place, and by the person therein named; that said J. P. Bradley, the testator, was, at the time of signing said instrument, upwards of twenty-one years of age, ánd of sound and disposing mind and memory, and that, in the presence of both of these affiants, he declared it to be his last will and testament, and subscribed his name thereto in the presence of both of these affiants; that, at the request of said testator, affiants wrote their names to his said will in his presence and in the presence of each other; that the subscriptions to the foregoing instrument of writing are genuine, and that the said instrument which is hereto attached is the identical one that affiants so witnessed and saw the said J. P. Bradley sign.”

The above recital, in connection with the further recital in the judgment of the court admitting the will to probate, that “same is found regular and proof thereof having been made,” must.be considered as part of the allegations of the petition. So, taken all together, we are convinced that the allegations of the petition do not show that any fraud was practiced upon the court by the successful party in obtaining its judgment admitting the will to probate.

This court, in a long and unbroken line of eases, has held that the fraud for which a judgment will be vacated by the court in which same was rendered must be a fraud practiced by the successful party in the procurement of the judgment itself. A few of the numerous cases are as follows: Old Amer. Ins. Co. v. Perry, 167 Ark. 200, 266 S. W. 943; Pugh v. Martin, 164 Ark. 423, 262 S. W. 308; Estes v. Luckey, 133 Ark. 97, 201 S. W. 815; Cassidy v. Norris, 118 Ark. 449, 177 S. W. 10; Burbridge v. Gotsch, 107 Ark. 136, 154 S. W. 200; Hall v. Cox, 104 Ark. 304, 149 S. W. 80; Reaves v. Conger, 103 Ark. 446, 147 S. W. 438; Gray v. Parkes, 94 Ark. 39, 125 S. W. 1023. In the last case (Gray v. Parkes) it is said:

“The fraud that would give a court of chancery jurisdiction to set aside the judgment of the probate court admitting the will to probate would be fraud that' was practiced upon the court in obtaining the judgment. The allegation that the said Rufus B. Gray, by falsely and fraudulently' representing to the probate court that the said will was duly executed by and was the will of Jesse L. Gray, deceived the probate court, etc., was not sufficient to show that a fraud was practiced on the court in obtaining the probate of the will, for other allegations of the complaint show that the will was executed by Jesse L. Gray. The allegations of the complaint, taken together, show that fraud wlas practiced on the testator in procuring the will, but not on the court in admitting it to probate.”

While the above rule was announced in cases originating in circuit and chancery courts, yet there is no reason why the same rule should not apply to judgments of probate courts where the ground for setting aside the same is alleged to be fraud in procuring the judgment.

3. The allegations of the complaint setting forth the facts which the complaint alleged constituted fraud and duress upon the testator causing him to make the will, and the facts which she alleged constituted a lack of testamentary capacity, it is unnecessary to set out in detail. We have reached the conclusion that these allegations are sufficiently well pleaded on demurrer to constitute a cause of action. These facts, if true, would justify the probate court, if it had jurisdiction of the cause, in setting aside its judgment probating the will. We are therefore brought, in the next place, to the issue as to whether or not the probate court, under the facts alleged in the petition, had jurisdiction.

Lelarned counsel for the appellant contend that the probate court had jurisdiction to set aside its former judgment admitting the will to probate, notwithstanding the fact that eleven and a half years had elapsed since the judgment was rendered. In a very able brief they cite authorities to the effect “that the probate of a will is governed by the rules of ecclesiastical law, except where a change by statute, or where the .spirit of our institutions makes the application of them impossible or unwise; and that the proceeding is not a proceeding either at common law or in equity.” Lillard v. Tolliver, 154 Tenn. 304, 285 S. W. 576. See also Waters v. Slickney, 94 Mass. (12 Allen 1), 90 Am. Dec. 122; Gale v. Nickerson, 144 Mass. 415, 11 N. E. 714; Cousens v. Advent Church, 93 Me. 292, 45 A. 43; Vance v. Upston, 64 Tex. 266; Bowen v. Johnson, 5 R. I. 112, 73 Amer. Dec. 49; Md. Trust Co. v. Hartford, 104 Me. 566, 72 A. 745, 129 Am. St. Rep. 415.

Counsel deduce from the above authorities that probate courts have power in this State to grant the relief which the appellant seeks because, they say, neither the Constitution nor the statutes of the State prohibit it, and therefore these courts have the right to exercise such power as a necessary implication from the general powers conferred upon them under the Constitution and statute giving them original jurisdiction in matters relating to the probate of wills. Article 7, § 34, Constitution of 1874, § 2'256 C. & M. Digest. Counsel say that the issue here presented is one of first impression in this State, and they urge us to adopt the holding of the cases cited by them on this issue from other jurisdictions, contending that to hold otherwise in this case would be violative of the 14th Amendment to the Constitution of the United States, commonly known as the due process clause, and also violative of § 13, art. 2, of the Constitution of the State of Arkansas of 1874, to-wit: “Every person is entitled to certain remedy in the laws for all injuries or wrongs he may receive, in his person, property, or character.” We cannot concur in these views of counsel and cannot heed the pronouncements of courts of other jurisdictions on this issue, for we believe that we are precluded from ao doing by previous decisions of this court. While it is true that the precise question has not been decided, this court, in effect, and for all practical purposes, in at least two cases has ruled contrary to the contention of counsel and the decisions of the other State courts named.

In Lewis v. Rutherford, 71 Ark. 218, 72 S. W. 373, we said: “It is well to remember that these tribunals (probate courts) have only such special and limited jurisdiction as is conferred upon them by the Constitution and the statutes, and can only exercise the powers expressly granted, and such as are necessarily incident thereto. They have no general equity jurisdiction.”

Section 2258 of C. & M. Digest provides: “Appeals-may be taken to the circuit court from all final orders and judgments of the probate court at any time within twelve months after the rendition thereof,” etc. This court, in Hogane v. Hogane, 57 Ark. 508, 22 S. W. 167, construing a similar statute, § 1386, Mansfield’s Digest, held (quoting syllabus): “A judgment of the probate court admitting a will to record is a final order or judgment from which an appeal lies at any time within twelve months after the rendition thereof.”

In Ouachita Baptist College v. Scott, 64 Ark. 349, 42 S. W. 536, we held (quoting syllabus): “Where a will is admitted to probate in the common form in the probate court, ivithotbt notice to interested persons, they may make themselves parties by perfecting am appeal to the circuit court in order to contest the will.”

In Jenkins v. Jenkins, 144 Ark. 419, 222 S. W. 714, the facts were that P. Gr. Jenkins died, leaving a will, which was admitted to probate in common form without notice. Two of his children who were minors at that time sought to contest the will on the ground of undue influence in its execution, and they claimed that, on account of their minority, they had the right to have the will probated in solemn form, or, in other words, to contest it, although more than one year had elapsed since the will was probated. In thiat case we quoted from Ouachita Baptist College v. Scott, supra, in part as follows:

“If the will has been probated in the more solemn form (that is, upon notice to all interested to appear in the probate court at the probation), then, of course, this particular question does not arise. If, however, as in the present case, the probation is in the common form, and parties interested have not been summoned to appear and make objection, then we think it but a fair and reasonable construction to put on the statute that parties interested may file the affidavit provided in the statute within the twelve months allowed, and thus make themselves parties to the probate proceedings for the purpose of taking an appeal from the order of probation to the circuit court, wherein, in such case, the real contest of the will may be made on the grounds .set forth in their petition, which, of course, will necessarily show their relationship to the deceased. This ruling is one of first impression in this court, but is in harmony with the suggestion contained in all of our more recent decisions, although these decisions contain mere suggestions or intimations on the subject, and nowhere decide the particular question. Furthermore, since the decisions of this court have left no other remedy to the contestant, who has not been given a day in court, this ruling meets the requirements of the constitutional provision which declares that‘ every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive, in his person, property or character.’ ”

After quoting the above language, this court (in Jenkins v. Jenkins) continues:

“The statute under construction in that case is the one applicable here, and it contains no saving clause in favor of infmits, and the court can make none. A saving from the operation of the statute for the disability of minority must be expressed, or it does not exist. Hence it has been held that, where the time for contesting probated wills is limited by statute and there is no saving clause in favor of infants, none exists. (Citing authorities).”

In Robertson v. Robertson, 144 Ark. 556, 223 S. W. 32, we said: “The right to contest a will is not an inherent or constitutional right. Such a right is purely statutory, and does not exist independent of statutory authority. ’ ’ The validity of State statutory proceedings admitting wills to probate in common form is recognized by the Supreme Court of the United States in O’Callahan v. O’Brien, 199 U. S. 89, 25 S. Ct. 727, 50 L. ed. 101, and in Bent v. Thompson, 138 U. S. 116, 31 S. Ct. 238, 34 L. ed. 902.

To grant the relief which appellant seeks by the petition herein, it seems to us we would have to overrule the eases of Ouachita Baptist College v. Scott and Jenkins v. Jenkins, supra. These decisions have become rules of property in our State, and to overrule them would have a far-reaching effect and be disastrous to property rights that may have been built upon them.

The judgment of the trial court sustaining the demurrer to appellant’s petition and dismissing the same is correct, and it is therefore affirmed.


author: Smith, J.

text:
    Linograph Company v. Logan.
    Opinion delivered October 31, 1927.
    1. Commerce — foreign corporation doing business within the state. — Where a foreign corporation shipped a typesetting machine into the State to its own order for delivery to a resident buyer under an agreement of sale consummated without the State, the transaction was held to be interstate commerce and not a doing business within the State, so that the corporation was not 'under the necessity of complying with the State laws with reference to doing business within the State before it could bring suit for balance of the purchase money.
    2. Corporations — foreign corporation doing business within the state. — The preparation and delivery by a bank within the State, under the seller’s orders, of notes, chattel mortgage, landlord’s waiver of lien, insurance, bill of sale, and bill of lading, pursuant to an agreement between the buyer and seller for the sale of a typesetting machine which was consummated outside of the State, held a mere incident to an interstate transaction, and the seller did not thereby do business within the State, within the laws requiring compliance by foreign corporations in order to do business in the State.
    Appeal from Johnson Chancery Court; W. E. Atkinson, Chancellor;
    reversed.

      Hugh Basham, for appellant.

      Paul McKennon, for appellee.
   Smith, J.

The appellant, the Linograph Company, a foreign corporation, hereinafter referred to as the “company,” brought this suit in the Johnson Chancery Court to recover $2,149.50, the balance of the purchase money due on a type-setting machine, and to foreclose the chattel mortgage given to secure the debt. The complaint alleged that the purchase money was evidenced by one note for $30 and the balance in notes for $40 each, all dated December 3, 1923.

Appellees, who were defendants below, defended upon the ground that appellant ivas a foreign corporation, and had not complied with the laws of this State permitting it to transact business in this State, which contention was sustained by the court below, and the complaint was dismissed for that reason, and this appeal is from that decree.

The negotiations which led to the sale of the machine were conducted by letters and telegrams. The first of these was a letter dated Clarksville, Arkansas, December 1, 1923, written by S. H. Logan to the company at its office in Davenport, Iowa, in which he advised the company that he was in the market for a type-setting machine. On December 4 the company replied to this letter, advising that it had a second-hand machine at Cambridge Springs, Pa., which it would like to sell at what it said was a bargain price. Logan made several offers, all evidenced by letters, which were offered in evidence. After these letters were written several telegrams were exchanged, and on December 13, 1923, the company wired Logan las follows:

“Price Pennsylvania machine three magazines and eight-point, ten-point and twelve-point matrices and motor, twenty-five hundred dollars P. O. B. Cambridge Springs, Pa., complete as quoted our letter December 4, terms one hundred fifty cash balance forty monthly as stated our wire December 12th. Installation charges thirty-five dollars for railroad fare plus hotel and living expenses. Man will stay five days. Request remittance of cash payment as evidence of good faith. Otherwise if you should change your mind after shipment we would have to return and pay charges. Machines will be overhauled and guaranteed in good condition. Our guaranty is good. Have delayed removal one day. Wire cash Friday or we must ship elsewhere. Same equipment new would cost over thirty-seven hundred fifty. ”

On December 14 Logan wired the company as follows:

“Am wiring you one hundred fifty dollars with the understanding that the machine is to be shipped immediately and that I am to get a man with Linograph experience to install it. He can install it I am sure and save me the expense of a man from your factory.' Machine must be shipped at once.”

In reply to this telegram Logan wired the company, on the date of its receipt, to the effect that he was ready to pay the $150 if the company would make a concession in. regard to the number -and time of payments of the notes which would evidence the unpaid balance.

On the same date the company wired Logan the following reply to the last mentioned telegram: “Price and terms previously stated twenty-five hundred dollars, terms $150 cash, forty morithly installation by our man to insure you get proper start. Wire cash or refusal today.”

Logan wired the $150 to the company on the following day (December Í5, 1923), to which the company replied, as follows: “Cash received. Expert now overhauling machine. Shipment next week. Forwarding contract for your signature.”

In other correspondence Logan advised he wished the contract closed through the Farmers’ National Bank of Clarksville, Arkansas, and in response to this request the company wrote the following letter:

“Davenport, Iowa, January 4, 1924.
“Farmers’. National Bank,
Clarksville, Arkansas.
“G-entlemen: We inclose herewith the following papers in connection with the sale of a linograph to Mr. S. H. Logan of your city :
“Chattel mortgage in duplicate, fifty-nine' promissory notes, bill of lading, bill of sale, copy of invoice, landlord’s waiver of lien, loss payable insurance clause.
“Please notify Mr. Logan when these papers arrive and request that he call and execute them.
“Do not hand over the bill of lading before the following instructions have been carried out:
“(1). Have both copies of mortgage signed and acknowledged before a notary public, and two witnesses. (2). Have all blanks for dates and other blanks in mortgage filled in. (3). Have all the notes signed. (4). Have a two-cent revenue stamp placed upon each note, canceling same, the cost of which is to be paid by our customer. (5). Have the machine insured for $2,400. Have the loss payable clause in our favor attached to the policy. Send the policy to us with the other papers. The premium is to be paid by Mr. Logan. (6). Have the landlord’s waiver of lien signed by the owner of the building, if our customer is not the owner. (7). When all papers have been properly executed, turn the bill of lading and bill of sale over to our customer. (8). Have the mortgage recorded at the office of the county recorder. Request that evidence of recording be placed on both copies. (9). When the mortgage is returned from the county recorder’s office, with evidence of recording on copies, return all papers to us. (10). Bill us for your services.
“Thanking you for giving this matter your prompt attention, we are,
“Yours very truly,
“The Linograph Company
“E.' S. Larson, Accounting Dept.”

It will be observed that the date of this letter is January 4, 1924, but, before it was written, Logan had signed an order dated 12-19-23 for the machine, which was submitted to and accepted by the company at its office in Davenport, Iowa, under date 12-24-1923, in which he agreed to do, as part of the contract of sale, all the things set out above. All the requirements of this letter were met, and the bank delivered to Logan the bill of lading for the machine, which had been shipped by the company to its own order, and, upon surrender of the bill of lading by Logan to the carrier having custody of the machine, it was delivered to him. The bank returned the papers to the company, as directed in the letter set out above, and advised that its charges for this service was $1.50, and check to cover was sent by the company to the bank.

Logan testified he put the machine up and used it from the “jump go,” and that it later proved defective, and the company sent a mechanic to make adjustments. The testimony in regard to the defects which developed need not be considered here, as the decision of the court below was based solely upon the theory that the appellant had made the sale in violation of the laws of this State by doing business in this State without having-complied with the laws of the State permitting it to do business here, and was not entitled to recover on that account.

Logan assigned the contract to Hunter and Bost, who assumed payment of the unpaid notes, with the consent of the company, but they defaulted in the payments, and this suit was brought against them and Logan for the balance due on the notes and to foreclose the mortgage securing their payment.

This court has had occasion frequently and recently to determine when and under what circumstances a foreign corporation would be held to be engaged in business in this State, but we think it unnecessary to review these cases. Among others are the following: Scruggs v. Scottish Mortgage Co., 54 Ark. 566, 16 S. W. 563; Gunn v. White Sewing Machine Co., 57 Ark. 24, 20 S. W. 591, 18 L. R. A. 206, 38 Am. St. Rep. 223; Florsheim Bros. D. G. Co. v. Lester, 60 Ark. 120, 29 S. W. 34, 27 L. R. A. 505, 46 Am. St. Rep. 162; Sunny South Lumber Co. v. Neimeyer Lbr. Co., 63 Ark. 268, 38 S. W. 902; Simmons-Burk Clothing Co. v. Linton, 90 Ark. 73, 117 S. W. 775; Clark v. J. R. Watkins Medical Co., 115 Ark. 166, 171 S. W. 136; Hogan v. Intertype Corporation, 136 Ark. 52, 206 S. W. 58; Coblentz & Logsdon v. L. D. Powell Co., 148 Ark. 151, 229 S. W. 25; Rose City Bottling Co. v. Godchaux, 151 Ark. 269, 236 S. W. 825; L. D. Powell Co. v. Roundtree, 157 Ark. 121, 247 S. W. 389, 30 A. L. R. 414; Kansas City Steel Co. v. State, 161 Ark. 487, 256 S. W. 845.

In support of the decree of the court below, appellee cites and relies upon the cases of Kansas City Structural Steel Co. v. State, use of Ashley County, 161 Ark. 487, 256 S. W. 845, and the case of Hogan v. Intertype Co., 136 Ark. 52, 206 S. W. 58, and it is argued that the latter ease is practically identical with the instant case.

We think, however, that the cases relied upon are clearly distinguishable on the facts from the instant case. In the Hogan case the facts were that the type-setting machine was shipped into this State by the foreign corporation to itself, and that it remained the corporation’s property after its arrival in this State until, by demonstration, it was found to be suitable to the purpose of the purchaser and was accepted, after which, and not until then, was the sale completed and the machine delivered. This important fact was emphasized by the statement in the opinion of the court that “one test laid down by the Arkansas cases differentiating an interstate transaction from an intrastate transaction is the ownership of the property after it arrives within the State” (citing cases), * * * and that “an interstate transaction contemplates a consignor without and a consignee within a State, or vice versa.”

Under both these tests the transaction here under review was. an act of interstate commerce.

It is true the consignor made certain requirements set out in the letter from the company to the bank, copied above, before the delivery of the bill of lading, but those were mere incidents to the transaction which had been previously agreed upon, and evidenced by the written order for the machine, which had been accepted by the company at its office in Davenport, Iowa.

The other case relied upon by appellee to support the decree of the court below is that of Kansas City Structural Steel Co. v. State, supra. In that case, however, a foreign corporation had entered into a contract to construct a ¡bridge in this State and had later sublet a portion of the contract, and, to enable its subcontractor to comply with the subcontract, had accumulated and stored in this State the material which would be required for that purpose and which it proposed to sell to its subcontractor as the materials were needed, and, under those circumstances, we held that the foreign corporation was doing business in this State, but, in so holding, the writer of that opinion took occasion to say, “but this is not the case on the facts of a resident of this State ordering goods of a foreign corporation and the shipment of these goods by the foreign corporation to its own order in this State for delivery to the purchaser.”

• The instant case, however, is one of a resident oi this State ordering goods of a foreign corporation and the shipment of those goods by the foreign corporation to its own order in this State for delivery to the purchaser.

Th~e ease from which we have just quoted cited and approved the prior decision of this court in the case of Rose City Bottling Works v. Godchaux Sugars, 151 Ark. 269, 236 S. W. 825, and L. D. Powell Co. v. Roundtree, 157 Ark. 121, 247 S. W. 389, 30 A. L. R. 414, and we think the instant case is governed by them.

In the first of those cases the facts were as follows: A broker residing in Little Rock had taken the order of a resident of that city for a car of sugar, which was submitted to and accepted by a foreign corporation at its office in New Orleans. The sugar was shipped to shipper’s order, but the purchaser was unable to make the payment required to take up the bill of lading, and it thereupon became necessary for the parties to enter into a new- contract which was made in this State for the delivery of the sugar to the purchaser. By this contract it was agreed that the broker, as the shipper’s agent, should retain possession of the sugar, and he unloaded it and stored it in his warehouse in Little Rock. It was further agreed that the purchaser should have sixty days in which to complete the purchase, during which .time partial deliveries of the sugar were to be made him in this city and payment therefor being made at the price stipulated in the original contract, the purchaser in the meantime paying all freight, demurrage and storage charges and interest at six per cent., and, in addition, the purchaser agreed to and did execute a bond, which the broker approved in this State, conditioned upon the faithful performance of the new contract executed after the purchaser had made default.

It was there very earnestly insisted that the transaction constituted doing business in this State, but, in holding against that contention, we said:

“The sugar was, as before stated, consigned to shipper’s order at Little Bock. This constituted a reservation of the title as security for the purchase price. It will scarcely be contended that the delivery of the bills of lading upon the payment of the draft would change the nature of the transaction so as to transform it into an intrastate rather than an interstate incident. If such were the law, it would circumscribe business carried on between citizens of different States within such narrow limits that it could scarcely be transacted without changing the whole nature of the transaction. The contrary is well established as the law on the subject. Norfolk & Western Ry. Co. v. Sims, 191 U. S. 441, 24 S. Ct. 151, 48 L. ed. 254. If therefore the goods came into the State under shipper’s order consignment, retaining its character as interstate, it follows that there was no change in the character of the transaction in the further arrangement between the parties stipulating the method of payment of the price. The transaction from inception to the end was continuous and interstate in its character, for the contract now under consideration related to the method of the payment of the price, and did not constitute a new contract for the sale of the goods. The following authorities fully sustain the view that the whole transaction was interstate and that its legality was not affected by the fact that the vendor had not complied with the laws of this State” (Citing cases).

The facts in the other case relied upon by appellees, that of L. D. Powell Co. v. Roundtree, supra, were that a foreign corporation, which had not complied with the laws of this State authorizing it to do business in this State, had sold certain books to a resident of this State, title to the books being’ reserved in the seller until the purchase money was paid. Default was made in the payment of the purchase money, and a representative of the corporation came into the State and took possession of the books, and, after doing so, sold them to Roundtree, again reserving the title until the books were paid for. This second sale was made in this State, all the terms thereof being agreed to at the time and place of sale, and delivery was made in the State. This second purchaser defaulted in his payments, and the corporation brought suit in replevin to recover possession of the books. The defense was made that the second sale constituted doing business in this State, and that the action could not be maintained for that reason. In holding against that contention it was there said:

“The larger part of the books in the instant case were not sold on order to Judge Roundtree for future delivery, but were in the State when sold, and were immediately delivered to him. Appellee contends that the presence of the goods in the State at the time of the sale, and the immediate delivery thereof to the purchaser, made it an intrastate transaction. The case of Hogan v. Intertype Corporation, 136 Ark. 52, 206 S. W. 58, is cited in support of the contention. In the Hogan case the machinery had been shipped into the State to shipper’s own order for the purpose of selling same to Hogan after demonstration, and was retained as the sole and independent property of the Intertypo Corporation until after such demonstration and sale to him. In the instant case the books were not shipped into the State as the sole and independent property of the appellant for the purpose of selling them to appellee or any other person. On the contrary, they were shipped into the State by appellant to McNeill on an order for future delivery, obtained by appellant’s traveling agent. The McNeill contract clearly covered an interstate transaction. Coblentz & Logsdon v. L. D. Powell Co., 148 Ark. 151, 229 S. W. 25. The recovery of the books under the McNeill contract amounted to a collection growing out of an inter state transaction. The collection was made in books instead of money, and we think the resale of them, in order to convert them into money, was a continuation of the interstate transaction. It was the only practical method by which a collection could be completed against one who had defaulted on an interstate contract. Otherwise it would have been necessary to incur the expense of shipping the books out of the State in order to convert them, into money. The statutes of this State requiring foreign corporations to comply with certain conditions before doing intrastate business were not intended to place such a burden upon the enforcement of good faith interstate transactions. We think the doctrine announced in the case of Rose City Bottling Works v. Godchaux Sugars, Inc., 151 Ark. 269, 236 S. W. 825, is applicable and controlling in this case.”

So here, the preparation and delivery of the papers, as required in the letter from the company to the bank, pursuant, to a previous agreement submitted to and accepted by the company at its office in Iowa, was a mere incident to the contract which involved an interstate transaction.

In the case of Norfolk & Western Ry. Co. v. Sims, 191 U. S. 441, 24 S. Ct. 151, 48 L. ed. 254, Mr. Justice Brown, speaking for the Supreme Court of the United States, said:

“A sale really consists of two separate and distinct elements: first, a contract of sale, which is completed when the offer is made and accepted; and, second, a delivery of the property, which may precede, be accompanied by, or follow the payment of the price, as may have been agreed upon between the parties. The substance of the sale is the agreement to sell and its acceptance. That -possession shall be retained until payment of the priee may or may not have been a part of the original bargain, but, in substance, it is a mere method of collection, and we have never understood that a license could be imposed upon this transaction, except in connection with the prior agreement to sell, although, in certain cases arising under the police power, it has been held that the sale is not complete until delivery, and sometimes not until'payment.”

This language was employed in a case which involved the validity of a statute of North Carolina, which required every manufacturer of sewing machines and every person engaged in the business of selling them to obtain a -State license authorizing that action. The Supreme Court of North Carolina had held (Sims v. Norfolk & Western Ry. Co., 130 N. C. 556, 41 S. E. 673), that, as the machine there in question had been shipped into that State -c. o. d., to be delivered to the consignee upon the payment of the purchase price in that State, the sale was made in that State, for the reason that the title to the machine did not pass until the payment of the purchase price had been made to the delivering carrier as agent of the shipper, But, as appears from the above quotation, the Supreme Court of the United States, in reversing the decision of the Supreme Court of North Carolina, held that the contract of sale and shipment of the article sold pursuant to that contract from one State to another was an act of interstate commerce, regardless of the circumstances attending the delivery which occurred in that State.

We conclude therefore that the transaction here under review was an act of interstate commerce, and the judgment of the court below holding to the contrary will therefore be reversed, and the cause remanded.

Hab,t, C. J., and Humphreys and Mehaeey, JJ., dissent.


text:
    Equitable Credit Company, v. Rogers.
    Opinion delivered October 31, 1927.
    1. Corporations — foreign corporation doing business within the state. — A foreign corporation which had an arrangement with a resident motor vehicle concern, whereby it in another State bought notes which were taken from purchasers of automobiles in this State, and which furnished blanks to the motor concern on which to make financial reports, held not doing business within the State.
    2. Corporations — foreign corporation doing business within the state. — A foreign corporation which has purchased in another State a note and contract of sale from a motor vehicle concern doing business within this State, in attempting to collect such note, was not doing business within the State, the attempt to collect the note being a mere incident to the original transaction.
    Appeal from Phillips Circuit Court; E. D. Robertson, Judge;
    reversed.

      A. D. Whitehead, for appellant.

      W. G. Binning, for appellee.
   Smith, J.

The facts out of which the present litigation arises are very similar to those set out in the opinions in the cases of Davis & Worrell v. General Motors Acceptance Corporation, 153 Ark. 626, 241 S. W. 44; Commercial Credit Company v. Blanks Motor Company, 174 Ark. 274, 294 S. W. 999; and Standard Motors Finance Company v. Mitchell Auto Company, 173 Ark. 875, 293 S. W. 1026. The appellee in the first case mentioned and appellants in the others were foreign corporations engaged in the business of buying notes executed in this State, but payable in other States, given in partial payment of second-hand automobiles and motor trucks, the method of procedure of the corporations being practically the same in all cases.

The facts in the instant case may be summarized as follows: The Mott Motor Company, a motor car dealer at Elaine, Arkansas, on October 8,1924, sold to Mrs. M. E. Van Lake a Ford touring car for the jjrice, including “service charges,” of $525.24, of which $131.54 was paid in cash and the balance was evidenced by the note of the purchaser of even date with the contract of sale, for the sum of $394, payable to the Equitable Credit Company, hereinafter referred to as the company, at its office in New Orleans, Louisiana. The meaning of this service charge was shown in the opinion in the case of Standard Motors Finance Company v. Mitchell Auto Company, supra. The company was not interested in the business of the Mott Motor Company further than that it had an arrangement with that company whereby it bought certain notes from the Mott Motor Company which that company had taken from purchasers of cars, blanks being furnished to Mott Motor Company by the New Orleans Company for that purpose.

The purchasers of the cars were required to make a financial report on the blanks furnished by the New Orleans company to the Mott Motor Company, and these statements and contracts of sale, with the purchase money notes forming a part of them, were submitted to the New Orleans company, at its office in that city, for approval, and the company bought in New Orleans such of these notes as it pleased.

The note and contract of Mrs. Van Lake were forwarded by the Mott Motor Company to the office of the New Orleans company, where the purchase of the note and contract was completed by the remittance to the Mott Motor Company of the agreed price.

Mrs. Van Lake assigned her 'contract of purchase to Dr. J. R. Rogers, the written consent of the New Orleans company having first been obtained. Rogers made default in the payments of the installments of the purchase money note, which were to be made at the rate of $32.84 monthly, according to the allegations of the complaint which was filed by the company in the replevin suit brought to recover possession of the ear.

Rogers defended on the ground, among others, that the facts out of which the transaction arose, and which will be stated in. further detail, constituted the doing of business by the foreign corporation, which admitted that it had not complied with the laws of this State authorizing it to do business in this State. The cause was submitted to the jury upon this question only, and from the verdict and judgment in favor of the defendant Rogers is this appeal.

Exceptions were saved to the modification of certain instructions requested by the plaintiff company, which we do not discuss, for the reason that, in our opinion, the undisputed facts show that the appellant company was not doing business in this State, and that question should not have been submitted to the jury.

It was shown, upon the cross-examination of the managing officer of the company, that it maintained no office in this State, but that its representative entered this State from time to time to make collections of notes purchased, as the note of Mrs. Van Lake had been, and this representative “repossessed cars, moved cars that were repossessed, arranged for the sale and repair of cars surrendered by purchasers, or repossessed through legal procedure or otherwise.”

Upon the authority of the case of Davis & Worrell v. General Motors Acceptance Corporation, supra, we hold that the facts recited do not constitute doing business in this State.

The facts of that case were that Davis & Worrell purchased from the Newport Foundry Company, at Neivport, Arkansas, two motor trucks, and, after making a cash payment, executed their negotiable promissory note for the balance of the purchase money, the title being retained by the seller until the purchase money note ivas paid. The note was purchased by the foreign corporation for value, before maturity, at its office in Dallas, Texas. The corporation had no agency in this State, but bought commercial paper from about forty concerns selling motor vehicles in this State. It required the dealers from Avhom it bought notes to make financial statements, and the amount of credit extended to the dealer depended upon these statements. Blank forms of contract AA’ere furnished by the foreign corporation to the dealer from whom it contemplated the purchase of notes, the statement being made on the back of each contract. The corporation made an investigation of the maker and indorsers of the paper submitted to it, through various commercial agencies, and then bought such of the paper as it pleased, the contracts of purchase being concluded at its office in Dallas. It was there said: “It is true that the furnishing of blank contracts to be used by the dealers in selling their motor vehicles and in purchasing the notes given for said motor vehicles tended to further the business of such dealers, but this did not make such transactions fall within the terms of the act. This would not be the controlling test. The test is, was the transaction of the business such that the corporation was, for the time being,'through its agents or otherwise, within the State for the purpose of doing business?”

’ It thus appears thiat facts substantially the same as those existing in the instant case were held not to constitute doing business in the case quoted from. This being true, the subsequent conduct of the corporation in attempting to collect the note was a mere incident to the original transaction, which did not constitute doing business in this State.

At § 3982 of the chapter on Corporations, 14A, C. J., it was said:

“Incidental transactions. The courts are in agreement that transactions in a State by a foreign corporation of acts of business, whether commercial or otherwise, which are merely incidental to the business in which such corporation is ordinarily engaged, does not constitute the doing or carrying on of business within the meaning of statutes imposing conditions, restrictions, regulations; etc.,' on the right of foreign corporations to do business.”"

At § 3984 of the same chapter, 14A, C. J., page 1278, • it was also said:

“Collection of debts, etc. The collection in a State by a foreign corporation of debts due it for goods sold or Otherwise' contracted does not constitute doing, transacting, carrying oil or engaging in business within the meaning of the statutes under consideration; nor does the acceptance in a State of evidence of such debts, or the taking of security therefor, come within the meaning of such statutes. The same is true of the action of a corporation in a State in adjusting or compromising such debts.”

Several Arkansas cases are cited in the notes to each of these sections which sustain the text quoted.

The opinion delivered this date in the case of the Linograph Co. v. Logan, ante p. 194, may be consulted for a further discussion of this feature of the case.

It follows therefore that the court was in error in submitting io the jury the question whether the plaintiff company was engaged in doing business in this State, and for this reason the judgment will be reversed, and the cause remanded for a new trial.


text:
    Cotton v. Brasher.
    Opinion delivered October 31, 1927.
    1. Appeal and error — presumption from absence of court’s charge.- — Where the instructions given by the court are not set out in the bill of exceptions, it will be presumed that the court correctly charged the jury.
    2. Bankruptcy — bankrupt's equity in incumbered property.— Though the trustee of a bankrupt takes all of his interest in commercial paper, such trustee is not required to take into custody property so incumbered as to be valueless, and the equity in heavily incumbered property, which the trustee in good faith declines, remains in the' bankrupt.
    3. Appeal and error — presumption against fraud.' — In an action on a note held by a discharged bankrupt, in absence of evidence to the contrary, it will be presumed on appeal that the failure of the trustee to take possession of the note sued on was not in fraud of the bankrupt’s creditors.
    Appeal from Yell Circuit Court, Dardanelle District; Sam Rorex, Special Judge;
    affirmed.

      Scott é Goodier, for appellant.
    If. L. Davis, Wray Rolloio m\(\. Ward & Caudle, for appellee.
   Smith, J.

The hill of exceptions in this case, consisting of only two pages, contains a synopsis of the testimony, which the trial judge has certified as containing all the testimony at the trial. The certificate to the hill of exceptions contains no reference to the instructions given at the trial, and only one of them 'appears in the bill of exceptions.

The suit was brought by A. J. Brasher against C., B. Cotton and J. R. Jeffers on a promissory note for $'226, executed by them to 'Brasher’s order, and dated September 11, 1919. Cotton died after the institution of the suit, and the cause was revived in the name of his administratrix. The answer filed admitted the execution of the note sued on, but alleged that it had been paid by virtue of an agreement that the note should be credited on another note dated May 11, 1920, for the sum of $2,653.90 executed by Brasher to Cotton’s order. At the trial from which this appeal comes a son of Cotton testified to this agreement, but Brasher denied having made it.

It was shown by the testimony that Brasher was adjudged a bankrupt,' and received his discharge as such, and he admitted that he did not list the note here sued on among his assets. He explained this by stating that before the institution of the bankruptcy proceedings, he had delivered the note sued on to the Farmers’ Bank of Dardanelle, where it was held by the bank as collateral security for a loan which the bank had made to him and his brother, and that this loan was evidenced by their joint note to the bank. The amount of this loan does not appear from the testimony .in the bill of exceptions. Brasher further testified that, after he had been discharged in bankruptcy, he redeemed the note from the bank by paying the note for which the note in suit had been put up as collateral.

The only instruction set out in the bill of exceptions reads as follows:

“If the jury find that A. J. Brasher, in good faith, turned over said note sued on herein as collateral security to the Farmers’ Bank of Dardanelle, prior to his filing of his petition in bankruptcy, or before he was adjudged a bankrupt in the Federal court, and that, after his discharge in bankruptcy, he redeemed this note from said bank by "paying off his and his brother’s note to said bank, for which it was placed as collateral, and there was no fraud connected with said transaction, he was the rightful party to sue on said note, provided the jury finds said note had not been paid by set-off as contended by the defendant, Cotton. ’ ’

The bill of exceptions recites that the instruction set out was given among other instructions, but it does not appear what these other instructions were, and it must therefore be conclusively presumed that the jury was correctly instructed as to what would be good faith in failing to list the note by the bankrupt as a part of his assets.

It is the law that the trustee of a bankrupt takes all the interest that the bankrupt has in all commercial paper. Section 766, Brandenberg on Bankruptcy. But it is also the law that the trustee is not required to take into custody property so incumbered as to be valueless, and, if he declines for this reason in good faith to do so, the equity of the bankrupt in the incumbered property remains in him. It was so decided by this court under the bankruptcy act of 1867 in the case of Brookfield v. Stephens, 40 Ark. 36.

In § 760, Brandenberg on Bankruptcy, it is said:

“Neither a receiver nor trustee is bound to accept property of an onerous or unprofitable character, or to assume an obligation of the bankrupt, unless for the benefit of the creditors. Accordingly, the trustee may refuse to take possession of mortgaged property, or property held in trust, and it is his duty to do so if its value, over and above the incumbrance, is not sufficient to justify an attempt to administer it. Where property is mortgaged beyond its value, and the trustee elects not to take the same, it may be surrendered to the mortgagee without prejudice to the right of the trustee to contest the Validity of the mortgage. ’ ’

So here we must presume, in view of the record before us, that the jury found that the failure of the trustee to take possession of the note sued on was an act of bad faith in fraud of the bankrupt’s creditors, and the judgment must be affirmed, and it is so ordered.