text:
    Whitner v. Thompson.
    4-3211
    Opinion delivered November 27, 1933.

      Bruce Ivy and Harrison, Smith & Taylor, for appellant.

      Frank G. Douglas, for appellee.
   Humphreys, J.

This is a suit by appellee against appellant for unlawful detainer of a part of the Grlen Hotel building on lots 8 and 9 in block 20 of Blythe Addition to the city of Blytheville, Arkansas, and for accrued rents thereon.

Appellant filed a demurrer to the complaint on the ground that three days’ notice to vacate was not given him as required by statute, which demurrer was overruled over his objection and exception.

He also filed an answer, denying the allegations of the complaint and a cross-complaint, claiming damages in excess of accrued rents on account of appellee’s failure to repair the roof and pipes to the heating plant as required by the original lease, and contractual assignment thereof, which was signed by appellee.

Upon a hearing of the canse, the trial court directed the jury to return a verdict against appellant for the possession of the leased property and the accrued rent thereon, less damages in the sum of $125, on account of a failure of appellee to repair the roof.

There was a conflict in the evidence as to whether appellant sustained any damages on account of appellee’s failure to repair the return water pipes of the heating plant underlying the cement and tile floor in the basement of the building. The testimony introduced by appellant tended to show that the pipes leaked on account of age and long usage and that, in order to run the heating plant, it took more water and coal than it would have taken had the pipes been replaced with new ones.

The trial court excluded this testimony, over appellant’s objection and exception, on the ground that, under the terms of the lease, appellee was only required to keep the outside of the building in repair, and that appellant Avas required by its terms to make all repairs inside the building, holding that the heating pipes were inside the building. The clause in the original lease relative to the repairs is as follows:

“It is understood and agreed that the lessor shall make all necessary repairs to the roof and outside of the building in order to maintain the building in a habitable condition and fit for its occupancy by the lessee in the conduct of his business. But that the lessee shall make all repairs or necessary alterations on the inside of the building, including windows in the rooms occupied as a part of the hotel business, at his OAvn expense, and he agrees and binds himself to keep the building so occupied and used in as good state of repairs as he received same.”

The construction of this clause by the learned trial court Avas correct. The heating pipes were inside and not outside the building, so it was the duty of appellant to keep them in repair. All testimony as to damages resulting from the condition of the pipes was properly excluded, as no duty under the lease rested upon appellee to repair or replace them.

Appellant contends that the contract for the assignment of the lease to him by the prior lessee, which was approved and signed by appellee, contained a clause which imposed the duty upon appellee to repair and replace the heating pipes. The clause is as follows: “It is further understood and agreed that the owner of said property shall make all necessary repairs to all of said buildings, in order to maintain said buildings in a good and habitable condition. And the said buildings and premises shall be kept in such condition by the owner as to make them fit for their use in the conduct of the business for which they are leased. The lessee agreed that he will use and keep said buildings in a good and husbandlike manner, and that he will not destroy, tear down or impair the use of any of said buildings through any misuse or bad conduct on his part. That he will use his best efforts in seeing that the buildings and premises are maintained and kept in as good condition as possible.”

The clause quoted would have the effect contended for if it stood in the contract of assignment alone. It was in the contract of assignment which appellant prepared and presented to the appellee for his approval and signature, but appellee refused to approve and sign it until the'following paragraph was inserted, to-wit:

“Regardless of the terms hereinbefore expressed, it is understood and agreed that the said F. W. Whitner accepts said hotel and cafe rooms under the terms of the original lease of May 10, 1928, and supplemental thereto under date of February 13, 1930, and agrees to pay rents in accordance to the terms of said contracts; that in consideration of the substitution of said F. W. Whitner in lieu of said" R. J. Alston, the present owner of said property, the said John Thompson, does not agree to do anything not specifically set out in said contract of May 10, 1928, and supplemental contract of February 13, 1930, even though this contract has undertaken to state such terms and conditions.”

It is apparent that the paragraph was added so that, as between appellant and appellee, the clause relative to repairs contained in the original lease should govern in case any dispute should arise between them.

Appellant also contends for a reversal of the judgment on the ground that the suit was prematurely brought. It is argued that three full days’ notice was not given to vacate the property before the suit was brought; and, in support of his contention, he cites the case of Jones v. State, 42 Ark. 93. The statute under which Jones was indicted provided for “at least three days’ actual notice” before being required to work on the roads. This statute was properly construed to mean that he was entitled to three full days’ notice.

The statute applicable in the instant case is § 4838 of Crawford & Moses’ Digest, which provides that suits may be brought in unlawful detainer after three days’ notice to quit. Under the language used, the day of serving the notice may be counted. The notice was served on appellant to vacate on September 2, and suit was not brought until September 5, which was after three days’ notice had expired, counting the day of service.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Kirby, J.,

license: Public Domain

text:
    Merritt v. Dermott Special School District.
    4-3319
    Opinion delivered November 27, 1933.

      Ohmer C. Burnside, for appellant.

      John Baxter, for appellee.
   Kirby, J.,

(after stating the facts). Neither the bondholders nor the trustee named in the pledges securing the bonds of the district, nor the holders of the $40,000 in outstanding warrants issued by the district, were made parties to the suit.

Counsel for appellee alleges in the complaint: “It is contended by the bondholders that the. county treasurer should set aside funds to pay certain maturing interest on bonds outstanding of the district, and the registered warrant holders contend that the money now in the hands of the treasurer should be paid on warrants.”

Act 169 of 1981 is a very comprehensive school law, but does not seem to enter into this controversy, except as to the amount to be set aside to be used for school purposes from the taxes of 1934 for 1933, and the amount to be used for bond purposes.

The effect of the decree herein is to impound the $7,500 now on hand to the credit of appellee district, except as to the payment of the two interest items approximating $2,600, and the money to be derived from redemptions for the purpose of enabling appellee to operate the school in 1933-34, notwithstanding the fact that the holders of the $40,000 of outstanding warrants, some registered under the law, then existing at the time and pressing for payment, and in the face of the fact that there is interest due on the bonds of the district. The teachers and other employees holding the past-due warrants of the district are deprived of their money, because, under the decree herein, there can be no money used to pay same. The fact that the court ordered the moneys impounded indicated that there are holders of warrants pressing for payment out of the little money on hand in the treasury, and what little is to be collected.

The law provides for boards of directors for' managing the affairs of the school, protecting the property of the school district and carrying on and operating the schools. It also provides for the issuance of warrants, how they should be issued, and by whom, and the liability thereunder. These boards are given plenary power, and have ample discretion in the conduct and management of the business of the district, the operation of the schools and the allowance and payment of claims for which the district may be liable.

(1). The. directors of this school district made an investigation of its assets and liabilities, and allotted a certain part of the revenues on hand and arising for expenses of conducting the school, and this without regard to some of the other debts and liabilities. The}' determined the amount for which the school could be operated, how the accounts should be kept, and that a certain amount of the school funds should be allocated to the payment of operating expenses of the school, without regard to whether other obligations of the district could be paid in accordance with their terms. They, then, without notice to other warrant holders and creditors, went into chancery court and had it approve the budget as estimated, and the treasurer enjoined from paying other outstanding warrants or moneys, except such as were included in the budget. It made no difference to them that the operation of the school with the expense incident thereto, would cost and require the expenditure of so much of all the school revenues, present and future, that it would not leave enough in the treasury to take care of the registered warrants, fixed expenses, etc. The effect of such an order is to deprive other warrant holders of the opportunity to collect, or be paid some of their warrants, and must, of necessity, result in long delay in the collection thereof. The boards of directors are provided for by law, and selected to manage and conduct the affairs of the district in accordance with law and the best interests of the district. It was never contemplated that the chancery court should supervise or direct the conduct of the school and board of directors in the operation of the school and the creating of indebtedness and payment thereof. The chancery court has no such power or jurisdiction in fact.

(2)., The intervener had the right to notice of the hearing of the court for approval of the budget, or schedule of expenses submitted by the directors, since the claims of other creditors were to be affected, and the payment of them necessarily delayed by the action taken by the court, and it is undisputed that no notice of such hearing was given to the intervening creditors, and interveners had the right to come in and present the matter of their claims before such liability 'was fixed abqnt thq expenses necessarily delaying and preventing the payment of their claims, if they otherwise could have been paid.

If the chancery court had such jurisdiction, they would doubtless be in charge, directing, supervising and controlling the expenses of operation of the schools in half the districts in the State of Arkansas. This would produce an intolerable condition, and impose ¡on the courts as well as the districts, notwithstanding the exercise of such jurisdiction might result beneficially to many of the schools.

Intervener’s petition should have been heard and granted, that the parties interested might have had ail opportunity to protect their rights, which were materially affected by the unwarranted order of the chancery court of which they had no notice. The chancellor erred in not granting the motion for setting aside the decree that the rights of the intervener might be determined; and, not having authority to exercise this supervising and controlling power over the district’s directors and affairs, and against the interest of all others of those to whom the district was indebted, the decree is reversed'and the cause dismissed.


text:
    W. B. Worthen Company v. Thomas.
    4-3192
    Opinion delivered November 27, 1933.

      Francis T. Murphy and Eugene H. Murphy, for appellant.

      Fred A. Isgrig and Marry Robinson, for appellee.
   Kirby, J.,

(after stating the facts). The only question for determination here is the constitutionality of act 102 of 1933, approved March 16,1933.

It is insisted that said act is violative of § 10, article 1, of the Constitution of the United States, as impairing the obligations of a contract, and § 17 of article 2 of the Constitution of Arkansas.

In Acree v. Whitley, 136 Ark. 149, 206 S. W. 137, it was said: “It may be stated at the outset that § 21 does not relate to the absolute exemption of personal property allowed a resident of this State, as exempt from certain debts and liabilities under §§ 1 and 2 of article 9 of our Constitution. The reason is beneficiaries in insurance policies, as well as other persons, are obliged to pay judgments against them in favor of third persons and exemptions from execution and other process of the court are fixed by the sections of the Constitution above referred to. The statute in question was not enacted for the purpose of allowing beneficiaries exemptions which they are not entitled to under the Constitution and laws of this State, but the act was passed for the purpose of exempting these funds from the operation of our general statutes regulating issuance of garnishments and proceedings thereunder. ’ ’

It is true this act is broader in its terms than the one construed in the above case, since it exempts all moneys payable to any resident of the State “as the insured or beneficiary designated under any insurance policy or policies providing for the payment of life, etc., * * * from liability or seizure under judicial process of any court, and shall not be subject to the payment of any debt by contract or otherwise by any writ, order, judgment or decree of any court, * * * provided that the validity of any sale, mortgage, or hypothecation of any policy of insurance, etc., shall in no way be affected by the provisions of this act.”

As said by this court of the other statute, it can well be said of this statute, act 102 of 1933, that it “does not relate to the absolute exemption of personal property allowed a resident of this State as exempt from certain debts and liabilities under 1 and 2 of article 9 of our Constitution. * * * was not enacted for the purpose of allowing beneficiaries exemptions which they are not entitled to under the Constitution and laws of this State, but the act was passed for the purpose of exempting these funds from the operation of our general statutes regulating issuance of garnishments and proceedings thereunder. ’ ’

This could be done without violation of our Constitution. No creditor has the right to any particular remedy, and such statutes prohibit only the issuance of garnishments against such funds, as already held by our court; and neither does it violate the Constitution of the United States in impairing the obligations of a contract by prohibiting the use of certain procedure in subjecting certain insurance funds to the payment of a judgment against the beneficiary in an insurance policy — funds that were not in existence when the judgment was obtained and were allowed to be provided for by the insured whom the law allows to expend a certain amount of money to provide insurance for the benefit of his wife.

The law allows the equities in cases to be considered in the construction of the statutes relating to the subject in question. Evans-Snider-Buel Co. v. McFadden, 105 Fed. 293, 58 L. R. A. 900.

The judgment is affirmed.

Mehaffy, J., dissents.


author:
Mehaffy, J.
      Smith, J.,

text:
    Arkansas Power & Light Company v. Boyd.
    4-3203
    Opinion delivered November 27, 1933.

      W. H. Glover, Rose, Hemingway, Cantrell & Loughborough and J. W. Barron, for appellant.

      John L. McClellan, Kenneth C. Coffelt and Wm. J. Kirby, for appellee.
   Mehaffy, J.

This action was hr ought by Zelma Boyd, appellee, against the appellant, Arkansas Power & Light Company, to recover damages for personal injuries alleged to have been caused by the negligence and carelessness of the appellant, its motorman, agent, servant and employee, in charge of and operating the street car, in negligently and carelessly advancing said street car from a full stop at the approach to the street intersection with State Highway No. 10, directly into the path of a large speeding motor truck which was proceeding in a westerly direction on State Highway No. 10, causing the front end of said street car, which was traveling in a northerly direction, to collide violently with said motor truck. Appellee alleged that, as a result of said collision, the street car was derailed, she was thereby thrown from her seat violently and with great force against the side and wall of said street car, causing her to rebound and fall and strike the floor, seriously and permanently injuring her. She then describes her injuries, and prays for damages in the sum of $20,000.

The appellant answered, denying all the material allegations of the complaint, and alleging that, if appellee was injured or damaged by riding on the street car at the time and place described in the complaint, neither the injury nor damages were caused by any negligence on the part of appellant, but were caused by the negligence and carelessness of the driver of said truck in striking said street car, in that, at and before the time of the collision, the driver of the truck was not keeping any lookout for the street car, and was driving at a rapid, dangerous and negligent rate of speed, and failed to yield the right-of-way to said street car, and failed to stop in obedience to the stop buttons or signs, which were then and there placed at said intersections under the authority of the city of Little Bock, Arkansas, pursuant to an ordinance or resolution duly passed by the city council of Little Bock, by which it is required that all vehicles entering Prospect Avenue from State Highway No. 10, either east or west bound, shall come to a full and complete stop. Appellant further alleged that appellee, herself was negligent, and contributorily negligent, in that at and before the time of the collision she was not keeping any lookout for her own safety, and did not take any steps or measures or do anything to protect herself from injury, and that such negligence, and contributory negligence on her part, proximately and directly, contributed to her damages, which negligence and contributory negligence appellant pleaded in bar of the suit.

Appellee filed an amendment to her complaint, alleging that she had suffered other injuries than those mentioned in the original complaint. Thereupon the appellant objected to the court’s permitting appellee to file the amendment to her complaint, and appellant filed motion for continuance, which was overruled, and exceptions saved.

There was a trial by jury, and a verdict and judgment for $4,000 against appellant. Motion for new trial was filed and overruled, and the case is here on appeal.

Appellant contends that the motorman was guilty of no negligence, because he had a right to assume that the driver of the truck would observe the law, and stop his truck before reaching the car line, and attention is called to a great many authorities. It is true that one may assume ordinarily that others will not violate the law, but no one can assume that a person is not going to violate the law or the traffic rules, when every indication is to the contrary. This is not a controversy between the driver of the truck and the street car company. The undisputed evidence shows that the truck driver Avas guilty of negligence; still, if the motorman was guilty of negligence which was the proximate cause of the injury to a passenger, the carrier is liable, no matter how negligent some one else may be, nor does it matter about the comparative degree of negligence.

The motorman himself testified that, at the place of the accident, there was a stop sign, and that people were supposed to stop before they entered Prospect Avenue. He testified that he started the street car when he saw the truck coming a half; a block away, because the driver of the truck had plenty of time to stop, and the motorman assumed that he would see the street car or the sign, or both. After seeing the truck coming down the street at-a rapid rate of speed, the motorman testified that he kept his eyes in front thereafter. There is some confusion about his testimony as to when he looked at the truck again, but it is undisputed that the truck was about a half block away, coming at a rapid rate of speed down a slight grade, and that the motorman then looked in front, and exercised no care at all to see whether the truck was going to stop, or whether there was danger of a collision. The motorman said that the truck hit the street car after he had gone a little past the corner of the intersection; that he saw him again just before he struck the street car. The motorman said he thought he was going about ten miles an hour. He had stopped to let' passengers alight, immediately before entering the street, and it was as he started up after letting the passengers off that he saw this truck a half block away, and testified that he did not know whether the truck driver was slowing down or not.

The evidence of all the witnesses that saw the accident is to the effect that the street car stopped before entering the street, to permit passengers to alight, starting up again when the truck, which hit the street car, was about a half block away, coming at a rapid rate of speed, and, notwithstanding that numbers of passengers were on the car, no precaution was taken to protect them, but the motorman simply assumed that the truck driver would stop, although the evidence shows that there was no indication that the truck driver was going to stop or that he could stop. The truck was heavily loaded, and no effort was made to check its speed until about the time it struck the street car.

The street railway company owes to its passengers the duty to exercise the highest degree of care, consistent with the practicable operation of its cars, to protect the passengers from injury. Failing in the exercise of that care, the company is guilty of negligence, and, if the negligence is the proximate cause of the injury complained of, it is liable for the damages caused by such negligence.

In this case it was a question of fact for the jury to determine whether the street car company did exercise that high degree of care which it owed the appellant to protect her from injury, or whether it was guilty of negligence in causing the injury. St. L. S. W. Ry. Co. v. Jackson, 93 Ark. 119, 124 S. W. 241; Booth on Street Railways, §§ 327-328.

The fact that the driver of the truck was guilty of negligence which contributed to the injury does not relieve the appellant if it was guilty of negligence, because, where the negligent acts of two persons concur to produce an injury, either will be liable for damages. Mo. Pac. Rd. Co. v. Riley, 185 Ark. 699, 49 S. W. (2d) 397; Johnson v. Mo. Pac. Rd. Co., 167 Ark. 660, 269 S. W. 67; Jonesboro, L. C. & E. R. Co. v. Wright, 170 Ark. 815, 261 S. W. 374; Bennett v. Bell, 176 Ark. 690, 3 S. W. 996.

The driver of a street car, notwithstanding his ear has a superior right-of-way, should stop or slacken his speed to avoid imminent danger from collision with vehicles upon the street, and, notwithstanding the negligence of the driver of the private vehicle, the carrier will be liable to a passenger where, under such circumstances, its driver failed to exercise proper care. So it will be if a passenger, without his fault is injured by the collision between cars, whether both are owned by the defendant or not, if the accident be proximately due, in part at least, to the negligence of its servants. Booth on Street Railways, § 360.

It is contended, however, that the appellee is not entitled to recover because of her contributory negligence. It is argued that she saw the truck approaching, and should have warned the motorman. It was not her duty to warn the motorman of a thing he saw himself. Besides, even if she thought the truck was not going to stop, she had no right to interfere with the motorman, but had the right to assume that he would take whatever precaution was necessary, and, if necessary to avoid the collision, stop his car.

“In the present case the duty rested on the defendant to be alert and watchful at all times, and to exercise all the care necessary to carry its passengers safely. Plaintiff owed it no duty to supervise the conduct of the driver, or to make suggestions or give warnings to him. ’ ’ McKeller v. Yellow Cab Co., 148 Minn. 247, 181 N. W. 348; Grand Rapids & I. R. Co. v. Ellison, 117 Ind. 234, 20 N. W. 135; Scales v. Boynton Cab Co., 198 Wis. 293, 223 N. W. 836, 60 A. L. R. 978; Diffenderfer v. Pa. Rd. Co., 67 Pa. Superior Court, 187; Reitz v. Yellow Cab Co., 248 Ill. Appeals 287; So. Pac. Co. v. Wright, 248 Fed. 261.

The appellant next urges a reversal of the judgment because the court gave erroneous instructions. The instructions are numerous, but we think that, when considered as a whole, they fairly submit the issues to the jury, and that there was no error either in giving’, modifying or refusing to give instructions.

Appellant contends for a reversal of the judgment also on the ground that certain incompetent testimony was admitted. There was no prejudicial error in the ruling of the court, because the same evidence had already been admitted without objection, and was already before the jury.

The important question in this case is whether the motorman was guilty of negligence. While carriers of passengers are held to a high degree of care, they are not insurers of the safety of the passengers, but are only liable for negligence. As to whether or not the motorman was guilty of negligence causing the injury, was a question of fact for the jury to determine, and, there being substantial evidence to sustain the verdict of the jury, we are not authorized to disturb it.

Finding no error, the judgment is affirmed.

Mr. Justice Kirby disqualified and not participating.

Smith, J.,

(dissenting). The defense interposed in this case is reflected in an instruction numbered 7, which the defendant asked and which reads as follows: “You are instructed that the motorman in operating the street car, seeing the truck approaching the intersection, had the right to assume that the driver of the truck would recognize the paramount right-of-way of the street car and would operate his truck with ordinary care to protect himself, and would not attempt to cross the track at said intersection immediately in front of the approaching street car; and the motorman had the right to go on with his street car with that presumption in his mind until he saw, or, in the exercise of ordinary care, could have seen the driver of the truck do something or his failure to do something which would indicate a contrary intention upon his part, and it then became his duty to stop his street car if he could do so in time to avoid the accident, (or to remain stopped if he had not yet started to cross said street intersection).” The instruction was modified by the addition of the phrase appearing within the parentheses reading as follows: “Or to remain stopped if he had not yet started to cross said street intersection. ’ ’

I think instruction numbered 7, as asked, was a ■correct declaration of the law, as applied to the issues of this case, and that it was error to modify it, as was done.

' The plaintiff herself testified that when the street car started to move the truck was from 150 to 200 feet away from the street car tracks. The motorman did nothing to stop his car “after he had pulled out in the intersection. The motorman was going about five miles an hour, and he kept pulling out in the middle of the street, and the truck coming down, and it did not slacken either, and the motorman tapped his bell, and the truck driver was honking his horn. ’ ’ The truck was traveling 35 to 40 miles an hour and was coming down a slight grade.

It must be remembered, however, that the street car was moving along a boulevard street, which means that traffic crossing that street was required to come to a full stop before crossing it. A stop signal in the center of the street upon which the truck was moving evidenced the fact that the street car was moving on a boulevard street. Now, the street car started moving across the intersecting street while the truck was 150 to 200 feet away. As a matter of law, and as a matter of fact, the street car company had the right-of-way over the truck. This being true, the court should have charged the jury, as the requested instruction declared the law to be, that the motorman had the right to assume that the driver of the truck would not attempt to cross the street car track immediately in front of the approaching street car, and that the motorman had the right to go on with his street car with that presumption in his mind until he saw, or, in the exercise of ordinary care, could have seen, the driver of the truck do something, or his failure to do something which would indicate a contrary intention upon his part, in which event and at ivhich time it then became the motorman’s duty to stop the street car if he could do so in time to avoid the accident.

The essence of this instruction is that one obeying the traffic rules has the right to assume, that others will also obey them, and to proceed upon that assumption until he knows, or, in the exercise of ordinary care, should know, that the other party will not observe the traffic regulations. The, traffic in cities cannot be moved in a practical manner on any other assumption. However, the legal principle announced in the instruction as requested applies in rural sections as well.

The court modified the instruction by adding the phrase, “or to remain stopped if he had not yet started to cross said street intersection.” This modification is open to the objection that it rendered the instruction ambiguous, if not contradictory, and was erroneous for this reason. • It is open, however, to the more serious objection that it gives the street car only a qualified right to move along the streets. According to the plaintiff herself, the street car moved into the intersecting street while the truck ivas’ 150 to 200 feet away, and although the truck was approaching rapidly the motorman had the right to assume the truck would stop at the boulevard street as required by the stop signal, and to proceed on that assumption until he knew, or, in the exercise of ordinary care, should have known, that the truck driver would not obey the traffic regulations. Whether the motorman knew, or should have known, that the truck driver intended to disobey the traffic regulations was a question which the instruction, as requested, would have submitted to the jury.


author: McHaney, J.

text:
    Pacific Mutual Life Insurance Company v. Henry.
    4-3311
    Opinion delivered November 27, 1933.

      Powell, Smead & Knox and Owens & Ehrman, for petitioner.

      U. J. Cone, for respondent.
   McHaney, J.

A resident of Ashley County brought suit in the Ashley Circuit Court against petitioner to recover damages for injuries alleged to have been sustained by its negligence in an automobile accident in Pulaski County while being transported to the latter county by it as a witness. Service of summons was had upon petitioner’s designated agent for service in Pulaski County, who was also its general State agent.

Petitioner specially appeared in the Ashley Circuit Court, and moved to quash the service on the ground that it is a foreign corporation authorized to do business in Arkansas; that it maintained no office or agent in Ashley County upon whom service^of summons could be had; and that the attempted service upon its designated agent in Pulaski County was unreasonable, discriminatory, arbitrary and in violation of the due process clause of the 14th Amendment to the Constitution of the United States.

A hearing was had on the motion to quash, and it was developed that petitioner does have an agent in Ashley County, appointed by the general agent in Little Rock, with authority to solicit applications for life insurance policies to be issued by petitioner, and that it is doing business in Ashley County by writing insurance on residents of that county on applications taken by such agency. The motion to quash was overruled, and this petition for prohibition challenges the jurisdiction of the respondent’s court to hear and determine the matter.

We think the court correctly overruled the motion to' quash, and that the Ashley Circuit Court has acquired jurisdiction by the service had under either §§ 1150,1151 or 1152, Crawford & Moses’ Digest. Under § 1150 the service might have been had “upon the chief officer of such agency,” petitioner being an incorporated insurance company. Under ^ 1151 service is authorized on the designated agent, as was done in this case, petitioner ■being a foreign corporation with an agent in this State. Under § 1152, both foreign and domestic corporations may be sued in any county where they keep or maintain ‘ ‘ a branch office or other place of business, ’ ’ and service “upon the agent, servant or employee shall be deemed good and sufficient service upon said corporations,” etc. Petitioner contends that it had no branch office or other place of business in Ashley County; that the office, kept and maintained in said county was that of its soliciting agent over which it had no control. But the fact remains that it did have an agency in said county and that such agency had an office or place of business where business for petitioner was transacted, applications for insurance solicited, collections made, notes taken, etc., and that it was doing business in said office through said agent. Service might have been had on such agent. The fact that service was had on the agent in Little Rock can therefore make no difference and no contention is made that service should have been had upon the local agent instead of the State agent.

We- therefore hold that the Ashley Circuit Court had jurisdiction of petitioner and that the rule announced in Power Mfg. Co. v. Saunders, 274 U. S. 490, has no application, because the statute makes no discrimination as between foreign and domestic corporations.

Writ denied.


author: Butler, J.

text:
    Kyle v. Ribelin.
    4-3215
    Opinion delivered November 27, 1933.

      W. L. Kincannon, Hays & Smallwood and Carmichael & Hendricks, for appellant.

      Evans & Evans, for appellee.
   Butler, J.

P. C. Bradford died January 28, 1924, and Claude H. Kyle was appointed administrator of his estate on February 2, 1924, and filed various “accounts current,” reflecting the conduct of the administration. The final account was filed on July 27, 1927, from which it appeared that the administrator had expended all of the.moneys received by him as administrator, having paid only two small claims probated against the estate amounting to $143.12, and leaving unpaid probated claims in the sum of $1,133.96, among which are the claims of the appellees.

This action was instituted in the southern district of the Logan Chancery Court to surcharge and falsify the “accounts current” filed by the administrator. It was alleged that the administrator assured the owners of the probated claims that there would be sufficient funds coming into his hands to pay all the debts of the estate in full; that the claimants relied on said statements until ■the fall of 1927, when they learned from the administrator that there were no funds with which to pay their debts or the debts of the estate; that an examination of the “accounts current” filed disclosed that the administrator had wasted the assets of the estate in the payment of unauthorized and unwarranted expenses, particularly expenses incurred in, and regarding certain lands in Mazie County, Oklahoma, and that the funds so expended should have been used to pay the probated claims against the estate. It was also alleged that the administratQr had in his possession a note due the estate, signed by the appellee, Eibelin; that the estate was indebted to the said Eibelin in a sum in excess of the note, and that the said Eibelin was entitled to have the note offset, and to a judgment for the balance of his claim.

A demurrer was filed by the appellants, challenging the jurisdiction of the court to hear and determine the cause, and on the ground that the complaint did not set forth facts sufficient to constitute a cause of action. This demurrer was overruled, and the appellants answered, putting’ in issue the allegations of the complaint.

On the evidence adduced, the court held that the pleadings and evidence were sufficient to entitle the appellees to the relief prayed; that numerous items appearing in the accounts current were unauthorized and illegal charges against the estate, and entered a decree holding that the acts, omissions and irregularities are sufficient to cause the court to believe that it is' necessary for the purpose of justice to hold that there were such acts, omissions, irregularities and errors as to amount to a legal fraud on the rights of plaintiffs, and that appellee, Eibelin, had probated claims against the estate in the amount of $707.90, and that they were entitled to offset the note due the estate and to have judgment for the remainder. The court then proceeded to point out the various improper charges found to have been made, and adjudged that the “accounts current” be vacated and that the same be restated in accordance with the finding so as to show the correct amount of the balance due the estate, and that appellees have judgment in the amount of their respective claims.

On the allegation that the administrator lulled the claimants into a sense of security by repeated statements to the effect that the estate was solvent and would be able to pay all claims in full, but that it was necessary for the administration to proceed in due course before such claims could be paid, the evidence is in conflict. It becomes unnecessary, however, for us to pass upon the weight of the testimony, or to determine where the truth lies in these particulars, as we are of the opinion that the undisputed facts are sufficient for a determination of the questions raised by the appeal.

The deceased, P. C. Bradford, in his lifetime, was engaged, among other things, in operating a sawmill, and a part of the assets of the estate were various accounts due him in his lifetime, payment of which had not been made. In the first “account current” filed, the administrator did not charge himself with the inventory, nor is it abstracted. He merely charged himself with actual cash which he had collected up to the time of the filing of the account on January 28, 1925. He charged himself with certain cash on hand, numerous accounts collected, the sale of the planer and mill of the deceased, the sale of his residence, mules, horses, lumber and other personal property sold in the total sum of $4,500.25. There was a claim by the Bank of Magazine as due from the estate for debts with accrued interest amounting to about $2,800, and there had been probated claims against the estate in the approximate total sum of $1,256.96. The administrator therefore had collected enough money on the date he filed his account to pay the claim of the bank in full and the probated claims against the estate, leaving about three or four hundred dollars to pay the necessary expenses which had been incurred. It is shown by this account that he paid none of the probated claims, except one for a burial casket, iu the sum of $122.50, and one for insurance, amounting to $20.62. However, he paid to the bank $1,930. He credited himself with certain sums paid for labor amounting to about $65, but what this labor was, or how used, is not shown. He appears to have had no authority for expending any of these sums.

At the time of the death of Bradford, besides the land and personal property he owned in Yell and Logan counties, Arkansas, he owned an equity in a farm of 120 acres in Oklahoma, upon which the Federal Land Bank had a first mortgage for $3,200, and the Bank of Magazine held a second mortgage thereon to secure an indebtedness due it by the deceased. The administrator was the cashier of the Bank of Magazine, and his sureties were its directors. It appears from the first “account current” that a considerable amount of expenses incurred were payments made to the Federal Land Bank on its debt secured by mortgage on the Oklahoma land and other expenses in relation thereto. When a balance was struck, the first account current showed cash in the hands of the administrator of $1,518.94, and in this settlement he represented to the court that he had a number of accounts not collected, asking further time on said administration. On the 27th day of January, 1926, the administrator filed a second “account current,” in which he charged himself with the balance shown in the first account and certain items of rent and dividends which, together with the balance brought forward, amounted to $1,745.45. Against this balance he credited himself with the sum of $517.50, all of which, except possibly two items of court fees in the sum of $51.35, were expenses incurred in relation to the Oklahoma lands; Again he asked for further time, which was apparently granted, for on the 26th day of January, 1927, he filed a third account current, charging himself with a balance brought forward of $1,227.95, receipts from the Oklahoma farm, which, together with the balance, amounted to $1,415.85. He credited himself “with expenses amounting to $441.09, all of which, except one item of $50, was for expenses relative to the Oklahoma property. On July '26, 1927, he appears to have restated the account current filed in January increasing the amount he stood charged with in the sum of $75, rent from the Oklahoma farm, making a total of $490.85, and credited himself with $1,049.94 paid to the Bank of Magazine and other items paid out relative to the Oklahoma property in a sufficient sum to balance his account, thus leaving the appellees and others having probated claims high and dry, and the bank paid in full.

In passing, it is to be noted that all of the settlements except the first seem to have been approved by the court on the day of their filing. An examination of the accounts show that the last account, representing debts due the deceased in his lifetime, was collected on October 27, 1924, and that thereafter no other such accounts were collected, nor does the record disclose any effort made to collect the same, or any request made to the court to sell the unpaid accounts. It therefore appears that there was no reason why the administration should not have been closed within one year, the time prescribed by law.

It appears from the sums for which the administrator has taken credit that the principal amounts of expense incurred related to the Oklahoma lands, which, after deducting income from that property, amounted to $753.83. It will be remembered that the Bank of Magazine was the holder of the second mortgage and that the administrator was its cashier, and his sureties its directors. It would therefore appear that the expenses incurred in Oklahoma was more for the benefit of the bank than for the estate. But whatever the purpose and intention of these expenses, they were wholly unauthorized, and could not be validated by the order of the probate court of Logan County. The Oklahoma farm was not an asset of the estate in the hands of the administrator for any purpose. “Since an executor or administrator has no right to the possession of lands in another State and under another .jurisdiction, and since such lands do not become assets in his hands for the purposes of administration, it has been held that, as to such lands, the personal repre^ sentative has no right of redemption, for it is said that the administrator can maintain an action to redeem only as to such lands as are assets in his hands for the purpose of administration or of which he is entitled to possession.” 11 R. C. L., p. 161, § 170.

In Miller v. Oil City Iron Works, 184 Ark. 905, 45 S. W. (2d) 36, the administratrix had credited herself with the sum paid in defending title to oil leases in the State of Texas, which she claimed belonged to the estate of the decedent, and, among other things, attempted to justify the expenditure on the order of the probate court of the county of the administration. This court there said: “It is true that she secured an order of the probate court allowing her to employ counsel and to make expenditures of money, but the court had no jurisdiction to make such order. In the first place, letters of administration have no legal force or effect beyond the territorial limits of the State granting them. Woerner on Administration, (3d ed.) vol. 1, p. 558-559, 23 C. J. 1014, 24 C. J. 1120, 11 R. C. L., § 532, p. 432, and § 531, page 447.”

The rule there laid down was reiterated in the recent case of Smith v. Walker, 187 Ark. 161, 58 S. W. (2d) 946, where a claim was disallowed for fees paid an attorney to investigate title of the decedent to certain property in Texas.

Since the administrator had no authority, and could have had none, with reference to the lands in Oklahoma the attempted ratification of his act by the probate court of Logan County was void; the items of expense constituted legal frauds upon the rights of appellees, and, having worked an injury to the estate and to their rights, of itself was sufficient to give the court jurisdiction of the cause and to warrant its decree surcharging and falsifying the settlements made by him. Dyer v. Jacoway, 42 Ark. 186; Miller v. Oil City Iron Works, supra; Smith v. Walker, supra.

The trial court disapproved these and various other items for which the administrator has taken credit, all of which we have examined and deem it unnecessary to set out in detail and discuss the reason for'the court’s action. We are of the opinion that the decision of the trial court on these questions is justified,- that its decree is correct, and.it is hereby affirmed.


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    Arrington v. United Royalty Company.
    4-3170
    Opinion delivered November 27, 1933.

      Patterson & Patterson, for appellant.

      Reynolds & Maze and Max G. Cohen, for appellee.
   Butler, J.

This cause was submitted to the court .below on an agreed statement of facts, which, necessary for an understanding of the issue presented, may be thus stated;

On the 26th day of February, 1920, J. R. Hudson, being then the owner of the southeast, northeast, section 14, township 10 south, range 24 west, in Johnson County, to secure a note of $1,000 of that date, due one year thereafter, executed, acknowledged and delivered to the Bank of Clarksville his mortgage (his wife joining therein) covering said lands, which mortgage was duly recorded.

On June 26,1925, the said Hudson and wife, by their deed of that date, duly acknowledged, conveyed to Dan W. Johnson an undivided one-half interest in all the mineral in and under said lands. Three days later all of the parties to the above deed executed and delivered to the Empire Gas & Fuel Company a certain instrument in writing, called an “oil and gas lease,” by which the parties do “grant, lease and let unto the lessee the land hereinafter described, for the purpose of drilling, operating for and producing oil and gas.” This lease was to remain in force for ten years or as long thereafter as oil and gas was produced in paying quantities. By § 3 of the lease it was provided that “the lessee shall deliver to the credit of the lessor, free of cost, on the lease or into the pipe line with which it may connect its wells one-eighth part of the oil produced and saved,” and by § 4, that the lessee shall pay to the lessor as royalty $200 per year for gas from each well,” when gas is produced in paying quantities, while same is being sold and used off of the premises, and $75 as royalty per annum while gas is not sold or used off of the premises; and, by § 4, it was provided that the lessors were to be paid as royalty one-eighth of the market value of gas and vapors produced from any oil well and used in the manufacture of gasoline.

In July, 1925, Dan W. Johnson and wife executed a written instrument, called “royalty conveyance,” duly acknowledged to the United Royalty Company, for which they, for the express consideration of $1 and other valuable consideration, “do hereby bargain, sell, grant, convey, transfer, assign and set over to second party (United Royalty Company), his heirs and assigns, an undivided one-half interest in and to the oil and gas royalty which is, or may hereafter be, reserved by. said party of the first part (Johnson, or his assigns), exclusive of the oil and gas bonus and oil and gas rental money in and under the following described property.” It was further stipulated that the grantee should not be a necessary party in the leasing of said land, and that it authorized the grantor, his heirs and assigns, to lease the land for oil and gas purposes.

On January 21,1928, the 'Bank of Clarksville brought suit to foreclose its mortgage, naming J. R. Hudson and wife, Bessie, and Dan W. Johnson, L. H. King and Frank May (interest of the two last named is not set out) as the only defendants. The United Royalty Company was never a party to the suit, and was not represented. Judgment was duly obtained in said suit, the lands ordered sold, sale was made by virtue of said order under which appellee, Arrington, derived his claim of title.

No notations had been made of any payments on the debt dne the Bank of Clarksville on the margin of the record of the mortgage securing same, as provided in Crawford & Moses’ Digest, § 7382, and the debt and mortgage was barred by limitation.

Suit was filed by Carl Arrington in the Johnson Chancery Court to quiet his title and to cancel and remove as a cloud thereon the conveyance-by Johnson and wife to the United Royalty Company. The United Royalty Company answered, first pleading the right to redeem and making tender of the sums paid by Arrington in procuring his title. Further answering, it set up the due date of the note from Hudson to the bank, the failure of the latter to make any notations of payment on the margin of the record, and alleged that the debt was barred by limitation, and that by reason thereof its title was prior and paramount to the title of Arrington.

On the pleadings and admitted facts, the court found the interest of the United Royalty Company in and to an undivided one-half interest in and to the oil and gas royalty to be prior and paramount to the title acquired by Carl Arrington, and, by its decree, quieted and confirmed the title of the United Royalty Company. Carl Arrington has appealed, and thus states his contention relative to the point in issue: “Is the interest which is referred to as a royalty interest, which passed to appellee under the royalty conveyance from Dan W. Johnson, an interest or estate' in land, or is it personal property?” He contends that an answer to this question is necessary for the decision in the case; that this court should hold that it is personal property, and in that event he claims the statute of limitation would have no application.

On the part of the appellee, the contention is made that the question stated above was not raised, either in the pleadings or statement of facts, upon which the case was tried in the court below, but that the only defense presented in the lower court, and upon which the finding of the court and its decree was predicated, was the plea that the mortgage debt upon which appellant’s title is founded was barred by limitation because of a failure to comply with the requirements of § 7382 of the Digest.

We are of the opinion that the contention of the appellee is not well taken, because the nature of his interest was necessary for a determination of his rights, and this question was sufficiently raised by the pleadings and evidence adduced. We therefore proceed to a determination of that question.

The appellant contends that the royalty interest conveyed by Dan W. Johnson to the appellee is personal property, and, to sustain this contention, cites and relies upon the case of Curlee v. Anderson & Patterson, decided by one of the Courts of Civil Appeals of Texas and reported in 235 S. W., at page 622. That case, and others from other Courts of Civil Appeals in Texas, support the contention made, namely, that a conveyance of an interest in royalty under an oil and gas lease does not convey an interest in the land effective against a subsequent purchaser on foreclosure. O’Brien v. Jones, (Tex. Civ. App.) 239 S. W. 1013; Farmers’ & Merchants’ Bank of Ranger v. Tullos, (Tex. Civ. App.) 211 S. W. 847. We have been referred to no case announcing this rule which has been decided by the Supreme Court of Texas, and there appears to be a diversity of opinion among the Courts of Civil Appeals in that State. A later case than those which support appellant’s contention is that of Taylor v. Higgins Oil & Fuel Co., decided by the Court of Civil Appeals of Texas, January 11, 1928, reported in 2 S. W. (2d) 288. In that case it is said: “It is also well settled that such leases create a severance of the estate in the surface from the estate in the oil and minerals, which may be owned in their entirety by different parties. It is also the law of this State that the royalty interest retained by the lessor under such leases, whether owned by the original lessor or his vendees, is an estate in the land to be held and sold only under the laws regulating the sale of land.” (Citing Hager v. Stakes, 116 Tex. 453, 294 S. W. 842.

The appellant contends that the rule announced in the Curlee case, supra, is supported by the weight of authority, and relies upon the cases of Miller v. Sooy, 120 Kan. 81, 242 Pac. 140; Bellcourt v. Harrison, 123 Kan. 310, 255 Pac. 52; Walla Oil Co. v. Valentine, 103 Wash. 359, 174 Pac. 980; and Merredith v. Merredith, 193 Ky. 192, 235 S. W. 757. We have examined these cases, and have reached the conclusion that they do not support the rule contended for, but rather hold to the contrary view. The case of Merredith v. Merredith, supra, merely held that, while neither a life tenant, nor the remainderman, acting alone,' has power to make a valid lease of land for oil and gas production, they may jointly execute such an agreement among themselves on an apportionment of the profits, and, in the absence of an agreement between them, when the lease is jointly executed, as to what disposition shall be made, of the income from the royalties, that the same will go to the life tenant and the corpus after his death to the remaindermen.

The case of Walla Oil Co. v. Valentine, supra, decided by the Supreme Court of the State of Washington, held that an ordinary oil and gas lease permitting the lessee to prospect for oil and gas establishes a mere chattel interest and hot within any rule against conveyance of land except by writing and the real beneficial owner of the property right might be shown by parol. This case does not discuss the character of the estate in the owner of the royalty.

There seems to be some confusion in the decisions in failing to distinguish between accrued and unaccrued royalties, but it is clear from all of the decisions that ordinarily accrued royalties, strictly speaking, are a mere chose in action and therefore personal property. But, according to Mills-Willingham on the Law of Oil & Gas, page 179, unacorued royalties are a part of the estate remaining in the lessor, and as such pass to the heirs, and are therefore an interest in land. It seems also that whether the royalty, when severed from the reversion, is to be deemed real or personal property depends upon the duration of the lease. If the oil and gas lease is for a term of ye'ars expiring at a certain time, it is a chattel real, and the severed royalty would be personal property; but where the lease may endure for an indeterminate period, it creates an estate in the nature of a qualified fee, and the royalty reserved-would be an interest in realty.

We have held that leases given for a definite period in which exploration and discovery of the mineral might be made, to continue as long thereafter as oil and gas is produced, conveys not merely a license but an interest and easement in the land itself. Standard Oil Co. v. Oil Waste Salvage Co., 170 Ark. 729, 281 S. W. 360; Clark v. Dennis, 172 Ark. 1096, 291 S. W. 807; Henry v. Gulf Refining Co., 176 Ark. 133, 2 S. W. (2d) 687; and Henry v. Gulf Refining Co., 179 Ark. 138, 15 S. W. (2d) 979. As a consequence of this rule, our court has held that an attempted conveyance of the royalty reserved by parol is void, this, of course, being on the theory that the royalty was an interest in real estate.

In Allen v. Thompson, 169 Ark. 169, 273 S. W. 396, where it was contended that the owner of a royalty had conveyed half the interest therein which was attempted to be evidenced by a notation on a check given for the purchase price, the court said: “The check was not in substance or form a contract between the parties. It was merely an evidence of the payment of the sum named therein for the royalties expressed in the two deeds. * * * The contract, if any, between the parties was oral and not enforcible as being within the statute of frauds.” That a royalty is an interest in land and therefore a conveyance of it by parol is ineffective as within the statute of frauds seems to be the conclusion reached in Brown v. Brown, 33 N. J. Eq. 650; King v. Kaiser, 23 N. Y. Supp. 21, 52 N. Y. St. Reports, 281; and State v. Royal Mineral Ass’n, 132 Minn. 232. In the last-named case the court treated.royalties as in the nature of a rent charge, and said: “Unaccrued rents are not personal property. They are incorporeal hereditaments. They are an incident to the reversion and follow the land. (Citing cases:) They pass with a sale or devise of the land. (Citing cases.) If transferred apart from the land, the provision of the statute of frauds relating to sales of land applies. (Citing cases.) In fact, although separable from the reversion, they are, until such separation, part of the land. (Citing cases.) ‘For what is the land but the profits thereof?’ ”

In Mills-Willingham Law of Oil & Gas, after stating the general rule that royalties are to be treated as an interest in real estate, at page 180, referring to the Texas cases holding to the contrary, it is said: “In Texas, notwithstanding that the royalty is treated as rents and not purchase price, several decisions by commissioners and the courts of civil appeals have treated the royalty as personal property. The position is indefensible in view of the fact that the lease is held to be a fee because of indefinite duration. The royalty has the same theoretical duration as the lease. It would seem that in Texas, where the lessor is held to have no reversion, the courts will ultimately recognize the royalty as a ground rent reserved in fee.”

In the case of Green v. Biddle, 8 Wheat. 76, the following-statement is found: “We are clearly of the opinion that the grant of one-half of the royalties, rents and income from the oil is a grant of one-half of the oil in place. ’ ’ This rule seems to have been in the mind of the court in its holding in the case of Allen v. Thompson, supra, and we now announce the rule to be that royalties in gas or oil, until brought to the surface and reduced to possession, are interests-in real estate and not personal property.

It seems to have been conceded that the interest in the royalty acquired by Dan W. Johnson by virtue of the conveyance from J. R. Hudson, the owner of the land, was an interest in land, but the contention is made that, when Johnson conveyed to appellee one-half of his interest in the oil and gas royalties, the character of the property conveyed became changed from an interest in real estate to personal property. We can see no just reason for this contention. The language in the granting clause of the instrument named “royalty conveyance” from Johnson and wife to the appellee is as follows: “Do hereby bargain, sell, grant, convey, transfer, assign and set’ over to the second party (appellee), his heirs and assigns, an undivided one-half interest in and to the oil and gas royalty, which is, or may hereafter be, reserved by said party of the first part (exclusive of the oil and gas bonus and oil. and gas rental money) in and under the following described property.” This was effective to convey tot'-the grantee precisely the same character of estate as was in the grantor, which is not altered by the stipulation that the grantee should not be a necessary party in the leasing of the land, or that it authorized the grantor to execute such leases. Cheatham, v. Beck, 96 Ark. 230, 131 S. W. 699; Deming Investment Co. v. Bank of Judsonia, 170 Ark. 65, 278 S. W. 634; Hughes on Arkansas Mortgages, § 475; Dunlap v. Jackson, 92 Okla. 246, 219 Pac. 314.

It follows, under the authority of Dunn v. Smith, (Tex. Civ.) 23 S. W. 449; Bank of Mulberry v. Sprague, 185 Ark. 410, 47 S. W. (2d) 601; and Connerly v. Hoffman, 184 Ark. 497, 42 S. W. (2d) 985, that the appellee, not having been made a party to the foreclosure proceeding under which appellant claims, may invoke the statute of limitation, and, as it is conceded that as to third parties the debt was barred for failure to comply with the provisions of § 7382 of the Digest, the court correctly held that appellee’s title was prior and paramount to that of the appellant, and its decree is therefore affirmed.


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    House v. McGehee.
    4-3338
    Opinion delivered November 27, 1933.

      Edward Gordon, G. B. Colvin and Calvin Sellers, for appellant.
   Butler, J.

On October 11, 1933, the Honorable Abner McGehee, Judge of the Sixth Judicial Circuit of the State of Arkansas, comprising the counties of Pulaski and Perry, addressed a letter to the clerk of the circuit court of Perry County advising that he would hold an adjourned day of the July term of the Perry Circuit Court on November 2, 1933, and directing the clerk to notify the grand jury, who served at the regular July term, to report for duty on that day, whereupon the petitioner filed in this.court a petition for a writ prohibiting the said judge from holding court on that day, or any other term of court in Perry County, until the next regular term of the court, or in the manner provided by law. Attached to this petition was a certificate of the clerk of the circuit court which, after stating his official position, certified “that on the 6th day of September, 1933, the circuit court of Perry County, adjourned without fixing any day for the reconvening of said court, and that the record of the proceedings of the circuit court of Perry County, for the July term, 1933, which was adjourned to September 5, 1933, contains no entry of record adjourning said court to any particular date, and no entry appears on the docket of the judge of said court directing the adjournment of the said court, either in due course or to any particular time or date.”

There was also exhibited with the petition the certificate of the clerk of the circuit court of Pulaski County certifying that the division of the Pulaski Circuit Court presided over by Judge McGehee convened in regular session on the 25th day of September, 1933, the same being the day and date provided by law for the convening of the court, and that the first division of said court “was convened upon said day and date by the Honorable Abner McGehee, judge of said division of said court.”

To this petition the Honorable Abner McGehee filed a response in which he stated the convening of the July term of the circuit court as provided by law and the impaneling of the grand jury, the return of the grand jury of certain indictments, and that upon that day, namely, the 18th of July, the grand jury was excused, subject to the call of the court, and the court was adjourned until September 6, 1933, upon which date it met, and, after the transaction of business, “was then adjourned subject to call, and the petit jury was excused subject to call.”

It will be seen from the certificate of the clerk of the Perry Circuit Court that there was no order of the court entered upon any record adjourning the court to any definite day after September 6, 1933, and the record is silent as to any adjourning order whatever. In the response of the presiding judge, the certificate of the clerk is not controverted, the judge stating that, after the proceedings on September 6th, “the court was then adjourned subject to call.” It also appears that between the date when the court was adjourned on September 6th and the date on which the order to the clerk to notify the jury to assemble on November 2d, a regular term of the Pulaski Circuit Court intervened, one of the divisions of which was presided over by the Honorable - Abner McGehee.

This state of facts brings the case within the rule announced in Central Coal & Coke Co. v. Graham, 129 Ark. 558, 196 S. W. 940, as follows: “The statutes of the State provide that a circuit court shall continue in session from day to day until the business is disposed of (Kirby’s Digest, § 1320), but the court cannot stand open from day to day so as to conflict with the holding of court in another county in the same circuit, and an adjournment without specifying a day on which the court will reconvene without interference with the courts in other counties is void, and constitutes an expiration of the term. Roberts & Schaeffer Co. v. Jones, 82 Ark. 188, 191 S. W. 165. Such is also the effect of an adjournment to a date which conflicts with the holding of another court.”

The adjournment of the court subject to call without specifying a day on which the court would reconvene conflicted with the holding of the court in Pulaski County, and, when the latter court convened, the regular July term of the Perry Circuit Court expired by operation of law. Therefore the judge had no authority to convene any term of the Perry Circuit Court except for the causes mentioned in §§• 2211 and 2218 of Crawford & Moses’ Digest, until the succeeding term of the court fixed by statute, which would have been on the first Monday in February, 1934. See Farelly Lake Levee Dist. v. Hudson, 170 Ark. 1110, 282 S. W. 1002. Therefore, any court which the judge might attempt to hold in the interim, except for the cause and in the manner provided by the sections aforesaid, and any action taken thereat would be void.

It appears from the recitals of the petition, which are not denied in the response, that the holding of the court on November 2 would occasion unnecessary and unreasonable expense' to Perry County, and that the funds appropriated for the expense of that court had been exhausted. Therefore, since the convening of the court on November 2 would be without authority of law, and its proceedings thereat void, the prayer of the petition is granted, and the writ of prohibition ordered issued:


author: Johnson, C. J.,

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    Louisiana Oil Refining Corporation v. Yelton.
    4-3219 & 4-3288
    Opinion delivered December 4, 1933.

      Ingram & Moher and Buzbee, Harrison, Buzbee & Wright, for appellant.

      A. G. Meehan and John W. Moncrief, for appellee.
   Johnson, C. J.,

(after stating* the facts). Appellants first urge that the verdict against each appellant is not supported by the testimony. The basis for appellant’s contention as to no liability against McKewen is put upon the following grounds:

That MeKewen, prior to procuring the warrant of arrest, gave a full and fair statement of all the known facts to the public prosecutor, and he followed this advice. It suffices to say, in reference to this contention, that MeKewen’s testimony is flatly contradicted by that of the public prosecutor. This officer was a witness in the case and testified that, if MeKewen had revealed all the facts when in his office, he would not have issued an information. It is true, of course, had MeKewen given a full and fair statement of all the known facts in reference to the controversy to the public prosecutor, then had acted upon the advice of such official, it would be a complete defense. The jury found that MeKewen did not make a full and fair statement of all the known facts to the public prosecutor, and its finding in this regard is supported by the testimony.

It is next said, in behalf of appellant MeKewen, that the evidence fails to establish either want of probable cause or malice. This court held, in Williams v. Orblitt, 131 Ark. 408, 199 S. W. 91, that, in an action for damages for malicious prosecution, malice may be inferred where there was a lack of probable cause, even though there was no express showing of malice.

We also said in Cable v. Carey, 135 Ark. 137, 204 S. W. 748, that malice may be inferred from want of probable cause.

On the question of probable cause in the instant case but little need be said. Really, there can be no doubt but that appellant MeKewen knew that appellee had no intention of stealing either the truck or the merchandise thereon. Without reviewing the testimony in this regard, it suffices to say that the jury was fully warranted in finding that appellant MeKewen had no reason, cause or excuse for instituting the criminal prosecution against appellee. If appellant MeKewen instituted the prosecution without probable cause, and we have no hesitancy in saying that he did so, then malice may be inferred.

Neither do we hesitate in saying that the testimony here presented fully warranted the jury in finding that the criminal prosecution instituted against appellee by appellant MeKewen was without probable cause and with malice. The contention, in reference to the nonliability of the Louisiana Oil Refining Corporation, is grounded upon the contention that McKewen, in obtaining the warrant of arrest in the criminal prosecution, was acting in his own right and not in aid of any business'being transacted for the oil company, and that appellee was charged with stealing property of McKewen and not that of the oil corporation. The argument is that McKewen had a special ownership in the property and was fully justified in treating it as his-own, and that the criminal prosecution was instituted against appellee in protection of this special ownership. On this question the jury was fully warranted in finding that McKewen was the agent and local manager of the appellant oil company in Stuttgart ; also that he had the exclusive possession and control of the oil plant and merchandise located in that vicinity. The sale and disbursements of all the oil company’s products in that vicinity was under the exclusive control of McKewen. Naturally, McKewen had the duty of protecting and preserving appellant oil company’s merchandise, which had been theretofore entrusted to his care. In furtherance of the performance of this duty, he had the apparent authority to do and perform any and all things necessary for the preservation and protection of said property. This court expressly so decided in Chicago, R. I. & P. Ry. Co. v. Gage, 136 Ark. 122, 206 S. W. 141, wherein this court said:

“Here we have the fact that the agent was placed in custody of the property of the principal with authority to protect it, and the evidence clearly shows that the criminal prosecution was instituted, not for the purpose of punishing a past offense, but as a means of regaining possession of the property.”

The facts in the instant case come clearly within the language used in the Gage case. Here, as there, an agent was placed in custody of the oil company’s property with authority to preserve and protect it, and we are satisfied that the criminal prosecution was instituted by him for the sole and only purpose of regaining possession of the property, and not for the purpose of punishing a past offense. At any rate, the jury was fully warranted in finding this to be the fact.

Our attention has been called to Little Rock Traction & Electric Co. v. Walker, 65 Ark. 144, 45 S. W. 57; Little Rock Railway & Electric Co. v. Dobbins, 78 Ark. 553, 95 S. W. 788; St. Louis, I. M. & S. Ry. Co. v. Waters, 105 Ark. 619, 152 S. W. 137; Dickinson v. Muse, 135 Ark. 76, 204 S. W. 609, and a number ofi other cases decided by this court. Without going into a detailed discussion of the principle of law discussed in the eases cited, we deem it sufficient to say that neither of these cases conflicts with the law as announced in the Gage case heretofore cited.

In any event, the jury was warranted in finding that appellant oil company had placed McKewen in charge of its properties and merchandise in the city of Stuttgart, with the implied authority to do any and all things necessary to preserve and protect its property, and that the criminal prosecution instituted against appellee by Mc-Kewen was done in performance of his duty as agent of the oil company.

It is next insisted on behalf of appellant, Louisiana Oil Refining Corporation, that the jury’s verdict awarding punitive damages is not supported by the testimony.

Under a long line of decisions by this court, punitive damages are recoverable against a corporation for willful, wanton and malicious conduct of their agents and servants in line of their duties. Citizens’ R. R. Co. v. Steen, 42 Ark. 321; Railway Company v. Hall, 53 Ark. 7, 13 S. W. 138; Railroad Co. v. Davis, 56 Ark. 51, 19 S. W. 107; Fordyce v. Nix, 58 Ark. 136, 23 S. W. 967; St. Louis, I. M. & S. Ry. Co. v. Power, 64 Ark. 142, 41 S. W. 50; St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136, 66 S. W. 661.

In the case of Little Rock Ry. & Electric Co. v. Dobbins, supra, on the question of the right to recover punitive damages against a corporation, this court held: “This court has often, in cases of this class as well as in other eases, affirmed the doctrine that for acts done by the agents of corporations, in the course of its business, and of their employment, the corporation is responsible, in the same, manner and to the same extent as an individual is responsible under similar circumstances.”

In the instant case we conclude that the jury was fully warranted in finding that the acts of McKewen in instituting criminal prosecution against appellee were, in truth and in fact, the acts of the oil company, and that the oil company is liable therefor.

Lastly, it is urged that the award by the jury of $5,000 as damages for the wrongful acts of the appellants is excessive. This contention should be sustained. Our attention has been called to no case, approved by this court, wherein an award of $5,000 was approved under similar facts and circumstances. ¥e have reached the conclusion that an award of $2,500 will fully compensate appellee for all damage suffered by him to his reputation, character and good name by reason of the wrongful act complained of, and the judgment will therefore be reduced to this sum.

The judgment of the Arkansas Circuit Court is therefore reduced to $2,500, and, as thus modified, is affirmed.


author: Johnson, C. J.

text:
    Strauss v. Missouri State Life Insurance Company.
    4-3233
    Opinion delivered December 4, 1933.

      Robert D. Lee and James E. Hogue, for appellant.

      R. B. McCulloch and Coleman & Gantt, for appellee.
   Johnson, C. J.

This suit was instituted by appellant against appellee, seeking recovery of the proceeds of two insurance policies aggregating $4,528.58. Appellee, in its answer, admitted the execution of the policies and its liability thereon for $4,528.58. As an affirmative defense or set-off, appellee alleged that on January 9,1932, it recovered personal judgment against appellant and others for the sum of $48,735.83 in the United States District Court for the Western Division of the Eastern District of Arkansas; that, upon receipt of the proof of death furnished by appellant, the claims under the two policies were approved, and the proceeds were applied by appellee in reduction of its judgment against appellant; that on May 6, 1932, appellee advised appellant of said application of funds.

A jury trial being waived, the facts were submitted to the trial court for determination, and its findings were in favor of appellee. The facts in the case are undisputed and are to the effect as alleged in appellee’s answer.

It is the contention of appellant that the judgment of the Federal District Court made and entered on January 9, 1932, is void, the contention being that said judgment was rendered against appellant without notice. Bearing on this question, it is admitted by appellant that she was duly served with summons when the foreclosure suit was instituted, but the contention is that the court lost jurisdiction of her person after the confirmation of the sale of the mortgaged property. We cannot agree to the contention. The Federal District Court for the Eastern District of Arkansas is a court of superior jurisdiction, and all necessary presumptions are indulged in aid of its judgments. Not only does this presumption attend all judgments and decrees of the Federal District Courts, 'but the practice here followed is fully authorized by equity rule No. 10 promulgated by the Supreme Court of the United States, which reads as follows:

“In suits for the foreclosure of mortgages, or for the enforcement of other liens, a decree may. be rendered for any balance found to be due over and above the proceeds of the sale or sales; and execution may issue for the collection of the same as is provided in rule 8 when the decree is solely for the payment of money. * * *”

It suffices to say that the judgment rendered by the Federal District Court for the Eastern District of Arkansas was in full compliance with the rule just quoted, and that said court had jurisdiction of the subject-matter and person of appellant at the time of 'the rendition of said judgment.

In addition to what we have just said, it is a doctrine of law too long established to require citation of authorities, that, where a court has jurisdiction, it has a right to decide every question which occurs in the case; and, whether decision be correct or otherwise, its judgment, until reversed, is regarded as binding on every court. Peck v. Jennis, 7 Howard, page 624.

It is next contended that act 102 of 1933 exempts the proceeds of the two policies of insurance in this controversy to appellant. On this question but little need be said. The testimony shows that the insured died in April, 1932; that the proof of death was made and approved by appellee on May 6, 1932. On the happening of these two events, that is to say, the death of the insured and the acceptance of the proof of death, the rights of the parties to the proceeds' of said insurance became vested, and no subsequent act of the Legislature could impair this vested right. We therefore hold that act 102 of the Acts of 1933 has no application to the facts in this case.

No error appearing, the judgment of the trial court is affirmed.


text:
    State use Pike County v. Wheeling Corrugating Company.
    4-3232
    Opinion delivered December 4, 1933.

      P. L. Smith, for appellant.

      George R. Steel and O. A. Featherston, for appellee.
   Johnson, C. J.,

(after stating the facts). Appellee contends that the judgment of the circuit court quashing the order of the county court made and entered on March 9, 1933, should be affirmed for the following reasons:

First, that the circuit court heard testimony on trial of the cause which is not before this court on appeal. This contention is not substantiated by the record and judgment. On the contrary, the judgment shows upon its face that the cause was submitted to the circuit court upon the record as certified up from the county court, etc. This recital is an affirmative showing that no testimony was heard other than the records of the county court.

The second contention is, that the county court had no jurisdiction or authority in law to vacate a previous judgment or order allowing claims. This contention is without merit. Section 6290 of Crawford & Moses’ Digest affords ample authority to the county court for vacating and setting aside previous orders, which fall within the purview of said section.

The third contention is, that the county court order and judgment of date, March 9, 1933, does not show upon its face that it had jurisdiction of the person or subject-matter. This contention is grounded upon the theory that no presumptions are indulged in aid of judgments and orders rendered by county courts. This contention also is without merit. The county courts of the respective counties of the State are courts of superior jurisdiction in disbursing funds of the county and in allowing claims against such funds. This is true, because § 28 of article 7 of the Constitution of 1874 creates the county courts, and vests in them the exclusive jurisdiction to disburse county funds, and to allow claims against the same. The county courts of the respective counties of the State, while exercising the jurisdiction conferred by constitutional mandate, are exercising functions of a court of superior jurisdiction. Collins v. Paepcke-Leicht Lumber Co., 74 Ark. 81, 84 S. W. 1044; Massey v. Doke, 123 Ark. 211, 185 S. W. 271.

Lastly, it is insisted that the judgment and order of the county court vacating and setting aside its previous order is void, because it shows upon its face that it was made and entered on March 9, 1933, which date is beyond the regular January, 1933, term This contention is precluded by the announcement heretofore recited. This court will presume if necessary to sustain jurisdiction, that the county court adjourned by proper order from its January, 1933, term until the date of the entry of this judgment, nothing to the contrary appearing in this record.

For the reasons aforesaid, the presumption is indulged that the county court had jurisdiction of the person and subject-matter therein determined; also that it was proceeding on March 9, 1933, in conformity with a valid adjourning order. It therefore follows that the judgment of the county court made and entered on March 9, 1933, is not void upon its face, but, on the contrary, is a valid and binding order, and judgment until reversed or modified on appeal.

The judgment of the Pike Circuit Court is therefore reversed and remanded.


author: Smith, J.

text:
    New York Life Insurance Company v. Jackson.
    4-3222
    Opinion delivered December 4, 1933.

      Louis H. Cooke and Rose, Hemingway, Cantrell & Loughborough, for appellant.

      John Sherrill and Osro Cobb, .for appellee.
   Smith, J.

The recent case of New York Life Insurance Company v. Farrell, 187 Ark. 984, 63 S. W. (2d) 520, decides the exact question which is controlling here. In that case the insured had two policies in the New York Life Insurance Company, each for $5,000. In the instant case there were two policies, written by the same company, each for $10,000. The opinion in the Farrell case, supra, sets out the provisions of the policies there sued on in regard to disability insurance, which read as follows:

“Whenever the company receives due proof, before default in the payment o.f premium, that the insured, before the anniversary of the policy on which the insured’s age at nearest birthday is 60 years, and subsequent to the delivery hereof, has become, wholly disabled by bodily injury or disease so that he is and will be presumably, thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit, and that such disability has then existed for not less than sixty days, the permanent loss of sight of both eyes, or .the severance of both hands or of both feet, or of one entire hand and one entire foot, to be considered a total and permanent disability without prejudice to other causes of disability — Then
“1. Waiver of Premium. — 'Commencing with the anniversary of the policy next succeeding the receipt of such proof, the company will on each anniversary waive payment of the premium for the ensuing insurance year, and, in any settlement of the policy, the company will not deduct the premiums so waived. The loan and surrender values provided for under sections 3 and 4 shall be calculated on the basis employed in said sections, the same as if the waived premiums had been paid as they became due.
“2. Life Income to Insured. — One year after the anniversary of the policy next succeeding the receipt of such proof, the company will pay the insured a sum equal to one-tenth of the face of the policy and a like sum on each anniversary thereafter during the lifetime and continued disability of the insured. Such income payments shall not reduce the sum payable in any settlement of the policy. The policy must be returned to the company for indorsement thereon oil each income payment. If there be any indebtedness on the policy, the interest thereon may be deducted from each income payment. ’ ’

Beginning about June 23, 1920, Grus Bertner, a soliciting agent for the appellant insurance company, Avrote a number of life policies for Bruen O. Jackson. These policies exceeded, in the aggregate, over $200,000, the exact amount not being certain or important. Two of these policies, each of $10,000, contained, in identical language, the disability provisions copied above from the opinion in the Farrell case, supra.

In 1926, and AAdiile these two policies were in full force and effect, Jackson, the insured, became totally disabled, and remained so until his death, Avhich occurred in 1932.

Jackson was a dealer in spot cotton and had a large number of bales of cotton on hand when the collapse of the cotton market wiped out his very considerable private fortune and Avrecked his health. The testimony is practically undisputed that Jackson Avas totally disabled to work or earn money since the latter part of 1926 to the date of his death. It is also clear that, had Jackson made the proof of this disability which the policies required, he would have been entitled to the disability benefits which his widow, as the administratrix of his estate, has brought this suit to recover.

At the trial from which this appeal comes, the court gave, over the appellant’s objection, an instruction reading as follows:' “No. 3. You are instructed that, if you believe from the evidence that the insured became totally and permanently disabled prior to the lapse of the policies sued on herein, and that he explained his condition fully to the special agent of the defendant and asked the agent to take the matter up with the company of adjusting and settling his rights under the policies, and that the local agent had knowledge of his financial and physical condition during the life of the policies, then you are instructed that the plaintiff is entitled to recover upon said policies.”

The special agent to whom the instruction referred was Bertner, who had written all the policies, and there was testimony to the effect that Bertner knew Jackson was totally disabled, and there had been conferences between them in regard to the policies, especially in relation to their loan values. Bertner testified that he had written thousands of other policies, and that he did not have in mind that the policies here sued on contained provisions for disability benefits, and that he had not been requested to make any report to the insurance company in regard to Jackson’s disability.

On January 16, 1932, the insured himself wrote the following letter to the general agent of the insurance company at Little Rock:

‘ ‘ As you probably know, at one time I carried quite an amount of insurance with your company, but due to severe financial reverses and failing health, causing my inability to work for gain or profit, I have been forced to drop several policies. A short while ago I asked an insurance man to go over my old policies to determine if I could in any way reinstate or derive some benefit from any which I had presumed to be valueless. The above-numbered policy was brought to my attention.
“I find that the contract carried disability benefits and was in force from May 18, 1920, until May 18, 1928, on which date the automatic option of extended insurance seems to have gone into operation, due to my inability or failure to pay the premium. I can offer proof from competent, well-qualified and well-known physicians of this city that, beginning in January, 1927,1 was adjudged by them to be totally and permanently disabled. I have the receipt for the premium on this policy due in May, 1927, and, according to the terms of the disability provisions, if I had notified you and proved my disability, that premium would have been waived as well as payment made to me of $1,000 a year. Naturally, being financially embarrassed at the time and physically unable to earn any money, I was not able to buy any new life insurance, and I would have been very pleased to have benefited by the "waiver of premium option, which, according to the contract, I deserved.
“I desire that you forward this letter, with any comments you care to make to your home office, stating to them that I can furnish ample proof for my disability claim, and asking them if, assuming that the proof is competent, they will reinstate the contract and reimburse me for any just claim I might have. * * *
“I feel that this policy should be reinstated, and that I should pay the premiums due in May, 1930, and May, 1931, because I was receiving remuneration from my office of State Purchasing Agent during that time.
“Thanking you in advance for any services you can render me regarding this matter and assuring you of my continued good will toward you and your company, I am,” etc.

This letter appears to corroborate the testimony of Bertner very conclusively. However, it is entirely certain that Bertner made no such report, whether requested to do so or not, and no report of any kind was made to any one except' to Bertner.

It is quite obvious that the discussion between Jackson, the insured, and Bertner, the agent, more or less casual, did not meet the requirement of the policy in regard to proof of disability.

It is insisted, however, that it is the fact of disability, and not proof thereof, which entitled the insured’s administratrix to recover for the benefit of his estate the disability benefits to which the insured himself was entitled. This was the theory upon which the Farrell case was tried, and a judgment recovered. The opinion in that case sets out an instruction which permitted a recovery upon the finding that the insured was permanently disabled within the meaning of the policy sued on, which, as has been shown, is identical with the policy here sued on.

We held the instruction was erroneous, and should not have been given, and in that connection it was said:

“This instruction was erroneous and should not have been given. The provisions of the policies are set out above, and each one provides that, commencing with the anniversary of the policy next succeeding the receipt of such proof, the company will waive payments, etc.
“It is perfectly plain from this provision of the policy that it waives premiums only commencing with the anniversary of the policy next after proof of loss is made, and it will be observed, from the second paragraph above quoted from the policy, that one year- after the anniversary of the policy next succeeding proof of loss, the company will pay. It was therefore improper to instruct the jury that the payments continued throughout the time of appellee’s disability. The provisions of the policy providing for payment are plain and unambiguous. The liability attached when the disability occurred and proof of loss was made. The company, however, did not promise to pay from the time the disability occurred, but from the time fixed in the policy itself. ’ ’

The conclusion announced was based upon the decision of the Supreme Court of the United States in the case of Bergholm v. Peoria Life Ins. Co., 284 U. S. 489, 52 S. Ct. 230, as appears from the quotation there copied into our opinion from the opinion of the case cited.

The judgment of the court below must therefore be reversed, as there was no such proof of disability as the policy required, and, as the cause appears to .have been fully developed, it must be dismissed, and it is so ordered.


text:
    Winberry v. Mitchell.
    4-3182
    Opinion delivered December 4, 1933.

      Bush & Bush, for appellant.

      Wade Kitchens and W. H. Kitchens, Jr., for appellee.
   Smith, J.

Appellee, plaintiff below, brought suit in ejectment to recover possession of a certain tract of land, described by metes and bounds. The cause was by consent transferred to equity, where a decree was rendered awarding her possession of the land.

The. plaintiff, who is the grand aunt of appellant, the defendant, is a childless widow, seventy-seven years old. She was living on the land in question, and agreed with defendant to will him this land and all other property owned by her upon the consideration recited as follows: “It is agreed by all the parties concerned herein that I am to live with said B. G. Winberry as one of the family as long as I shall live, and, in consideration of the provisions of this will, I am to be furnished with suitable clothing and food and medical attention by him, and to be treated with kindness and humane consideration, as one of the family.”

Pursuant to this contract, defendant, with his wife, moved into plaintiff’s home, and has since resided there, and he states, in his brief, his right to retain possession of the land here sued for as follows: ‘ ‘ Plaintiff made a will, by the terms of which she devised and bequeathed to the defendant the lands on which he now resides, and that, as a consideration to plaintiff for said provision in said will, defendant agreed to live in the house with plaintiff and to wait upon her so long as she should live; that defendant has complied with all the terms of his contract with plaintiff, but that plaintiff has been induced to attempt to cancel said contract, although defendant has at all times complied with and performed his contract with plaintiff; that plaintiff, without cause, left said farm, and that defendant is ready and willing to perform said contract; that defendant has a vested interest in said farm lands and residence, and is entitled to possession thereof.”

The decree contains the recital of fact, as found by the court, “that defendant breached each and every condition of his alleged contract, and of the will,” and, upon this finding and decree, it was ordered that a writ of possession issue in plaintiff’s favor. This appeal is from that decree.

Defendant offered testimony to support the allegations of 'his answer, set out above; but we have no hesitancy in saying that the finding of fact by the chancellor is not contrary to the preponderance of the evidence.

The conduct of defendant indicates that he was under the impression that he had the present possession, and even ownership, of the property which he was to acquire by the will of his grand aunt upon her death, if and when he had performed the conditions which his contract with her imposed and required. He tore down a rent house without plaintiff’s permission. He appears to have collected certain rents for which he did not account, and he borrowed money which he did not repay. The principal loan was for $200, which defendant says was largely used in repairing the family residence, but plaintiff was not consulted, and did not direct that the repairs be made.

Plaintiff bought and cooked her own food, but defendant says she did this from choice. She lived in one room of the house, where she cooked, ate and slept, and appears to have spent most of her time alone, and she was frequently left alone at home all day. On one very cold day she was left at home without a fire or fuel to make one, and suffered greatly from the cold. Plaintiff bought her own food and medicines as long as her money lasted. She testified that defendant wanted to “boss” her, and that, when he would not surrender the home to her, she left in August, 1931, and later brought this suit to recover possession.

The testimony shows that defendant was not cruel to plaintiff; on the contrary, he treated her kindly, but this was not all his contract required. He admits that he did not furnish or prepare food for the plaintiff, but testified that she was to buy her own food and clothing “as long as her money lasted, ’ ’ and that it was not exhausted when she left. 'But the contract did not so provide. She was entitled, under the contract, “to be treated with kindness and humane consideration as one of the family,” this being the consideration for the contract, and, as there has been a failure of consideration, the contract ceases to be effective. The spirit of this contract was not merely that plaintiff should have her food and clothing and medical attention, which the testimony showed was not furnished her, but that she should be received into and treated as a member of the family, and not be required to spend her time in the solitude of her own room. The testimony shows that she not only did this, but that the defendant forbade her nephew and niece from visiting her. Under these circumstances, it is immaterial that he did nothing positively unkind or rude or uncivil, and the decree of the court must therefore be affirmed.

As has been said, the property sought to • be recovered was described by metes and bounds, and it appears that it was not correctly described in the complaint and in the decree, but, as there is no question about the identity of the.property in litigation, the description will be amended to correctly describe the property, and the court below will be directed to amend the decree so to do. It is so ordered.