author: Kirby, J.

text:
    Jones v. Little Book Boys’ Club.
    Opinion delivered January 12, 1931.

      Arthur J. Jones, for appellant.

      D. D. Terry, for appellee.
   Kirby, J.

This appeal is prosecuted from a decree of the chancery court refusing injunctive relief against the construction and operation of the Boys’ Club on the corner of Eighth and Scott streets in the city of Little Bock, and dismissing appellant’s complaint for want of equity.

It appears from the testimony that appellant, the owner of a house and lot in the middle of the 'block opposite the site of the Little Bock Boys’ Club at Eighth and Scott, brought suit to enjoin the erection of a new ■building on the said site, alleging that the erection thereof would constitute a nuisance and decréase the value of appellant’s property and that the continued use of the building and ground as a Boys’ Club would also constitute a nuisance.

The site originally belonged to the Concordia Club, a social organization for Jewish people, and it has been used as a club for boys since 1925, when the Concordia Club was purchased with money raised from public subscription for use as a Boys’ Club. The club building was destroyed by fire in December, 1929, and in June, 1930, the citizens of the city of Little Book subscribed $140,000 for rebuilding and equipping the club.

The new building is to be erected on the site formerly occupied by the old building, and is to be of the same general size. The front will extend across the two lots on the corner, and the building will extend back about 95 feet on East 8th Street.

The property of appellant, a one-story cottage, is on the west side of Scott Street about the middle of the block located immediately in the rear of the First Presbyterian Church. The only other residence on that side-on that block is a two-story house on the southeast corner of the block. The only other buildings on the half block with the club site are a filling station on the southwest corner of the block at 9th and Scott and an apartment house immediately behind the proposed club building fronting on East 8th Street. Across the street towards the city north on the same side of the street as the club building is the Second 'Baptist Church, an apartment house and the Albert Pike Hotel, while on the west side of the street between 7th Street and 8th Street is the Consistory.

There was much testimony introduced tending to show the membership of the club, the noise incident to its operation before its destruction by fire, plaintiff stating that the condition was intolerable, the boys comprising its membership being mostly those of the under-privileged classes, who were controlled only by one official, the club being in operation at all times of the day and until late in the night except on Sundays; that wrestling matches, picture shows and prize fights were staged for the benefit and entertainment of the members of the club, with all the noises usually incident to and accompanying such entertainments.

The pastor of the Baptist Church testified that at times the noise made by the club members was so great as to disturb the religious services in his church on the opposite corner, but that usually the disturbance was eliminated and quiet restored upon a request sent over to the club.

Some witnesses testified that the value of the property as a residential district would be decreased in value because of the club, while other witnesses testified that the property was no longer a residential district, and would be enhanced in value because of the construction of the beautiful modern club building thereon.

It may be said that much testimony tended strongly to show that the club, as it has been operated, was not free from just criticism that it was disturbing to the residents of the immediate neighborhood and constituted on that account a nuisance, but there was also testimony to the contrary that the noises were not so great and con-. tinuous because of the operation of the club as would create an intolerable condition to any resident of the neighborhood entitling him to injunctive relief. No effort was made, however, to show that the club could not be properly operated in furtherance of the purpose of its establishment in such a manner as to fulfill its purpose without becoming a nuisance as to the residents in the vicinity.

The erection of the building itself could not constitute a nuisance under the circumstances of this case, and it is not insisted that it could be, but only that, as erected and operated as formerly, it would constitute such a nuisance. In any event, therefore, the erection of the building could not constitute a nuisance per se entitling appellant to an injunction prohibiting its construction. In Lonoke v. C. R. I. & P. Ry. Co., 92 Ark. 546, 123 S. W. 395, 135 Am. St. Rep. 200, this court said: “The act done or the structure erected may be a nuisance per se, or the act or use of the property may become a nuisance by reason of the circumstances or location or surroundings. In the one case the thing becomes a nuisance as a matter of law; in the other it must be proved by evidence to be such under the law.” This statement was again made in the case of Swaim v. Morris, 93 Ark. 362, 125 S. W. 432, 20 Ann. Cas. 930, where the court held a municipal ordinance declaring and prohibiting the erection of cotton gins as a nuisance per se was invalid and too broad, quoting the definition in Cyc. of a nuisance per se: “A nuisance at law or a nuisance per se is an act, occupation or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings.” 29 Cyc. 1153. See also 46 C. J. 648, § 5. It was there said also (quoting syllabus) : “Where an injunction is sought merely on the ground that a lawful erection will be put to a use that will constitute a nuisance, the court will ordinarily refuse to restrain the construction or completion of the erection, leaving the complainant free to assert his rights thereafter in an appropriate manner if the contemplated use results in a nuisance.”

The district in which the club is located is certainly no longer an exclusively residential district, but is in a state of transition from residential to a business district, if it has not already ceased altogether to be a residential district, which the testimony shows it to have done in so far as the erection of any new residences therein. In Fentress v. Sicard, 181 Ark. 173, 25 S. W. (2d) 18, the court held the erection of a mortuary or undertaking establishment in the district which was in a state of transition from an exclusively residential district to a business district was not a nuisance which should be prevented or suppressed by injunction, where it would not by its location decrease the value of surrounding property or impair or destroy the health and comfort of the residents of the vicinity. In Murphy v. Cupp, ante p. 334, the court held that the erection of a tabernacle for public worship, an annex to a chnrch building already established, and the use to which it would be put would not cause any unusual annoyance or inconvenience to the residents of the neighborhood and denied injunctive relief against the erection of the building. It was there said: “The rule is well settled that no injunction will be issued in advance of the construction of the structure unless it be certain that the same will constitute a nuisance. ’ ’ The following statement from 'Oyc. was also quoted there: “Where the claim to relief is 'based upon the use which is to be made of a lawful erection, the court will ordinarily refuse to enjoin the construction or com-, pletion of the erection; and in such case the defendant, if he proceeds, does so at his peril and is liable to an injunction or an action of damages if such use results in a nuisance. If a building of itself will be a nuisance, its erection may, of course, be enjoined.” '21 Cyc. 208.

Under the circumstances of this case and the principles of law as already announced in the decisions of this court, no such showing was made to entitle appellant to an injunction against the construction of the building for the use and operation of the Boys’ Club on the ground of anticipating a nuisance therefrom, where it would not necessarily be a nuisance, but might become such under some circumstances.

The decree is accordingly affirmed.


source: Caselaw Access Project

author: Mehaffy, J.

license: Public Domain

text:
    Tedford v. Emison.
    Opinion delivered January 12, 1931.

      John B. Shackleford, for appellant.

      Tom F. Bigbg and Carmichael d Hendricks, for appellee.
   Mehaffy, J.

Appellee, G. F. Emison, filed- this suit against the appellant, W. L. Tedford, in the Pulaski Chancery Court to cancel a deed from the State of Arkansas to the appellant based on a tax forfeiture of 1924, under act 129 of the Acts of the General Assembly of 1929 to the east sixty feet of lot one in block twenty-five in North Argenta Addition to the city of North Little Eock, Pulaski County, Arkansas.

The appellee alleged that the deed was void because the act under which the State sold the land to appellant was unconstitutional, contrary to public policy, and creates unethical practices. He also alleged that the deed was void because the purchaser from the State could buy the land for less money than the owner could redeem for; that personal service of the intention to purchase the land .should be made upon the owner unless he was a nonresident of the State; that the proceeding is an attempt to confiscate appellee’s property without compensation. It was also alleged that the forfeiture and sale for the taxes of 1924 is void, and as such constitutes a cloud upon appellee’s title. The prayer is that the deed should be canceled and held for naught. The appellant filed motion asking that appellee be required to deraign his title. The court overruled this motion, and the appellant filed answer denying that appellee was the owner of and in possession of the property. Appellant admitted that he had purchased the land under act 129 of the Acts of the General Assembly of 1929, but denied that his purchase was a cloud on appellee’s title; denied that the act was unconstitutional, and denied that it was against public policy or had the effect of defeating the State of its taxes. Appellant denied that the service of the notice was insufficient, and denied that the forfeiture and sale was void, and asked that appellee’s complaint be dismissed.

Parties entered into the following stipulation:

“1. That on the 3d day of June, 1929, the defendant, W. L. Tedford, paid to the State of Arkansas, to obtain its deed to the east sixty feet of lot one in block twenty-five, North Argenta Addition to the city of North Little Rock, Pulaski County, Arkansas, the sum of $30.26.
“2. That the defendant, W. L. Tedford (appellant), put a roof on the house situated on the above described property at a cost of $27.80.
“3. That the defendant, W. L. Tedford, has collected rent on said property from June 1, 1929, amounting to $97.50.”

G. P. Emison testified in substance that he was the plaintiff and lived at 1509 Maple Street, North Little Rock, Arkansas; that he was the owner of the east sixty feet of lot 1 in block twenty-five, North Argenta, an addition to North Little Rock; that it was mortgaged to the Building & Loan Association; that he was a peace officer in North Little Rock and had been for two years—since the first of February, 1929; that he was a resident of North Little Rock in April, 1929; that the People’s Savings Bank had no interest in the property in question in April, 1929; that he bought the property from the People’s Bank September 12, 1922, paid for it in full and obtained a deed from the bank to the property.

The following was then introduced in evidence:

“NOTICE
“T6 G. F. Emison,
“People’s Savings Bank.
(H. W. Trigg, Jr., Cashier, 4-26.)
“Please take notice that I intend to purchase the following described property from the Commissioner of State Lands, Highways and Improvements on or after thirty days from the date of service of this notice upon you, to wit:
“East sixty feet of lot one in block twenty-five in North Argenta Addition to the city of North Little Rock, Pulaski County, Arkansas.
“W. L. Tedford, Proposed Purchaser. “Piled: R. A. Cook, Sheriff and ex-Officio Collector of Taxes, Pulaski County, Arkansas, 4:45 p. m., April 25, 1929.
“State of Arkansas
County of Pulaski
“I have this twenty-sixth day of April, 1929, duly served a true copy of the within notice on H. W. Trigg, Jr., cashier of the People’s Savings Bank, the president being absent, in person in said county. I was unable to locate G. P. Emison in this county.
“R. A. Cook, Sheriff,
“By A. B. Simmons, Deputy Sheriff.”

This witness testified on cross-examination that he bought the property in controversy from Mrs. Bates; that he bought the whole lot, which was-in the building and loan; that he bought it in 1922 and soon after that put it in the Building & Loan Association. In 1924 or 1925 it was in the Argenta Building & Loan Association, and at that time his' father and mother were looking after the property, which was occupied by a tenant. Witness was in Michigan; that property has always been tenant property, and he never lived on it himself; that it was supposed to be listed in his name for taxation, and if he had known that it was not paid on he would have paid it; that he paid the taxes for 1922 to the sheriff and collector, or that his father and mother did; that he has the tax receipts which he will exhibit, and that he did not know how he lost the sixty feet involved in this.suit; that he thought that his father had the abstracts which he had made for the purpose of making a loan; that the lot may have been divided; that when he bought it in 1922 he bought the whole lot from Mrs. Bates; that he had a tenant on the property in April, 1929, and that the tenant still lives on the property and had for three or four years. Witness did not know whether the People’s Bank paid any taxes or not. When he bought the property, it was assessed in the name of Mrs. Bates, or it might have been the People’s Bank, and he had it changed to his own name. The tax receipts introduced show only the west 90 feet of the lot was being paid on. The taxes on the land in controversy, the east 60 feet, had not been paid on since 1922. Witness introduced the deed from the People’s Savings Bank to appellee. He did not know the 60 feet in controversy was not included in his tax receipts. Taxes were paid by his agent as he was absent from Pulaski County for four years.

Luther Adams testified, in substance, that he was. deputy county clerk of Pulaski County and had served as such for 15 years; that there had not been a list of delinquent lands posted in the county clerk’s office for the last ten years; that the list had been in the office, but had not been posted up; that he means by posting that the list had never been .tacked on the wall in the office; that the delinquent list is about 10 feet long and four feet wide and shows the land which is unredeemed for two years from the date of the sale; that the list is printed and kept in a roll and placed in the book rack; that the printed list usually comes from the printer in rolls and is then put in the book rack on the east wall of the clerk’s office. The rack is open and under plain observation in plain view, and is referred to often. Witness said:

“We take it out of the rack and unroll' it. The collector is supposed to post these lists in the different townships at the tax-paying places. We have no place on the walls to post the list.”

Several years ago when Mr. Brodie was county clerk, a list was tacked up on one of the columns or posts in the vault. This list shows the unredeemed lands up to December 31st, showing what lands could be redeemed before the following June, and for the two years prior thereto.

Witness knows of no instance where the inquirer failed to ask some one in the office about the forfeited lands about which he was seeking information.

Attorney for appellee stated that the receipt shows this land was sold in 1923 for the taxes of 1922, and the tax receipt for 1924 shows payment only on the west 90 feet. There is nothing in the record to show when the 60 feet in controversy was forfeited to the State.

The chancery court found that appellee was the owner of the land in controversy and was in the actual possession thereof on the 3d or 4th of June, 1929; that he had no notice of the intention of defendant to buy the land from, the State of Arkansas; that appellee was entitled to recover from appellant the rent on the property from June 1, 1929, to April 1, 1930; that the deed from the .State to appellant should be canceled and held for naught; that appellant was not entitled to recover either the amount he paid to State or of the amount he paid for putting a roof on the house; that appellee should recover $97.50 rent and costs, and that appellee should have the right to redeem the property.in question from the State.

The undisputed evidence in this case shows that appqllee bought the land in controversy in 1922, paid for it, and received a deed. Taxes were paid on the property in 1922. The lot was evidently 150 feet wide. After 1922, for some reason, the taxes were paid on the west 90 feet and the east 60 feet was not paid on and was forfeited to the State for the taxes in 1924. The appellee himself was absent from the 'State, and his parents were looking after the property for him. When he left here, the property was occupied by tenants and at the time of the forfeiture and at the time of the purchase from the State by the appellant the appellee’s tenants still occupied the property. Appellant undertook to comply with the act of 1929 by giving the notice required by that act. Notice was directed to the People’s Savings Bank and to the appellee, Gr. F. Emison. Appellant must have ascertained that Emison was the owner or he would not have directed notice to him. The notice was served on the People’s Savings Bank, but no notice was ever served on appellee, and appellee had no knowledge or information that the land was delinquent or had been forfeited for taxes until after the purchase by appellant.

It is contended by appellee that act 129 of the Acts of 1929' is unconstitutional and void. We do not find it necessary, however, to pass on this question.

Section'10,084 of O. & M. Digest provides, among other things: “He shall also keep posted up in or about his office such delinquent list for one year.”

The undisputed proof in this case by the clerk shows that he did not comply with that part of this section by keeping’ posted up in or about his office the delinquent list. To post has a well-defined meaning, and it does not mean keeping the list in the office in a roll placed in a book rack, as Mr. Adams, the clerk, testified that they were kept in this county. He testified that there had not been a list of delinquent lands posted in the county clerk’s office for the last ten years, but the facl^that the law has not been complied with does not make it any the less binding.

This law, however, does not require that the list be posted up in the office, but it must be posted in or about the clerk’s office. The purpose, of course, of posting the list is to give information or intelligence or knowledge to the landowner as well as the public that the described lands are delinquent.

One of the definitions of ‘ ‘post” given by Webster is: “To publicly announce or advertise by or as by the use of a placard; to affix public notices to; to placard, as a wall; to affix to a post, wall, or other usual place for public notices; to placard. ’ ’

In the case of Hilgers v. Quinney, 41 Wis. 62, 8 N. W. 17, the court said, in construing a statute with reference to affidavit as to notices where the statute required them to be posted up in four public places and the affidavit showed: “ ‘One at the Chilton House, one at the drug store of William Mahoney, one at the Washington House, and one at the office of the county treasurer,’ was insufficient, because (1) Four public places in the village of Chilton were not necessarily four public places, so far as the county was concerned; (2) because ‘at’ is not synonymous with ‘in’; and (3j because it did not appear that the posting in the treasurer’s office was in a conspicuous place. ’ ’

The Wisconsin court, in a later case discussing this, Said: “Notwithstanding what was said on this subject in the Hilgers case, we do not feel that we ought to hold that this variance alone is fatal. The word ‘post,’ when used in the present connection, means ‘to attach to a post, or wall, or other usual place of fixing public notices; to bring to the notice or attention of the public by affixing to a post, or putting up in some public place.” Allen v. Allen, 114 Wis. 615, 91 N. W. 218.

The variance mentioned by the court in the above case was the use of “at” for “in,” and the court held that alone was not fatal.

The Florida court held in construing rules required to be published by the railroad companies: ‘ ‘ The meaning of the word ‘posted,’ as used in rule 4, is that the rules and regulations should be advertised in the form of a poster in the railroad stations; or, in other words, that, printed in bill or placard form, they shall be so attached to something in a conspicuous place in the stations that they can, in the position in which they are placed or without being removed, be read conveniently by the public. This is the usual and ordinary meaning of the term ‘posted,’ as we see it manifested daily in the posting of notices like those of sale, or against trespass, as well as other kinds. No other construction can be given it without straining its ordinarily understood meaning, nor does any other ¡meaning so well fulfill the purpose and intent of rule 4, that these rules and regulations should be exhibited in the places stated for the information and benefit of the public. We do not think the purpose of the act, that these rules and regulations should be published, is met by the use of a pamphlet.” State v. Pensacola & A. R. Co., 27 Fla. 403, 9 So. 89.

The Texas court stated: “The copies of the order are required to be ‘posted/ The word ‘posted’ is defined as follows: ‘to attach to a sign post or other usual place of affixing public notices; to advertise; as to post a notice. ’ That such posting was intended to be notice or nothing is so plain, we think, that he who runs may read.” Voss v. Terrell, 12 Tex. Civ. App. 439, 34 S. W. 170.

There was no compliance with the statute requiring the list to be posted, and that is a positive duty imposed upon the clerk for the purpose of advising that lands are delinquent.

“I have no doubt whatever that it is essential, in order to give the surrogate jurisdiction of the person of the heirs, that this provision of the statute should be strictly complied with. It is the only process to bring them into court, and without it they are without their day in court. And I think that notice for the full time required by the statute is equally indispensable; that short notice is as no notice.” Sheldon v. Wright, 7 Barb. ,(N. Y.) 39.

In the instant case notice by posting a list was indispensable, and the tax sale without this notice was void. We held that the attaching of the warrant by the clerk was jurisdictional, and that the tax sale without this was void. Wildman v. Enfield, 174 Ark. 1005, 298 S. W. 196.

Appellant insists that at the time of the passage of this statute in many counties this was the only means the owner and the public had of information as to delinquent lands. And it is contended that in this county it is impracticable to post the list, and that there are so many forfeitures in this county that posting the lists would serve no useful purpose. However, the law requires the posting of the list, and it is important to the landowner as well as the public that this list should be published as required by law.

We said also in the above case, quoting from a Missouri case: “I hold it is true that, in ex parte and summary proceedings, the law must be strictly pursued. In the ease of McClung v. Ross (5 Wheat. 116, 5 L. ed. 16), it was decided by the Supreme Court of the United States, under the laws of Tennessee, where lands are sold by summary proceeding for the payment of taxes, it is essential to the validity of the sale and of the deeds made thereon that every fact necessary to give the court jurisdiction should appear upon the records.”

When one’s land is forfeited for taxes, and this may happen without the owner’s knowledge, it is essential that the statute be complied with. To deprive one of his property by such proceedings, it is necessary to the validity of the sale and of deeds made thereon that the records show that this statute has been complied with.

As we have already said, the statute does not require the clerk to keep them posted in his office, but it does require that the list must be posted in or about his office. He could post it by putting it on the wall in his office, or about his office, or by providing a bulletin board and posting it on it.

We said in a recent case: “It is true that the record also shows that the land was sold in 1922 for the nonpayment of taxes for the year 1921, but this sale was void because the records in the county clerk’s office do not show that the result of the school election for the school district in which the land was situated was certified as required by § 8955 of C. & M. Digest, and the results of the election certified by the county board of election as required by § 8878 of C. & M. Digest. This rendered the sale void.” Thomas v. Spires, 180 Ark. 671, 22 S. W. (2d) 553.

Appellant contends that this is really a suit in ejectment, and that appellee should have been required to set forth his deeds and evidences of title upon which he relies. Appellee would have been required to do this in a suit in ejectment. But that character of suit is brought only when the party against whom it is brought is in possession. Here the tenants who were put in possession of the property by appellee were still in possession. They were in possession at the time of the forfeiture and sale and were in possession at the time appellant purchased from the .State. The fact that the appellant induced these tenants to pay the rent to him did not put him in possession. This was a suit to cancel a deed alleged to be void, and not a suit in ejectment.

We think the undisputed proof shows that the appellee was in possession, although the appellant had collected some rents.

In addition to this, appellant himself asked for a decree of the court quieting his title as against the appellee. It is contended also by the appellant that the court erred in not allowing him the $30.26 paid to the State and the $27.80 expended in reroofing the house, and that the court should not require him to pay the $97.50 rent. ' We do not agree with the appellant in these contentions.

As we have already said, the appellant was in possession. The sale and deed of appellant were void. Moreover, the law requires notice to be given of the intention to purchase. This notice was not given. There are other questions discussed by learned counsel, but, as we hold that the tax sale and deed are void, it becomes unnecessary to discuss these other questions.

The decree of the chancery court is affirmed.


author: Mehaffy, J. Butler, J., Smith, J.,

text:
    Arkansas Power & Light Co. v. Hoover.
    Opinion delivered January 12, 1931.

      Robinson, House & Moses, McRae <& Tompkins and - Mahony, YocumS Saye, for appellant.

      Tom J. Terral and William F. Henman, for appellee.
   Mehaffy, J.

J. T. Hoover, a young man twenty-one years of age and unmarried, was killed in the town of Brinkley, Arkansas, about seven o ’clock p. m., November 29, 1928, by coming in contact with a live wire carrying 2,300 volts of electricity.

Appellant owned and used wires charged with electricity in the/ operation and maintenance of a power and light system in the town of Brinkley.

It is alleged that the appellant, its agents and servants, had carelessly and negligently allowed and permitted its electric light wires on Main (Street of the town of Brinkley to become broken and to fall on and across the- concrete sidewalk on Main (Street of the town of Brinkley. It is alleged that the lines were old, worn, and defective, and that the insulation thereon was worn out and completely gone at the place where the wire had fallen, over the above said sidewalk where plaintiff’s intestate was killed. The public, and especially the plaintiff’s intestate, used this sidewalk at the place where plaintiff’s intestate was killed, many times each day in going about the town of Brinkley. On the date of the injury, November 29,1928, after dark, plaintiff’s intestate, while going from his home to the business section of the town of Brinkley, attempted to pass the point where said wire was across the sidewalk, ran into said wire, and was horribly burned and electrocuted because of the carelessness of the defendant, Arkansas Power & Light Company, its agents and servants.

It was alleged in the complaint that the Arkansas Power & Light Company was negligent in using old, worn, and defective wires at and near the point where plaintiff’s intestate was killed; that appellant knew, or by the exercise of ordinary care could have known, .that said wires were old, worn, and defective and that the insulation was completely gone, at a point where many peopie during the day and night passed directly under the said wire. And it was alleged that appellant was negligent in its failure to remove the wires. It was alleged that J. T. Hoover was in the exercise of due care at the time of his injury, that prior to the injury he was a stout and able-bodied man, was industrious, and had been rapidly promoted in his line of work; that he contributed the greater part of his earnings to his father and next of kin, and that it was his intention to continue to provide for his father and next of kin; and that, because of the negligence of appellant, the said J. T. Hoover suffered great and excruciating pain and misery after his injury until the time of his death.

The appellant filed a motion to quash service of summons, and alleged that the person served as agent of appellant was not an agent, servant, or employee in charge of a branch office or other place of business of defendant. The motion to quash service of summons was overruled and exceptions saved. Appellant thereupon filed answer denying all the material allegations of plaintiff’s complaint.

Mrs. Mallie Hoover, mother of J. T. Hoover, testified in substance that she was the administratrix of the estate of J. T. Hoover, deceased; that he died on October ' 29, 1928, and was twenty-one years old the ninth day of August before his death. Witness saw him alive at his home on the 29th of November at night, some time after six o’clock. He had been employed up until that afternoon and had come home to get work elsewhere. He worked all the time at something; gave part of his earnings to his father; he had never married. Copies of letters of administration were introduced. Witness further testified that her son had always lived in her house. He had worked away from Brinkley but Brinkley was always his home. He worked in S-tuttgart helping his father. He went to work in the bank when he was seventeen or eighteen. Witness said she had seen her son give his father clothes but could not say whether she ever saw nim give him money* She had seen checks he had written for his father, but does not remember the amount of the cheeks and does not know whether they were loans or gifts.

M. M. Hoover, father of J. T. Hoover, testified also about his son and about his character and inclination to work. The father was selling hats at the time the son was killed, but was not able to do much work; was 60 years old at the time of the trial. Witness could not say that deceased was employed at the time he was killed, but on Sunday before he saw his son and he was employed then. His son was employed in 1923 and 1924 and earned $65 and his board. He then went to work at the bank; worked at the bank about three years and then went on a rice farm and ran a pump for a while; when he left the rice farm he went to Pine Inn 'Camp-, and was working there the Sunday before he was killed. He was employed constantly, all the time; could not tell the dates or instances when his son gave him money, but he gave it to him at various times on various occasions; would just hand it to him; biggest sum he ever gave him was $35; gave him wearing apparel. Witness’ health has been poor for last ten years, and he was unable to work; stated that he believed his son gave him $50 once when he bought an automobile.

E. L. Blakely testified about the place of business, but this testimony was excluded by the court.

The evidence shows that the deceased, J. T. Hoover, was walking along on a concrete sidewalk and came in contact with one of appellant’s wires which had fallen on the sidewalk and was injured and killed. The insulation was worn off of the wires, the wire was rubbing against the tree and limb. This had been reported to the appellant on numerous occasions; and they would go out and put new insulation on. Wires were just strung through the trees, and every time there was a wet spell or the wind would blow there would be fire and burn the trees. There were no poles at that place.

•Some of the witnesses testified that the wires went through the trees and that the wire was naked and bare, and that in wet rainy weather you could see sparks fly and run through the trees.

The wire at the place where Hoover was injured, was burned in two. It was a number 6 wire and carried 2,300 volts. The wires pass through the branches of the trees between the poles. The accident happened on Thanksgiving- evening about 6:50. There was a big blaze up' in the tree and down on the ground.

The representatives of the appellant not only had been notified, but reached the place where the wire was down before Hoover did. Appellant’s employee knew where the wire was on the sidewalk, but was trying to find the other end. While he was looking for the wire up in the trees, Hoover came along and was practically on the wire when witness saw him and hollered at him. A rug was obtained and put around the wire, and in this way the wire was pulled away from him. When Hoover came in contact with the wire, he did not fall, but stood there and groaned, and when the wire was pulled away from him he fell. Appellant’s witnesses testified in substance that Hoover was killed instantly. A number of witnesses, however, testified that he lived and suffered three or four hours. Witnesses tried from the time he was injured until about eleven o’clock to resuscitate him. Assisting in the effort to revive him was a physician and some of the employees of appellant.

Appellant contends that the court erred in overruling its motion to quash the service. The summons was served on L. A. Atkins, who testified that he lived at Waterloo in the southern part of Nevada County, Arkansas; was manager of the Guthrie Bros. Drug Store, which is owned by the Guthrie Brothers of Prescott; that he was not in charge of any office or place of business of the Arkansas Power & Light Company in Nevada County. Witness said the only way he was connected with them is they send him the local bills for electricity for the houses in Waterloo through the local office at Stephens, and that they come in there and pay their bills and witness receipts for them. ’ Bills for the¡ houses supplied with electrie current in Waterloo amount to something like $100 a month. The bills are sent to Atkins from Stephens. They are a combination receipt and bill. A receipt for the men who owe the bills and a duplicate receipt. Witness tears off the duplicate and gives them the receipt proper and keeps the stub. Bills are sent to witness through the mail from the office of the Arkansas Power & Light Company at 'Stephens; does not have anything to do with making the charges or fixing the charges; receives ten dollars per month, something like ten per cent. The work witness does for the Arkansas Power & Light Company is carried on in the Guthrie Drug Store. The Arkansas Power & Light Company has no interest in the drug store, does not pay any rent, and does not own the building. Witness does not keep any records in the conduct of the business; makes no effort to collect bills, but, if a person comes in to pay his bill, he receives the' money. They are supposed to pay the bills by the 15th of the month, and if they do not they are turned over to the representative who goes out and collects them. Witness does not go out of the store about this business at all.

Arkansas Power & Light Company has a warehouse at Waterloo, but no other place of business. Witness collects local bills. Wires and poles are strung in different parts of the county and current is sold to users about Waterloo. Bills are made out in Stephens and mailed to witness, who puts them in his desk, and, if the parties come in, receives the money from them; puts the money in the safe until the 15th of the month and then a fellow comes out from Stephens, takes the duplicates, figures out what witness has collected, and the amount is turned over to him. Witness works for the drug store, which pays him a salary. The telephone exchange is also in the same building, and witness collects for them, but does not go out of the office for them. Witness is the person they pay the 'bills to for the Arkansas Power & Light Company, the local light bills; does not know whether he is the only man - at Waterloo authorized to receive money for the company. Bills are sent to witness, he receives the money, and transmits it to the Arkansas Power & Light Company and they pay him a salary of ten dollars a month. That is the only place of business they have in Nevada County in Waterloo, and witness is in charge of it; does not render any service for the Arkansas Power & Light Company except as above stated. There are no signs except the drug sign on the building. The desk is where all of the business of the drug store is carried on. There is no separate desk for the Arkansas Power & Light Company. A man named Clark works for the Arkansas Power & Light Company and lives upstairs over the warehouse. Clark looks after trouble if they have any. “The bills are sent to me, sometimes addressed to L. A. Atkins and sometimes to the Guthrie Drug Store. That is the only place at Waterloo that the Arkansas Power & Light Company receives payment of bills.” When witness first started to work for the company, he received ten per cent, which would run around ten to twelve dollars a month. They now pay witness ten dollars per month.

C. A. Brassard testified that he knows Atkins, who runs the drug store, and that he goes there to pay the light bill; does not know whether Atkins performs any service for the company further than to collect bills. Witness takes current from the Arkansas Power & Light Company and pays the bill to L. A. Atkins. If witness remembers, the receipts are signed either L. A. Atkins, or Arkansas Power & Light Company, by L. A. Atkins.

W. C. Clark testified that he lives at Waterloo and is trouble shooter for the Arkansas Power & Light Company; that the company has a warehouse at Waterloo, and they keep a bunch of stuff in stock for emergency. The warehouse serves the Waterloo territory with lights and power, residences, oil field motors, and things of that sort. Waterloo is not a very large town, and the field is scattered. It is an oil field town. Witness knows Atkins, and says he is just an agent there for the Arkansas Power & Light Company for them to pay their bills to. The bills of persons who do not come in and pay Atkins are sent to witness, and he is supposed to go ont and collect them or disconnect the service. Witness is jnst trouble shooter and has nothing to do with collecting bills until the 15th. He is an electrician and goes out and tells them if the bills are not paid the current will be cut off.

The only question is whether service on Atkins was such service as is required under § 1152 of C. & M. Digest. This section provides that corporations who keep or maintain in any of the counties of this State a branch office or other place of business is subject to suits in any of the courts in said county where the corporation so keeps or maintains such office or place of business, and service of summons or other process upon the agent, servant, or employee in charge of said office or place of business shall be good service, etc. It will be observed that the service may be upon the agent, servant, or employee in charge of the office or place of business. The collecting of pay for the current would appear to be about as important a business as any other business they do. Collecting the bills is certainly a very important part of the business of the company at Waterloo. The appellant contends, however, that the fact that there is no sign upon the drug store carrying its name, and that it had no desk, no furniture or fixtures or anything else there, is evidence that it did not have a place of business or office. They also say that if a difficulty arose between appellant and its customers Atkins could not settle it, and that Atkins was not such an agent as could be depended upon with reasonable certainty to apprise the corporation of the service had upon them. The fact that he was not authorized to settle disputes between the company and its customers is no evidence at all that he was not in charge of the office or place of business, and as to not being able to depend on him to advise the corporation that he had been served would probably depend very much more on the character of the man than it would on the kind of business carried on. In this case, however, Atkins did apprise the corporation of the service upon him, and it was in no way prejudiced by his failure to act.

Appellant cites and relies on Ft. Smith Lumber Co. v. Shackleford, 115 Ark. 272, 171 S. W. 99. In that case the court, among other things, said: “The words ‘branch office’ and ‘other place of business’ are not synonymous, as contended by the learned counsel for appellant. The word ‘other’ distinguishes the term ‘place of business’ from the term ‘branch office,’ and shows that the Legislature intended that wherever the corporation maintained a ‘place of business,’ whether they had or did not also have an office at the same place, that service could be had upon the corporation by service upon the employee in charge of the business at that place.”
The court also said in that case: ‘ ‘ The agent, servant or employee in charge of a branch office, under the statute, must be one having’ authority to carry on the general business of the company. But not so as to the agent, servant, or employee in charge of the ‘ other place of business.’1 His authority may be only limited and special and confined to the particular business over which he has supervision. To be sure, the statute contemplates that there must be maintained a place where a well defined line of business is carried on with an agent in charge of that business. Elliott was such an agent.”
The next case cited and relied on by appellant is Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S. W. 6. In that case the court quoted with approval from the case in 115 Ark. as follows: “Any agent competent to conduct such a business could be depended upon with reasonable certainty to apprise the corporation of the service upon him. It was the design of the Legislature that service could be had upon an agent of this character, and that when so obtained it should constitute service upon the corporation itself.”

In the instant case the agent was intrusted with the money collected, his duty being to receive and receipt for it, and transmit it to the company, a business as important, if not more so, than any other business it had in the county, and if he were competent to conduct such a business, he could be depended upon to notify the corporation of service upon him. And the facts in this case show that Atkins did actually apprise the corporation of the service upon him. The important thing in determining this question is that the corporation itself established a place oif business where its bills could be paid and receipted for, and when a corporation establishes such a place and receives and receipts for money paid for its service through an agent, it has for all reasonable and practical purposes established such a place of business as mentioned in § 1152 of O. & M. Digest. Davis v. Motor Parts Corp., 16 Fed. Rep. (2d Series) 148.

“Brown was at least the agent of the company at El Dorado for the purpose of representing it in making the collection of dues and assessments from the members of the company holding certificates therein, and receipting for the same. He signed receipts as local secretary; that is he designated himself as local secretary of the plaintiff company. In his testimony he said he was collection agent for the company at El Dorado. In the notices of assessment sent out from the home office he is referred to both as local secretary and as branch secretary of the company. He also signed one of the papers in evidence as secretary of the local board. * # * We do not think it could do any business here through an agency for that purpose, without at the same time being here for the purpose of service. If the company thought it proper and to its interest to have a local secretary or secretary of a local branch of said company here to do business for them, even to the extent of collecting and receipting assessments and forwarding them to the home office, we think, in the absence of any other officer of agent of the company upon whom service could be had in the county, that service upon him is good under our statute.” S. W. Mutual Ben. Assn. v. Swenson, 49 Kan. 449, 30 Pac. 405.

We think, if the Arkansas Power & Light Company thought it proper and to its interest to have an agent in Nevada County, doing business only to the extent of collecting and receipting for light bills and forwarding the money collected to the appellant, in the absence of any other officer or agent of the company, upon whom service could be had in the county, that service upon the agent conducting this business is good under our statute.

Appellant’s next contention is that instructions 1 and 2, given in behalf of appellee, are abstract and in conflict with instruction No. 4 given in behalf of the defendant. Instruction No. 1 told the jury “that the burden of proof in this case is upon the plaintiff to show by a preponderance or greater weight of the evidence that the deceased, James Talmadge Hoover, lost his life on account of the negligence of the defendant, and to show further that the negligence of the defendant, if any is shown, was the proximate cause of the deceased’s death, and further that the deceased was not guilty of contributory negligence.”

Instruction No. 2 complained of is as follows:

“You are instructed that companies supplying electric currents are bound to use reasonable care in the construction and maintenance of their lines. This care varies with the dangers that will result from the negligence on the part of the company, if any. Reasonable care is such care as a reasonable man would use under ordinary circumstances, and, in determining whether such care has been exercised, the jury will take into consideration the location of the lines, whether in thickly or sparsely settled communities, the harmless or dangerous character of the current carried by such lines, and their remoteness or proximity to the people who may pass by and all other circumstances in evidence.”

Neither of these instructions is abstract, but each is a correct statement of the law.

Appellant contends that no one can say which of the charges of negligence the jury found the appellant to be guilty of. That may be true, but we know that the verdict was not based on the appellant’s failure to insulate the wires because instruction No. 4 expressly told the jury that it was not the duty of the defendant company to have insulated the wire. Instruction reads as follows: “You are instructed that it was not the duty of the defendant company to have insulated the wire which the deceased came in contact with for the protection of life or property.”

Moreover, this instruction was erroneous and should not have been given. We have repeatedly held that it was the duty of the company to keep its appliances in safe condition and that either the wires must be kept insulated, or must ibe so located as to be, comparatively speaking, harmless. If the company does not choose to properly insulate a deadly wire of its maintenance, it must place the same under ground, at a high altitude, or at some inaccessible place.

We said in a recent case: “The authorities appear to be unanimous in holding that there is no such duty, [to insulate all wires] but the cases do hold, as we understand them, that this duty must be performed, or other sufficient safety methods employed to prevent contact with wires conveying the current at such places as danger of contact may reasonably be anticipated. Ark. P. & L. Co. v. Cates, 180 Ark. 1003, 24 S. W. (2d) 846.

The law as to the duty of electric companies was discussed at length in the above case, and we do not deem it necessary to cite the authorities here or discuss it further, because there is no contention about the fact that on the question of negligence and contributory negligence the case was submitted to the jury on proper instructions, and the jury’s finding is conclusive.

Appellant next contends that the case should be reversed because of prejudicial remarks made by both counsel for appellee in their arguments to the jury. After the remarks, to which appellant objected were made, the court admonished the jury that they should try the case solely according to the law as given by the court and the evidence from the witness stand, and, when objection was made a second time, the court said: “Gentlemen of the jury, I tell you again that you are to try this case solely according to the law and the evidence the witnesses gave and nothing else.”

There were some remarks of one of the attorneys for the plaintiff to which objection was made and the court overruled the objection. One of these remarks was as follows: “If the defendant in this case was an individual, it would be indicted and sent to the penitentiary.” Appellant urges that there is nothing in the case to send either an individual or a corporation to jail, the penitentiary, or even to impose a fine upon either of them: We do not agree with appellant in this contention. The undisputed evidence in this case shows that Hoover was killed by the negligence of the appellant, and the statute provides that if the killing be in the commission either of an unlawful act or in the prosecution of a lawful act, done without caution and circumspection, it should be manslaughter. And every person convicted of manslaughter may be imprisoned in the penitentiary. Therefore if an individual in the prosecution of a lawful act does so without due caution and circumspection, that is if he does it negligently and kills some person, he is guilty of manslaughter, and the statement of the attorney to which objection was made was not an erroneous state-, ment as suggested by appellant. Moreover, statements like the above are frequently made in the heat of argument and everybody, including the jury, understands the circumstances under which they are made, and in this case the remarks were not prejudicial.

The attorney also said in his closing argument: “If the witnesses for the defendant testified against Henry Yocum, they would not have a job in the morning.” Henry Yocum referred to is one of the attorneys for the defendant.

The attorney also said: “Gentlemen, go out there and in the name of God, and law, have a backbone—go out there and think of yourselves, your own flesh and blood—not a back alley, not on a side street, not out in the woods. Your.little boy and girl may leave home and start to a picture show. There was a wire down up here by the Prescott Furniture Company and they had ’phoned 25 times: ‘For Cod’s sake fix it, fix it,’ and they did not fix it.”

Appellant argues that this statement was loaded with dynamite. Most of the statement was based on the evidence. Certainly that the wire was down, and that appellant had been notified many times is shown by the undisputed evidence, and whether the lawyer tells the jurors to think about their own children or hot they would certainly do it. This court has many times discussed the question of remarks made by counsel in argument of a case, and we call attention to the following cases: St. L. I. M. & S. R. Co. v. Boback, 71 Ark. 427, 75 S. W. 473 ; American Ins. Co. v. Mordic, 168 Ark. 795, 271 S. W. 460 ; United Order of Good Samaritans v. Lomax, 172 Ark. 330, 288 S. W. 709 ; St. L. I. M. & S. R. Co. v. Hairston, 125 Ark. 314, 188 S. W. 838 ; St. L. I. M & S. Ry. Co. v. Raines, 90 Ark. 406, 119 S. W. 665 ; St. L. I. M. & S. R. Co. v. DeVaney, 98 Ark. 83, 136 S. W. 802.

In this last case the court said: ‘ ‘ The statement of the attorney in his argument in this case that the defendant had treated the plaintiff worse ‘than you would treat a dog,’ was only the expression of opinion at the most, the jury could not have understood thereby the counsel was mailing a statement relative to a fact not adduced at the trial.”
And in the Boback case mentioned above when objection was made to remarks of the attorney, the court said: “Now, this language, being delivered near the climax of the closing argument and under the excitement thereof, may be somewhat exaggerated as well as a little mixed. * # * If there be some exaggeration, we must remember that it is within the province of counsel for plaintiff in an action for damages to take a sympathetic view of the client’s injuries and to indulge in oratorical flights in his endeavor to impress his views upon the minds of the jury.”

Counsel for appellant called attention to a number of authorities where this question is discussed in addition to the ones we have mentioned, hut it must be kept in mind that an attorney1 in making an argument has the right to impress his views on the jury by all proper means, and in the heat of argument may say things at that time that he would not otherwise say. It should also be kept in mind that the jury are composed of men of sense and honesty, and are about as ready to resent unfairness as any class of men in the country. Moreover, there must necessarily be left large discretion with the trial court, who presides at the trial, and hears the entire case tried, and the presumption is also that he would not intentionally permit any unfairness or improper conduct on the part of either attorney.

We do not think that the remarks of the counsel which were objected to call for a reversal of the case.

It is next contended by appellant that there is no substantial evidence to support the verdict in the sum of $10,000 for the benefit of the father who was the next of kin, and that the verdict of $10,000 is grossly excessive. We do not think that the evidence is sufficient to sustain a verdict of $10',000. There is, however, substantial evidence from which the jury might have found that the deceased did contribute considerable amounts to his father, and that he would continue to do so. We have reached the conclusion, however, that the evidence as to this question is not sufficient to sustain a verdict for more than $5,000, and the judgment in favor of the father for $10,000 is therefore reduced to $5,000.

Appellant’s next contention is that the evidence is not sufficient to support a verdict of $7,000 for pain and suffering, and this argument or contention is based on the alleged fact that there is no substantial evidence in the record to show that deceased ever suffered any conscious pain and suffering. We do not agree with appellant in this contention. There is' ample evidence to show conscious pain and suffering. Some of appellant’s witnesses testified 'that the deceased lived after the injury for something like three hours and suffering during this time. The evidence is that he groaned, and that when they would ask him to turn over he would try to do so. Some of appellant’s witnesses testified that he was killed instantly, and yet these same witnesses testify that they assisted from about 7:30 to 11:00 o ’clock trying to resuscitate him. It is difficult to believe that persons would work three hours trying to revive a person they knew was dead, but, whether that testimony was believable or not, it was in conflict with the testimony of other witnesses*, and the jury’s finding on this made it conclusive.

In the case of the Mo. Pac. Rd. Co. v. Bushey, 180 Ark. 19, 20 S. W. (2d) 614, a verdict of $9,463 for pain and suffering was upheld. There was a total judgment in the above case for $48,500. In that case the deceased suffered about three hours.

The judgment for $7,000 for pain and suffering is sustained by the evidence.

The judgment of the circuit court will be modified •as to the judgment in favor of the father, reducing that to $5,000. In all other thing’s it is affirmed. It is so ordered.

Smith and McHaney, JJ., dissent, and Butler, J., dissents because of the remarks of attorney.

Butler, J.,

(dissenting). I agree with the majority that the evidence is ample to establish the negligence of the appellant and the ordinary care for his own safety of the deceased. I also am of the opinion that there was substantial evidence to establish conscious pain and suffering, and that the verdict of $7,000 for such was not excessive.

But I can see no substantial evidence to warrant a verdict for more than nominal damages for loss of contribution to the father, the next of kin. The deceased had attained his majority, and no substantial contribution to the support of the father was shown. The most that was proved was that the son occasionally gave the father small gifts of wearing apparel, a few gifts of money not to exceed five dollars and $50 at one time to apply on the purchase price of an automobile. This seems to me to be insufficient to indicate with any reasonable degree of certainty that the son would, in the future, contribute any substantial amount to the support of the father. -

The witnesses whose testimony tended to exonerate appellant from liability were its employees. Henry Yocum was its attorney and active in the defense. One of appellees’ counsel during the course of his argument, over the -objection and exception of appellant, was permitted to tell the jury in effect that if these witnesses had testified against Henry Yocum they would not have' a job the next day. Statements similar, in their import have been frequently condemned by this court and-held to be reversible error to permit them to be made to the jury. These decisions, none of which have been overruled or their authority impaired, call for a reversal of this case.

I therefore hold that for the reasons stated this case ought to be reversed and remanded for a new trial, and I respectfully dissent.

Smith, J.,

(dissenting). I do not get far enough into this case to consider many of the assignments of error which the majority discuss, for the reason that, in my opinion, there was no service and the motion to quash the service of summons should have been sustained.

The statute (§ 1152, C. & M. Digest) does provide that “Any and all foreign and domestic corporations who keep or maintain in any of the counties of this State a branch office or other place of business shall be subject to suits in any of the courts in any of said counties where said corporations so' keeps or maintains such office or place of business, * * *,” and that service of process upon the agent, servant or employee in charge of said office or place of business shall be deemed good and sufficient service upon said corporation.” But I submit that, under the facts stated in the majority 'opinion, the defendant did not have, keep or maintain a branch office or other place of business in the village of Waterloo, within the meaning of the statute from which I have quoted. Every one recognized Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S. W. 6, as a border line case on the subject. Indeed, there was a vigorous dissenting opinion in that case as to the sufficiency of the service, but there were important facts present in that case which are absent here. It was there said: “The facts of the present case show that the appellant was maintaining at the town of Hazen a place where it was conducting a well-defined line of its business. The appellant, as its name implies, is engaged in a business in which a supply of milk is indispensable. For its convenience, it had a building on the railroad equipped with machinery, which it designated as its plant No. 3. This building had in it a desk which the agent in charge used in making daily reports of the business. The agent was employed on a salary. The building was equipped with the necessary machinery for cooling the milk, and the business of the company was that of obtaining from the farmers in that locality a supply of milk to be shipped to its principal .place of business at Little Bock. The building was duly equipped and appointed, and the agent was supplied with the necessary material for successfully conducting that part of appellant’s business.”

Now, it does appear that appellant maintained a warehouse at Waterloo, in charge of a trouble shooter by the name of W. C. Clark, and that it kept in this warehouse various parts and materials for maintaining and repairing its power lines. But there was no service on Clark. The service was had on L. A. Atkins, a clerk in the Guthrie drug store, and there is no contention that there was any connection between appellant and the Guthrie drug store. Atkins, an employee of this drug company, made collections for and remittances to the appellant power company, for which he was paid $10 per month. Nothing more was contended or is stated in the majority opinion, and this was done in a building which neither Atkins nor appellant power company owned or controlled, and, certainly, these simple transactions would not convert the Guthrie drug store into “a branch office or other place of business” of the appellant power company.

If the service upon Atkins did not meet the requirements of the statute—and I submit it did not—then, certainly, it could make no difference that Atkins may have advised appellant company what had happened. There was no authority to serve Atkins with a copy of the summons, his report that this had been done comes to naught. The requirements of the statute could not be nullified and dispensed with in this manner.

I therefore respectfully dissent.


author: McIIaney, J.

text:
    Howe v. Little.
    Opinion delivered January 12, 1931.

      Brewer $ Cracraft, for appellant.

      K. T. Sutton, for appellee.
   McIIaney, J.

Appellee sued appellant for damages for personal injuries sustained by him while riding on the running board of appellant’s automobile as a guest, either invited or self-invited. He alleged that appellant was negligent in placing a board, or boat seat, about 30 inches long, on the bumper or fender of the car, and in leaving it there in such a way that when the car was moving it fell off, and in some way struck and broke his leg just above the anide. The facts are that appellant and his brother had been fishing, and, on returning, appellant had run his car in some soft or loose sand and become stalled. Appellee was passing and assisted them in getting out. A boat seat was taken from the car, and used in digging the loose sand from around the wheels to give them better traction. After using the boat seat in this way perhaps more than once, as the car was stalled two or three times before getting on firm ground, it was placed by some one somewhere on the car, but not in it. Appellee was permitted to ride standing on the running board on his way to a nearby town. No witness knew just where the board was placed, whether on the bumper, fender, or running board of the car, and no witness, including appellee, was able to tell just how the accident happened, which resulted in the breaking of his leg. He says he saw the board lying behind the car immediately after being struck. At the conclusion of appellee’s evidence, and again at the close of all the evidence, appellant requested a directed verdict on the insufficiency of the evidence to support a verdict for appellee. The court refused so to do, submitted the matter to the .jury, and the result was a verdict and judgment against appellant for $1,000. Wherefore this appeal.

We are of-the opinion that appellant was not guilty of actionable negligence under the facts. Whether appellee was an invited guest, self-invited guest or a. licensee, the rule of law in this 'State is that the driver of the automobile is only bound to exercise ordinary care in operating it for the safety of his guest. Black v. Goldweber, 172 Ark. 862, 291 S. W. 76; Bennett v. Bell, 176 Ark. 690, 3 S. W. (2d) 996. In the latter case we said: “The driver of an automobile or motor vehicle is bound to the exercise of ordinary care in the operation thereof for the safe transportation of his guests and other passengers and to avoid personal injury to them, and this duty extends to all such passengers, whether guests by sufferance, invited or self-invited.” In other words, in this State, no distinction is made as to the kind of guest, and this is the modern rule and supported 'by the weight of authority. 51 A. L. R. 581, note; Black v. Goldweber, supra. But while this is true, the guest takes the automobile and the driver as he finds them. See quotation from Munson v. Rupker (Ind. App.) 148 N. E. 169, in Black v. Goldweber, where it is said that: “He who enters an automobile to take a ride with the owner also takes the automobile and driver as he finds them. ’ ’ Therefore, no duty of inspection for defects in the automobile or for loose articles lying thereon rested upon the owner for the protection of the guest. Appellá& was therefore a bare licensee, in so far as defects in the car were concerned, but not so as to its negligent operation, about which no complaint is made. Being a bare licensee, he took his license with its concomitant perils—at his own risk as to any defective condition of the car. 'In Marple v. Haddad 103 W. Ya. 508, 138 S. E. 113, it was said: “Reasonable care for the safety of a guest commences only when he enters the automobile. The operator owes no duty of prior inspection.” In 1 Blashfield, Cyclopedia of Automobile Law, p. 967, the rule is thus stated: “’With respect to the condition of the automobile, the rule is that one invited to ride therein by the owner or driver accepts the machine of the host as he finds it, subject only to the limitation that the driver or host must not set a trap or be guilty of active negligence, contributing to the injury of the guests.”’

Conceding that appellant placed the board on the car, which is doubtful, aiid that it in some unknown manner caused the injury to appellee, still no actionable negligence has been established under the rules above stated, and the court should have so instructed the jury at appellant’s request. The judgment will therefore be reversed, and the cause dismissed.


author: Butler, J.

text:
    Twin City Bank of North Little Rock v. J. S. McWilliams Auto Company.
    Opinion delivered January 12, 1931.

      Mahony. Yomm ■& Saye, for appellant.

      Powell, Smead $ Knox, for appellee.
   Butler, J.

In an action in the court of the justice of the peace the Twin City Bank of North Little Bock caused a garnishment to be issued out of that court against the appellee auto company. The writ of garnishment was returned by the constable with his indorsement thereon showing service upon the garnishee, and on the return day, November 8,1929. judgment in the main case was rendered against the defendant, and, the garnishee having failed to appear or answer, judgment was also rendered against it. On the 24th day of March, 1930, a writ of execution was issued against the appellee auto company, whereupon it filed its hill in equity to avoid the judgment and to restrain the appellant from proceeding further thereon. A demurrer was interposed to the bill in equity on the ground that the complaint did not state facts sufficient to constitute a cause of action in equity against the defendant, and that the complaint showed upon its face that the complainant had an adequate remedy at law, and the court of equity was without jurisdiction to hear and determine the controversy. The demurrer was overruled, and, the appellant electing to stand thereon, a decree was entered for the complainant granting to it the relief prayed. From the order overruling the demurrer and the decree of the court, the case is before us on appeal.

The case, as presented by the complaint, is well and briefly stated by the appellant, as follows: “In the case at bar the appellee sought to, and did, enjoin the appellant from enforcing a judgment which had been rendered in favor of the appellant against the appellee in a justice of the peace court because the summons and writ of garnishment was served, so it alleges, upon one who was not an officer of the company or an agent designated by it upon whom service of process could be served, and because the appellee had no notice of the pendency of the action prior to the rendition of the judgment, or prior to the expiration of its time within which to appeal from the judgment of the justice of the peace to the circuit court.” In addition to the allegations referred to by the appellee in the foregoing statement, the appellee set out the indorsement on the return made by the constable, which return stated that he had served the garnishee by delivering a true copy of said writ to the J. S. McWilliams Auto Company by their agent George Kid-well; and further alleged that it had a meritorious defense in that it was not indebted to the defendant in the action in the justice of peace court in any sum before or at the time of the issuance of the writ, nor did it have in its hands and possession any goods, moneys, chattels or effects belonging to the defendants or. either of them. Since a meritorious defense was alleged, the correctness of the holding and decree of the trial court depends upon whether the complainant had an adequate remedy at law. The doctrine is well settled by the weight of authority, which has the approval of this court, that injunctive relief may be granted against the enforcement of any judgment of a court of law, but that, in order to obtain the relief, it is necessary for the complainant to show that he has no adequate remedy at law. 32 C. J. 328 ; 34 C. J. 434 ; Wingfield v. McLure, 48 Ark. 510, 3 S. W. 439 ; Shaul v. Duprey, 48 Ark. 331, 3 S. W. 366 ; Fuller v. Townsly-Myrick D. G. Co., 58 Ark. 314, 24 S. W. 635 ; Knight v. Creswell, 82 Ark. 330, 101 S. W. 754, 118 Am. St. Rep. 74.

It is first insisted by the appellant that the chancery court had no jurisdiction to issue the injunction because of the provisión of § 5778 of the Digest, providing that “an injunction to stay proceedings on a judgment or final order of a court shall not be granted in an action brought by the party seeking the injunction in any other court than that in which the.judgment or order was rendered or made.” We are asked to construe this section and to apply it in the instant case. We are of the opinion that it has no reference to judgments of a justice of the peace court, but only to those of superior courts, and therefore has no application in this case. The powers of the justice of the peace court are limited to such as are given by the statutes digested in chapter 104 of C. & M. Digest, embracing §§ 6386-6570, inclusive. Section 6410 of that chapter is as follows: ‘ ‘ The parties to the action may be the same as in the circuit court, and all proceedings prescribed for that court, as far as the same are applicable and not herein changed, shall be pursued in justices’ courts. But the powers of justices’ courts shall be and are only such as are in this chapter enumerated. ’ ’

Section 5788 relied on by the appellant and cited supra was § 309 of chapter 4 of the Civil Code, and it is clear from an examination of the entire chapter that the power to issue an injunction rested only in the superior courts, and the section under consideration refers only to such.

It is next insisted that the complaint disclosed upon its face that the complainant has an adequate remedy at law. The legal remedies which might have been invoked in this case were three in number: first, by motion in the court of justice of the peace; second, by appeal to the circuit court; and, third, by writ of certiorari. The judgment of the justice in this case was by default, and the power of the justice over such is prescribed and limited by § 6448 of the Digest, which provides that a judgment of dismissal for want of jurisdiction, or judgment by default, may be set aside by the justice at any time within ten days after being rendered. The right of appeal must have been exercised within thirty days after the judgment was rendered, so that the complaint sufficiently shows that both of these rights were not available and were not lost by any neglect of the appellee, since it did not know of the pendency of the garnishment proceeding or judgment against it until well beyond the time in which it might have availed itself of these legal remedies. The complaint sufficiently shows that an examination of the original papers in the case would have disclosed prima facie regular service, and therefore the judgment of the justice court was not void on its face as the circuit court will look only to the face of the record on certiorari and quash only where from such inspection it appears that the court rendering the judgment had no jurisdiction, and that its judgment was void. McCoy v. County Court of Jackson County, 21 Ark. 475 ; Dicus v. Bright, 23 Ark. 107 ; State ex rel. v. Wilson, 181 Ark. 683-692, 27 S. W. (2d) 106, and cases there cited. We conclude that the allegations of the complaint in the instant ease were sufficient to show that the compffiinant had no remedy at law, and that the chancery court was correct in entertaining jurisdiction of the ease and granting the relief prayed.

It is contended by counsel that the decree of the court below can be supported only upon the authority of the case of Ryan v. Boyd, 33 Ark. 778, and that the doctrine of that case is in conflict with that announced in the following oases: Gates v. Bennett, 33 Ark. 489 ; Scanland v. Mixer, 34 Ark. 354 ; Levy v. Ferguson Lumber Co., 51 Ark. 317, 11 S. W. 284 ; Woolum v. Kelton, 52 Ark. 445, 13 S. W. 78 ; Knight v. Creswell, 82 Ark. 330, 101 S. W. 754, 118 Am. St. Rep. 74 ; Dale v. Bland, 93 Ark. 226, 124 S. W. 1026 ; Metcalf v. St. L. I. M. & S. R. Co., 101 Ark. 193, 141 S. W. 1167 ; Nelson v. Freeman, 136 Ark. 396, 206 S. W. 667 ; Betterton v. Anderson, 171 Ark. 76, 283 S. W. 364.

The case of Ryan v. Boyd was one where the summons showed on its face personal service on the defendant and a judgment rendered against him on the 26th of September, 1873. The complaint filed in chancery to enjoin its collection alleged that the return was false, and that judgment had been rendered without any service, and it is to be inferred that the first notice the defendant had was on the issuance of an execution approximately four years after the judgment was rendered. It is therefore evident that all remedies by appeal had long since been lost, and, if proceedings had been brought to stay or quash the execution, such proceedings would have availed nothing, for, as declared by the court: ‘ ‘ The circuit court could have looked alone to the record presented to it which could only have been the certified copy of the judgment, etc., and, as this on its face showed a valid service and a valid judgment, it is evident that the circuit court would have summarily dismissed the petition at the hearing.” So, whatever may have been the reasoning and argument of the learned special justice, the fact remains that in that case there was no remedy at law, and therefore the chancery court was warranted in entertaining jurisdiction and in overruling the demurrer interposed to the complaint.

The appellant stresses the case of Knight v. Creswell, supra, in support of its contention. That case was a suit in chancery to enjoin the enforcement of the judgment of a justice of the peace, and the grounds set forth in the complaint upon which equitable relief against the judgment was sought was that it was rendered without notice. The statement of facts in that case is very meagre but, as is shown by the abstract of the appellant’s brief, the contention made was that the court erred in granting the relief because there was no allegation or showing made by the appellee that his remedy at law was inadequate. The court, in sustaining the appellant’s contention and reversing the case, said: “Equity will not restrain the attempted enforcement o'f a void judgment where the remedy at law is complete. ’ ’

As in the case just referred to, so in all the other cases cited, supra, where the jurisdiction of equity was denied, it is apparent that there was no adequate remedy at law. In these cases there are some statements which might appear to be in conflict with the rule first stated, but these expressions were used by the court by way of argument or illustration and in each, as we have already said, on the real point necessary for decision, the cases are harmonious.

It "follows that the decree of the trial court is correct and must be affirmed. It is so ordered.


author: Per Curiam.

text:
    McNeese v. Raines.
    Opinion delivered January 12, 1931.

      Richardson Richardson, for appellant.

      W. P. Smith and O. G. Blackford, for appellee.
   Per Curiam.

Appellee, who was the defendant in the court below files a motion to dismiss the appeal on the ground that the judgment rendered was not a final one. Appellee had filed a demurrer to the complaint of appellant in the court below on the ground that the complaint did not state facts sufficient to constitute a cause of action against him. The court sustained the demurrer, and the judgment of the court from which the appeal comes is as follows:

“Now on this day comes the defendant T. G-. Raines, by his attorney, W. P. Smith, and files its [his] separate demurrer to the complaint of the plaintiff, which demurrer is by the court sustained, to which rulings of the court the plaintiff at the time objected and excepted and asked that his exceptions be noted of record, which is accordingly done. And plaintiff stands on his complaint and prays an appeal to the Supreme Court of Arkansas, which is hereby granted. ’ ’

It is well settled in this State that a judgment sustaining a demurrer is equally conclusive by way of estoppel of the facts admitted in the demurrer as a verdict finding the same facts would have been. The reason is that the judgment is upon the merits of the action as presented by the complaint and admitted by the demurrer and is as effectual as if there had been a verdict upon the same facts, for they are established by way of record in either case. When the facts are established, the litigation as between the same parties and their privies is at an end. Therefore, when the party declines to plead further and judgment is rendered against him, it is a final one. Luttrell v. Reynolds, 63 Ark. 254, 37 S. W. 1051, and Barrentine v. Henry Wrape Co., 113 Ark. 196, 167 S. W. 1115. Numerous other cases to the same effect might be cited, but the rule is so well settled as to render , this unnecessary.

No special formality is necessary in a judgment, and it is tested by its substance rather than by its form. We are of the opinion that the judgment in the present case shows that the plaintiff stood on his complaint after the demurrer had been sustained to it. The judgment recites that the plaintiff stood on his complaint and prayed an appeal to the Supreme Court which was granted. This, in effect, amounted to a dismissal of the complaint after the plaintiff had elected to stand upon it, and the judgment rendered thus became a decision upon the merits of the case and was final and appealable. Melton v. St. Louis Iron Mountain & Southern Ry. Co., 99 Ark. 433, 139 S. W. 289 ; Durben v. Montgomery, 144 Ark. 153, 223 S. W. 17 ; and Hall v. Waters, 118 Ark. 427, 176 S. W. 699.

Therefore, the motion to dismiss the appeal will be denied.


author: Hart, C. J.

text:
    Reeder v. State.
    Opinion delivered January 19, 1931.

      E. M. Ditmon, for appellant.

      Hal L. Norwood, Attorney General, and Pat Me- ) haffy, Assistant, for appellee.
   Hart, C. J.

Earnest Reeder prosecutes this appeal to reverse a judgment of conviction against him for the violation.of our liquor laws. The jury found him guilty on four counts of the indictment and fixed his punishment at one year for each count, which were adjudged to run concurrently.

The first assignment of error is that the evidence is not legally sufficient to support the verdict. Under the evidence adduced by the State two deputy sheriffs of Sebastian County testified that they made a raid on the Hauck place, situated in the Greenwood District of Sebastian County, and found mash suitable for making intoxicating liquors, about a quart of whiskey, and a complete still ready for operation. The indications surrounding the place showed that liquor operations had been carried on there. Dan Reeder and his son, Earnest Reeder, had been jointly indicted for the crimes of manufacturing liquor, setting up a still, possessing an unregistered still, and making mash fit for distillation. Dan Reeder was tried first and convicted of the offenses.

In order to obtain a new trial by him, hi's attorney secured a written statement or confession from Earnest Reeder in which he confessed that he and Joe Hauck set up the still and had operated it. He stated in detail the acts which they had done in the operation of the still, . but said that his father had nothing whatever to do with it. The signed statement of the defendant was introduced in evidence against him. Notwithstanding that the statement was made by him in an effort to free his father, yet it was a statement in the nature of a confession and as such could he used as evidence against him on the trial of the case. His confession, together with the incriminating circumstances about the still and mash and whiskey being found there, was sufficient to warrant the jury in convicting him. Patterson v. State, 140 Ark. 236, 215 S. W. 629 ; and Smith v. State, 158 Ark. 487, 250 S. W. 527. It does not malee any difference under what circumstances the defendant made the statement. All that was necessary to render it competent was for the State to show that it was freely and voluntarily made.

The next assignment of error is that the court erred in admitting the testimony of W. E. Boatwright, a notary public, who took the affidavit of the defendant to the confession made by him. The record shows that the witness testified that he had taken the affidavit of the defendant in his presence and under what circumstances the statement was made. After the witness had left the stand, upon further reflection, he asked to take the stand again and said that, upon! reconsideration, he thought he had taken the affidavit of the defendant over the telephone, and that the defendant was not present at the time. The court then sustained an objection to his testimony and told the jury that it should not consider any statement the witness had made with reference to any confession made by the defendant. It is perfectly apparent from the record that the court proceeding was in good faith, and this is conceded by counsel for the defendant; but he contends that the prejudice was not removed by the exclusion of the evidence by the action of the court after it had been admitted. We can not agree with counsel in this contention. The court told the jury in plain language that it should not consider any of the testimony of the witness, and it is difficult to see what he could have said or done in addition. The jury is presumed to have been composed of men of common understanding, and it is difficult to see how their minds could have been affected in any way prejudicial to the defendant. Any other course would have resulted in the postponement of the trial and the granting of a new trial because of an error which was inadvertently committed, and which could not have been corrected in any other way.

The judgment of the circuit court will therefore be affirmed.


text:
    Holloway v. Morris.
    Opinion delivered January 19, 1931.

      C. V. Holloway, for appellant.

      Price Shofner, for appellee.
   Hart, C. J.

Appellant prosecutes this appeal to reverse in part a foreclosure decree for real estate, declaring another mortgage on it a prior lien.

The record.shows that -C. M. Flynn and Nath Morris were engaged in the mercantile 'business as partners, which partnership was terminated by the death of Nath Morris July 15, 1919. The interest of decedent in the partnership was inherited by his four children. According to the testimony of C. M. Flynn, he and the heirs of Nath Morris, deceased, entered into a written contract under which they were to give mortgages to each other to secure any indebtedness the court might find would be due from one to the other in winding up the Morris and Flynn partnership. Flynn gave a mortgage to E. E. Morris, Jr., under the terms of the contract. On November 2,1923, in compliance with the contract, E. E. Morris, Jr., gave to C. M. Flynn a mortgage on the land in question for the purpose of securing him to the extent of one-fourth of the liability that might be found to be due him when the affairs of said partnership were completely wound up. This mortgage was filed for record on February 14, 1924. A suit for accounting was commenced in the Lonoke Chancery Court on July 14, 1924, but the record does not clearly show which of the interested parties brought the suit.

There was a mortgage executed on the land in question by E. E. Morris, Jr., to Morris & High to secure an indebtedness due them on January 30, 1924, and this mortgage was duly assigned to C. V. Holloway on March 28, 1925. The chancellor found that there was due the sum of $423.12 on this mortgage, and it was held to be a prior lien on the land in question. Hence no further reference need be made to it.

The court further found that there was due appellant $810 on a subsequent mortgage transferred to him which had been duly filed for record December 17, 1924, on the land in question. The court held that this amount was a junior and subsequent lien to the C. M. Flynn mortgage which had been filed for record February 14, 1924.

The question of the priority of these mortgages is the only issue to be determined by the appeal. . The record shows that the mortgage from E. E. Morris, Jr., to C. M. Flynn was filed for record before a mortgage which was transferred to appellant. This is conceded, but it is insisted that the Flynn mortgage is barred by the statute of limitations,

The partnership of Morris and Flynn was dissolved by the death of Nath Morris, and C. M. Flynn, as surviving partner, became, entitled to the possession and management of the firm property for the purpose of settling the partnership accounts. Hill v. Draper, 54 Ark. 395, 15 S. W. 1025.

No specific money claim or demand can exist in favor of one partner against another growing out of the partnership affairs until there has been a settlement and some amount found to be due from one to another. Hence, until the affairs of the partnership are wound up, the state of the account between the partners is inchoate and continuous. Evans v. Hoyt, 153 Ark. 334, 240 S. W. 409.

In this view of the matter, it will be seen that the statute of limitations has not run on the settlement of the partnership indebtedness because the parties have not entered into an agreement between themselves, and there has been no judgment in the court settling the partnership affairs.

The case of Williams v. Walker, 148 Ark. 49, 229 S. W. 28, has no application for the reason that the partnership in that case was not dissolved by death. When a partnership is dissolved by the agreement of the parties, the statute of limitations of three years will commence to run; but in case the partnership is dissolved by the' death of one of the partners, as we have already seen, the surviving partner has the right to take charge of the partnership assets and to take charge of the accounts. If the surviving partner does not make a settlement within a reasonable time, the heirs of the deceased partner or his representative may bring an action in the chancery court to compel a settlement. Such action seems to have been brought in the present case on the 14th day of July, 1924, but it does not appear which one of the parties brought it. This is immaterial, however, for the bringing of the suit shows that there has been no settlement of partnership affairs. No proof of laches on the part of Flynn is made. This is also conclusively shown by the mortgage which was executed by E. E. Morris, Jr., one of the heirs of Nath Morris, to C. M. Flynn, to secure him for any indebtedness that he might be owing the partnership when a settlement should be made of the partnership affairs. The fact that this mortgage was executed in November, 1923, and filed for record on February 14, 1924, shows that it was recognized by all the parties in interest that there had been no settlement of the partnership affairs at that time.

It is well settled that the statute of limitations does not begin to run in any case until there is a complete and present cause of action. Cairo & Fulton Rd. Co. v. Parks, 32 Ark. 131 ; and Louisville Silo & Tank Co. v. Thweatt, 174 Ark. 437, 295 S. W. 710.

In the present case, the statute of limitations will not commence to run against the Flynn mortgage until there has been a settlement of the partnership accounts in the chancery court where suit was brought for that purpose. Therefore, the decree will be affirmed.