text:
    Harris v. State.
    Opinion delivered April 26, 1926.
    1. Criminal law-—joint indictment—order of trial.—Where defendants, jointly indicted for murder, elected to sever for trial, Crawford & Moses’ Dig., providing that in such case the defendants may elect the order in which they shall stand upon the docket for trial, is directory merely.
    2. Homicide—killing in attempt to perpetrate larceny.—When one engaged in the perpetration of or in the attempt to perpetrate larceny kills another, it is not necessary, under Crawford & Moses’ Dig., § 2343, in order to constitute murder in the first degree, that the one perpetrating or attempting to perpetrate the larceny should purposely kill the -person slain.
    3. Homicide—conviction of lower offense.—-Under §§ 3210, 3211, Crawford & Moses’ Dig. § 3140, providing that, upon an indictment for an offense consisting of different degrees, the defendant may be found guilty of any degree not higher than that charged -and that all offenses of homicide shall be deemed degrees of the same offense, held that one indicted for murder in the first degree committed while engaged in the perpetration of one of the crimes enumerated in Crawford & Moses’ Dig., § 2343, may be convicted of voluntary manslaughter.
    4. Homicide—instruction as to lower degrees.—Where the State’s evidence in a prosecution for murder in first degree tended to prove that defendant killed an officer while attempting to arrest defendant engaged in perpetrating larceny, and defendant’s evidence was to the effect that he was not engaged in perpetrating larceny, but shot deceased in self-defense, it was not error to submit to the jury the lower degrees of homicide.
    5. Criminal law—harmless error.—In a murder trial, where the evidence on behalf of the State shows a -premeditated killing and that on behalf of the defense shows self-defense, and there was no evidence tending to establish the offense of manslaughter, any errors in giving instructions on manslaughter are harmless.

      Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    James Harris was indicted for the crime of murder in the first degree charged to have been committed while attempting to perpetrate larceny.
    Bob Davenport was the principal witness for the State. According to his testimony, Harvey Biggs was killed on the night of July 27, 1924, on the Frazier Pike, near the corporate limits of the city of Little Rock, Pulaski County, Arkansas, by James Harris shooting him with a pistol. At that time Davenport and Biggs were motorcycle officers in the police department of the city of Little Rock. Between ten and eleven o’clock on Sunday night, Davenport and Biggs went to 17th and Harrington .Streets, to make an investigation about a Ford car that was found in a ditch by the side of the road-at that place. The car was in a ditch about five feet deep, and was headed towards Little Rock. The officers saw that the car was a service car, and belonged to a Mr. Hood. They telephoned Mr. Hood about the car, and, while waiting for him to come, the officers got behind a fence in the field, and two negroes drove up in a car south of where the car was in the ditch. They first got out of their car and then went back to it, and came back and let the -air out of the tires of the car in the ditch. They then commenced to take the lugs off, and, after they had taken one of the tires off, the officers raised up and said, £ £ Throw up your hands. ’ ’ The larger negro shot at them and ran down the road. The officers followed the negroes down the road about two blocks, and began firing at them. Davenport was ahead of Biggs and about twenty yards behind the negroes. After they had run some distance, one of the negroes fell, and the other one ran a short distance further and fell. Davenport ran up to the first negro and then started to the second one. At this point Biggs fell backward and hollered. Davenport then started back to the negro who shot Biggs, and fired one shot at him while he was lying on the ground. He then heard some one behind him, and the other negro grabbed him, and they fought over the road for about fifteen minutes. Davenport lost his cap and flashlight in the fight. Both of the negroes got away. Davenport first called an ambulance, and, when he returned to the scene of the fighting he found two deputy sheriffs there. They then found Biggs’ body lying over in a ditch on the side of the road. Davenport had blood all over his vest, which got on him from the negro with whom he was fighting.
    Another witness for the State testified that two negroes drove by the car iy. the ditch and stopped, their car. They had a flashlight, and went down towards the wrecked car. Pretty soon the shooting commenced. The tires on the ditched car cost $15 when new, and were worth about $12 each. Davenport and Biggs told the negroes that they were officers when they ordered them to throw up their hands.
    • ¡Blake Williams, chief deputy sheriff of Pulaski County, was also a witness for the State. According to his testimony, he went to Detroit, Michigan, with extradition papers for James Harris, and brought him back to Little Rock. He asked Harris how came him to get into the trouble (referring to the killing of Biggs), and Harris told him that he did not know. Harris said that he was living in Mississippi at the time, and had merely come to Little Rock on a visit. He intended to return to Mississippi on the night the killing occurred. He was driving along with Ollie Smith, his brother-in-law, and noticed a car in the ditch. Harris proposed to Smith that they stop and see if any one was hurt. They stopped, and went over to the car and saw that no one was in it. Smith then said, “Let’s strip it.” Harris told Smith that he did not want to do that, but Smith insisted, and they turned back to strip the car. About that time some one rose up in the field and commenced shooting. Harris told Williams that he was hit in the right shoulder with a bullet, which knocked him down. He had a fight in the road, and, as soon as he could get away from the mail with whom he was fighting, Harris left. The next morning he found out that Biggs had been killed, and on that account left the country. Williams testified that Harris voluntarily told him about the difficulty and how it happened.
    James Harris was a witness for himself. According to his testimony, he intended to start home to Mississippi on the night that Biggs was killed. He was driving along the road with Ollie Smith, his brother-in-law. He proposed that they stop and see about the wrecked car. They saw that nobody was hurt, and the defendant proposed to go on. Just as they started to leave, some one told them to stop. Both the defendant and Ollie Smith then commenced to run. They did not know whether or not the men who ordered them to stop were officers. The defendant was shot in the right shoulder, and then lost consciousness for a time. He denied having fired the shot that killed Biggs.
    Other witnesses were introduced by the defendant tending to corroborate his own testimony.
    The jury found the defendant guilty of voluntary manslaughter, and left his punishment to be assessed by the court.
    From a judgment sentencing him to five years’ imprisonment in the State Penitentiary, the defendant has duly prosecuted an appeal to this court.

      Scipio A. Jones, W. A. Isgrig, Isgrig & Dillon and Downie & Schoggen, for appellant.

      H. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Hart, J.,

(after stating the facts). The first assignment of error is that the circuit court erred in refusing to grant the motion of the defendant that Ollie Smith should be first put on trial.

The record shows that Ollie .Smith and James Harris were jointly indicted for murder in the first degree, charged to have been committed by shooting and killing Plarvey Biggs while they were engaged in stealing four automobile tires of the value of $40. The motion electing that the case against Ollie Smith should stand-first for trial was signed by the defendant, James Harris, and by Ollie Smith. The prosecuting- attorney stated that he was not ready in the Ollie Smith case, and it was continued. The court then required James Harris to be tried.

In seeking a reversal of the judgment on this account, counsel for the defendant rely upon § 3140 of Crawford & Moses’ Digest, providing, in effect, that, when jointly indicted for a felony, any defendant is entitled to a separate trial, and, when the trials are severed, the defendants may elect the order in which they shall stand upon the docket for trial.

The court has construed this statute to be directory merely. Clark v. State, 169 Ark. 717, and cases cited. Hence this assignment of error is not well taken.

The nest assignment of error is that there is a fatal variance between the indictment and the evidence. The indictment was returned under § 2343 of Crawford & Moses’ Digest, which reads as follows: “All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in the attempt to perpetrate arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree.”

The defendant, James Harris, and Ollie Smith were charged in the indictment with killing Harvey Biggs while they were engaged in the perpetration of or the attempt to perpetrate larceny. 'Counsel for the defendant insist that, under a charge of murder in the first degree committed in the attempt to perpetrate one of the felonies enumerated in the statute, the defendant can not be convicted of a lesser degree of homicide. They rely upon the doctrine announced in Rayburn v. State, 69 Ark. 184, and Sheppard v. State, 120 Ark. 160. In the case last cited the court said that there are two classes of murder in the first degree, separate and distinct, in one of which it is necessary only to allege that the killing was done in the perpetration of or attempt to perpetrate one of the felonies named in the statute, while in the other it is essential that the usual technical words, showing the killing was done after premeditation and deliberation, be employed. When a homicide takes place in the commission of larceny, it is not necessary, under our statute, in order to constitute murder in the first degree, that the one perpetrating or attempting to perpetrate the larceny should purposely kill the person slain. Hence it need not be alleged in the indictment.

On the other hand, where the essence of the crime is that the killing is done wilfully, deliberately and premeditatedly, it is necessary to charge and prove such a killing. Hence separate and distinct classes of murder in the first degree are provided for in our statute, and these offenses, being separate and distinct offenses, must be charged substantially as defined in the statute. It has been uniformly held in this State that' an indictment for the crime of murder in the first degree, as charged by the usual common-law form of indictment, involves all other grades of homicide which the evidence tends to establish. The .State in preferring the indictment may charge any degree of homicide that the grand jury may consider the defendant guilty of, but at the trial he may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment, or with an attempt to commit such crime.

'Section 3210 of Crawford & Moses’ Digest provides that, upon an indictment for an offense eonsisting of different degrees, the defendant may be found guilty of any degree not higher than that charged in the indictment, and may be found guilty of any offense included in that charged in the indictment.

Section 3211 in part reads as follows: “The offenses named in each of the subdivisions of this section shall be deemed degrees of the same offense in the meaning of the preceding section: First. All offenses of homicide,” etc.

In Allen v. State, 37 Ark. 433, it was held that a jury-had the power to return a verdict of a lower degree of homicide under an indictment for one of the specific statutory murders in the first degree, and the ruling was placed upon the construction to be given to the sections of the statute just referred to and quoted from. In that case the murder was charged to have been perpetrated by means of poison. In that case it was recognized that the statute meant that, where poison is knowingly administered with unlawful intent, if' death ensues, it will be murder, although death was not intended.

This principle was expressly reaffirmed in Clark v. State, 169 Ark. 717, where it was stated that a jury had the power to return a verdict for a lower degree of homicide which was committed in the perpetration of robbery, although the court correctly refused to charge the jury upon the- lower degrees of homicide because there was no proof upon which to predicate such a charge. Section 3210 of 'Crawford & Moses’ Digest was expressly referred to as part of the reason to sustain the holding. There can be no distinction between a homicide which occurs during the perpetration of a robbery or of larceny and when the homicide is caused by the administration of poison. All of them, under the statute, are deemed murder in the first degree.

In this connection it may be stated that the Supreme Court of the State of Missouri, in construing a similar statute, said that -the fact that the Legislature provided that every homicide committed in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, etc., shall b'e deemed murder in the first degree, instead of saying that it shall be murder in the first degree, recog'nizes as possible the commission of a homicide in the attempt to perpetrate either of these crimes that will be a less crime than murder in the first degree. State v. Hopkirk, 84 Mo. 278; and State v. Daly, 210 Mo. 664.

There is much reason to support this view. The testimony might be conflicting as to whether the hoilii-. cide was committed while the accused was perpetrating or attempting to perpetrate any of the felonies included in the statute, or whether it was committed before the attempt to perpetrate the felony had begun. There is always a period of time where the parties are engaged in the preparation to commit a felony and before the actual attempt to perpetrate it has begun.

Again, the testimony might be conflicting as to whether the killing occurred after the felony had been completed and while the persons committing it were escaping. Under the statute it is only when the transaction has gone beyond the intent and preparation, and has passed into acts which amount to an attempt at one of the crimes included in the statute, that the homicide is deemed murder in the first degree.

Again, it is equally evident that, after one of the felonies mentioned in the statute has been committed and the parties committing it have left the place where it was committed and are only engaged in escaping, the killing to prevent arrest would not be deemed murder in the first degree under the statute. This distinction was recognized in the Clark case, and we held that the facts in that case showed that the robbery of the bank had not been completed before the killing occurred. In that case it was held that, under the statute, where it was the purpose of the accused to commit robbery, and, in the execution of that purpose, any person was killed, no further proof of premeditation or of intent to kill is necessary; for, by the express terms of the statute, such killing is deemed murder in the first degree. We held in the Clark case that the trial court properly refused to instruct the jury on the lesser degrees of homicide, for the reason that there was no evidence upon which to base them; but we distinctly recognized that the jury had the power to return a verdict for a lower degree of homicide, although it was its duty to find a verdict in accordance with the instructions of the court.

We are of the opinion that, under §§ 3210 and 3211 of Crawford & Moses ’ Digest, all lesser degrees of homicide are included in an indictment for homicide charged to have been committed while engaged in the perpetration of one of the felonies enumerated in § 2343 of the Digest. In short, under § 3210, upon an indictment for an offense consisting of different degrees, the defendant may be found guilty of any lesser degree of the offense charged in the indictment. Section 3211 provides that all offenses of homicide shall be deemed degrees of the same offense within the meaning of § 3210.

According to the evidence for the State, the defendant and Ollie Smith were engaged in removing the tires from the wrecked automobile, and actually had one of them off when the officers commanded them to throw up their hands. Davenport and Biggs at the-time had on their uniforms, and told the defendant and his companion that they were officers of the law. It was also proved by the .State that the tires were worth $15 each when new, and were worth $12 each at the time the defendant and his companion were attempting to take them off of the wrecked car. Both the defendant and his companion were engaged in attempting to steal'the tires fr#m the automobile, and it did not make any difference as to their guilt which one of them proposed the crime. The proof on the part of the State also showed that the defendant shot and killed Biggs. Under the views we have just expressed, there is no merit in the contention that there was a variance between the charge in the indictment and the evidence given in support of it.

The next assignment of error is that the court erred in instructing the jury on the lower degrees of homicide. As we have already seen, the lower degrees of homicide were, under the statute, included in the crime charged in the indictment. According to the-evidence given in favor of the defendant, it might have been inferred that the killing occurred before they had attempted to steal the tires from the car. According to the testimony of the defendant himself, he was only examining the car when the officers told him to throw up his hands. He began to run before lie had made any attempt whatever to strip the car or to steal any of its parts. In this connection it may be also stated that the evidence for the State tended to show that the defendant was the one who actually killed Biggs. Hence, under the evidence for the defendant, it was not error for the court to have submitted to the jury the lower degrees of homicide.

Then, too, if it should be assumed that there was no evidence to support any of the lower degrees of homicide, and that the defendant was guilty of murder in the first degree under the statute, or nothing, still he was not prejudiced by the action of the court in submitting the lower degrees of homicide.

This court is committed to the rule that, in a murder trial where the evidence on behalf of the State shows.a premeditated killing, while that on behalf of the defense shows self-defense, and there is no evidence tending to reduce the offense to manslaughter, any errors in giving the instructions on manslaughter are harmless. Pendergrass v. State, 157 Ark. 364, and Rogers v. State, 136 Ark. 161.

The evidence showed that the officers were outside of the city limits. Section 2905 of Crawford & Moses’ Digest provides that a private person may make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony. As we have already seen, the evidence for the State showed that the defendant and Smith had already removed from the automobile one of the tires, which was worth more than $10. Hence the larceny of one tire was a felony.

The theory of the State was that the defendant and his companion intended to strip the ditched automobile and steal all of the parts which could be carried away, and engaged in a fight with the officers when they tried to arrest them. It is plainly inferable from the testimony of Davenport that the defendant shot and killed Biggs while Davenport and Biggs were trying to arrest him, and his companion.

It was the theory of the defendant that he and his companion merely went to the ditched car for the purpose of seeing if there was any one hurt, and that they examined it merely out of curiosity. While they were engaged in examining it, some one told them to throw up their hands. They did not know whether the persons calling to them to. throw up their hands were' officers or not. They ran away, and the defendant was shot by the officers while he was running away and while he was not attempting in any way to injure them.

The respective theories of the State and of the defendant were fully and fairly submitted to the jury upon competent evidence and under' instructions containing correct principles of law applicable to’ the evidence. We find no reversible error in the record, and the judgment will he affirmed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Van Hook v. Helena.
    Opinion delivered March 29, 1926.
    1. Criminal law—duty to explore record.—In misdemeanor cases the Supreme Court is not required, as in felony cases, to explore the record to see whether error was committed.
    2. Criminal law—presumption as to error.—Where, in a misdemeanor case, no complete abstract of the testimony is presented, and the instructions given in the case are not set out, and no instruction is objected to as having been erroneously given, it will be presumed that the testimony was sufficient to support the verdict, and that no error was committed in giving or refusing instructions.
    3. Searches and seizure—protection to dwelling houses.—The protection of the search and seizure clause of the Constitution (art. 2, § 15) does not extend to the entry of an officer into a public place to make an arrest upon probable cause that an unlawful act is being committed there, but it applies only to dwelling houses or such other private places.
    4. Searches and seizures—search without warrant—evidence. —Under § 6169, Crawford & Moses’ Dig., making rooming houses public places and declaring it to be unlawful to keep liquors there, it was not error to admit evidence obtained by officers in searching defendant’s rooming house without a warrant.
    Appeal from Phillips 'Circuit Court; E. D. Robertson, Judge;
    affirmed.

      Sheffield S Coates, for appellant.
   McCulloch, C. J.

Appellant was arrested by the police of the city of Helena on November '2,1925, charged with the offense of possessing alcoholic liquors illegally. She was tried in the municipal court of the city of Helena, and there a fine of $100 was assessed against her. Prom this judgment she appealed to the circuit court, where, upon a trial before a jury, she was found guilty, 'and the punishment left by the jury to be fixed by the court.

The judgment of the circuit court is somewhat ambiguous, but, in view of our decision in the case of Pocahontas v. State, 114 Ark. 450, and that of Lacour v. Hope, 160 Ark. 209, we interpret the judgment as imposing a fine of a hundred dollars,' with imprisonment in the county jail for a period of thirty days, for, unless so interpreted, a double punishment is imposed for a ' single offense.

The offense charged is a misdemeanor, and we are not therefore required, as in felony cases, to explore the record to see whether error was committed. "We are only required to consider the assignments of error properly presented under the rules of the court, and, when the brief filed in appellant’s behalf is thus considered, it appears that no complete abstract of the testimony is presented, that the instructions given in the case are not set out, and that no instruction is objected to as having been erroneously given. It will therefore be conclusively presumed that the testimony was legally sufficient to support the verdict, land that no error was committed in giving or in refusing to give instructions.

It does appear, however, from the abstract of the case furnished by appellant, that the house which appellant occupied as a residence was searched by the police, and that intoxicating liquors were found therein. The warrant under which this search wias made was issued by the clerk of the municipal court, who did not possess that authority. That official was aware of his lack of authority, and attempted to supply it by signing the name of the presiding officer of the municipal court to the warrant. He signed the name of the judge of the municipal court, pursuant to a general verbal direction given by that officer, authorizing the clerk to sign warrants in the absence of the judge. It further appears that this warrant was issued without any one making an affidavit that it was believed liquor was being illegally kept in the place ordered to be searched.

The officers who made this search testified that the liquor was found in appellant’s house, and the admission of this testimony is assigned as error. Before the beginning of the trial appellant filed a motion that this testimony be suppressed and excluded, for the reason that it had been illegally obtained, but the court overruled that motion and admitted the testimony of the officers to the effect that intoxicating liquors had been found, over appellant’s objection and exception.

All the circumstances connected with the admission of this testimony are abstracted, and its admissibility is therefore presented for óur consideration on this appeal.

The admission of this testimony Was authorized by the opinion of this court in the case of Benson v. State, 149 Ark. 633, a decision which we have adhered to in several cases, but we are asked now to reconsider the question and overrule those decisions.

Amendment No. 4 to the Federal Constitution reads as follows: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This provision of the Federal Constitution has no relation to the action of State officials in prosecutions in .State courts. Weeks v. United States, 232 U. S. 383.

The Fourth Amendment to the Constitution of the United .States has been incorporated into the fundamental law" of this State and is found as section 15 of article 2— the Declaration of Eights—in our present Constitution, where it reads as follows: ‘ ‘ The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not 'be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

Appellant insists that the place searched was her private residence, the character of which was not destroyed by the fact that she occasionally let out one of her rooms, and that therefore § 6169, C. & M. Digest, under which she was prosecuted and convicted, does not apply, and the possession of liquor found by the officers making the search was not a violation of the law, because her house was not such á place as that section of the statute had made it unlawful to keep or to store intoxicating liquors in. But, as we have said, the testimony in the entire case is not abstracted, and in the absence of this abstract we must presume that the premises searched was a public rooming house, and came within the inhibition of § 6169, C. & M. Digest.

The statute reads as follows: “Section 6169. It shall be unlawful for any person, firm or corporation to store, keep, possess, or have in possession or permit another to store, keep, possess or have in possession, any of the liquors and beverages mentioned in § 6165 of this act, in ur at'fruit stand, restaurant, store, drug store (except alcohol in a drug store as permitted by law, or wine for sacramental purposes as may be permitted by law), or in any club or club room of any social or fraternal organization, or of any other organization or association of persons, or in any livery stable, public garage, public park, hotel, rooming house, dining room, wagon yard, or any public building of the 'State, county or municipality, or district, or in or at any room or place where a bowling alley or any billiard or pool table is maintained or operated for gain; but this shall not prevent any officer from storing or having such Equors in a public building for safe-keeping when seized in the enforcement of the law or when stored or possessed for use as evidence or otherwise in his official capacity. And it shall also be unlawful for any person, firm or corporation, engaged in the business of selling or deaEng" in soft drinks or nonprohibited beverages, to keep, possess or store on the premises any of the liquors mentioned in § 6165 of this act, or any other liquors, beverages or drinks nr bitters prohibited by the laws of this State. ’ ’

The Supreme 'Court of the United States, and other courts following its lead, have held that evidence obtained by officers in violation of the search and seizure clause of the Constitution is not admissible against the accused, whose rights have been thus violated. There are, however, limitations upon that rule which are as clearly recognized as the rule itself.

The rule and its Emitations were carefully reviewed by Chief Justice Taft in the recent case of Carroll v. United States, 267 U. S. 132. That was a case where the accused was arrested for unlawfully transporting intoxicating liquor, his automobile was searched, without a Warrant, and the liquor found was produced in evidence. The Chief Justice, after calling attention to the fact that the clause in the Federal Constitution “does not denounce all searches or seizures, but only such as are unreasonable”, said: “The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in the manner which will conserve public interests as well as the interests and rights of individual citizens.” He also quoted with approval the following excerpt from the opinion of the court in Boyd v. United States, 116 U. S. 6l6: “The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from the search for and seizure of a man’s private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo.. In the one 'ease the government is entitled to' the possession of the property; in the other it is not. The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of revenue laws, or concealed to avoid the duties on them, has been authorized by English statutes for two centuries past.” And the, conclusion of the court as to the law controlling the Case was stated as follows: “When a man is legally arrested for an offense, whatever is found on his person or in his control which it is unlawful for him to have, and which may be used to prove the offense, may be seized and held as evidence in the prosecution. * * * The right to search and the validity of the seizure lare not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for (belief that the contents of the automobile offend against the law.”

In the still more recent decision of the Supreme Court of the United States—the last announcement of that court on the subject (Agnello v. United States, 269 U. S. 20) the court said: “The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was 'Committed, as well as weapons and' other things to effect an escape from custody, is not to be doubted.”

It follows therefore that, if we were to chango our rule announced in the Benson land other cases, and adopt the rule of the Supreme Court of the United 'States, the result would be the same in the instant case.

The protection of tbe search and seizure clause of the Constitution does not extend to the entry of an officer into a public place to make an arrest upon probable clause that an unlawful act is 'being committed there. The protection applies, not to all premises or property, but only to dwelling houses or other such private places. Carroll v. United States, supra.

Our statute, in effect, makes rooming houses public places, and declares it to ibe unlawful to keep liquors there. The trial court was correct in admitting evidence of the finding of liquor in the rooming house kept by appellant.

It is unnecessary to discuss the question about which there are differences between decisions of this court and the Supreme Court of the United States as to the admissibility of evidence obtained by unlawful search, and we refrain from doing so.

Affirmed.

Hart and Smith, JJ., dissent.


author: Smith, J.

text:
    St. Louis Southwestern Railway Company v. Webb.
    Opinion delivered March 15, 1926.
    1. Business trust—liability of trustee for torts.'—A railway company, as the trustee in charge of a hospital and having the power to appoint and discharge the superintendent in control thereof, is liable for acts of negligence or other torts committed by the superintendent or the other employees of the hospital in matters relating to the hospital.
    2. Hospital—negligence in failing to operate.—Where an authorized agent of a railway hospital 'agreed in an emergency to take a patient to the hospital and operate, and the patient should have been operated on at once, but the managing officers of the hospital, after several hours’ delay, refused to operate, and sent the patient to another hospital where an unsuccessful operation was performed, held that it was a question for the jury whether their refusal increased the patient’s suffering and lessened his chance of recovery.

      Appeal from Miller Circuit Court; J. H. McCollum, Judge;
    affirmed.

      J. B. Turney, T. J. Gaughan, J. T. Sifforcl, J. E. Gauglmn and E\ E. Godwin, for appellant.

      W. II. Arnold Jr. and B. E. Carter, for appellee.
   Smith, J.

Mrs. Cora Webb 'brought two suits against the St. Louis 'Southwestern Builway Company to recover damages on account of the suffering and death of her son, Quinn Anderson. The first suit was brought as administratrix of the estate of the said Quinn Anderson, and the second was brought by Mrs. Webb as the next of kin of the deceased. The causes were consolidated and tried together. The deceased was eighteen years old at the time of his death, and lived with his mother, and contributed to her support all his earnings. The young man had been employed by the railway company under a written contract to carry the mail to and from the post-office to the railroad station in Garland City, where his mother lived. For this service he was paid the sum of $15 per month, payable on the first and fifteenth of each month. He became ill with an acute attack of appendicitis, and a local physician advised Mrs. Webb that an immediate operation was necessary. Mrs. Webb applied to the station agent of the company at Garland City for a pass for her son to the railway company’s hospital at Texarkana. The agent communicated with the. company’s superintendent at Pine 'Bluff, and was advised by that official that the young man was not entitled to the service of the hospital. Mrs. Webb then had the local physician telephone to Dr. J. K. Smith at Texarkana, and an arrangement was made whereby Dr. Smith would see that an ambulance met the train and carried the patient to the Michael Meagher Hospital, and Dr. Smith agreed to operate on the patient as soon as he had been received at that hospital. Immediately upon the receipt of the message from the physician at Garland City, Dr. Smith made the necessary arrangements with the Michael Meagher Hospital, at Texarkana, for an ambulance to meet the train.

Mrs. Webb ¡bought tickets for herself and for her son, who was placed in the baggage car, and she went into that car with him. On the way to Texarkana Mrs. Webb had a conversation with the baggage-man in which she raised the question of the right of her son to hospital service, and the baggage-man told her to see the railroad company’s agent upon the arrival of the train in Texarkana. The ambulance met the train, which arrived at Texarkana shortly after 2 p. m., and the young man was placed in the ambulance, and Mrs. Webb told the driver to wait until she had first seen the station agent. It is perfectly clear, indeed, it is undisputed, that Mrs. Webb thought her son was entitled to admission to the company’s hospital as an employee of the railroad company. She was a working woman, and the expense of an operation in la hospital was one which she was naturally quite anxious to save, especially as she thought her son was entitled to this service without charge because of his employment. Mrs". Webb told her story to a Mr. Harrington, the station agent at Texarkana, and this agent at once called the company’s hospital, and the persons in charge were advised that there was a sick person at the depot who needed immediate attention, and about whose right of admission to the hospital there was some question. This agent also got in communication with the superintendent of the company at Pine Bluff, and was advised by that official, as the agent at Garland City had been, that the young man was not entitled to the hospital service as an employee. The agent advised Mrs. Webb of this decision, and she then directed the driver of the ambulance to take them to the Michael Meagher Hospital. Just as the ambulance left the depot it was met by an automobile in which a Dr. Pitts and a Mr. Neislar were driving. Mr. Neislar stopped the ambulance and inquired whether the occupant was the patient whose right to admission to the hospital was in question, and, upon receiving an affirmative reply, he had a conversation with Mrs. Webb. Neislar had not at that time been advised that the young man was not entitled to admission to the company hospital, although Harrington had told Neislar there was a question about it.

It is quite apparent from Mrs. Webb’s own version of the conversation which she then had with Neislar that she had not conceded the fact to be that her son was not entitled to the hospital service, but that, on the contrary, she evidently thought her son was being denied a right to which he was entitled. Finally, Neislar asked her, if it should be ascertained that her son was not entitled to this service, whether she would pay for it or not, and she answered that she would pay, and with this understanding the lamibulanee was directed to drive to the company hospital.

There is much testimony in regard to the control and operation of the company’s hospital. The contract between the railroad company and its employees was offered in evidence, and it was shown that the railroad company operated the hospital under an agreement constituting it as a trustee. The employees of .the railroad company, by a voluntary payment of a fixed sum each month, which, with their permission, was reserved by the company out of each pay check, were entitled, when ill, to admission into the hospital and treatment without additional charge.

The railroad company administered the money derived from the collection of this fund, and the president of the railroad company had the authority to employ and to discharge the superintendent of the hospital, and the superintendent ran the hospital and employed all the subordinates. The superintendent and all others drawing. salaries were paid out of this hospital fund.

The trust agreement under which the railroad company operated the hospital provided that officials of the different labor organizations to which the company employees belonged should have the right to elect an inspector, who should reside in the hospital and be paid out of the hospital fund, and it was the duty of this inspector to see that proper treatment was given the patients,' and to mlake reports of the management to the various labor organizations. The inspector had no other duty or authority in the management of the hospital.

Neislar was the inspector who had been so selected, and it was he who met the ambulance with Dr. Pitts, an assistant surgeon employed at the company hospital, .just as the patient ivas leaving the depot for the Michael Meagher Hospital. Mrs. Webb testified that Dr. Pitts and Neislar got out of the automobile in which they had driven to the depot and came to the ambulance and inquired of Mrs. Webb if the boy in the ambulance was the patient going to the hospital. There is an irreconcilable conflict in the testimony as to the conversation which then occurred. Mrs. iWebb testified that she told Dr. Pitts and Neislar that she thought her son was .entitled to admission to the company hospital as an employee, hut that she was adAdsed he would not be received as such, and that she was on the way with her son to the Michael Meagher Hospital. Dr. Pitts and Neislar testified that they knew nothing about the arrangement for Mrs. Webb to take her son to the Michael Meager Hospital until after the patient was carried to the company hospital, and they supposed Mrs. Webb was on the way with the patient to the company hospital. Neislar admitted asking Mrs. Webb if she would pay for the hospital service if her son was not entitled to admission as an employee, and she answered that she would. Mrs. Webb testified that Dr. Pitts was present during this conversation and could have heard it had he been listening, although he took no part in the conversation.

According to the testimony offered on behalf of the railroad company, no one connected with the hospital knew anything about Mbs. Webb’s arrangement to take her son to the Michael Meagher Hospital until after he •had been carried to the company hospital. Harrington, the station agent at Texarkana, admitted talking to the persons in charge of the company hospital over the ’phone after talking with Mrs. Webb and hearing her contention, and he repeated to the person answering the ’phone from the hospital what Mrs. Webb had said, but there is nothing in his testimony to indicate or to support a finding that he advised the company hospital that Mrs. Webb had arranged to carry her son to another hospital. While the testimony of Mrs. Wébb stands alone that Neislar and Dr. Pitts were advised of this arrangement, it must, of course, be considered, and was evidently accepted by the jury as true, and, if her testimony is given full credit, as the jury had the right to do, then the .jury might have found the facts as follows: After insisting that her son was entitled to admission and treatment in the company hospital as an employee, she started with him in an ambulance to the Michael Meagher Hospital, where Dr. Smith was waiting to perform the operation; but that she was diverted from going’ to the Michael Meagher Hospital by Dr. Pitts and Neislar, upon the assurance from them that her son would be given attention at -the company hospital, provided she would agree to pay the hospital bill if it were finally definitely determined that her son was not entitled to this service.

The patient was not carried to the Michael Meagher Hospital, but was .driven to the company hospital, where he remained until after 5 p. m. When the patient arrived at'the company hospital, Dr. Chase, the superintendent, being absent, Drs. Kittrell and Collin, who were operating surgeons on the staff of the company hospital, were telephoned for, and, upon their arrival, it was seen that an operation .for appendicitis was imperative and was' immediately required. These surgeons prepared to operate after making a blood test, and they testified that they would have done so but for the fact that Mrs. Webb stated, in the discussion which arose as to whether her son was entitled to service as a railroad employee, that she had brought her son to Texarkana to be operated on by Dr. Smith at the Michael Meagher Hospital,

Upon receiving this information, Drs. Kittrell and Collin testified that they declined to operate, and Dr. Kittrell called np Dr. Smith on the ’phone and advised him that they were about to “swipe” one of his patients through ignorance of the fact that he was Dr. Smith’s patient. Dr. Smith told Drs. Kittrell and Collin to go ahead with the operation, but they declined to do so, and the patient was again placed in the ambulance and carried over streets which were not in good condition for a distance of a mile or more to the Michael Meagher Hospital, where he arrived about 6 p. m., and the operation was performed between 6:30 and 7 p. m.

Dr. Smith testified that he hesitated about performing the operation, for the reason that he thought it was too late to be successful, and that, when he did perform the operation, he found that the appendix had burst. He advised Mrs. Web'b immediately after the operation that her son could not live, and the young man died the next morning.

It is very earnestly insisted on behalf of the company that neither Dr. Pitts nor Neislar had any authority to agree to receive the patient in the hospital, as he was not an employee. But there was testimony that Drs. Kittrell and Collin were authorized to act in the absence of Dr. Chase, and that Dr. Pitts was in charge when Drs. Chase, Kittrell and Collin were all absent, and the testimony of Mrs. Webb is sufficient to support the finding that Dr. Pitts and Neislar agreed to receive the young man as a pay patient. We think also that testimony is sufficient to support the finding that the refusal of Drs. Kittrell and Collin, whose authority, in the absence of Dr. Chase, is not questioned, to operate was based upon a question of professional ethics involved after discovering that the patient had been 'brought to Texarkana to be operated on by Dr. Smith.

It is conceded by counsel for Mrs. Webb that her son was not entitled to hospital service as an employee, but it is insisted that the representatives of the hospital assumed charge of the case under a contract whereby Mrs. Webb agreed to pay for the attention to her son. That it was known that an immediate operation was required, and that the railroad company, as trustee of the hospital, became liable for the failure to give the patient the treatment which they had undertaken to give and which the patient’s condition required.

The testimony shows that the train on which Mrs. Webb and her son came to Texarkana arrived in that city shortly after 2 p. m., and that he was not finally carried to the Michael Meagher Hospital until about 6 p. m. The testimony is sufficient to support a finding by the jury that every minute of delay should have been avoided, if possible, and that, if the operation had not been delayed, the patient’s chances of recovery would have been much greater and his suffering much less.

Dr. Smith testified that he was waiting at the Michael Meagher Hospital ready to operate, and the jury might have found that a delay of about three hours in operating would have been avoided had the patient not been diverted to the company hospital by Dr. Pitts and Neislar, and that the patient’s chances of recovery were greatly reduced by the delay and his sufferings much increased.

Mrs. Webb recovered judgments in both suits, and it is the insistence of the company for the reversal of the ease that an instructed verdict should have been given in its favor under' the undisputed evidence.

We think, however, that, when the testimony of Mrs. Webb, that she advised Dr. Pitts and Neislar that she was on the way to the Michael Meagher Hospital, is given its highest probative value, the jury was warranted in finding that the patient was taken in charge in an emergency, and that there was a failure to discharge the duty due the patient in view of this emergency.

It was, of course, necessary for some one at the hospital to be clothed with the discretion to determine who should be admitted to the company hospital, and we think the testimony shows that Dr. Pitts had this authority, in the absence of the doctors who were his superiors. He was the house doctor, and was supposed to he at the hospital when no one higher in authority was there. The question of Dr. Pitts ’ authority was submitted to the jury, and the verdict returned reflects the fact that the jury found he had the authority; indeed, as we have said, there does not appear to be any question that Drs. Kittrell and Collin would have operated had they not been advised before operating that the patient belonged to Dr. Smith.

We think the jury was warranted in finding that the railroad company was in complete control of the hospital as trustee through the power conferred on it by the trust agreement of appointing and discharging the superintendent, who was completely in control, subject only to the right of Neislar to inspect and report to the labor unions any inattention to any of the members of the unions which had selected him for that purpose.

As trustee in charge of the hospital, the company was liable for any wrongful conduct in its management.

In Sears’ Trust Estates as Business Companies (2d ed.), § 40, it is said: “That trustees are liable in their personal capacity for acts of negligence or other torts committed by themselves or their agents in matters relating to the trust seems not seriously disputed. Generally the question is whether or not the estate he represents is also liable.”

The appellant railroad company cites the cases of Arkansas Midland R. Co. v. Pearson, 98 Ark. 399; St. L. I. M. & S. R. Co. v. Taylor, 113 Ark. 445; and Runyan v. Goodrum, 147 Ark. 481, as exonerating it from any liability for any lack of skill or for any negligence on the part of the doctor in charge o.f the hospital. But in response to this contention.it is pointed out that it is not charged that these doctors were lacking in skill or that they were negligent in their capacity as surgeons. The theory on which the case was tried in the court below is that the persons who were at the time in charge -of the hospital took the patient in charge in a known emergency and agreed to furnish him the immediate treatment which he would have receivedat another hospital without delay but for tbe fact that the company’s hospital representatives so took him in charge, and that these persons, who were doctors, but who were also the managers of the hospital at the time, failed and refused to give the patient the treatment which his condition immediately required. In other words, the cause of actioh is not based upon any incompetency or mistake of the surgeons as such, who in fact gave the patient no treatment, but upon the breach of a duty which had been assumed by the hospital authorities.

The cause was submitted to the jury under instructions which submitted the questions: (a) Did appellant, through its duly authorized agents, agree, in an emergency, to take the patient to the hospital and operate? (b) Should he have been operated on at once? (c) Did appellant refuse this operation? (d) Did this refusal increase the patient’s suffering and lessen his chances of recovery? The jury must have found all'these issues in favor of the plaintiff before returning’ a verdict in her iavor.

Upon the finding of these issues of fact in the plaintiff’s favor, we think a case was made for the .jury.

In the case of Dyche v. Vicksburg, S. & P. R. Co., 30 Sou. Rep. 711, the decedent was run over by a caboose under circumstances for which the railroad company was not liable. The patient was taken in charge and placed on a transfer boat. The yardmaster of the railroad company testified that decedent was ferried back and forth two or three times before being landed, and the physician at the hospital where the patient was finally carried testified that the delay lessened the injured man’s chances for life. Under these circumstances the Supreme Court of Mississippi held that the trial court erred in giving a peremptory instruction for the defendant railroad company.

The authorities having in charge the hospital, and who were necessarily acting as agent for the railroad company as trustee of the hospital, assumed charge of the patient in a known emergency, and it then became the duty of the hospital authorities to administer the treatment which the emergency of the case required. The occasion was not one for hair-splitting ethical questions. According to Mrs. Webb’s testimony, her son would have been operated on several hours earlier if he had not been diverted from the Michael Meagher Hospital, but, after taking the patient into custody, the managing officers of the company hospital denied him the treatment which his condition required.

There is a humanitarian doctrine involved here. The patient was carried to the hospital where the operation could have been performed. The theory of the plaintiff’s case is not that there was any negligence in the treatment given the patient, but that there was a withholding of treatment which was never rendered, and nothing was done except to send the patient to another hospital, and this only after a delay of several hours. Illinois Central R. Co. v. Engle, 102 Miss. 878; Black v. New York, N. H. R. Co., 193 Mass. 448; Northern Central Ry. Co. v. State, 96 Am. Dec. 545; Humicke v. Meramec Quarry Co., 262 Mo. 560, 189 S. W. 1167.

In the case of Sparks v. Murray, 120 Ark. 17, a landlord undertook to make certain repairs which he was under no obligation to make. This court held that, notwithstanding the landlord was under no obligation to make the repairs, yet, if he undertook to make them, and made them in such a careless and negligent manner as to injure the tenant, the tenant might recover damages.

That principle is applicable here. The railroad company was under no duty to the patient, yet the care and control of the patient was assumed, and, after assuming it, the hospital authorities failed and declined to discharge the obligation they had assumed, and this failure and refusal was made by physicians acting in their capacity as managers of the hospital.

Under these circumstances there was a question for the jury, and, as no error appears, the judgment of the court below is affirmed.

Wood, J., dissents.


author: Hart, J.,

text:
    Richards v. Billingslea.
    Opinion delivered April 5, 1926.
    1. Notice—pacts putting one upon inquiry.—Whatever puts a party on inquiry amounts to notice where the inquiry becomes a duty and would lead to knowledge oí the requisite facts by the exercise of ordinary diligence and understanding.
    2. Covenants—liability op one not party to deed.—Where plaintiff accepted from defendant a contract wherein he obligated himself to accept whatever deed defendant might procure in certain proceedings in the probate court to divest the title of certain minor heirs, and subsequently defendant procured and plaintiff accepted a deed from one acting as trustee for the minor heirs, plaintiff cannot sue defendant for breach of a covenant against incumbrances contained in the deed, since defendant was not a party to the deed and had performed the obligation of her contract.
    3. Covenants—liability op naked trustee.—Where the beneficial interest in the land was in certain minors, a trustee who, having no interest in the land, executed a deed thereto as a means of conveying their interest to plaintiff, will not be liable to plaintiff for ■breach of a covenant against incumbrances contained therein, where plaintiff accepted the deed with full knowledge of the facts.
    Appeal from Woodruff Chancery Court, Northern District; A. L. Hutchins, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    O. M. Richards instituted this action in the circuit court against H. L. Billingslea and Jennie Billingslea, his wife, to recover the sum of $299.52, alleged to be due him for money expended by himself and his grantors for the payment of taxes on the land described in the complaint.
    Later Richards filed an amended complaint in which he asked leave to make Mary E.. Billingslea, in her own right, and as guardian of Eva Billingslea, Arthur Billingslea, E. L. Billingslea Jr., and Pearl Billingslea Daniels, defendants herein. As grounds therefor he states that he is informed and believes and so alleges that the land described in his complaint which was conveyed to him by H. L. Billingslea and Jennie E. Billingslea, his wife, originally was the property of E. L. Billingslea, Sr.; that, after the death of E. L. Billingslea, Sr., said land was sold by order of tbe probate court by Mary E. Billingslea in her own right and as guardian of E. L. Billingslea, Jr., Pearl Billingslea Daniels, Eva Billingslea, and Arthur Billingslea, minors; that Mary E. Billingslea is the wife of E. L. Billingslea, Sr., and the mother of said minors.
    Said parties were made defendants to the action, and, by agreement between all the parties, the cause was transferred to the chancery court.
    O. M. Bichards was the principal witness for himself. According to his testimony, he entered into a written contract with Mary E'. Billingslea for the purchase of the land described in it, and the contract, which is made a part of his deposition, is as follows:
    “Know all men by these presents: That I, O. M. Bichards, have this day bought from Mary E. Billingslea lands as follows: North half of section 29, twp. 9 north, range 5 west, except 1 acre, and on terms as follows: $1,200 Jan. 1, or as soon thereafter as Mrs. Billingslea can get legal proceedings through the courts to transfer the said lands legally. Balance in 6 equal yearly payments of $597.50 each payment, bearing interest at the rate of 8 per cent, and interest due and payable on all payments annually. First note for deferred payment due Jan. 1, 1915.
    “The said O. M. Bichards has put up a forfeit of $200, said forfeit is as good faith, and is to be applied on the cash payment when deed is made as per terms of this contract, and, if in the event the said Bichards does not come up to his part of this contract, the said $200 is to be forever forfeited.
    “Now, Mrs. Mary E. Billingslea agrees with the said Bichards that, in the event she is for any reason denied by the court permission to sell the above lands, that she will rent the land to the said Bichards for the usual rental, 1-3 and 1-4, and further, in the event Mrs. Billingslea don’t come up with her part of the contract, that the forfeit money is to be returned to O'. M. Richards.
    “Mary E. Billingslea,
    “O. M. Richards.”
    As the result of the contract, O. M. Richards later obtained a deed to said land from H. L. Billing’slea and Jennie Billingslea, his wife. The deed contains a covenant that the land is free from all incumbrances, except the vendor’s lien as specified in the deed. O. M. Richards sold a part of said land to "Willie Richards and a part of it to L. B. Richards, his father. He executed warranty deeds to them and put them in possession of the part of the land so conveyed to them.
    ■Subsequently M. H. Greer, as trustee of the estate of J. H. Greer, deceased, brought three separate suits in the chancery court 6f White County to recover the taxes against said land which had been paid by J. H. Greer. O. M. Richards served notice on H. L. Billingslea and Jennie Billingslea to defend these suits. These parties paid no attention to the notice. O. M. Richards then employed an attorney to defend the suits. The cases were tried on June 15, 1921, and Greer obtained judgment against O. M. Willie and L. B. Richards for the back taxes sued for. O. M. Richards paid the judgments, which amounted to $264.37. He also paid an attorney’s fee of $50, and $50 for miscellaneous expenses. He demanded payment of these amounts of H. L. and Mary E. Billingslea, and they have refused to pay him the money which he expended in contesting the back-tax suits brought 'by Greer and in satisfying the judgments obtained by him.
    The only one that O. M. Richards met and talked with about the matter was Mrs. Mary E. Billingslea. He knew nothing about the proceedings in the probate court relating to the title of the land, by which it was sold as the property of the estate of E. L. Billingslea, Sr., and bought by H. L. Billingslea, who made the deed to him. O. M. Richards paid for the land, and Mrs. Mary E, Billingslea told him, when he obtained the deed from H. L. Billingslea, that he was getting a good title to the land. It was agreed between the parties that H. L. Billingslea had no beneficial interest in the land in question, and that he acted for Mrs. Mary E. Billingslea in conveying the property to O. M. Richards, and that the latter had no knowledge of this fact unless the original contract between him and Mrs. Mary E. Billingslea was sufficient to put him on notice.
    The chancellor found the issues in favor of the defendants, and the complaint of the plaintiff was dismissed for want of equity. The case is here on appeal.

      John E. Miller and Gulbert Pearce, for appellant.

      W. J. Dung an, for appellee.
   Hart, J.,

(after stating the facts). The record shows that J. H. G-reer obtained a tax title to the land described in the complaint and paid the taxes for certain years under it. Subsequently the tax deed to him was declared void, and the trustee of the estate obtained judgment against O. M. Richards, who was then the owner of the land, for the taxes so paid by him. O. M. Richards brought suit against H. L. Billingslea and wife and Mary E. Billingslea on the theory that the covenant of H. Li Billingslea that the land was free from all incumbrances had been broken, and that he was entitled to maintain his action thereon under the principles decided in Seldon v. Dudley E. Jones Co., 89 Ark. 234, and other cases of like character.

Counsel for Mrs. Mary E. Billingslea earnestly insists that she was not a party to the deed which contained the covenant against incumbrances, and that she could only be held to comply with the terms of her original contract. In this contention we think counsel is correct. On the 19th day of September, 1913, Mary E. Billingslea and O. M. Richards entered into a written contract whereby she agreed to sell and convey the land to him as soon as she could “get legal proceedings through the courts to transfer the land legally. ”

Again, the contract recites that Mrs. Mary E. Billingslea agrees with said Richards that, in the event she is for any reason denied by the court permission to sell the above land, she will rent the land to Richards. These recitals show that O. M. Richards had notice of the state of the title of Mrs. Mary E. Billingslea.

This court has held that whatever puts a party on inauiry amounts to notice where the inquiry becomes a duty and would lead to knowledge of the requisite facts by- the exercise of ordinary diligence and understanding. Jordan v. Bank of Morrilton, 168 Ark. 117, and WalkerLuoas-Hudson Oil Co. v. Hudson, 168 Ark. 1098.

That the matters recited in the original contract would lead to knowledge is clearly shown by the amended complaint of O. M. Richards. In it he sets up that he is informed and believes -certain facts which show complete knowledge on his part of the state of the title. In his amended complaint he also sets up that the land originally belonged to E. L. Billingslea, Sr., and that Mary E. Billingslea was his widow and the mother of the minor defendants named in the amended complaint. Tie alleges that the land belonged to these minors, and was sold in the probate court and purchased by H. L. Billingslea, an uncle of said minors, for the purpose of perfecting the title and to enable Mary E. Billingslea, as guardian of said minors, to make a quick sale, if a purchaser appeared'and desired to -complete the purchase at once.

Thus it will be seen that, under the terms of the original contract, O. M. Richards was to take whatever title he could secure by the proceedings in the probate court through which Mary E. Billingslea was to obtain leave to sell said land.

It also appears from the allegations of the amended complaint that H. L. Billingslea was insolvent at the time, and that he was used merely as a means of conveying whatever title could be obtained through the proceedings in the probate court, and the terms of the original contract showed that O. M. Richards was to obtain only such title -as could be conveyed to him through the probate court proceedings. Mrs. Mary E. Billingslea carried out in good faith her part of the original contract, and she is in no wise bound by the covenant against incumbrances in the deed executed by H. L. Billingslea to O. M. Richards.

In this connection it may be stated that it is true that O. M. Richards testified that, at the time the deed from H. L. Billingslea to himself was delivered, Mrs. Mary E. Billingslea told him that it was a warranty deed, and that he had a good title. Parol evidence could not serve, however, to vary or contradict the terms of the original written contract, and, as we have already seen, O. M. Richards obtained all the title that the terms of the original co’ntract gave him.

With regard to H. L. Billingslea but little need be said. Under the allegations of the amended complaint, and under the undisputed evidence, he was used merely as a means to enable Mrs. Mary E. Billingslea, the guardian of the minors, to make a quick sale of the land. The beneficial interest in the land was in the minors, and this fact was known to O. M. Richards.' H. L. Billings-lea was merely used as a means of conveying the interest of the minors to Richards. O. M. Richards, having-obtained the deed from H. L. Billingslea with full knowledge of the facts, is in no position to recover from him back taxes on the land as a breach of his covenant against incumbrances.

It follows that the decree will be affirmed.


text:
    Farelly Lake Levee District v. Hudson, and Farelly Lake Levee District v. American Investment Company.
    Opinion delivered April 19, 1926.
    1. Levees—assessments—time of filing protests.—Under Acts 1917, p. 920, providing that any owner of real property within a certain levee district, conceiving himself to be aggrieved by the assessment of benefits in the district, shall present his complaint to the chancery court “at its first regular, adjourned or special session after publication” of the notice of filing of assessments, held that protests of landowners were required to be filed at the first regular or adjourned session of the court begun and held after publication of the notice, but not at a session of the court begun before its publication and continued thereafter.
    2. Levees—assessments—direct and collateral attack.—Where the correctness of an assessment of benefits in an improvement district is assailed on collateral attack in a suit brought after expiration of the time allowed by statute, the presumption in favor of the validity and correctness of the assessment is conclusive unless the assessment is arbitrary on its face and void; but, where the suit is brought within the time allowed by statute, the presumption of its correctness is not conclusive and may be overcome by evidence that the assessment is incorrect, in which case it is the duty of the court to set it aside or to correct it.
    3. Appeal and error—conclusiveness of chancellor’s finding.— A chancellor’s decree setting aside a reassessment of benefits in a levee district will not be reversed when the appellate court is unable to say that the chancellor was not justified in his conclusion.
    4. Levees—assessments—decreasing assessment.—The original assessment of lands in a levee district will not be decreased on a reassessment where bonds of the district pledged its revenues and the assessment cannot be reduced without impairing the obligation of the contract; nor where the statute authorized a reassessment for the purpose only of paying the additional cost of the improvement, and not for the purpose of reducing the original assessment.
    Appeals from Jefferson and Arkansas Chancery Courts; H. R. Lucas, Chancellor;
    judgments modified.

      Rose, Hemingway, Cantrell S Loughborough, for appellants.

      Coleman £ Gantt, Wooldridge £ Wooldridge, Gibson £ Burnett and Jno L. Ingram, for Hudson.

      Gibson £ Burnett, J. M. Brice, R. D. Rasco, T. J. Moher, John L. Ingram, and Botts £ O’ Daniel,' for American Investment Company.
   McCulloch, C. J.

The two cases indicated in the caption were tried separately below, one in the chancery court of Arkansas County and the other in the chancery court of Jefferson County, but they involved the same issues of facts and questions of law, with a single exception, and the two cases have been consolidated in this court for the purpose of disposing of them on appeal. Both cases involve the correctness of the assessments of benefits in an improvement district created by special statute for the purpose of constructing a levee along the east bank of the Arkansas River.

The district was organized under act No. 3 of the General Assembly of 1913, which was amended by act No. 170 of the General Assembly of 1917, and further by act No. 115 of the year 1919, the purpose of the district being to build a levee along the Arkansas River bank in Arkansas and Jefferson counties and to construct a dam with floodgates across the mouth of Bayou Meto, a'stream which empties into the Arkansas River in Jefferson County. The organization of the district was completed and plans for the improvement were made, contracts let and bonds issued, and the greater portion of the levee was completed—about twenty-two miles in length—but about 1,000 feet of the levee was left short of completion, and the dam and floodgates at Bayou Meto have not been constructed. Money was borrowed and bonds issued in the aggregate sum of $1,312,000, which are still unpaid and outstanding.

The statute creating the district contained a provision that the assessment of benefits should not exceed twenty dollars per acre, and in the original assessment of benefits there was a horizontal assessment of twenty dollars per acre, with the exception for a few tracts peculiarly situated, and the aggregate amount of the original assessment was $1,576,677. Work on the improvement was suspended on account of inability to raise additional funds without increasing the assessments, and the General Assembly of 1925 enacted a statute (act No. 356, session of 1925) authorizing districts situated as this one to complete the improvement and to reassess the property for the purpose of raising a sufficient amount to complete the improvement. This statute was interpreted in a recent decision of this court, and it was held that it repealed the limitation in a prior statute as to the maximum amount of assessments per acre. Farelly Lake Levee District v. Hudson, 169 Ark. 33. After the enactment of that statute, the board of assessors of the district proceeded to reassess the lands in the district, and added to the original assessment eight dollars per acre, with the exception of a few tracts not involved in the present controversy. The assessment lists were filed in accordance with the statute, and the appellees in these two cases, who are the owners of property in the district —some in Arkansas County and some in Jefferson County •—-instituted this action attacking the correctness of the additional assessments and seeking to set them aside.

Thé contention of appellees is that the original assessment of twenty dollars per acre was excessive, and that the additional assessment is not supported by the facts; that none of the lands involved in these two actions will be benefited by the improvement in excess of the original assessment of twenty dollars per acre. The issue was joined upon the allegations as to the excessiveness of the assessments, numerous witnesses were introduced before the court, and there was a final decree in favor of appellees setting aside the additional assessment. The district has appealed, and some of the property owners have cross-appealed on the ground that the court should -have reduced their original assessments.

The recent statute, referred to above, authorizing the reassessment, contains a provision that the same “shall be made, advertised and equalized like the original assessment of benefits, and shall become final and incontestable after tbe lapse of the same time as the original assessment.” The original statute cheating the district, as amended by the act of 1917, swgra, provided that, after the assessors of the district shall have completed the assessment of benefits and inscribed the list of assessments in a book to be kept for that purpose, they should deposit one copy thereof with the chancery clerk of Jefferson County and one copy thereof with the chancery clerk of Arkansas County, and that the clerks of said ■courts should “publish for two weeks in some newspaper published and having a bona fide circulation in their respective counties, a notice which may be in the following form: ’ ’ The notice is, ixi effect, that the assessment of benefits has been filed in the office of the chancery clerk and is open to the inspection of all persons interested, and that at the first sitting of the chancery court of the county all owners of property within the district may appear and present complaint. The statute then continues as follows:

“Any owner of real property within the district and county who c.onceives himself to be aggrieved by the assessment of benefits or damages, or deems the assessment of any land in the district is inadequate, shall present his complaint to the chancery court of the county where such lands lie at its first regular, adjourned or special session held after the publication of said notice; and the court shall consider the same and enter its finding thereon, either confirming such assessment or increasing or diminishing the same; and its finding shall have the force and effect of a judgment, from which an appeal may be taken within thirty days, either by the property owners or by the commissioners of the district.” Acts 1917, p. 920.

It is conceded that the protest of appellees who are owners of property in Arkansas County was filed within apt time, as prescribed by statute, but it is contended that the appellees who are owners of property in Jefferson County did not file their protests within the time specified by the statute.

The facts disclosed by tbe record with respect to the time for filing the protests were that, at the time of the maturity of the published notice in Jefferson County, the chancery court was then in regular session and continued in session for nearly two weeks thereafter, until final adjournment, without holding an adjourned session, and that the protest of the owners of the property was not presented until the next regular term. The, question whether the protest of the property owners was filed within the time prescribed by the statute is important in the case, for it determines the nature of the attack upon the correctness of the assessment, whether direct or collateral. If the protest was filed in time, the attack upon the correctness of the assessment is direct, otherwise it is collateral, so far as concerns the assessments on property in Jefferson County.

The contention of appellant is that the language of the statute should.be construed to mean that protests must be filed at any session of the court being held after the maturity of the published notice, whether the session began before that time or afterwards; and the contention of appellees .is-that .the language should be construed to mean that the protests must be filed at a session of the court, either regular or adjourned, beginning afier the maturity of the publication. Upon consideration of this question we have reached the conclusion that the contention of appellees is correct, and that the language means that the protests may be made at the next session, either regular or adjourned, beginning after the publication of the notice. If the meaning of the lawmakers had been in accord with the contention of appellant, different language would undoubtedly have been used. It could easily have been stated that protests must be filed on the next day of the court after the publication of the notice, but the language refers to sessions of the court, either regular or adjourned, to be begun and held after the publication of the notice, and not to sessions being held at that cime. The lawmakers doubtless had a purpose in selecting the language used, and did it advisedly. When a term of court is in progress, it remains in session from day to day until the completion of the business of the court, unless there is an adjournment over to a distant date, and then it is necessary for the court to make an order fixing the date for the adjournment. Central Coal & Coke Co. v. Greer, 129 Ark. 550. This statute in its reference to an adjourned session means one that begins after the publication of the notice—that is. to say, that the adjourned session itself must begin thereafter; and the reference to a regular session means one beginning after the publication of the notice. Any other interpretation of the statute would materially shorten the period of time allowed for property owners to make their protests, and in case of doubt it is our duty to give such an interpretation as would afford the most reasonable opportunity to the property owners to appear. If we were to construe the statute according to the contention of appellant, it might occur that the maturity of the publication would fall on the very day that the court in regular session adjourned, and thus a reasonable time for the property owners to appear would be cut off. Hence we are of the opinion that the protests were filed within apt time, and that the attack upon the correctness of the assessment of benefits is direct and not collateral. The distinction between the two methods of attack upon the assessment of benefits is clearly marked in the decisions of this court and is important in considering the effect of the evidence.

¡Where the correctness of an assessment is assailed on collateral attack, in a suit brought after the expiration of the time allowed by statute, then the presumption in favor of the validity and correctness of the assessment is conclusive, unless the assessment is arbitrary on its face and void. The decisions on this subject are so numerous that it is unnecessary to cite them all, but we mention the following as indicating the views expressed by the court in all the cases on that subject: Board of Improvement v. Pollard, 98 Ark. 543; Salmon v. Board of Improvement, 100 Ark. 366; Alcorn v. Bliss-Cook Oak Co., 133 Ark. 118; Burrus v. Board of Improvement, 134 Ark. 14; Road Improvement District v. Crary, 151 Ark. 484.

On the other hand, when the suit is brought within the time authorized by statute for a judicial review of the assessments, the presumption of the correctness of the assessments is not conclusive, but may be overcome by evidence showing to the contrary. In other words, the direct attack provided for in the statute constitutes an original judicial review and must be determined according to the evidence adduced in the trial, and there is no conclusive presumption, as when the attack is merely collateral. Missouri Pacific R. Co. v. Road Improvement District, 137 Ark. 568; Rogers v. Ark.-La. Highway Imp. Dist., 139 Ark. 322; Wilkinson v. St. Francis County Rd. Imp. Dist., 141 Ark. 169.

In Missouri Pacific R. Co. v. Road Improvement District, supra, we said:

“The present proceedings instituted pursuant to the terms of the statute constituted a direct attack upon the correctness of the assessments, and, since the statute provides for the proceedings to be instituted in the chancery court, the case comes here for hearing de novo on the record made below, as in other appeals in chancery causes. The sole question therefore for our consideration is whether the evidence sustains the findings of the chancellor that the assessments of benefits against the property of the several appellants were correct and were in substantial uniformity with the assessments of other property in the district.”

We have said in the cases referred to that, even in a direct attack, the question of the value of benefits, being one largely of opinion, the court will not substitute the judgment of its members for that of the board of assessors and commissioners of the district, for the statute creating the district has lodged the discretion with the assessors. There is a prima facie- presumption in favor of the assessments made by the board of assessors; but, in a direct attack upon the correctness of the assessment, if the evidence shows that the assessment is incorrect, it is the duty of the court to set it aside or to correct it, for nothing less would constitute a judicial review on such an attack.

It becomes necessary to critically review the testimony in this case to determine whether or not the decision of the chancellor was against the weight of the evidence. There was a large number of witnesses introduced in each of the cases, and all of the witnesses were more or less familiar with the lands in the district, particularly the ones involved in these proceedings, and also the nature of the improvement. Most of the witnesses were laymen, hut they all'showed more or less familiarity with questions of drainage and protection from overflow. Nearly all the owners of property involved in these cases—and they were numerous—testified in the case, and many others who were equally familiar with the conditions involved in the inquiry. The witnesses introduced by appellees predominate, numerically, to a very considerable extent. Appellants have introduced as witnesses the engineer of the district, and the statement of a former consulting engineer, and also the testimony of the engineer of a large levee district in a distant part of the State, also a few other witnesses who were familiar with the lands, particularly two or three who are members of the board of commissioners. The district covers a very large area, and only a small portion of it is involved in this controversy, most of the property owners not having protested. Most of the lands are within the drainage area of the stream of water known as Bayou Meto—or, to be correct, Big Bayou Meto, for there is a smaller stream in the territory known as Little Bayou Meto, which has already been dammed in the construction of the levee. Big Bayou Meto originates northeasterly from the city of Little Rock and runs for a distance of nearly one hundred miles before emptying into the Arkansas River. It drains a very large area, and in the rainy season it often overflows, most of the lands involved in this controversy being subject to overflow at times from this stream. There are conflicts in the testimony as to the extent to which the lands involved will be overflowed from the Arkansas River and protected therefrom by the levee already built and to be completed. There is evidence to the effect that a great deal of the land will not be overflowed at all, and other testimony introduced by appellant is to the effect that all of the lands will be more or less subject to overflow and will be protected by the levee. The testimony adduced by appellant also tends to show that the benefit from the levee already built will be lost unless it is completed by extending the levee about one thousand feet and building a dam with floodgates across the mouth of Bayou Meto. The plan is to close the floodgates during high water in the Arkansas River, thereby preventing the water from backing up in the other streams, but the gates will remain open except during high water, and there is testimony to the effect that when the gates are open the flow of water from the stream will be faster than it is now, because of the method of straightening the mouth of the stream. When the floodgates are closed, during the high water period in the Arkansas River, Bayou Meto will necessarily overflow. There is positive evidence that the overflow will be very considerable unless the water is >pumped over the dam, and the evidence tends to show that this is impracticable on account of the high cost. The contention of appellees is that their landsv will not be benefited by the completion of the levee, and that, on the other hand, it will increase the. overflow from having the waters of Bayou Meto dammed in time of high water in the Arkansas River.

. • The evidence in the case involves largely matters of opinion, but there are also facts to which the witnesses testified within their own knowledge. It must be remembered that this inquiry does not involve the question whether or not the lands in controversy will enjoy any benefit from the levee, for they have already been assessed twenty dollars an acre, and the inquiry is whether or not an additional levy is justified. The decree of the chancellor leaves the original assessment unimpaired., but sets aside the additional assessment of eight dollars per acre. After considering the evidence as a whole, we are unable to say that the chancellor was not justified in his conclusion. Giving due weight to the judgment of the board of assessors, who were clothed with authority to make this assessment, we are unable to say that the testimony does not completely overcome it and show that the lands involved in this controversy will not receive any benefit in addition to the twenty dollars already assessed.

The cross-appeals involve the correctness of the original assessment, or rather seek a reassessment so as to decrease the amount of the original assessment. It appears from the record in the case that bonds have been issued plédging the revenues of the district, and that the assessment cannot be reduced without impairing the obligation of the contract. Indeed, the last statute (act of 1925, supra) authorizes a reassessment only for the purpose of paying the additional cost of the improvement—not for the. purpose of reducing the former assessment.

The decree of the chancellor setting aside the reassessment and refusing to disturb the original assessment will be affirmed on both the appeal and the cross-appeal. However, the decree is too broad in restraining the district perpetually from increasing the assessment at any time hereafter or to any extent. The only question involved is the correctness of the present assessment under the conditions now existing. The decree should be modified so that it restrains merely the enforcement of the additional assessment. We express no opinion as to the powers of the district to reassess in the future, and merely hold that the decree should apply only to the present reassessment. The decrees are modified in this respect, and, as modified, are affirmed.

Hart, J., did not participate.


text:
    Goldsmith v. Wright.
    Opinion delivered April 26, 1926.
    1. Highways—liability to commissioner.—Where a special act creating a road improvement district provided for the election by the board of commissioners of a secretary, but did not prohibit the board from employing one of their members in that capacity, the district will be liable on a quantum, meruit for the services of a member so elected.
    2. Highways—recovery of excessive payments—burden of proof —In a suit by taxpayers to recover alleged excessive and erroneous payments made by a road improvement district to one of its commissioners who acted as secretary, the burden was on the taxpayers to show that such excessive and erroneous payments were made.
    3. Highways—recovery of excessive payments to commissioners. —In a suit by taxpayers of a road improvement district to recover excessive payments to a commissioner of the district,'the recovery inures to the benefit of the district, and not to that of the taxpayers.
    Appeal from Jefferson Chancery Court • H. B. Lucas, Chancellor;
    judgment modified.

      Coleman & Gantt, for appellant.

      Toney & Smith, for appellee.
   Smith, J.

This is a suit brought by certain taxpayers owning lands in Eoad Improvement District No. 1 of Jefferson County against E. G. Goldsmith, a commissioner of the district, to recover from him certain amounts alleged to have been erroneously paid him for services as secretary of the hoard of commissioners, and for damages to his lands by the construction of the road, and certain other items.

The district was created by a special act of the 1921 General Assembly, and, upon the organization of the board of commissioners therein named, appellant was elected secretary and treasurer of the district. After the completion of most of the road and the expenditure of all the money derived by the district from the sale of bonds, the taxpayers, who were the plaintiffs below, brought this suit against all the commissioners to recover large sums of money which it was alleged the commissioners had wrongfully allowed to themselves and converted to their own use. A- nonsuit was taken against all the commissioners except the appellant Goldsmith, and the case proceeded to a decree against him.-

The principal items in controversy are the salary of appellant Goldsmith as secretary of the district, and certain damages for right-of-way for the road to be improved which the commissioners allowed and paid him.

It is agreed that appellant was entitled to be compensated for his services only on a quantum meruit basis, but it does appear that he was entitled to compensation, on that basis.

The special act under which the commissioners proceeded provided for the election of a secretary, and prescribed certain duties for him to perform. The act did not prohibit or make it unlawful for the board of commissioners to employ one of its members in a contractual relation, nor did it provide for any oath of office for the secretary td take. Appellant was not required to make oath, as an incident to his qualification as secretary, that he would not be concerned in any contract with the district of which he was a commissioner. Had it done so. appellant would not have been entitled to recover anything for services performed under his contract. Such is the effect of the following cases: Tollman v. Lewis, 124 Ark. 6; Hill v. Cruce, 146 Ark. 61; Gould v. Toland, 149 Ark. 476; Holcombe v. Kennedy, 158 Ark. 585; Carter v. Bradley County Rd. Imp. Dists. 1 and 2, 155 Ark. 288; Carter v. Bartholomew Rd. Imp. Dist., 156 Ark. 413.

The service as secretary for which appellant seeks to charge comes within the rule announced in the cases of Spearman v. Texarkana, 58 Ark. 348; Frick v. Brinkley, 61 Ark. 397; Smith v. Dandridge, 98 Ark. 38.

The court below held that appellant was entitled to recover on a quantum meruit for his services to the district as secretary, and that a fair compensation would be $50 per month. Neither side complains about this allowance, the point of difference being the length of time for which the salary should be paid.

The court held that an excess of $700 had been paid appellant as salary, and.that from 5-19, 1922, to 11-29, 1922, appellant had been paid salary of $475, whereas, at $50 per month, he should only have been paid $316.66, and that $158.34, the difference between these amounts, also represented an excess of salary.

The court also held that appellant had been improperly paid as damages $290, and judgment was rendered for the recovery of. the these three items, $700, $158.34 and $290, totaling. $1,148.34, with interest thereon amounting to $138.

We do not think the disallowance of the $700 item is clearly against the preponderance of the evidence, as the showing is made that for the 14 months for which this salary was charged appellant performed practically no service.

But we do think the charge of the item of $158.34 is against the preponderance of the testimony. The theory on which this charge was made appears to be that, on 5-19, 1922, a salary warrant was drawn in appellant’s favor, and on the last named date another salary warrant for $475 was drawn in his favor. If there were no basis for drawing this warrant except the salary earned between those dates, then it was excessive to the extent of $158.34, and should have been charged against appellant. But appellant’s salary vouchers were not drawn at the end of each month, and, if this deduction of $158.34 is made, he will not be paid for all the time devoted by him to his duties as secretary, and this charge against appellant is disapproved.

We think also the court was in, error in charging appellant with the $290 as being in excess of the sum which should have been paid him as damages. The road ran through appellant’s land for a distance of about half a mile, and there was an embankment several feet high which had to be thrown up in the construction of the road, and the dirt used for that purpose was excavated from appellant’s land, leaving the borrow-pits from which the earth had been taken, and to do this a number of walnut trees had to be cut down. This damage was agreed upon by appellant and the other commissioners, as amounting to $500, and had been paid, and we think there was no showing of fraud or collusion in fixing the damage. Two hundred dollars of the damage for this item is not questioned, but the court held that appellant had been paid $290 in excess of his actual damage. We do not think the testimony supports that finding.

It will be remembered that this is not a suit by appellant against the district for damages, but is a suit on the part of taxpayers to recover alleged excessive and erroneous payments, and the burden was therefore upon them to show that excessive and erroneous payments had been made.

It follows from what we have said that the court was in error in charging appellant with the items of $158.34 and $290, and the judgment against him will be reduced by the total of those items.

The decree of the court below recites that the taxpayers should recover this excess from appellant. This was, of course, a mere misprision. The taxpayers were suing for the benefit of the district, and the recovery inures to its benefit, so the decree will be further modified to recite that the recovery is for the benefit of the district.

As thus modified, the decree of the court below will be affirmed.