author: Mehaffy, J.

text:
    Mississippi River Fuel Corporation v. Morris.
    Opinion delivered February 9, 1931.

      R. L. Ponder and John L. Bledsoe, for appellant.

      Richardson S Richardson, for appellee.
   Mehaffy, J.

This action was instituted by Harlen Morris, appellee, against the Mississippi River Fuel Corporation to recover damages caused by the alleged negligence of the appellants. Appellee alleged that he was in the employ of the appellant at the time of the injury, engaged in leveling and grading the grounds immediately around the office and plant of appellant, and that he was acting under the direction and control of appellants and its agents and employees.

The grader used in leveling and grading the grounds was a metal grader with a metal handle protruding to the rear from the center. The grader was pulled by two mules or horses. In the loading of the grader, an extra team was used, which, after the grader was loaded, was unhitched or released and moved to the side, thereby permitting the grader to be pulled forward to where it was unloaded. The appellee was handling this extra team, and he alleged that, after he unhitched the extra team from the grader and stepped aside to permit the grader to be pulled forward, the driver of the team pulling the grader, without notice or warning to appellee, negligently and carelessly began whipping- the team which was hitched to the grader, causing the team to suddenly and quickly turn around, and causing the handle of the grader to strike him about his legs, inflicting painful and severe injury to his legs. He alleged that prior to the injury he was an able-bodied young man, earning $3 a day and that as a result of his injury he was rendered incapable of following his usual occupation; that his injuries were permanent; that he was required to spend large sums of money for treatment; and that he suffered severe pain and would continue to suffer throughout his life, and asked for damages in the sum of $3,000.

Appellant filed a demurrer, which was overruled, and then filed an answer in which it denied all the material allegations in appellee’s complaint, and pleaded contributory negligence as a defense. Appellant in -its answer also alleged that appellee was in the employ of Morrison & Taylor, independent contractors, and that these contractors had full charge of the work.

Harlen Morris, appellee, testified that he was working at the gas plant belonging to appellant at Biggers, Arkansas, in November, 1929, under an employee named Edwards, and was at the time driving what they called the ‘ ‘ snatch team. ’ ’ The team belonged to Roy Morrisoia, who paid appellee his wages and who employed him. He was told by Morrison to do what appellant’s foreman told him to do. He was at work there in the spring and went back in the fall and had been there about a month and a half before he was injured. There were about fifteen teams working at the time. Appellee was handling the extra team, the one that was hooked on to pull until the grader was filled. It is heavy to pull when filling and required an extra team.

When the team got up on the bank, the extra team was unhitched, and the regular team took the loaded grader on to where it was emptied. There was a handle extending back from the back end of the grader, about six feet long, and, when the grader is loaded, this handle sticks out parallel with the ground about eighteen inches high.

Mr. Edwards was the foreman, but appellee was working under Mr. Bush. Edwards was a foreman under Mr. Bush. Bush had told appellee how to use the extra team. Bush was foreman on the job, and worked for the Mississippi River Fuel 'Corporation. Appellee stepped around to the left after releasing the extra team, and the iron bar came around and hit him on the leg. When he would unhook the extra team from the grader, he would step back after it passed and hook on to another grader. After he would unhook the team, the man driving the team hooked to the grader should have gone straight ahead for about 40 feet, and the appellee would hook on to another grader.

At the time appellee was injured, Frank Wilson, who was working for the Mississippi River Fuel Corporation, was driving the team hitched to the grader that injured appellee. Appellee said that Wilson was careless and not paying attention to what he was doing, and, after appellee had unhooked the team and stepped to one side, Wilson was beating his team, jerking them around and slashing them, and appellee did not see it until the bar hit him and knocked him down. The team turned to the right, nearly all the way around, and the grader turned with them. The wheel went into a ditch and threw the whole weight on appellee. The safe way for Wilson to have done was to go out past appellee and then turn off, but he turned right at appellee. Wilson and the other drivers had been driving straight ahead and turning after they passed him.

After the injury appellee was carried to Biggers and next day to Iioxie and treated by a physician. He was confined to his bed for two months. His knee cap was knocked off and the joint burst. It still swells and turns black and jumps out of place. He cannot walk over three or four blocks without sitting down, and has been unable to do any work since the injury except hauling with a team. ¡Before the injury he weighed 192 pounds and now weighs 160. He gets $1 a day for driving a team, and the jolting of the wagon hurts him and causes his leg to continue to swell. He used crutches for about three months. He is 22 years old and married, but has no children.

At the time of the injury, he was driving one of the teams of Mr. Morrison. Mr. Morrison paid appellee, but the Mississippi River Fuel Corporation paid Mr. Morrison. None of his checks came from the Mississippi River Fuel Corporation.

Frank Wilson was driving a team that belonged to Mr. Morrison. Witness did not see Frank Wilson whipping and jerking his team. Witness was behind him at the time. He saw him as he was falling over; did not see Wilson slashing the team before he was hit, but did afterwards.

When appellee went to work, Mr. Morrison told him to do what Mr. Bush said to do. After witness cut loose from this grader, he stepped aside to the place he was in the habit of stepping to; had never been hurt before, and no teams had ever turned around at that particular place before.

Burl Bushong testified that he was working for appellant ; that Mr. Edwards was the foreman, and he was between 50 and 100 feet from Morris when he got hurt; saw Frank Wilson driving in, and saw Morris unhook his grader, and about that time Frank Wilson began fighting and jerking his team, and the team wheeled clear around and turned the scraper suddenly around, and the bar struck Morris on the leg, and he went down.

Wilson was working under the directions of Mr. Edwards, the foreman for the appellant. Edwards directed them what to do and when to do it. Wilson should have waited until the man driving the snatch team unhooked and got out of the way, and, after the snatch team was unhooked and the driver stepped to one side, Wilson should have pulled ahead past the snatch team and turned out. He wheeled right around and turned right there. It was customary to pull straight ahead past the snatch team and pull out. Witness was employed by Dr. Taylor, who was a partner of Morrison’s, and Morrison was on the job with several teams.

Dr. Morrell testified as to the injury and the extent of it. He said the injury was likely to be permanent; his bill was $142 to date, and appellee is still under his treatment, and will need medical treatment for a long time.

Homer Parrish also testified about appellee’s injuries and about his health before the injury. Counsel agreed that under the American Mortality Tables appellee had a life expectancy of 41.53 years, and that he was 22 years of age at the time.

Frank Wilson, who was driving the team at the time appellee was injured, testified that he was driving a team hitched to the wheel scraper; they were filling low places around the gas plant, and leveling up the grounds. Witness had been at work there for two or three days. Mr. Edwards had supervision of how the dirt was placed. When the grader was loaded, witness would drive up and turn to the right; that appellee, when he cut loose, stepped out to the left. It was a bad place to turn out, and witness drove up even with appellee and turned to the right. It was rough going out, and there was a little hole that the wheel dropped into, and made the handle wobble out and strike him. He walked between appellee and witness’ team. Appellee was driving a snatch team; would unhook and pull out to the side when scraper was loaded. At the time appellee was hurt, witness could not say what he was doing. Witness was driving a pair of mules, and does not think he was whipping them at the time. He drove them as he usually did, and they did not wheel around quickly on account of beating, jerking, or slashing them. The long iron handle was sticking out behind, and, if appellee had been paying any attention to his business, he could have seen it.

Morrison hired witness, and told him that Mr. Edwards would tell him what to do, and Edwards told him where to get the dirt and where to put it. Morrison never told witness where to get the dirt or where to put it, and he never heard Morrison telling a man what to do or how to do the work; Edwards did that. Was turned about half around when he hit Morris.

Chrisley Smith testified that he was working at the gas plant driving* a team at the time Morris was injured; did not see him at the time he was injured; does not know which way Morris was looking, but, if he had been looking at the scraper, he could have seen everything and got out of the way.

■C. A. Edwards testified that he was working for the appellant, and that it was his duty to look after the teams and dirt, and to see that it was put where they wanted it. He had nothing- to do with hiring- the men who drove the teams or discharging- them or paying them. He had to see that the dirt was put at the right places and give instructions to Morrison and the other men. Morrison hired the men that worked for him and paid them, and the appellant hired Morrison and paid him. This witness described also how the men performed their work, and said that Morris was supposed to cut out and stay to one side until the wheeler passed. "Witness instructed Morris to unhook and cut out and stay there until the team pulling- the wheeler cut out. It was his duty to pull to one side, get to a place of safety, and remain there until the wheeler team turned out. There was nothing to obstruct Morris’ view, if he was looking, and it was his duty to look out for his safety, and he had been instructed to do so. Morris seemed to be awkward with his team, and not familiar with handling a team. Morrison hired Wilson, but witness told him where to work, and also told Morris what to do.

Charles Parrish testified that he was working for appellant at the time appellee was injured, and was present at the time of the injury; saw Morris detach his team from the scraper Wilson was driving, and Wilson then drove ahead just a little ways and turned to the right. This was the ordinary thing to do. Wilson did what he was supposed to do. Morris, after he detached his team, stepped to one side unthoughtedly and got hit; did not see Wilson whip his team. He did not jerk or slash it, did not rush it up any. Wilson did not do anything that was negligent that witness saw; drove his team in the ordinary way; has .occasionally seen him jerk and abuse his team. At the time of the injury Wilson turned out at the proper place. Morris was not standing in his usual place.

J. R. Morrison was present, but did not notice Frank Wilson rushing up, slashing, or whipping his team; did not see any team whipped or jerked around there; did not see Wilson’s team turn around quickly. Witness was working- for appellant at $7 a day for team and man. Does not know whether Wilson’s team turned out at the usual place or not; just saw Morris fall.

Burl Bushong was recalled and testified that, if Wilson had pulled straight up in the usual way, the accident would not have happened; saw Wilson fighting his team when he was loading the scraper.

The jury returned a verdict for $1,500, and judgment was entered for this amount. Motion for a new trial was filed and overruled, and this appeal is prosecuted to reverse the judgment of the circuit court.

The appellant insists that there can be no recovery because appellee was employed at the time of the injury by Morrison & Taylor, and that they (Morrison & Taylor) were independent contractors.

“The vital test in determining whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved by the employer. Stated as a general proposition, if the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor. ” 14 R. C. L. 67; W. H. Moore Lumber Co. v. Starrett, 170 Ark. 92, 279 S. W. 4.

In the case above mentioned, this court said: “An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without -being subject to the control of his employer except as to the result of the work.” Thompson on Negligence, vol. 1, p. 570; J. W. Wheeler Co. v. Fitzpatrick, 135 Ark. 117, 205 S. W. 302; St. Louis I. M. & S. R. Co. v. Gillihan, 77 Ark. 551, 92 S. W. 793.

Many other cases have been decided by this court involving the questions of master and servant and independent contractors, and all of them hold in effect that an independent contractor is one who renders service in the course of an occupation representing the will of his employer only as to result of his work, and not as to the means by which it is accomplished, and it is generally held that the decisive question is, had the employer or the contractor the right to control the conduct of the person doing the work. If one contracts to do a certain work for another, being responsible for the result only, and performing the work in such manner and by such means as the contractor may decide, in other words, if he has control and management of the work, and is only responsible for the result, he is an independent contractor, the vital test being the right to control.

The witnesses, including appellee, testify that, while they were hired and paid by Morrison or Taylor, they were told by whoever hired them to do what the Mississippi River Fuel Corporation foreman told them to do.

The appellee testified that, the team he was driving belonged to Morrison; that Morrison employed him and paid him wages, but that Morrison told him when he employed him to go ahead and do what the Mississippi River Fuel Corporation and its foreman told him to do. All the witnesses testified that they were under the direction and control of the foreman of appellant. There is no evidence in the record indicating that Morrison was an independent contractor, or that he had any control of the employees, and Morrison himself testified that he hired his team to the Mississippi River Fuel Corporation; that he got $7 a day for team and man. He told the men when they reported to work to get the -teams hooked up and get to work, and it is undisputed by Morrison that he told the persons who drove his teams to do what the foreman of the appellant told them to do.

Edwards, the representative of the appellant, testified that his duties were to look after the teams and to see that the dirt was put where he wanted it. When asked if Morrison had anything to do with the work done, Edwards answered, “I was the man that did that.”

The undisputed evidence shows therefore that the appellant was in control of the work and laborers, and that Morrison had nothing to do with it. He had no contract with the appellant except to hire to it a team and driver for $7 a day.

Appellant, however, contends that the testimony on the part of the witnesses shows that plaintiff was employed by Morrison and was not a servant of the Mississippi River Fuel Corporation, and that it therefore is not liable to him for the injury he received.

The liability of a master for injury caused by the negligence of a servant depends upon whether the master had the right and it was his duty to control the servant. Whoever has the right to control the actions of another must answer for the wrongs done by the persons he has a right to control.

This court said: “Ward’s right to direct and control the acts of Hawkins (the convict) is the important circumstance. The facts of the arrangement whereby he obtained that right are wholly unimportant. This is consonant to the general rule governing the relations between master and servant and the liability of the master for the acts of the servant, * * * the ultimate test being the right or duty to control.” St. L. I. M. & S. R. Co. v. Boyle, 83 Ark. 302, 103 S. W. 744; Taylor v. Ark. Light & Power Co., 173 Ark. 868, 293 S. W. 1007.

It is next contended by appellant that the appellee assumed the risk. When one enters the employ of another he assumes all the usual risks and hazards ordinarily incident to the employment, and the master is not liable for injury resulting to the servant if the injury to the servant was caused by one of the ordinary or usual risks or hazards of the employment; but the servant does not assume the risk of the negligence of the master for whom he works or any of its servants. Aluminum Co. of North America v. Ramsey, 89 Ark. 522, 117 S. W. 568; Southwest Power Co. v. Price, 180 Ark. 567, 22 S. W. (2) 373; Chicago R. I. & P. Ry. Co. v. Allison, 171 Ark. 983, 287 S. W. 197; Western Coal & Mining Co. v. Burns, 168 Ark. 976, 272 S. W. 357; Chicago R. I. & P. Ry. Co. v. Daniel, 169 Ark. 23, 273 S. W. 15; St. Louis Southwestern R. Co. v. Martin, 165 Ark. 30, 262 S. W. 982.

In this case the appellee testified that another employee of the appellant slashed and whipped his team and caused them to turn suddenly and hit appellee’s leg. He was corroborated by another witness. In other words, the evidence on the part of the appellee showed that the injury was caused by the negligence and .wrongful conduct of a fellow-servant, and this risk of course was not assumed.

Appellant’s objection to instruction No. 1, given at the request of the appellee, is based on the ground that the question of fellow-servant has no application in this case. It is contended that the appellee was not in the service of the appellant. "We have already seen that appellee and Wilson were in the service of the appellant; they were fellow-servants, because the appellant had the right and the duty to control the acts of both of them.

It is next contended by appellant that there can be no recovery because appellee’s own negligence contributed to the injury. The evidence on the part of the appellee tends to show that he acted in the usual way by unhitching his team and getting to one side, and there would have been no danger if Wilson had driven his team on in the usual way. Both these questions, however, that is, the question of the negligence of Wilson and the contributory negligence of appellee, were questions for the jury, and the jury decided these questions against the appellant.

The appellant bases its argument on the claim that appellee was employed by the partnership, and not by the corporation. If appellee had been in the employ of the partnership, the fellow-servant’s doctrine would not apply, but we have already seen that both appellee and Wilson were in the employ of the corporation.

Objection is made to instruction No 3, but the court correctly stated to the jury in that instruction that in determining in whose employment the plaintiff was and the other workmen, they should determine under whose orders and instructions they were working at the time, and that, if they were working under the orders and directions and instructions of the defendant, Mississippi River Fuel Corporation, and its authorized agents and employees, they would be servants of the defendant, although their wages were paid by other parties. This is a correct declaration of the law. The test is the right to control, and this was properly submitted to the jury.

We find no error, and the judgment is affirmed.


source: Caselaw Access Project

author: Hart, C. J., Hart, C. J.

license: Public Domain

text:
    Mullins v. Ritchie Grocer Company.
    Opinion delivered February 16, 1931.

      J. V. Spencer and Marsh, McKay •& Marlin, for appellant.

      Taylor Roberts and Mahony, Yocum Saye, for appellee.
   Hart, C. J.,

(after stating the facts). The principal question involved upon the appeal is whether or not under proof of the facts stated, the court should have submitted the case to the jury. In case-notes to 17 A. L. R. 623, and 29 A. L. R. 470, the general rule is stated that, in order to hold an employer liable for injuries by an automobile while being driven by or for a salesman or collector, the relation of master and servant must exist, and the servant must, at the time, have been acting within the scope of his employment in performing an act for the master’s benefit. Among the cases from various courts of last resort, which are cited as sustaining the rule, is that of Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S. W. 6. To the same effect, see Potts v. Pardee, 220 N. Y. 431, 116 N. E. 78, 8 A. L. R. 785; Rose v. Balfe, 223 N. Y. 481, 119 N. E. 842, Ann. Cas. 1918D, 238; and Guthrie v. Holmes, 272 Mo. 215, 198 S. W. 854, Ann. Cas. 1918D, 1123.

In a case-note to 42 A. L. R. at page 919, it is stated that proof that the automobile causing the damage belonged to the defendant, and was being operated at the time of the injury by an employee of the defendant, creates a reasonable presumption that the driver was acting within the scope of his employment or in the course of his master’s business. This presumption, however, is one of fact, and may be defeated or overcome by testimony tending to contradict it. Our own court adopted this rule in the case of Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S. W. 6. In this connection, it may be stated that the phrase “in the course or scope of his employment or authority, ’ ’ when used relative to the duties of the servant or employee, in cases of this sort, means while engaged in the service of his master or while about his master’s business.

The doctrine is settled in this State that, if the automobile causing the accident belongs to the defendant and is being operated at the time of the accident by one of the regular employees of the defendant, there is a reasonable inference that at such time he was acting within the scope of his employment and in the furtherance of his master’s business. The inference or presumption of fact, however, may be rebutted or overcome by evidence adduced by the defendant during the trial. Where the evidence on this point is contradictory, the question is one for the jury. Where the facts are undisputed and uncontradicted, it becomes a question for the court. Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229, L. R. A. 1918D, 115; Bizzell v. Hamiter, 168 Ark. 476, 270 S. W. 602; and Hunter v. First State Bank of Morrilton, 181 Ark. 907, 28 S. W. (2d) 712.

It is earnestly insisted that the doctrine established in the Hunter case warranted the court in directing a verdict for appellee; and that, in the application of it to the facts of the present case, the judgment must be upheld. We do not think so. We adhere to the rule laid down in the Hunter case, and in support of it cite Tinker v. Hirst, 162 La. 209, 110 So. 324, where it was held that the employer of a driver, operating a truck on week days, is not liable for the negligence of an employee while using the truck on Sunday for his own purposes, without the knowledge or consent of his employer. The reason is that the wrongful act must be the act of the defendant and the injury suffered by the plaintiff must be the natural and not merely a remote consequence of the defendant’s act. So, it is settled, at least in this State, that where it appears that the employee was not acting within the course of his employment, no liability attaches to the employer because there is no reasonable connection between the employer and the act of his employee which caused the damage.

The rule of the liability of the master for the wrongful act of his servant rests upon the doctrine of agency. Therefore, the universal test of the master’s liability is whether there was authority, express or implied, for doing the act. If it be done in the course of and within the scope of the employment, the master will be liable for the act, if negligent. It is equally well settled that a master is not liable for every wrong which the servant may commit during the continuance of the employment. The liability can only occur when that which is done is within the real or apparent scope of the master’s business. It does not arise when the servant steps outside of his employment to do an act for himself, not connected with his master’s business. The master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment. Marrier v. St. Paul, M. & M. Ry. Co., 3 Minn. 351, 17 N. W. 952, 47 Am. Rep. 793.

In the Hunter case, the undisputed evidence showed that the employee did not have general control over the automobile at all times, but was only allowed to keep it over night on special occasions. He not only was not allowed to use it on ¡Sunday, 'but the terms of his employment did not require him to do so. Here the facts are essentially different. Lewis, a salesman and collector for the Ritchie Grocer Company, was furnished an automobile by the company to use in the furtherance of his master’s business. He was in the general employ of the master and was allowed the exclusive use and control of the automobile. The accident happened on a week day; and, under the authorities above cited, this made a prima facie case in favor of appellant upon proof of negligence. The negligence of Lewis was proved and, in fact, was conceded by counsel for appellee. The prima facie case made by proof of the facts stated was not overcome merely by proof that Lewis, by the terms of his employment, was not required to work on Saturday. Such evidence was a circumstance only tending to show that he was not acting in the course of his employment at the time the accident occurred. Neither can it he said that the fact that the accident occurred at eleven o’clock, which was after usual business hours, overcomes or defeats the prima facie case made by appellant. It is a matter of common knowledge that servants in the discharge of their duties often are delayed or prevented from completing their work during usual business hours. In the present case, the fact that the order blanks of the company were in the car was a circumstance, however slight, it might be deemed by the jury, tending to show that Lewis was in the furtherance of the business of the company at the time the accident occurred. See Duckworth v. Stephens, 181 Ark. 161, 30 S. W. (2d) 840.

Opinion delivered March 16, 1931.

The excluded proof also tended to establish that fact. It will be remembered that appellant offered to show by witness that he helped John Lewis to repair his automobile between five and six o ’clock in the afternoon near Gregory City, and that, while doing so, Lewis told him he was trying to collect some accounts or bills for the Ritchie Grocer Company. It is true that it is well settled that the fact of agency cannot be established by the declarations of the agent, 'but this was not the purpose of the testimony. The fact of agency had already been established by evidence which was not attempted to be contradicted. The offered evidence was for the purpose of showing that Lewis was acting in the furtherance of his master’s business or in the course of his employment as traveling salesman in a place where his duty called him, and the evidence was competent for that purpose. Hence the court erred in excluding it and erred in taking the case from the jury by directing a verdict for appellee. For these errors, the judgment must be reversed, and the cause will be remanded for a new trial.

OPINION ON REHEARING.

Hart, C. J.

We adhere to our ruling that the defendant’s ownership of the car, coupled with proof that the driver at the time of the accident was in the regular employment of the defendant as salesman and had general charge of the car, raises a presumption that he was acting within the scope of his authority. In this connection it may be stated that there is a distinction between presumptions of law and presumptions of fact, which is clearly and fully stated in Wigmore on Evidence, vol. 5 (2d ed.) § 2491. To illustrate, we have a statute making railroads responsible for all damages to persons and property done or caused, by the running of'trains, and proof of the injury under the statute makes a prima facie case for the plaintiff. It is a presumption of law based upon public policy as declared by the Legislature. The presumption thus raised by law does not of itself possess probative weight. Hence, when evidence is introduced rebutting the presumption, it may be overcome, and where the evidence of the basic facts is undisputed, the legal presumption will disappear, and no longer exist.

The presumption with which we are dealing in the present case is not a legal presumption, but is an inference or presumption of fact. Its existence is called into being by proof introduced on the subject and not by any statute dealing with the question. This being so, the opposing’ evidence must be weighed by the jury for the reason that under art. 7, § 23, of our Constitution, the jury is the judge of the facts proved. The rule is stated in 6 Labatt on Master and Servant, (2d ed.) § 2281A, as follows:

“A servant may be presumed prima facie to have been acting in the course of his employment, wherever it appears, not only that his master was the owner of the given instrumentality, but also that, at the time when the alleged tort was committed, it was being used under conditions resembling those which normally attended its use in connection with the master’s business.”

In the present case, the evidence showed that the negligence of the driver of the automobile was the proximate cause of the accident, and the undisputed evidence showed that the driver was regularly employed by the defendant and was intrusted with the use and care of the automobile.

The declaration of the driver on the afternoon before the injury was made on a week day, at a time and place where his duties called him. His statement tended to show that he was acting in the course of his employment, and was admissible to show that he was acting within the real and apparent scope of his authority; and not for the purpose of establishing his agency, which had already been established by undisputed evidence. It was admissible as tending to show that he was acting within the course of his employment as if he had sold goods or collected accounts on that day and his employer had claimed that he was not acting within the course of his employment.

Therefore, the petition for rehearing will be denied.


author: Smith, J.

text:
    Clark v. Hagan.
    Opinion delivered February 16, 1931.

      J. H. LooTcadoo and McMillan <& McMillan, for appellant.

      McElhannon S Callaway, for appellee.
   Smith, J.

R. E. Hagan purchased from the United States Hoffman Machinery Company, a clothes pressing machine, for $535. A cash payment was made, and the balance was evidenced by notes, in which the title was reserved until this balance was paid. All deferred installments of payments evidenced by these notes then due had been paid when Hagan sold the machine to M. H. Corzine and P. B. Honea. for $260, of which $70 was paid in cash, and the balance of $190 was evidenced by a note payable to Hagan’s order, in which note title was reserved by Hagan until the full purchase price had been paid. As a part of the purchase price, Corzine and Honea also agreed to pay the balance of purchase money due by Hagan to the machine company.

Corzine. appears to have acquired the interest of Honea in some manner not explained, and thereafter to have sold the machine to Tom G-. Clark, who, in turn, sold it to Clarence Evans and Noble Welch. Payments were made to Hagan by some one — the record is not clear hy whom — until a balance of only $67.50 was due him upon the note given by Corzine and Honea.

While Clark was operating the pressing business, in connection with which the press was used, he paid the machinery company the balance of the purchase money due it by Hagan, the check reciting that it was “payment in full on machine bought by Majestic Cleaners,” the name under which Hagan had operated the pressing business.

The balance of purchase money due Hagan remaining unpaid, he brought suit in replevin to recover the possession of the machine, making Clark, Evans and Welch parties defendant.

Upon a trial before a jury the following verdict was returned: “We, the jury, find for the plaintiff the possession of the press sued for, and find the balance due thereon to be $67.50,” and upon this verdict a judgment was rendered that plaintiff recover possession of the machine, or its value in the sum of $67.50, and this appeal has been prosecuted to review that judgment.

The defendants asked instructions, which were refused, to the following1 effect: First, that if the machine company sold the last maturing notes retaining title to Clark, and he had not been repaid, the plaintiff could not recover possession of the machine from Clark. This instruction was properly refused. If it were of any importance that 'Clark, who had acquired Hagan’s title in the manner stated, had purchased Hagan’s notes from the machinery company — which we do not decide — it may be answered that the testimony shows a payment, and not a purchase, of this debt. Clark did not testify in the case, and there was no attempt to show that he was unaware of the agreement of his predecessors in title to pay this debt and that its assumption was a part of the purchase price. On the contrary, so far as the testimony speaks on this question at all, the inference is that Clark assumed the obligation of completing the payments to the machinery company, and had discharged that obligation.

Another instruction, which was refused, was to the effect that, if Clark ha*d paid this balance of purchase money for his own benefit, he acquired such an equitable title in the machine that the plaintiff could not recover its possession from him. It may be assumed, even in the absence of testimony to that effect, that Clark completed the payments for his own benefit, but that benefit was to discharge the reservation of title by the machinery company, as the title of the company was, of course, unaf-.*, fected by the sale of the machine by its vendee, and, as we have said, there was no testimony that he made the payments for any other purpose.

The question of law in the case is, whether Hagan had such title that he could sell and in the sale reserve that title to himself, inasmuch as his vendor had previously reserved the title. We answer this question by saying that he had.

In the ease of Clinton v. Ross, 108 Ark. 442, 159 S. W. 1103, it was said: “In conditional sales of personal property where the title is retained by the vendor until the purchase price is paid, the vendee acquires an interest that he can sell or mortgage without the consent of the vendor, but the vendor’s right to recover the property if the purchase price is not paid is not prejudiced by such sale or mortgage. ('Citing cases).” The following cases are to the same effect: Haynes v. Gwinn, 137 Ark. 392, 209 S. W. 67; Estes v. Lamb & Co., 149 Ark. 375, 233 S. W. 99; Fairbanks, Morse & Co. v. Parker, 167 Ark. 658, 269 S. W. 42; Loden v. Paris Auto Co., 174 Ark. 723, 296 S. W. 78.

In making this sale Hagan did not displace the reservation of title by his vendor, but he made the sale subject to that reservation. Hagan’s sale, therefore, was subject to the reservation of title by his vendor, and so also was the sale by his vendee subject to the reservation of title in the sale by him.

Moreover, when this suit was brought the balance of purchase money originally due by Hagan had been paid to the machinery company and the retention of title 'by his vendor had been paid and cancelled.

We conclude, therefore, that the sales recited made subsequent to the sale by Hagan to Corzine and Honea were made subject to the reservation of title by Hagan, and that he has the right to recover the machine if the balance of purchase money due him is not paid, as the judgment provides may be done.

It follows therefore that the judgment must be affirmed, and it is so ordered.


text:
    Fels v. Ezell.
    Opinion delivered February 16, 1931.

      Rowell $ Alexander, for appellant.

      Dcmaher <& Danaher, for appellee.
   Smith, J.

Appellants, who are the widow and the heirs at law of William Fels, brought suit against C. S. McNew and others for a mandatory injunction to require them to remove a certain building’ which they had erected upon certain lots in the city of Pine Bluff purchased by their ancestor from R. F. Ezell and conveyed to their ancestor by Ezell in a warranty deed containing the usual covenants of warranty.

An answer was filed by the defendants, in which they admitted plaintiff’s ownership of the lots described as having been purchased by William Fels from R. F. Ezell, but denied that the building was located on any of those lots and alleging their ownership of the land on which the house stood.

It is apparent, from this brief statement, that the issue was presented as to the boundary line between the Fels lot and the land owned by defendants, it being alleged by the plaintiffs that the house was on the Fels lots, while the truth of that statement was denied by the defendants. With this issue raised, appellants, the plaintiffs below, filed an amendment to their complaint praying that the administrator and heirs of Ezell, he being dead, be made parties defendant and be required to defend the title to the lot which their ancestor had conveyed to the ancestor of appellants.

A motion was made to strike the amended complaint for the following reasons: (1) That the alleged causes of action do not affect all the parties to the action; and (2) that the alleged causes of action do not belong in the classification of actions which § 1076, C. & M. Digest, permits to be joined. This motion was sustained and the administrator and heirs of Ezell dismissed as parties to the suit, and this appeal has been prosecuted to reverse that decision.

No question is made as to the right of the plaintiffs to bring this suit to compel the removal of the building, instead of an action of ejectment to recover the possession of the land on which the building stands, as might have been done. The. insistence is that Ezell’s heirs are not proper parties.

We think they are, for the reason that appellants must first show that the house erected by the original defendants, MoNew and others, is, in fact, located on the. land purchased by their ancestor from Ezell. They allege no other title, and failing to prove this their cause of action would fail. But the complaint alleges this to be a fact, and the jurisdiction is to be determined by the allegations of the pleadings, and, if it be true, as the complaint alleges, that the original defendants have erected a building, under a claim of right so to do, on land sold Fels by Ezell, then there has been an actual eviction and a consequent breach of the warranty contained in the deed from Ezell to Fels. Jones v. Franklin, 30 Ark. 631; Quinn v. Lee Wilson Co., 137 Ark. 69, 207 S. W. 211.

This being alleged, and such is the effect of the pleadings, it accords with the recognized practice for the administrator and heirs of the vendor to be notified that they may defend1 the title warranted, otherwise the heirs of the warrantor would not be concluded by the decree of eviction, while, by notifying them of the pendency of the suit and making them parties, they will be concluded on the issue of failure of title, if it be finally adjudged that appellant’s title has failed to a portion, or all, of the lots conveyed to their ancestor by Ezell.

The case of Carpenter v. Carpenter, 88 Ark. 169, 113 S. W. 1032, was one in which a judgment had been rendered for the recovery of land against a covenantee in possession, which was rendered after notice to the covenantor of the pendency of the suit, and it was there held that, after notice of the pendency of the suit, the judgment was conclusive of the existence of a paramount title in another, and constituted an eviction, entitling the covenantee to maintain an action on the covenant.

In reaching that conclusion it was there said: “In the case of Collier v. Cowger, 52 Ark. 322 [12 S. W. 702, 6 L. R. A. 107], the court held that a judgment against a covenantee in possession upon the foreclosure of a lien created prior to the covenant, rendered after notice to the warrantor to appear and defend, is conclusive of the existence of an outstanding paramount incumbrance, and cited in support of the opinion the case of Boyd v. Whitfield, 19 Ark. 447. In the latter case the covenantor had notice of the pendency of the suit in ample time to afford him an opportunity to be made a defendant, but there was no formal notice by the covenantee demanding him to defend the action. These cases are conclusive of the propositions of law involved in this case. They have been followed by the courts of this State for many years, and have become the settled law.”

Under the issues stated, it was therefore a proper practice for the appellants, when the title of their ancestor was attacked, to notify the administrator and heirs of his covenantor to defend the title warranted, and to malee them parties' for that purpose, to the end that they might defend the title in the suit in which it was attacked.

The heirs of Ezell cannot be required to defend this suit, but, having been notified of its existence and made parties to it, they will be concluded as to the existence of a paramount outstanding title in another to the extent of the eviction as evidenced by the final decree in the case.

The amended complaint, whereby the administrator and heirs of Ezell are made parties, will relieve appellants of the necessity of proving, when they sne for a breach of warranty, if they finally do so, that there was an eviction, and that it occurred under a paramount title. This practice, as was said in the Carpenter case, supra, has been followed by the courts of this State for many, years, and has become settled law.

We are of the opinion, therefore, that the court erred in striking the amended complaint from the files, and that decree will be reversed, and it is ordered that the amended complaint be reinstated.


author: Humphreys, J.

text:
    Free v. Harris.
    Opinion delivered February 16, 1931.

      E. W. Brochman, for appellant.

      R. W. Wilson, for appellee.
   Humphreys, J.

This is the second appeal in this case. Reference is made to the case of Free v. Harris, 181 Ark. 645, 27 S. W. (2d) 510, for a general statement of the facts. Additional facts necessary to a determination of the questions arising on this appeal will be set out below.

On the first appeal, the decree of the trial court setting aside the sale of the land and allowing appellee to redeem was reversed and the cause was remanded with directions to confirm the sale on the payment of the amount of the hid with interest. 'After the remand of the case issue was joined between the parties as to the ownership of the 1929 rents and the time appellant should be charged with interest on his bid of $7,000 at the foreclosure sale.

Appellant claimed all the crop rents for the year 1929, and appellee seven-twelfths thereof. Appellee claimed interest on the bid from July 31, 1929, the date of the foreclosure sale, to June 18, 1930, the date of the payment of the purchase money and the approval of the commissioner’s deed conveying* said land to appellant.

Their respective claims were submitted to the court upon the pleadings filed by each and the testimony adduced in support thereof, which resulted in a decree in favor of appellee for seven-twelfths of the 1929 rents, amounting to $638.04, and the balance thereof, or five-twelfths, to appellant, amounting to $455.75, from which decree appellant has duly prosecuted an appeal to this court; also a decree allowing appellee interest on appellant’s bid of $7,000 up to October 21, 1929, and denying her claim for interest up to June 18, 1930, from which decree she has duly prosecuted an appeal to this court.

After appellant bid the land in at the foreclosure sale, he filed an intervening petition on September 5, 1929, claiming the crop rents for 1929 as purchaser at said sale. At that time the court had not confirmed the sale. The court entered a preliminary order impounding the rents, and the total amount of rents due for the year 1929 was later determined to be $1,093.79.

On October 21, 1929, all interested parties appeared in court, and appellant offered to pay the purchase money upon a confirmation of his purchase at the foreclosure sale. Upon a hearing the court set the sale aside, and appellant prosecuted an appeal to this court which resulted in a reversal and remand of the cause with directions to confirm the sale upon the payment of the bid with interest as stated above. Appellee remained in possession of the premises until the confirmation of the sale upon remand of the canse, hut appellant had use of the place for farming purposes during the year 1930.

The court correctly prorated the crop rents on the land for the year 1929 under the rule announced in the case of Deming Investment Co. v. Bank of Judsonia, 170 Ark. 65, 278 S. W. 631, and reaffirmed in the case of Purvis v. Elder, 175 Ark. 781, 1 S. W. (2d) 36.

Appellant executed his note -with interest at the rate of ten per cent, for the amount of his hid at the foreclosure sale. It is true that on the 21st day of October, 1929, he offered to pay the purchase money into court upon the confirmation of the sale, but the court set the sale aside, and he did not deposit the money in court but retained same. He has had the use of the purchase money himself, and, since he accepted rent from and after the date of his purchase for the year 1929 and has had the cropping use of the place during the year 1930, he necessarily must pay the interest on his bid to the date of the confirmation of his sale and the approval of the commissioner’s deed which was on June 18, 1930. It would not be equitable for him to collect the rents and refuse to pay interest on his bid.

The decree is therefore affirmed relative to the division of the rents, and is reversed relative to the allowance of interest and remanded with directions to render a decree in favor of appellee for interest on the bid up to June 18, 1930.


author: Kirby, J.,

text:
    Smith v. Farmers' & Merchants' Bank.
    Opinion delivered February 16, 1931.

      Dyer $ Dyer, for appellant.

      Wm. U. McCabe, for appellee.
   Kirby, J.,

(after stating* the facts). The note, for payment of which the guaranty contract was alleged to have been executed, was due according to its terms 60 days after its date of January 6, 1920, long before the execution of the alleged guaranty contract on November 24, 1920. The liability of the guarantor was unconditional and absolute at the time of the execution of the guaranty contract, the principal debtors having* failed to pay the note or obligation at maturity, for the payment of which the guaranty contract was made, and a cause of action accrued against the guarantor upon the execution thereof. Bank of Morrilton v. Skipper-Tucker Co., 165 Ark. 49, 263 S. W. 54; First National Bank of Helena v. Solomon, 170 Ark. 555, 280 S. W. 659.

Summons was not issued against appellant in the suit brought August 5, 1927, until August 3, 1929, and, even if the payment of the interest had the effect to make a new date for the beginning of the statute of limitations to run, November 1,1923, there had elapsed between that date of such payment and the issuance of the summons more than 5 years and 9 months. The action was not commenced against appellant, of course, until the issuance of the summons. Jernigan v. Pfeifer, 177 Ark. 145, 5 S. W. (2d) 941; Clemmons v. Davis, 163 Ark. 452, 260 S. W. 402; Hollum v. Dickerman, 47 Ark. 120, 14 S. W. 477. There was no proof, however, showing that the partial payment or the payment of interest credited on the note was made by appellant or any one for him. The evidence^ shows only that it was made by E. Taylor, a stranger to the whole transaction, so far as the record discloses, and it could not operate therefore to arrest the running of the statute of limitations and form a new-period from which the statute should he computed, so far as the liability of appellant was concerned. Even if such payment was made out of the proceeds of the sale of the mortgaged property, alleged to have been delivered to appellant, it could not operate as a voluntary payment which would form a new period from which the statute of limitations should run under the circumstances of this case. Taylor v. White, 182 Ark. 433, 31 S. W. (2d) 745.

The undisputed testimony shows that appellant did not leave the State until in the fall of 1921, more than 10 months after the cause of action against him accrued; the bank, appellee, having cashed his last check upon its presentation by appellant on October 6, 1921, as stated by Morris, its cashier. His testimony is undisputed that he had enough money in the banks, appellee and another hank in the county, to more than pay all his obligations, and enough money in appellee bank to purchase a farm in Missouri, which the cashier of appellee bank was trying to sell him prior to his removal from the State, knowing at the time that he contemplated such removal. His testimony is also undisputed that he asked Mr. Eatman, the cashier of the bank, what should be done with the team of mules that had been mortgaged to the bank, and which he had in his possession, having attempted to sell them for the bank and received an offer of $190, which the bank declined to accept, and was told by Mr. Eatman to put them in a certain pasture, which was done. His leaving the State was openly done and publicly known, and his intention to leave was also known to the officers of the appellee bank before his departure. He was not an absconding debtor within the meaning of the statute of limitations. Section 6974, Crawford & Moses’ Digest; Rode Island Plow Co. v. Masterson, 96 Ark. 447, 132 S. W. 216; Keith v. Hiner, 63 Ark. 244, 38 S. W. 13.

According to the principles announced, it follows that the court erred in holding the claim of appellee not barred by the statute of limitations, the undisputed testimony showing such to be the case. The judgment is reversed, and the cause will be dismissed. It is so ordered. '


text:
    Tedford v. Vaulx.
    Opinion delivered February 16, 1931.

      John D. Shackleford, for appellant.

      Eric M. Boss, Galbraith Gould and Boivell •& Alexander, for appellee.
   Mehaffy, J.

W. L. Tedford, the appellant, instituted this action in the Jefferson Chancery Court to restrain the appellees from assessing, levying and collecting taxes on lands described in exhibit A to appellant’s complaint. The appellant alleged that he purchased the lands described from the State of Arkansas on the 28th day of June, 19291, under act 129 of the Acts of the General Assembly approved March 13, 1929. It is alleged that appellants complied with the requirements of said act and obtained a deed from the 'State. It was further alleged that the lands were not certified by the State Land Commissioner back to the county clerk of Jefferson County until on or after December 2, 1929; that the taxing authorities extended against said lands an assessment value in 1929 for payment of taxes in 1930 without authority of law and without right to do so; that the assessments were made by the assessor and extended on the tax books by the county clerk, and the assessments so made were turned over to the tax collector of said county for the purpose of collecting taxes in 1930; that he was attempting to collect said taxes, and, unless restrained, would return said property as delinquent without right and contrary to act 172 of the Acts of 1929.

The appellees filed answer denying each of the allegations of the complaint except their purpose to collect the taxes and alleged their right to assess and collect the taxes.

An amendment was filed making 'S. A. Cochran party plaintiff.

The case was tried in the chancery court on the agreement and stipulation that appellants purchased the property in question from the State of Arkansas on the 28th day of June, 1929, under act 129 of the Acts of the General Assembly of 1929; that these lands were as set out in the transcript, pages 14 and 15. Further, that the deeds executed by the State were filed for record on the 9th day of July, 1929, in the circuit clerk’s office of Jefferson County; that the assessment records for Jefferson County were not closed by the tax assessor until the 19th of August, 1929; that the board of equalization was in session after the deeds were filed, for record; that the lands described in the deeds were not certified back to the county clerk from the State Land Commissioner until the 3rd day of December, 1929; also that the assessment placed against the property for 1929 was made without appellant’s consent or knowledge, and that the assessment was on the tax books and in the hands of the collector for the purpose of collecting taxes in 1930 for 1929.

The court entered a decree dismissing the complaint for want of equity, and the case is here on appeal.

The appellant contends first' that the land would not be subject to taxation in 1929 under the old system unless it had reached the county clerk before the 2d day of December, which it is contended would be necessary in order to make 30 days before the commencement of the assessment of taxes for 1930. It is the contention of the appellant that the lands were not subject to taxation because the Land Commissioner did not certify the sale back to the clerk within time.

Appellants claim to have purchased the land under act 129 of the General Assembly of 1929, and this fact is not disputed. The lands were purchased under this act on the 28th day of June, 1929. On that date a deed was executed and delivered to the purchaser, and said deed filed for record on the 9th day of July, 1929.

All property in this 'State is subject to taxation except that specifically exempt from taxation by the Constitution. Section 5, art. 16, of the Constitution.

Section 6 of art. 16 reads as follows: “All laws exempting property from taxation other than as provided in this Constitution shall be void.”

It therefore appears that the law-making power itself could not exempt the property from taxation unless it came within the exception mentioned in the Constitution.

Of course, while the property belonged to the State of Arkansas, it was not subject to taxation, and appellant contends that it did not become subject to taxation until the Land Commissioner had certified the list to the clerk of the county where the land was situated. To support this contention, they cite and rely on § 9925 of C. & M. Digest.

We do not agree with appellants in this contention. The lands became subject to taxation when the deed was executed and delivered to appellants. They, at that time, became the owners, and the land became subject to taxation.

This court said: ‘ ‘The lands were fully paid for by Wilson M. Belcher and certificates were therefore issued to him and from that date, they became subject to taxation unless otherwise exempt without regard to the issue of the patents of the State therefor.” Belcher v. Harr, 94 Ark. 221, 126 S. W. 714; Witherspoon v. Duncan, 21 Ark. 240; Driver v. Friedham, 43 Ark. 203; Smith v. Hollos, 46 Ark. 17; Burcham v. Terry, 55 Ark. 398, 18 S. W. 458; Ex parte Gaines, 56 Ark. 227, 19 S. W. 602; see note to C. H. Copp v. State of West Va., 35 L. R. A. (N. S.) 669; Cooley on Taxation, vol. 2, 1327.

When appellants received their deeds in June, 1929, the lands immediately became subject to taxation.

Appellant contends that the deed made to them by the State and placed on record was not official information upon which the county clerk had a right to list the lands, and that the statute, having provided the means by which the information is to be conveyed from the State Land Office to the county clerk, it is exclusive, and it is urged that until the county clerk receives the certificate from the State Land Office he is without authority to list the lands.

Act 172 of the Acts of 1929 expressly provides in § 15 that whenever the assessor shall discover that any property has been omitted for any cause from the assessment roll, if it be before the collector closes his books, it should be his duty to make an assessment and file same with the clerk. The assessor is not required to get his information from the land office, but if he discovers that property has not been assessed it is his duty under this act to make the assessment and report the same to the county clerk.

Section 17 of act 172 makes it the duty of the assessor to make personal inspection and examination of persons, property, or records. This property, as we have already said, became subject to taxation in June, 1929. The assessor had until the third Monday in August to file his report with the county clerk.

It appears from the record in this case that the appellants acquired title to this land, and that it was assessed for taxation while the equalization board was still in session, and application might have been made to the board for adjustment if the assessment was excessive.

Section 25 of act 172 provides that the board shall meet annually on the third Monday in August. That was about two months after these lands became subject to taxation.

Section 30 of act 172 provides that any property owner may, by petition or letter, apply to the equalization hoard for the adjustment of the assessment of his own property or that of another person as assessed by the comity assessor, provided all applications shall he made to the board on or before the first 'Saturday next preceding1 the third Monday in September. This section also provides that any property owner may appeal from the action of the board, and such appeals must be filed on or before the second Monday in October.

The decree of the chancery court is affirmed.


text:
    Shepherd v. Little Rock.
    Opinion delivered February 16, 1931.

      Troy W. Leivis and W. It. Donham, for appellant.

      Linwood L. Brickhouse, for appellee.
   Mehaffy, J.

The appellants are residents of the city of Little Rock, and are engaged in the general practice of law in said city. They failed to pay the city privilege tax imposed by ordinances 2568, 2594 and 2670. Warrants were issued for the arrest of appellants, and appellants thereupon filed their complaint in the chancery court attacking the constitutionality of said ordinances and a temporary restraining order was issued.

Appellees filed answer denying the allegations of the complaint, and upon final hearing, the following stipulations were introduced in evidence:

“It is expressly stipulated and agreed that the oral testimony of witnesses in this action may be taken in open court, before the Honorable Frank H. Dodge, Chancellor, and reported in shorthand by S. H. Atkinson, the official stenographer of said court, which. testimony, tor gether with the exhibits thereto, may be transcribed and certified by the said official stenographer of said court, submitted to the chancellor for examination and approval within six months of the date of the decree herein, and, when so approved by the chancellor, filed as depositions and as a part of the record in this action.”
“It is also agreed that exceptions are saved to the admission of any and all testimony that any party hereto may consider incompetent, irrelevant or immaterial, whether objection thereto is raised by such party or not, or exception specifically noted of record.”
“It is also agreed that all of the plaintiffs herein named have been arrested under warrants issued by the city of Little Bock pursuant to the provisions of ordinances numbered 2568 and 2670; that, unless enjoined, the city will continue the prosecution of the said plaintiffs in the Little Bock Municipal Court.”
“It is further agreed that all the plaintiffs herein named are citizens and residents of the city of Little Bock, Arkansas, and engaged in the general practice of law in said city.”

H. A. Knowlton testified that he is city clerk and custodian of the records of the city; had before him the record of ordinance No. 2568, which is recorded in the ordinance record No. 27 at pages numbered 166 to 169, inclusive. This ordinance was passed June 23, 1919, and, so far as witness knows, has never been repealed.

It was here agreed that ordinance No. 2568, No. 2594 and No. 2670 be considered in evidence. Witness had nothing to do -with the collection of money under these ordinances, but knows that the money is placed in the general revenue fund of this city and used for various purposes.

James Lawson testified that he is the city collector and has been for 19 years; was city collector when the ordinances were passed. Witness makes collections under these ordinances and collects from all attorneys practicing in the city; collects from those attorneys in the trust departments in banks, who file suits in the court. Witness knows J. B. Webster, who is a trust officer in the American Exchange Bank and has collected privilege taxes from him but does not know whether he has this year; collects from all attorneys engaged in the practice to the best of his knowledge and belief. Witness reported those delinquent; all that were delinquent for the last or first part of this year for the full year; they became delinquent on the first of January for the year 1930; does not remember how many he reported; not very many, not more than 25. Warrants were issued, and witness ■ gave instructions to order them in;. instructed the inspectors to order all in who had not paid their license. Witness did not say to issue warrants; that was not under his authority. Under the ordinance payments may be in two installments.

Upon final hearing the chancery court held the ordinances valid, dissolved the temporary restraining order, dismissed the complaint for want of equity, and the case is here on appeal. The correctness of the decision of the trial court depends upon whether or not the ordinances mentioned are valid.

Appellants first contend that the ordinaaices are violative of § 23 of article 5 of the State Constitution. That section reads as follows: “No law shall be revised, amended or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revised, amended, extended or conferred shall be re-enacted and published at length. ’ ’

Appellants cite and rely on two cases which they say show that ordinance 2670 is violative of the requirements of the above section of the Constitution, and that the ordinance is therefore void.

The first case relied on is Grable v. Blackwood, 180 Ark. 311, 22 S. W. (2d) 41. The court in that case had under consideration an act of the Legislature, and in answer to the contention that the act was unconstitutional because it violated the provisions of article 5, § 23, of the Constitution, the section here involved, the court, among other things, said: ‘ ‘ The framers of the Constitution meant only to lay a restraint upon the Legislature where the bill was presented in such form that the members could not determine what its provisions were from an inspection of it. Here no confusion would result to the Legislature in the premises. Both statutes were passed at the same session of the Legislature, but it is apparent from reading them that act 18 and act 153 are original statutes in form, and complete in themselves. The two statutes are separate and distinct legislative enactments, and each had its appointed sphere of action. No alteration, change or repeal of the one would affect the other. We are of the opinion that an act complete in itself, and which would not mislead the members of the Legislature is not within the evils to be remedied by the provisions of the Constitution, and cannot be held to be prohibited by it without violating its' plain intent. ’ ’

Ordinance '2670 we think is an act complete in itself and that it would not mislead anybody. The title of the ordinance is: “An ordinance prescribing and fixing the licenses for the carrying on of certain businesses, professions and occupations, defining and classifying the same and prescribing the amount thereof, fixing the time when such licenses shall be paid, the penalty for nonpayment, and for other purposes.”

Section 1 of this ordinance provides that the license fee shall be paid before the businesses or professions are carried on in the city. This section further provides that every person, firm, corporation, or individual engaged in the business, profession, or occupation enumerated shall pay for and take out such license and pay therefor such sums as are herein provided, to-wit: “ATTORNEYS — Each person, or, where a partnership, each member of the firm * * * $25.”

It is contended, however, by the appellants that it is necessary to refer to other ordinances because ordinance 2670 is silent on the question of the various amounts to be assessed, and that the decision of this court in State Highway Commission v. Otis & Co., 182 Ark. 242, 31 S. W. (2d) 427, decided September 30, 1930, supports the contention of appellants that ordinance 2670 is violative of the above section of the Constitution. The court in that case said: “The grounds upon which the constitutionality of the act is here attacked are the same as those which were considered and determined by the court in the case of Grable v. Blackwood, supra.”

The court also said: “The constitutional provision applies where the act is strictly amendatory or revisionary in its character. Its prohibition was intended to prevent the amendment or revision of an act by its additions or other alterations which, without the presence of the original act, are confusing or unintelligent. * * * A full, clear and comprehensive statement of the principles of law relating- to such provisions of a Constitution was made in People v. Banks, 67 N. Y. 568. In an elaborate opinion prepared by Mr. Justice Allen, it was said: ‘It is not necessary, in order to avoid a conflict with this article of the Constitution, to re-enact general laws whenever it is necessary to resort to them to carry into effect a special statute. Such eases are not within the letter or spirit of the Constitution, or the mischief intended to be remedied. By such a reference the general statute is not incorporated into or made a part of the special statute.’ * * * There is no evil of this or of any nature to be apprehended by the mere reference to other acts and statutes for the forms of process and procedure, for giving- effect to a statute otherwise perfect and complete.”

It is urged that the ordinance is imperfect, in that it refers to another ordinance to establish the sum or tax to be paid. 'Certainly there could be no evil in this manner of passing the ordinance. There could be no confusion about it. It expressly refers to the ordinance which fixes the tax, and that can be as easily ascertained as it could be if the ordinance occupied several pages and one would have to read through the several pages to find out the amount of tax fixed. Here the ordinance expressly states with reference to certain taxes that they shall pay the same licenses as provided in ordinance 2636, passed December 8, 1919. All one would be required to do to find out what the fee was would be to turn to this ordinance, and, if one could find ordinance 2670, he could as easily find ordinance 2636. The ordinance under consideration also provides that the licenses shall be collected, but at periods and in the manner provided by ordinance 2568, passed June 3, 1919, and further provides that all administrative provisions of '2568 shall be applicable to this ordinance. Watkins v. Eureka Springs, 49 Ark. 131, 4 S. W. 384; Common School District v. Oak Grove Special School District, 102 Ark. 411, 144 S. W. 224; State v. McKinley, 120 Ark. 165, 179 S. W. 181; and Farris v. Wright, 158 Ark. 519, 250 S. W. 889.

Constitutional provisions are construed in the same manner as statutes.

“The rules of construction applicable to statutes ordinarily apply with equal force to Constitutions or ' amendments thereof, though some courts hold to even more restricted rules in the construction of provisions of the organic law.” * * * The court therefore should constantly keep in mind the object sought to be accomplished 'by its adoption and the evil, if any, sought to be remedied.” Carter v. Cain, 179 Ark. 79, 14 S. W. (2d) 250; Cooley's Constitutional Limitations, vol. 1, p. 124; 12 C. J. 700.

We are of the opinion that neither the letter nor the spirit of the constitutional provision above is violated by the ordinance. The ordinance does not undertake to revise or amend the provisions of another ordinance, or extend or confer the other ordinance by reference to its title only.

As a general rule, constitutional provisions, like the one under consideration, are intended to prohibit the Legislature or law-making power of the State from enacting laws contrary to the provision of the Constitution, and have no application to municipal ordinances.

“These constitutional provisions, which ordinarily refer to the title and subject of every act, bill, or law, are usually found in the parts of the Constitutions which relate to the legislative departments of the State, and for this reason, as well as because of their terms, are ordinarily applicable only to statutory enactments of the Legislature. They have no application to municipal ordinances.” 25 R. C. L. 839.

Constitutional provisions such, as the one under consideration, apply only to State legislation and not to municipal ordinances. 19 R. C. L. 815; In re Haskell, 112 Cal. 412, 44 Pac. 725, 39 L. R. A. 527.

The constitutional provision now under consideration is in that part of our Constitution which relates to the legislative department of State. The first section provides that the legislative powers of this State shall he vested in a General Assembly which shall consist of the Senate and the House of Representatives. This is the same article in which is found § 23 that it is claimed the ordinance violated.

This article, which says that the powers to make laws or legislative powers are vested in the General Assembly, discusses laws and the manner in which they shall be enacted, and § 23 herein involved is a part of the article which discusses the manner in which laws may be enacted b3r the Legislature, and it has no reference to municipal ordinances. It does not mention municipal ordinances. If it had been the intention of the framers of the Constitution to include municipal ordinances in this section, we think they would have so stated. In fact, in other sections of the Constitution municipalities are mentioned.

Section 1 of article 16 of the Constitution provides that neither the State, city, couifiy7, town, or other municipality shall lend its credit or issue any interest bearing evidences of indebtedness. In § 4, article 12, of the Constitution, municipal corporations are mentioned, and it is provided that they shall not pass any law contrary to the laws of the State nor levy a tax in excess of the amount named, etc.

Constitutions, as we have held many times, are construed like statutes, and the purpose in construction is to ascertain the intention of the people who adopt it. In order to do this, we do not take one section alone and consider it as if that were the whole Constitution, but we consider all sections that have any bearing on or relation to the one under consideration.

“In deciding this question we have in mind the settled rule of construction that a statute must be read as a whole to ascertain its meaning, and courts must give effect to the meaning of the statute as thus ascertained, and in the discharge of this duty courts are frequently required to eliminate or to substitute words for those employed by the Legislature.” Indian Bayou Drainage Dist. v. Dickie, 177 Ark. 728, 7 S. W. (2d) 794.

When this is done, we think it clearly appears that this provision of the Constitution has no application to municipal ordinances.

Under these rules, in construing the section of the Constitution involved we must consider the whole article, and it is plain that the makers of the Constitution had in mind and were dealing with the subject of laws enacted by the General Assembly. Besides, as we have already seen, where the framers of the Constitution intended a provision to apply to municipal corporations, they used the word “municipality.”

It is next contended by the appellants that the ordinances violate § 16 of article 2 of the State Constitution and § 1, article 1, of the United States Constitution.

It is contended that the section violates these provisions of the Constitution because the ordinance says the license fee imposed shall be a debt due to the city of Little Rock.

The provision of the State Constitution relied on is as follows: “No person shall be imprisoned for debt in any civil action, or mesne or final process, unless in cases of fraud.” Certainly, there could be no imprisonment in this case for debt in a civil action.

The ordinance provides for the payment of the license by every lawyer before carrying on the business or profession in the city of Little Rock, and punishes as a misdemeanor anjr one who violates the provisions of this ordinance by carrying on any 'business or engaging in the practice of law without paying the license.

“The power to tax attorneys at law, as in the case of occupation or license taxes generally, includes the power to compel the payment of such tax as a condition precedent to entering on or practicing such occupation, and the power to impose a fine or imprisonment as punishment for nonpayment of such tax is incident to the power to levy it. Provisions for the prosecution and punishment of those practicing law without paying for and taking out the required license are usually found in the statute or ordinance imposing the tax. In some jurisdictions an action at law will lie against an attorney at law to compel the payment of his occupation tax.” 2 R. C. L. 951, § 20.

This court said in discussing an ordinance similar to the one here involved: “The requirement of the payment of the tax for the exercise of the privilege of pursuing an-occupation and the imposition of a fine or other punishment for pursuing the business without having first paid the tax is a mere method of enforcing payment, and it clearly falls within the power of the taxing authority.” Davies v. Hot Springs, 141 Ark. 521, 217 S. W. 269.

We do not think the section of the United States Constitution has any application.

Appellant next contends that the ordinances violate § 11 of article 16 of the Constitution, which reads as follows: “No tax shall be levied except in pursuance of the law, and every law imposing a tax shall state distinctly the object of the.same; and no moneys arising from a tax levied for one purpose shall be used for any other purpose.”

We think this section has no application to municipal ordinances. This section is found in the article of the Constitution on finance and taxation. A number of sections in this article refer specifically to counties and municipalities, and, when the whole article is considered as it must be in order to arrive at a proper interpretation of the section involved, we think it clear that this section does not apply to municipal corporations.

What we have said above as to article 5 of § 23 applies here.

Ordinances of this character have been upheld so often that we do not deem it necessary to extend this opinion by a further review of authorities.

The decree of the chancery court is affirmed.


author: McHaney, J.

text:
    Security Insurance Company of New Haven v. Smith.
    Opinion delivered February 16, 1931.

      Cravens •(& Cravens, for appellant.

      A. L. Smith, for appellee.
   McHaney, J.

Appellees sued appellant on a policy of fire insurance dated September '24,1929, which insured appellee Smith as owner, and appellees, J. M. Gentry and W. O. Reed, as first and second mortgagees, respectively, as their interest might appear, in the sum of $2,000 on a certain house in Siloam Springs, Arkansas. The suit was brought in the chancery court for the reason that the mortgage clause in the policy named the State Bank as first mortgagee, whereas the truth was that J. M. Gentry was the first mortgagee instead of the State Bank, and that the bank’s name was inserted therein by mutual mistake, and that it was necessary to reform the policy to show this fact. A trial resulted in a decree of reformation in this respect and judgment against appellant for the sum sued for with interest, 12 per cent, penalty and $250 attorney’s fee for appellee’s attorney.

Appellant defended the action on several grounds which are here urged for a reversal of the case, as follows : (1), that appellee Smith was not the owner in fee simple of the ground upon which the insured building was located at the date of the policy, September 24, 1929; (2), that, if he were the owner, his title and interest in the property was thereafter changed without the consent of the company, avoiding the policy; (3), that appellee Smith had sworn falsely in the proof of loss as to the value of the property and as to the ownership of the first mortgage by the State Bank instead of J. M. Gentry; (4), that the court erroneously assessed a penalty and attorney’s fee against it on the ground that its refusal to pay the amount of the policy was not vexatious, but that its refusal was based upon a well-founded belief that it did not rightfully owe the appellees anything on account of said policy, and further that it could not know to whom it should pay as mortgagees without a reformation.

Relative to the ownership of the property, the policy provides that it shall be void, “if the subject of insurance be a building’ on g’round not owned by tbe insured in fee simple.” The facts are that F. C. Main and his wife deeded the property to Smith under date of September 20, 1929, and left the deed in the First State Bank of Siloam Springs to be delivered to Smith when he delivered his deed to it conveying certain property to Main and paid it for Main, $350 in cash. In other words, Smith was exchanging certain property with Main for the insured property and paying him a difference of $350. The deal was not actually closed on that date, but was consummated a few days later, perhaps finally closed after the date of the policy. As above stated, the policy was dated September 24, 1929, but the proof shows it was not delivered until after title in fee to the insured property had vested in Smith. Conceding therefore that the title in fee had not vested in Smith at the date of the policy, it had it when it was delivered and when the loss occurred, and appellant is in no position to raise the question. It is the real status of the situation at the time of loss, and not at the time of the issuance of the policy, that controls liability under the policy. We so held in North River Ins. Co. v. Loyd, 180 Ark. 1030, 23 S. W. (2d) 988, and in Merchants Ins. Co. v. Barton, 182 Ark. 725, 32 S. W. (2d) 1069. In the latter case, the total concurrent insurance permitted in the policy was $12,000, whereas, at the time the policy in question was issued it and other insurance made a total of $12,750. We there said: “It is true that at the time this policy was issued, it together with other policies exceeded this amount. But the proof shows that Mr. Benson had canceled $3,250 of insurance other than the attempted cancellation of this policy prior to the loss, which reduced the amount of the insurance far below the total permitted. Such being the case the rule announced in the recent case of North River Ins. Co. v. Loyd, 180 Ark. 1030, 23 S. W. (2d) 988, applies, and this policy was not void for overinsurance.” So in this case appellee Smith had contracted for the title prior to the date of the policy and had acquired the title before tbe policy was delivered and before tbe loss, and tbe policy was not void because thereof.

It is next argued that the policy is void, even though Smith be held to >be the owner of the property, for the reason that he thereafter mortgaged same to W. O. Reed without the knowledge and consent of appellant. We do not agree with appellant in this contention. The policy specifically provided in a mortgage clause attached to it that Reed was a second mortgagee and that he should be protected as his interest might appear. The facts are that Smith was indebted to Reed on an old indebtedness of $900. He borrowed $350 from Reed with which to pay Main the amount due him, and on October 5 he executed the mortgage' to Reed for $1,250 to secure his note in said sum. Again, the above rule applies, that the situation existing at the time of the loss controls the liability on the policy. The fact that Reed did not actually have a mortgage at the date of the policy can make no difference to appellant, since by the express provision in the policy he was permitted to be a mortgagee.

It is next contended that Smith was guilty of false swearing in the proof of loss executed by him as to the value of the insured house, and that the State Bank was the holder of the first mortgage thereon, instead of said Gentry, which avoided the policy, under its provisions. We do not agree with this contention. In the first place, an adjuster representing the company came before proof of loss was made and denied liability. This action made it unnecessary to file a proof of loss and any statements made therein would be immaterial. In the next place, the house insured was totally destroyed by fire and under the provisions of the statute, 6147, Crawford & Moses ’ Digest, the full amount of insurance named in the policy became due and payable. Therefore, the value of the property became immaterial, except as it might tend to show fraud and collusion between the owner and the agent in procuring the policy. The statute made the claim in this case a liquidated demand for the full amount stated in. the policy for which a premium was charged and collected.

It is finally insisted that the court erred in assessing a penalty and attorney’s fee on the ground that it did not refuse to pay for the purpose of vexation or delay, but because it believed in good faith, on account of the matters heretofore discussed, appellees were not entitled to recover, and for the further reason that it was necessary to- reform the policy before it knew to whom it was liable. We think there is no merit in these contentions, and we decline to follow the decision of the Circuit Court of Appeals in Standard Accident Ins. Co. v. Rossi, 35 Fed. (2d) 667, for the reason that we have many times heretofore taken the contrary view. We have many times held that the insured is entitled to recover the penalty and attorney’s fee in every case where there was a judgment rightfully obtained for the sum demanded, in accordance ■with the provisions of the statute. The statute provides that, if the company shall fail to pay_within the time specified in the policy after demand therefor, it shall be liable for damages and attorney’s fees. In Fidelity & Cas. Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 44 L. R A. (N. S.) 493, we said: “The fact that defendant found some justification in the certificates furnished for its contention that death did not result from the accident, does not put the case outside of the statutes providing for assessment of damages and attorney’s fees where the liability is established and timely demand for payment has been made.” So here the fact that appellant may have thought it had a meritorious defense, and in good faith presented same, does not take the case out of the statute. Nor did the fact that the policy provided that the State Bank was a mortgagee preclude it from making settlement by -determining to whom the insurance was due and the amount to each of the parties, nor from bringing an interpleader’s suit and depositing- the money in court to be distributed by the court. It did neither of these things, but denied liability on other grounds.

We find no error, and the judgment is accordingly affirmed.


text:
    Harris v. Hare.
    Opinion delivered February 16, 1931.

      Richardson Richardson, for appellant.

      W. P. Smith, for appellee.
   McHaney, J.

Appellant sued appellee in the court of a justice of the peace for $300 damages for breach of contract of bailment, where there was a judgment for appellant. Appellee appealed to the circuit court, where a trial was had de novo which resulted in an instructed verdict for appellee, on the ground that the effect of the suit was one for fort, seeking to recover damages for negligent driving of appellant’s automobile, in a sum in excess of the jurisdiction of the justice. The complaint alleged: ‘ ‘ That on date of August 29, 1930, while the plaintiff and defendant were in the city of Jonesboro, Arkansas, and while the plaintiff had his car parked on a street in said city, the defendant borrowed the possession of the said car from the plaintiff for the purpose of taking a joy ride in and about the said city; and pursuant to the said agreement plaintiff loaned the said car to the defendant for the aforesaid purpose, and the plaintiff delivered unto defendant the ignition key to said car; that the defendant assured and promised plaintiff that lie would handle said car safely and carefully, and return same to plaintiff in the same condition that it was at that time, and, relying on said promise and assurance of defendant, the plaintiff delivered the- possession of the said car to the defendant; that the defendant invited several of his friends and persuaded the plaintiff to accompany him on the said joy ride, all of which they did, and after driving for a while in said city, the defendant drove same out on a road leading out of Jonesboro; and that while doing so, defendant increased the speed of said car to a high, dangerous and excessive rate of speed, and over the protest of the plaintiff and the other occupants of the car, and while driving same at a high, dangerous and excessive rate of speed, the defendant drove same off the road into a ditch, and wrecked same, thereby totally demolishing same; that defendant breached his contract of bailment, in that he did not safely and carefully handle said car, and return same to plaintiff in the condition that it was in prior to the wrecking of same, at which time it was worth the sum of $500, and that, after same was wrecked, it is worth only the sum of $200 or less, and that it will take $300 worth of repairs and labor to repair same.”

The evidence is to the effect that appellant loaned appellee his car, and that he and others went on a joyride with appellee who carelessly and negligently wrecked the car; that the car was to be returned in good condition; and that appellee failed to do so by wrecking it. Is this a suit -on contract? If so, the justice had jurisdiction. Or is it simply a suit for damages to personal property? If so, the justice did not have jurisdiction, and the circuit court did not acquire same on appeal. Section 40, art. 7, Constitution, 1874; § 6397, Crawford & Moses’ Digest. We are of the opinion that the effect of the suit as shown by the evidence adduced on the trial, is for a tort, that is for the damage done to the car. The only contract appellant alleged or proved was for the loan of his car, to be returned in good condition. There was no contract for appellee to pay him a certain sum of money, $300 for instance, in the event he failed to do so. If appellee, instead of wrecking the car after borrowing it, had converted it to his own use by selling’ it to another as his property, his action in so doing would have been a tort. It was so held in Storm v. Montgomery, 79 Ark. 172, 95 S. W. 119, which was a suit by a landlord against a tenant in which it was alleged that the tenant had abandoned the leased premises and sold the buildings thereon as trade fixtures and sought a recovery therefor based on the lease contract. This court there said: “This therefore must be considered as a suit for the conversion of property. As the amount claimed exceeds the sum of $100, the justice of the peace was without jurisdiction, and the circuit court acquired none. ’ ’

The suit therefore is simply one for damages to personal property in which the amount claimed is in excess of the jurisdiction of the justice. The justice having no jurisdiction, the circuit court acquired none on appeal and properly directed a verdict against appellant. Little Rock & M. R. Co. v. Manees, 44 Ark. 100; Thompson v. Willard, 66 Ark. 346, 50 S. W. 870, and cases cited under § 6397, Crawford & Moses’ Digest.

Affirmed.


author: Butler, J.

text:
    Platt v. Owens.
    Opinion delivered February 16, 1931.

      Jo M. Walker, for appellant.

      A. M. Coates, for appellee.
   Butler, J.

Appellee, plaintiff below, brought suit and recovered judgment for the breach of a contract of employment made for a period of one year.

It is conceded that the evidence was sufficient to establish the contract, which was one of employment for one year, and that, the court, if there was liability under the evidence, correctly instructed the jury. The sole question is, was there substantial evidence to sustain the contention of appellee that he was wrongfully discharged?

Appellant was engaged in the business of making small short time loans, and appellee was employed as his local manager at Helena having general charge of the business there and of the collection of the loans and interest and the transmission of such collection to the appellant who lived in New Orleans, Louisiana. Appellee was discharged by P. A. Eyrie, the general manager of appellant, on the 6th or 7th of January, 1930.

The only witnesses who testified as to the circumstances of the discharg-e and the reasons for it were the appellee on the one hand, and Eyrie, the general manager, on the other. Appellee testified that he was discharged by Eyrie on the 6th of January without any reason assigned other than that the business did not justify his further retention. He stated that at that time Eyrie did not know that he was “short” and no such charge was made; that the last audit of the business was made about six months before and another audit was not made, or his shortage discovered, until he had been discharged by Eyrie; that at that time he did not know whether he was short or not; that there were four others handling the cash, but he was in charge of the office and responsible for the amount, regardless of how it happened. In corroboration of the statement that his discharge was not because of any shortage, he introduced a letter written shortly thereafter by the appellant to him and called particular attention to a part of same in which this statement was made:

“Whenever a new office is opened, it should pay back its investment in one year, and there is no man on this earth is going to stand for an office just to make enough each month to pay expenses and the owner does not realize a thing out of it for himself. You were given all the chance in the world to make a success of the office, and I was more than fair with you, and you could have worked for me for years, but the Helena office was falling each month, and I was forced to dismiss you as the office is opened two years now and you had a long enough chance to have made same pay for itself. ’ ’

Appellee called attention to the fact that nowhere in the letter does the appellant charge him with a shortage or give that as the reason for his discharge. He -also stated that, while appellant complained that the business was not a paying one, such was not the fact, but instead it was very profitable and had realized a large return on the investment.

Eyrie, testifying for the appellant, stated that he had general supervision of the local managers and their business, including the appellee, whom he had hired as local manager for the Helena office; that in his supervision of the Helena office he observed that the appellee would take time off to go fishing and was gone a couple of times to Memphis, and that in October preceding the discharge of appellee in January, witness found that appellee was a little short, and that he told him that when he (Eyrie) came back he wanted all of it; that he found that expenses were running up and remittances falling off; that only the appellee had access to the cash drawer and had a key to it; that he counted the cash in appellee’s presence and found him short $77.44. He thereupon discharged appellee and gave him a week’s salary, $40, which was credited on the shortage, appellee executing a note for the remainder and being then and there discharged. This occurred on January 7 and not on the 6th as stated by appellee. On cross-examination, in answer to the question if the appellee had been returning to appellant and witness seventy-five to one hundred per cent, on the investment, “he would have been perfectly satisfactory and would have been there today,” witness answered, “I suppose so.” Witness introduced the note bearing date January 7, 1930, for $37.44 with the notation on one corner: “.Shortage in checking out,” and appellee, on being questioned regarding the notation, stated that that was what Eyrie said it was for.

There was also introduced in evidence a letter from appellee to the appellant complaining of Eyrie and blaming the loss of business to his interference and also accusing Eyrie of not treating him fairly, but regretting that he was short $37.44 when he was checked out, and stating-that if he had been “told sooner and give me a little notice, I could have checked out O. K.”; and, “I don’t want you to think I was trying to steal anything from you for I don’t have to do that for a living. I was trying to pay for my car as I had told you some time ago. I didn’t think about getting let out at all.”

This is in substance the relevant evidence to the point in issue, and from it the appellee argues that an issue of fact was presented to the jury on conflicting testimony, the credibility and weight of which they were the exclusive judges. It is very true that there is a conflict in the testimony of the appellee and Eyrie, either one of which the jury had a right to reject, but, with the testimony of Eyrie eliminated, there remains evidence which is undisputed and which must be accepted and renders any statement of appellee to the contrary demonstrably false. It does not depend for its verity on the testimony of witnesses. If it did, then no matter how'many in number they were or however plausible their statements, nevertheless they might be false, and, tested by the rules by which such testimony is weighed, rightly the jury might conclude that the appellee, interested as he was, was the most worthy of belief, and that his single word outweighed them all. But here we have inanimate witnesses, the creation of appellee himself, that completely refute and discredit his statement, so much so that it approaches the realm of the morally impossible which may no more be disregarded than the physically impossible. Whether he was discharged on the sixth as he claims, or on the day following as stated by Eyrie, on this later day he executed an instrument by the terms of which he agreed to pay a sum which he acknowledged was for money of his master which he had used in violation of his trust, and within a few days thereafter soug’ht to excuse his dereliction and promised again to repay. To then accept a statement that when he was discharged his shortage was not known or mentioned to him, does violence to every canon of reason or common sense. When evidence is adduced by human testimony, then the jury may weigh and assess, and, in determining where lies the truth, their judgment may not be disturbed, however slight a base it has whereon to rest, if there be a tangible one at all, or how much it might be thought they erred in their estimate of the truth. Crump v. Stark, 23 Ark. 131; St. L. I. M. & S. R. Co. v. Wilson, 70 Ark. 136, 66 S. W. 661, 91 Am. St. Rep. 74; K. City Sou. Ry. Co. v. Biggs, 181 Ark. 818, 28 S. W. (2d) 68. But there is a limit to the sanctity of a jury’s verdict, and where its conclusion has no basis in substantial evidence, or where such evidence is demonstrably false, courts will reverse judgments based on such verdicts. Waters Pierce Oil Co. v. Knisel, 79 Ark. 608, 96 S. W. 342.

The validity of these rules has not been impaired by any subsequent decisions. Texas Co. v. Jones, 174 Ark. 905, 298 S. W. 342.

As we consider and construe the entire evidence, this case is brought within the scope of the rules heretofore stated, and necessitates the reversal of the judgment of the trial court and the remand of the cause for a new trial. It is so ordered.