text:
    Texas Pipe Line Company v. Johnson.
    Opinion delivered June 29, 1925.
    1. Master and servant — assumed risk. — When a servant knows the method adapted for his work, the place which is furnished, ■and the appliances with which the work is done, he assumes the ordinary risk of injury which may result from such known methods and appliances.
    2. Master and servant — assumed risk. — A servant does not assume the risk of any injury which results from the master’s negligence-; and when the master is a corporation, he -does not -assume the ri-sk of d-anger arising from the negligence -of a fellow servant.
    3. Master and servant — questions for jury. — Where plaintiff and three other employees of a corporation were engaged in transporting an iron pipe weighing over four -hundred pounds, and one of them let go of his end without warning, and plaintiff was injured thereby, the court properly submitted to the jury the questions of defendant’s negligence and whether plaintiff assumed the risk or was guilty of contributory negligence.
    4. Appeal and error — harmless error. — The Supreme Court will not reverse a judgment for the admission of testimony which had no bearing on the issues in the case and which could have resulted in no prejudice to the appellant.
    5-. Appeal and error — -harmless error. — Error in admission of parol evidence of the contents of a writing was harmless where there was no dispute between the parties as to the contents of the writing.
    6. Master and servant — negligence of fellow servant — instruction. — An instruction, in an action against an employer corporation, that the master is not liable in damage from the mere fact that the servant has ibeen injured by the act of a fellow servant was properly modified toy adding, “unless such fellow servant was ■negligent, and such negligence was the proximate cause of the injury.”
    7. Trial — abstract instructions. — It is not error to refuse to^give instructions .predicated upon alleged facts which are not in the record.
    8. Damages — personal injuries — amount.—A verdict for plaintiff in a personal injury action in the sum of $20,000 was not excessive where he was a stout able-bodied laborer 25 years old and earning- $4.50 per day, and by reason of his injuries his heart was affected to the extent that he must always suffer ,pain and he can never again perform manual labor.
    Appeal from. Prairie Circuit Court, Southern District; George W. Glarh, Judge;
    affirmed.
    STATEMENT OP PACTS.
    S. S. Johnson sued the Texas Pipe Line Company to recover damages for personal injuries sustained by him while in the employment of said company.
    It appears from the record that the Texas Pipe Line Company is a corporation, and was engaged in the construction and operation of pipe lines for the transmission of oil in the states of Texas, Arkansas, and elsewhere. In July, 1923, S. S. Johnson was employed by the Texas Pipe Line Company as a day laborer in Union County, Ark. He was twenty-five years of age and was a' stout able-bodied young man.
    According to the evidence of the plaintiff, he and four other men were working together at the time he was injured. They were working under a foreman and were engaged in laying a six-inch pipe line to be used for running oil into the main line. This was the method used in conveying oil from the well to its destination. The workmen had laid the six-inch line something like two and one-half miles and were sent back to connect its pipe with the pipe on the main line. There was a pipe about twenty feet long and six inches in diameter lying diagonally over a ditch, which was something like two and a half or three feet wide and of the same depth. The pipe extended something like three or four feet across the ditch. The gang foreman ordered five laborers, including the plaintiff, to pick up the pipe and carry it across the ditch for the purpose of having it cut the right length to make the connection between the branch line and the main line. The pipe was made of iron and weighed four or five hundred pounds. Carrying irons were placed under the front and rear ends of the pipe and a man took hold of each end of the carrying irons. The two rear men placed their carrying iron under the pipe about four or five feet from its end. The plaintiff took the end of the pipe in his arms. When the two rear men came to the edge of the ditch, the one on the right-hand side of the carrying iron turned his end loose without any notice or warning to the plaintiff or to the man working at the other end of the carrying iron. This threw the other man loose from his end of the carrying iron and all the weight of the pipe was thrown upon the plaintiff. The weight of the pipe caused him to fall down with the pipe across his chest and side. The plaintiff was severely and permanently injured as the result thereof.
    The testimony of the plaintiff was corroborated by that of Otho Harrison, who was working on the left-hand side of the carrying iron which had been placed at the rear end of the pipe. According to his testimony, Henry Narramore, who had hold of the carrying iron on the right-hand side of the pipe, dropped his end without giving any notice or warning to the witness or to the plaintiff. This caused the pipe to fall upon the plaintiff and severely injure him. When Narramore turned his end of the carrying iron loose, this threw the iron on Harrison, and he turned it loose. Narramore jumped to one side, when he turned the carrying iron loose. This caused the whole weight of the pipe to fall upon the plaintiff, and it happened so quickly that the plaintiff was hurt before he realized his danger.
    The evidence for the defendant tends to show that the injury was not caused by the negligence of a fellow servant of the plaintiff, but that it was due solely to the negligence of the plaintiff himself.
    Other facts as to the character and extent of the plaintiff’s injuries will be stated under an appropriate heading in the opinion.
    From a verdict and judgment against it in favor of the plaintiff, the defendant has duly prosecuted an appeal to this court.

      Cooper Tlvwe.att and Bogle & Sharp, for appellant.

      Pace & Davis, for appellee.
   Hart, J.,

(after stating the facts). It is first earnestly contended by counsel for the defendant that the undisputed evidence shows that the plaintiff assumed the risk, and that the court erred in not instructing a verdict in favor of the defendant.

It is true, as contended bj7- counsel, that it has been uniformly held by this court that when a servant knows the method adopted for his work, the place which is furnished and the appliances with which the work is done, he assumes the ordinary risk of injury which may result from such known’ methods and appliances. Our holdings are equally uniform to the effect that a servant does not assume the risk of any injury which results from the master’s negligence; and, when such master is a corporation, the servant does not assume the risk of danger arising from the negligence of a fellow servant.

The facts in the case .at bar bring it within the ruling of the court in St. Louis Southwestern Ry. Co. v. Smith, 102 Ark. 562. The facts in the two cases are strikingly similar in all essential respects. In that case six workmen were carrying a large timber twenty-five or thirty feet long, weighing about 425 to 450 pounds. The workmen were divided into pairs, and each pair had a lug hook which caught beneath the timber and supported it -while the workmen held the ends of the bars or handies. Thus three men were on each side of the timber they were carrying. Smith and a fellow servant named Meadow occupied the center position. In taking a piece of timber from the pile it was necessary for Meadow to get upon the pile, and he would walk along the timber on the pile to the end where it sloped near the ground before stepping off. On the occasion in question, instead of walking down to the end of the timber upon which he was standing, Meadow suddenly, and without notice or warning to Smith, stepped off of the timber from an elevation of eighteen or twenty inches to the ground. This caused the handle of the lug hook in Smith’s hands to go up, and when Meadow reached the ground he gave the hook a hard pull which jerked the handle in Smith’s hands downward. This made a greater strain upon Smith resulting in a permanent injury known as inguinal hernia.

The court held that these facts were sufficient to carry the question of negligence to the jury. It was said that Smith was justified in acting upon the belief that his fellow servant would do his part of the work in the ordinary way and would walk down to the end of the timber nearer the ground before stepping off. The-court said that the jury was warranted in finding that, in the exercise of due care, he should have done so or that he should have warned Smith before stepping off of the timber.

So in the case at bar the jury was warranted in finding that in the exercise of due care Narramore should have warned Johnson before he let go of his end of the carrying iron. The five men were working under a foreman and were directed by him to carry an iron pipe about the same depth. The pipe; weighing between four and five hundred pounds, was lying diagonally across a s'mall ditch two and a half or three feet wide and of about the same depth. The method of work was for two men to carry the front end by placing a carrying iron under it and two others were to carry the rear end in a similar wav. The plaintiff had the rear’end in his arms. He had a right to expect that none of his fellow workmen would drop his end of the carrying iron and thus let the weight of the pipe fall on him without notice to him. The men were working together, and each had a right to expect that his fellow workmen would exercise due care in the premises for the safety of the others.

It is first argued by counsel for the defendant that Narramore might have let his end of the carrying iron loose because his hand became cramped; but there is no testimony upon which to base such a finding. The only legitimate inference to be drawn from the attending circumstances is that Narramore dropped his end of the carrying iion through carelessness or negligence. Therefore, the court properly submitted to the jury the question of the negligence of the defendant and the assumption of risk of the plaintiff. The court also submitted to the jury the question of the contributory negligence of the plaintiff. Other cases in point as sustaining the ruling of the court are C. R. I. & P. Ry. Co. v. Grubbs, 97 Ark. 486, and Great Western Land Co. v. Barker, 164 Ark. 587.

It is also insisted that the court erred in allowing the plaintiff to testify that the defendant sent him release papers- to sign and thereby permitted him to testify as to offers of a compromise.

In the first place, the plaintiff had been permitted to testify without objection that he had been staying in the hospital of the defendant and had been treated by the company doctor. During all of this time he was receiving half time as wages which amounted to $2.25 a day. He was also permitted to state that the defendant was paying his doctor bill .and hospital bill, and that they had become slow in these payments. Then comes the testimony objected to, which is as follows: “They sent me release papers to sign, and they said in their papers that Dr. Wharton had dismissed me from the hospital, and sent me their papers to sign, and they said they would send me my half time pay till the day I signed the papers and sent them back, and also they would give me a dollar extra for signing.”

Thus it will be seen that the plaintiff had already been permitted to testify as to all the matters embraced in the testimony objected to, except as to the payment of one dollar for signing the release. This additional testimony is of no consequence whatever as bearing on the issues in the case and could have resulted in no prejudice to the defendant.

It is well settled that this court will not reverse a judgment for error which is not prejudicial to the rights of the party appealing. L. J. Smith Construction Co. v. Tate, 151 Ark. 278.

Moreover the plaintiff made a specific objection to the admission of the evidence solely on the ground that the release itself was the best evidence of its contents. Now there was no dispute whatever between the parties as to the fact that the release had been submitted to the plaintiff and as to what its contents are. Hence no prejudice whatever could have resulted to the defendant from proving these facts by parol evidence, instead of the release itself. Therefore, we hold that this assignment of error is not well taken.

The next assignment of error is that the court erred in modifying the defendant’s instruction No. 3, which reads as follows: “You are instructed that the master is not the insurer of the safety of the servant; neither is he liable in damage from the mere fact that the servant has been injured from the act of a fellow servant, [unless such fellow servant was negligent, and such negligence was the proximate cause of the injury]. Plaintiff must also show, by a fair preponderance of the evidence, that the injury to the plaintiff was caused by the negligent act of the fellow servant. If he fails to show this, your verdict must be for the defendant.”

The modification consists in adding the words contained within the brackets. These words made plainer the meaning of the instruction, and there was no error in adding them. The added words made the liability of the defendant depend upon the negligence of a fellow servant of the plaintiff and the further fact that such negligence was the proximate cause of the injury.

It is next insisted that the court erred in refusing to give instruction No. 5 at the request of the defendant. The instruction reads as follows:

“You are further instructed that if you find that the two employees of the defendant at the rear end of the pipe, while crossing or about to cross the ditch in question, intentionally dropped their end of the pipe, but that they did so because they were thrown in sudden danger and acted to save themselves from injury; and you further find that said employees did not appreciate their danger soon enough to warn the plaintiff in time for him to avoid injury to himself, then the resulting injury to plaintiff would be a'mere accident, and plaintiff would not be entitled to recover.”

The court did not err in refusing to give this instruction because there is no testimony in the record upon which to base it. It would be mere surmise or conjecture on the part of the jury to find that Narramore dropped his end of the carrying iron to save himself from injury. There is nothing whatever in the testimony upon which to base such a finding. It is well settled that it is not error for a trial court to refuse to give instructions predicated upon alleged facts which are not in the record.

Finally, it is insisted that the court erred in not setting aside the verdict on account of being excessive. The .jury returned a verdict in favor of the plaintiff for $20,000. At the time he was injured the plaintiff was a stout, able-bodied man not 3'-et twenty-five years old, and he was earning $4.50 a day. He was in perfect health and weighed between 165 and 170 pounds. He had a wife and baby. The plaintiff testified that he is not able to do any physical work, and that every time his heart beats there is a pain over it. Dr. J. L. Green was his principal witness on this phase of the' case. After the plaintiff had detailed to him his injuries Dr. Green testifled that Ills .condition was the perfectly natural consequence of the injury which the plaintiff described that he had received, and said that the plaintiff is not in a position to perform any manual labor. The witness had never seen that type of injury get well. They are always subject to nervous breakdowns and do not possess normal physical strength. The witness considered the plaintiff to be suffering from a condition, which is described by those who write about hearts as neuro circulatory asthenia.

Three physicians for the defendant examined the plaintiff, and all of them testified that his injuries were not serious. The jury by its verdict believed the testimony of Dr. Green and that of the plaintiff himself as to the character and extent of his injuries. This court has repeatedly stated that it is the duty of the trial court to grant a motion for a new trial where it is of the opinion that the verdict of the jury is contrary to the weight of the evidence. This .court however has no such power. It is our duty to uphold the verdict if there is any evidence of a substantial character to support it. The jury has said by its verdict that it believed the testimony of Dr. Green and of the plaintiff himself as to the severity and permanency of the plaintiff’s injuries. Their testimony is of a substantial nature, and it is our duty to take their testimony as reflecting the truth on this phase of the case. When this is done, it can not be said that the verdict is excessive.

As we have already seen, the plaintiff was a stout, able-bodied young man twenty-five years of age, and he was earning $4,50 a day when he was injured. His heart is affected to the extent that he must always suffer pain about his heart and can never perform manual labor again. When the jury considered these facts and the life expectancy of the plaintiff, it cannot be said that the verdict is excessive. Mo. Pac. Rd. Co. v. Cathey, 160 Ark. 153.

There is nothing in the record to indicate that the amount of the verdict was the result of passion or prejudice. The case was submitted to the .jury upon instructions which fully and fairly covered the respective theories of the parties to this lawsuit, and the judgment will therefore be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Herring v. Stannus.
    Opinion delivered June 29, 1925.
    1. Constitutional law — police power. — Every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that it shall not he injurious to the equal enjoyment of others having an equal right to the enjoyment of their property or injurious to the rights of the community.
    2. Municipal corporations — regulation op pilling stations.— In view of the early and late hours in which filling stations are maintained, the nature of the business itself, and their effect upon the value of adjacent residential property, the location of •such filling stations is a proper subject of municipal .regulation.
    3. Municipal corporations — zoning regulations. — Acts Sp. Session 1924, p. 60, authorizing cities of the first class to establish zones limiting the character of buildings that may be erected therein, and providing that when the council shall have laid off such zones it shall not be lawful to construct or carry on any unauthorized business within a zone unless with special permission of the council, as well as an ordinance passed pursuant thereto, held valid.
    4. Municipal corporations1 — zoning ordinance — discretion op council. — Where a zoning ordinance prohibited the erection of filling stations within the residential district except where the city council might, after a hearing, grant a permit therefor, and the evidence showed that there were already in the immediate vicinity three grocery stores, a meat market, a drug store, a cleaning and pressing shop, a bakery and another filling station, it w>as not an abuse of the council’s discretion to permit a filling station to be erected.
    5. Municipal corporations! — zoning ordinances — discretion op council. — Under a zoning ordinance which permitted the city council, after a hearing, to grant a permit for a filling station within a residential zone, .it wias not an abuse of discretion for the council to direct a hearing before a committee where the council adopted the recommendation of the committee in granting a ■permit.
    Appeal from Pulaski Chancery Court; A. L. Hutch-ins, Chancellor, on exchange;
    reversed.

      Sam T. é Tom Poe and Louis Tarlowshi, for appellant.

      Floyd Terral and J. G. Marshall, for appellee.
   Smith, J.

An extraordinary session of the 44th General Assembly passed an act numbered 6, which was approved July 1, 1924, entitled, “An act to confer on cities of the first class powers of regulating' the character of buildings.” Acts 'Sp. 'Session 1924, p. 60.

Sections 1 and 2 of this act read as follows:

“Section 1. It is recognized and hereby declared that the beauty of surroundings constitutes a valuable property right which should be protected by law, and that this is particularly true of residential sections where people have established their homes.
“Section 2. Cities of the first class are hereby authorized to establish zones limiting the character of building’s that may be erected therein, and that such zones may be of three classes; first, portions of the city where manufacturing establishments may be erected or conducted; second, portions of the city where business other than manufacturing may be carried on; third, portions of the city set apart for residences.”

By section 3 it is provided that when the city council shall have laid off such zones it shall not be lawful for any one to construct or carry on within a given zone any business not authorized by the ordinance of the city establishing the zones, unless special permission is granted by the council of said city, or by a commission which it may. create for the purpose of determining whether an exception shall be made in the particular instance, but that such exception shall be made only for good cause, and in case of abuse of this discretion by the council the adjacent property owners are given the right to appeal to the chancery court to protect their property from depreciation by reason of the setting up of such exceptional business within the zone.

Section 4 authorizes the city council to- limit the height of buildings in the zones created by it.

Pursuant to the authority conferred by this statute, the council of the city -of Little Bock passed an ordinance numbered 3577, entitled, “An ordinance regulating the building, construction or erection of gasoline and oil filling stations, automobile repair garages, store buildings, apartment houses, any other building for business purposes, and for other purposes.”

The preamble to this ordinance reads as follows:

“Whereas, it appears to the city council of the city -of Little Bock that the growth and population of this city makes it necessary for the purpose of promoting health, safety, morals or the general welfare of the community to restrict the building of gasoline and -oil filling stations, automobile repair garages, apartment houses and. all other buildings erected for business purposes within what is known as the residence district of the city of Little Bock, and
“Whereas, by legislative enactment recently adopted, cities of the first class are authorized to separate, if need be, business from residence property.”

By section 1 of the -ordinance it is made unlawful to 'build, construct or erect ‘ ‘ any gasoline and oil filling station where gasoline and -oil will be 'sold; to build, construct or erect any automobile repair garage or ,any store building, or to erect any -apartment house, or to erect or build for business purposes, any other building in what is commonly known as the residence district of the city of Little Bock outside of the fire limits hereinafter specified, until, after having first filed an application with the city engineer for said permit along with ad plans, specifications, and the payment of a fee of $5.0(1 to cover all costs of printing notices, etc.; said fee to be paid to the city collector.” Section 2 requires the city engineer to publish, notice of any application filed under section 1. Section 3 provides that after proof of publication of the application for the permit has 'been made the engineer shall issue the permit, unless otherwise prohibited by law, “except where petition is filed by one or more citizens, owners of property in the immediate vicinity protesting the issuance of said permit, and showing that, if said permit is g*ranted and said 'building is erected, the conduct of same will tend to decrease the value of property in the immediate vicinity for residence purposes, said petition to be subscribed and sworn to by the complaining property owner or owners.” Section 4 reads as follows: “Where one or more protests are filed with the city engineer ag’ainst the building of any filling station, automobile repair garage, storehouse, apartment house or other business building, within the residence districts of Little Rock, within thirty days after the receipt of application for same, the city engineer shall refuse to grant said permit and refer same to the city council of the city of Little Rock, which shall, after a hearing upon petition for and against such building, grant or refuse issuance of permit as it may deem best.” 'Section 5 defines the fire limits referred to in section 1, and section 6 prescribes the penalty for a violation of the ordinance.

After the passage of the ordinance it was amended by striking out the words “apartment house” wherever they appeared in the ordinance.

After the passage of this ordinance, appellants made application for a permit to erect a filling station at the southwest corner of Wright Avenue and Wolfe Street in the city of Little Rock, and protests were immediately filed by property owners in the vicinity. The matter was referred to the civic affairs committee of the city council, and this committee of the- Council unanimously recommended to the council that the permit be granted. This report was approved by the unanimous vote of the council, but was vetoed by the mayor. Later the council passed the resolution granting the permit over the veto of the mayor. Thereafter the property owners who had protested against the issuance of the permit filed this suit in the chancery court, in which they prayed that the issuance of the permit be enjoined. In this suit the provisions of the ordinance were set up, and it was alleged that no good cause had been shown as required by the ordinance for issuing the permit, and that the council had abused its discretion in granting it, and its cancellation was prayed.

Separate answers were filed by both the city and the petitioners for the permit. The answer of the city denied that the permit had been granted without good cause being shown. The answer of the petitioners for the permit likewise denied that the permit had been granted without good cause being shown, and, in addition, alleged that the ordinance and the statute under which it was passed were both unconstitutional for various reasons which were set up.

The court below held that both the ordinance and the statute were constitutional, and also held that the council of the city had abused its discretion in granting the permit, and decreed its cancellation, and enjoined petitioners from erecting the proposed filling station, and this appeal is from that decree.

The first question which naturally presents itself is the constitutionality of the statute and the ordinance passed pursuant thereto. Appellants insist that it is unconstitutional for the reasons that it operates to deprive them of their liberty and property without due process of law; that the ordinance takes private property for public use without compensation; that it abridges the privileges and immunities of citizens of the United States and denies them the equal protection of the law; that it attempts to make legal the taking of private property for public use Avithout compensation and assumes to delegate legislative powers to private persons.

These grave questions have in cases comparatively recent engaged the attention of many courts under facts more or less similar to those of the instant case, and the cases passing upon these questions have, through the industry of respective counsel, been collated and cited. After considering these cases the same differences of opinion are found to exist among the judges of this court as are reflected in the various opinions which we have consulted.

The automobile has brought into existence many problems incident to its operation, and it is recognized by all the courts that filling stations, where oil and gasoline may be obtained, have become public necessities. It is also generally recognized that these stations are proper subjects for regulation by the States and the cities and towns thereof in the exercise of the police power. The differences arise out ,of the manner in which and the extent to which these regulations may be extended. It is becoming more and more common to effect this regulation by means of- zoning ordinances, under which filling stations are excluded from certain areas. It is also quite common for these zoning ordinances to exclude certain other buildings from the restricted areas.

A well-considered case on the subject is that of Spann v. Dallas, 235 S. W. 513, and in 19 A. L. R. 1387 this case is extensively annotated. A number of later cases which have also been annotated are there cited.

In this case of Spann v. Dallas, the Supreme Court of Texas held an ordinance of the city of Dallas, which forbade the erection of a building as a store in their residence district without the consent of neighboring property owners and the approval of the building inspector of the city, to be unconstitutional as depriving the owner of his property without due process of law. After citing, in the note to this case, a number of annotated cases on the subject, the annotator comments that for some time courts have been taking more and more liberal views of the zoning power, and that there were already cases which consider the police power broad enough to exclude business buildings from residential districts.

It would be an endless task, if not a work of supererogation, to attempt a review of the many cases which have dealt with the principles here involved. In fact, there appears to be but little difference in the enunciation of the applicable principles, the difficulty and the differences growing out - of the application of these principles to the facts of particular cases.

Another case, which was decided almost simultaneously with the Texas case, was that of City of Des Moines v. Manhattm Oil Co., 184 N. W. 823, 23 A. L. R. 1322. It appears, from the synopsis of the briefs of the opposing counsel in that case, that the leading cases dealing with the subject were called to the attention of the court, and the opinion of the court reflects the maturest consideration of those cases. In this last cited case the validity of a statute permitting the establishment of residential districts in municipalities, and from which business houses were excluded, was involved. All of the objections to the ordinance here under review were there raised, but the Supreme Court of Iowa there decided that the statute was a valid exercise of the State’s police power, and that the statute was not unconstitutional for any of the various reasons urged against it.

We prefer to follow this Iowa case, rather than the Texas case, because we think it sounder in reason and in conformity with principles which this court has announced and approved.

In its opinion the Supreme Court of Iowa said: ‘ ‘ ‘ With the wealth of precedent cited by the appellee as upholding the sacredness of constitutional guaranties of life, liberty, property, due process of law, and equal protection of the laws, we have no quarrel; but, construing the statute in question, as we do, as one of police regulation, it is entirely consistent with those guaranties. The statute being constitutional, the ordinance adopted pursuant thereto cannot be held invalid. The power of regulation is not confined to the suppression of vice, or promotion of health. In the language of McKenna, J., in Bacon v. Walker, 204 U. S. 318, 51 L. Ed. 499, 27 Sup. Ct. Rep. 289: ‘It extends to so dealing with the conditions which exist in the State as to bring out of them the greatest welfare of its people.’ ”

In this same opinion the court quoted with approval the following declaration of the law from the opinion of Chief Justice Shaw in the case of Commonwealth v. Alger, 7 Cush. 53: “ ‘We think it is a settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, or injurious to the rights of the community. * * * Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the Legislature, under the governing * * * power vested in them by the Constitution, may think necessary and expedient. This is very different from the right of eminent domain.’ ”

This Massachusetts case is one which has many times been cited by textwriters and judges in discussing the police power of the States.

The case of Ex parte Foote, 70 Ark. 12, involved a town ordinance which made it unlawful to stand a stallion within the limits of the municipality. This ordinance was upheld as a valid exercise of the police power, and Justice Battle, speaking for the court, said: ‘ ‘ There are two kinds of public nuisances. One is that class of aggravated wrongs or injuries which affect the ‘morality of mankind, and are in derogation of public morals and decency,’ and, being malum in se, are nuisances irrespective of their location and results. The other is that class of acts, exercise of occupations or trades and use of property which become nuisances by reason of their location or surrounding. To constitute a nuisance in the latter class, the act or thing complained of must be in a public place, or so extensive in its consequences as to have a common effect upon many, as distinguished from a few. Where it is in a city or town, where many are congregated and have a right to be, and produces material annoyance, inconvenience discomfort, or injury to the residents in the vicinity, it is a public nuisance of the latter class.”

In the case of Little Rock v. Reinman, 107 Ark. 174, a municipal ordinance excluding livery stables from a certain defined area within the corporate limits was upheld as a valid exercise of the police power, and that holding was affirmed by the Supreme Court of the United States. 237 U. S. 171, 35 Sup. Ct. Rep. 511, 59 L. Ed. 900. In affirming that case, Justice Pitney, for the Supreme Court of the United States, said: “Therefore the argument that a livery stable is not a nuisance per se, which is much insisted upon by plaintiffs in error, is beside the question. Granting that it is not nuisance per se, it is clearly within the police power of the State to regulate the business, and to that end to declare that in particular circumstances and in particular localities a livery stable shall be deemed, a nuisance in fact and in law, provided this power is not exerted arbitrarily, or with unjust discrimination, so as to infringe upon rights guaranteed by the Fourteenth Amendment. For no question is made, and we think none could reasonably be made, but that the general subject of the regulation of livery stables, with respect to their location and the manner in which they are to be conducted in a thickly populated city, is well within the range of the power of the State to legislate for the health and general welfare of the people. While such regulations are subject to judicial scrutiny upon fundamental grounds, yet a considerable latitude of discretion-must be accorded to the lawmaking power; and so long as the regulation in question is not shown to be clearly unreasonable and arbitrary, and operates uniformly upon all persons similarly situated in the particular district, the district itself not appearing to have been arbitrarily selected, it cannot be judicially declared that there is a deprivation of property without due process of law, or a denial of the equal protection of the laws, within the meaning of the Fourteenth Amendment.” (Citing numerous cases).

A large number of witnesses testified at" the hearing before the court below, and the contrariety of opinion was found concerning the effect of the location of a filling station in a residential district which might have been expected. But we think it clearly appears that the natufie of this business, and the early hours 'in the morning and the late hours in the evening during which it is operated, make it a proper subject of regulation. There was testimony amply sufficient to support a finding that the general effect of the location of a filling station in a strictly residential section is to diminish the demand for and the value of residence property.

It -will be observed that the ordinance under review does not wholly exclude filling stations and the other businesses named from the residential district. The council may, for good cause shown, grant a permit to conduct the business in the restricted area, and the presumption must be indulged that the' council, in passing upon this question, will exercise an intelligent, honest and impartial judgment.

It is urged that the ordinance here under review was passed for purely aesthetic purposes, and that this fact appears from section 1 of the statute of the State conferring power to pass the ordinance on cities of the first class, and that the police power cannot be exercised for purely aesthetic purposes. Conceding — without deciding ■— that the police power may not be exercised for purely aesthetic purposes, we dispose of the contention made by saying that we do not think the ordinance is open to that objection.

Section 1 of the statute, read by itself, would appear to support the contention, but in extracting the meaning and purpose of the statute we are not confined to the consideration of any single section. We must read the statute in its entirety, and, when so read, we think the aesthetic feature becomes a mere incident to the exercise of the power conferred.

The writer and Justices Hart and Humphreys have therefore concluded that the ordinance and statute are constitutional as being a valid exercise of the police power, and, while some damage may result to appellants and others similarly situated, they have their compensation by participating in the general advantage of having a section of the city set apart where forbidden businesses may not encroach without permission so to do being first granted. Wadleigh v. Gilman, 28 Am. Dec. 188. And we are also of the opinion that the classification of the excluded business is not arbitrary or unreasonable.

It is however the opinion of the majority that no abuse of discretion was shown by the council in granting' the permit to appellants to erect a filling station at the site in question. As we have said, it is to be presumed that the council will exercise the power conferred on it in a fair, just and reasonable manner, and its action in the instant case indicates that the power to grant or to withhold permission to erect a forbidden structure in the restricted area was properly vested in the council. The ordinance is not prohibitory, but is regulatory. Conditions vary in different portions of an area as extensive as the restricted district established by the ordinance under review, and, if any discretion is to be exercised, that right must be vested in some one, and no more appropriate agency for that purpose could be constituted than the council of the city, where the duty and authority to pass upon the question was vested.

The testimony discloses that three meetings of the civic affairs committee of the council to which the petition of appellants was referred were held for the purpose of hearing all interested parties in the matter. This committee of the council consisted of seven members, six of whom testified at the trial in the chancery court. The seventh member was unable to be present at the trial on account of illness.

These councilmen testified that, at the first meeting to consider appellants’ petition, a large number, if not all, of the protestants were present personally and by an attorney, and that a full hearing was had and opportunity given to all to be heard who desired to be. Two adjournments of the committee were had before a final report was made, and appellees insist that they should have been notified of those adjournments, so that they -might have attended, had they wished to do so; but the councilmen testified that these adjournments were taken before the final action was ordered at the request of one of the protestants, and when final action was taken they supposed that all persons who desired to be heard had been.

These six council-men who composed the committee of the council and who testified in the case gave their reasons for voting for the ordinance. These being that they regarded the proposed lotíation as a business site, on account of the proximity of other business houses adjacent thereto, and another filling station across the street; that the proposed location was on one of the most commonly traveled thoroughfares in that section of the city, and they regarded the proposed site as a proper one for a filling station. In opposition to this showing, appellees offered testimony to the effect that, notwithstanding there was in its immediate vicinity three grocery stores, a meat market, a drug store, a cleaning and pressing shop, a bakery, and another drive-in filling station, these buildings did not in fact deprive the neighborhood of its character as a residential section, which it, in fact, was.

This was a question about which reasonable minds might differ, and did differ sharply as reflected by the testimony in the case, and the ordinance constituted the council as the tribunal to pass upon this question. But the fact — if it is a fact — that the site in issue is a residential, and not a business, location, .is not conclusive of the case, for, as we have said, the ordinance does not prohibit absolutely all filling stations in all residential districts. The council, under the ordinance, may grant a permit to erect a filling station in a district which is purely residential, if good cause therefor is shown, and this is a question which addresses itself primarily to the council. The proximity or remoteness of other stations and the volume of traffic were proper matters for the council to consider, and its action is final unless we can say that the council abused its discretion. But this discretion, in so far as a discretion abides, is vested in the council, charged by law with the duty of passing on the question, and does not rest in the courts which review the council’s action. North Little Rock v. Rose, 136 Ark. 298; Pierce Oil Corporation v. Hope, 127 Ark. 38.

The question is not what a member of the court might decide if the question were submitted to him as a matter of discretion, but rather is whether it can be said that the council abused its discretion, and we may not say that such was the case unless that fact clearly appears.' This we are unable to say.

Counsel for appellees insist that the hearing by a committee of the council, instead of one by the council itself, was such a mistaken procedure as to show an abuse of discretion.

In answer to this contention, it may be said that no request was made that the matter be heard by the council, instead of by a committee of the council. It may be still further answered that the council as such acted on the request for the permit and recommended that the permit be granted. This recommendation was made to and was approved by the council, by a vote which was unanimous, and, when the resolution granting the permit was vetoed by the mayor, the resolution was passed over the mayor’s veto by a vote which ' was again unanimous.

It follows, therefore, in the opinion of the majority, that the chancellor erred in holding that there had been an abuse of discretion by the council of the power vested in it by the ordinance, and the decree of the court below will therefore be reversed, and, as the complaint of appellees appears to be without equity, it will be dismissed.

Messrs. Justices Hart and Humphreys dissent upon the ground that an abuse of discretion on the part of the council was shown.


author: McCulloch, C. J.

text:
    Dunham v. State.
    Opinion delivered July 6, 1925.
    1. Husband and wife — abandonment of wife. — Under Acts 1923, p. 265, making it a misdemeanor for a man without good cause to abandon his wife or children, and providing that, if, after leaving his wife .or child, he shall leave the State, he shall foe guilty of a felony, it .is necessary on the felony charge to prove that he left the State as a part of his act of desertion.
    2. Husband and wife — abandonment of wife. — In a prosecution for abandoning defendant’s wife and thereafter leaving the State, evidence held sufficient to sustain a conviction.
    3. Criminal law — competency of evidence — harmless error.— Testimony of .a deputy sheriff that he went to the home of defendant’s wife and was informed that defendant had gone to another State was competent for the purpose of showing that he had made diligent search for defendant in order to collect a fine; but, if such evidence were incompetent as being hearsay, it was harmless in view of undisputed evidence that defendant had left the State.

      4. Criminal law — matters shown by record. — Whether the court erred in refusing' to (permit a witness to answer a question will not ibe determined on appeal where it does not appear what the ■court’s ruling would have been.
    Appeal from Crawford Circuit Court; James Cochrcm, Judge;
    affirmed.

      0. 1). Thompson, for appellant.

      H. W. Applegate, Attorney General, and Jolm L. Carter, Assistant, for appellee.
   McCulloch, C. J.

Appellant was convicted under an indictment charging him with the crime of desertion of his wife by leaving the State. The parties lived in Crawford. County, Arkansas, and were married at the home of the wife’s mother on January 16, 1924, and, according to the testimony of the State, appellant remained with his new-made wife only about two hours and then deserted her and departed from the State the same day.

Mrs. Springer, the mother of appellant’s wife, testified that he only remained with his wife about two hours after the wedding ceremony was performed, and that he left her and stated that he was going to Oklahoma. Two other witnesses were introduced by the State, who testified that, after the marriage ceremony, appellant left the house on horseback, that they rode-with him a distance of six or seven miles to the Oklahoma line and left him within a few hundred yards of the State line at the village of Dora, which was only a few hundred yards from the railroad station known as Greenwood Junction. This was a junction of the Missouri Pacific Railroad Company, which operates a line from that place into Oklahoma. These two witnesses were thoroughly friendly to appellant, and gave their testimony unwillingly. They testified that they went with appellant for the purpose of bringing back home the horse he rode, and that they never saw him in the community any more for three or four months- The testimony of other witnesses tended to show that appellant, as a part of the act of deserting his wife, left the State and went to the State of Oklahoma. The evidence is sufficient to establish that fact.

The statute (Acts 1923, p. 265, amending Crawford & Moses’ Digest, § 2596) makeá it an offense punishable by fino or imprisonment, or both, for a man without good cause to abandon or desert his wife or children. The statute further provides “that, if such person, after leaving his wife or child, or children, shall leave the State of Arkansas, said person shall be guilty of a felony and punishable by imprisonment in the penitentiary for a time not to exceed one year.” It is necessary, therefore, in order for the State to convict appellant of the felony charged in the indictment to prove that he left the State as a part of his act of desertion. That is evidently what the statute means, for the punishment is not for leaving the State, but for the desertion of llae wife and children committed in that manner. We are of the opinion that the evidence was sufficient to establish ¿he commission of a felony, and that the case was properly submitted to the jury in-the court’s charge.

Error of the court is assigned in admitting the testimony of a witness named Matlock, who was a deputy sheriff, and testified that in January, 1924, he made a diligent search for the appellant for the purpose of collecting a fine, but was unable to find him, and he ascertained that he had gone to Oklahoma. The witness testified that he went to the home of appellant’s wife and'made inquiry there and received information that appellant had gone to Oklahoma. The part of the testimony objected to was that part which stated that he had received information at the home of appellant’s wife concerning his being in Oklahoma. The statement of the witness was introduced, not for the purpose of proving statements of others, but merely for the purpose of showing that he had made diligent inquiry to find appellant about his usual haunts in Crawford County, and that he could not be found in the community, and that the only result of his search was information that he had gone to Oklahoma. We think this is not a statement of hearsay testimony, and it was not incompetent. But, if it be treated as hearsay, it is harmless for the reason that the undisputed testimony shows that appellant went to Oklahoma at the time he deserted his wife. The uncontradicted testimony of Mrs. 'Springer, mother of appellant’s wife, is that he stated when he left the house that he was going to Oklahoma, and the other two witnesses, who were so reluctant to testify against appellant, stated that they accompanied him to the Oklahoma line for the purpose of bringing- back the horse that appellant rode. All the testimony introduced was to the effect that appellant was never seen in that community again for three or four months and that he never returned, to the home of his wife at all. The testimony of Matlock was therefore harmless error, if it should be treated as inepmpetent.

Error is also assigned in the refusal of the court to permit appellant to interrogate Mrs. Springer on cross-examination as to whether or not there was an understanding between appellant and Ms wife at the time they were married that they were not going to live together. The court refused to permit the question to be answered. Appellant saved an exception to the ruling of the court, but it was not shown what the answer of the witness would have 'been therefore the assignment of error is not available.

Judgment affirmed.


author: Wood, J.

text:
    Browning v. Waldrip.
    Opinion delivered July 6, 1925.
    1. Animals — jurisdiction op contest op stock law election.— Since the special act No. 579, of 1923, creating a stock district conferred no jurisdiction upon the county court to entertain a contest of the result of the election held under such statute, that court had no jurisdiction to vacate an order entered at a .previous term declaring that the stock district had been formed as provided by the act.
    2. Animals — stock law effective on vote op landowners. — The fact that the Special act No. '59, of 1923, creating a stock district, was not to be in full1 force and effect until the county board of election commissioners issued their proclamation, attested by the county judge and clerk, that a majority of the landowners in the district voted in favor of the act did not render the act invalid.
    3. Animals — stock law — vote op landowners. — A provision in a special act creating a stock district that it should take effect when a majority of the landowners in the district had voted in its favor was complied with when a majority of the landowners in the district voting at the election on the question favored ■putting the law into effect.
    4. Judgment — control of court. — Courts of record lose control over their judgments after the lapse of the term, and, in the absence of a statute conferring such power, cannot at a subsequent term alter or vacate them.
    5. Certiorari — void judgment. — Certiorari lies to quash a void judgment, even though the judgment might have been vacated and set aside on appeal.
    Appeal from‘Independence Circuit Court; Dene H. Coleman, Judge;
    affirmed.

      T. A. Gray, for appellant.

      McCaleb & McCaleb and S. C. Knight, for appellee.
   Wood, J.

Special act No. 579 of the Acts of 1923 is an act entitled “An act to create a stock district within certain boundaries in Independence County.” The act was not to become effective until it had . been first approved by a majority of the landowners at an election to be held for the purpose of ascertaining their will. An election was held under the provisions of the act, and a majority of the persons owning land in the district voted in favor of the creation of the district as shown by the proclamation of the county board of election commissioners attested by the county judge of Independence County and the county clerk as required by the act. At the October term of the Independence County Court, following the election in July, 1923, the county court entered an order finding that the stock district had been formed as provided by the act and designating the territory embraced therein as “Stock District No. 1 of Independence County,” and declaring such district in existence and in operation from October 8, 1923, the date of the order. At the January term, 1924, of the county court, the matter of reconsidering the order creating Stock District No. 1 of Independence County was continued until the 13th day of March, 1924, and on that day the matter of the rehearing was continued until the 12th day of April, 1924. On the 12th of April, 1924, the second day of the April term, the court entered an order setting aside and vacating the order establishing the district entered at the October term 1923. An appeal was taken by the commissioners and certain landowners and taxpayers from this order of the county court. On the 21st day of April, 1924, a petition for a writ of certiorari was filed before the judge of the circuit court of Independence County in vacation, asking that the judgment of the county court of April 12,1924, be set aside on the ground that the county court at its April term, 1924 was without jurisdiction to vacate a previous order of the county court rendered at its October term, 1923, establishing stock district No. 1 of Independence County.

• The respondents to the petition demurred on the ground that the petition did not state a cause of action, and further that the petitioners had a right to appeal from the judgment of the county court. The demurrer was overruled, the writ was issued, and the record of the county court in the matter of the creation of Stock District No. 1 of Independence County was brought before the circuit court. The judgment of the circuit court on the hearing of the certiorari recites as follows: “Now on this 29th day of April, 1924, the same being an adjourned day of the regular April, 1924, term of this court, came and appeared the parties hereto by their respective attorneys, and, said cause coming on for hearing, the same is submitted to the court upon the transcript of the records, proceedings and orders of the county court of Independence County in this cause, duly verified and returned by the clerk of the Independence County Court pursuant to the writ of certiorari herein issued by this court, and the testimony of witnesses taken orally at the bar of this court, from which the court finds as follows: That the order of the county court of Independence County, Arkansas, made and entered of record in this cause on the 12th day of April, 1924, at its April 1924 term, attempting to vacate and set aside its former judgment made in this case establishing Stock District No. 1 of Independence County, Arkansas, on the 8th day of October, 1923, at its October, 1923, term is void and of no effect for the reason that at the time of the rendition of said judgment on April 12, 1924, said court had no jurisdiction to vacate and set aside said judgment of October 8,1923. ’ ’

The court thereupon entered a judgment vacating the order of the county court of April 12, 1924, and declaring that the judgment of the court of October 8, 1923, establishing Stock District No. 1 of Independence County, be and remain the judgment in this cause, and directing that its judgment be certified to the county court to be entered as the judgment of that .court. The motion for a new trial was filed and overruled. A bill of exceptions was presented to the trial court which sets forth the testimony of one witness, H. W. Cox, and contains no statement to the effect -that his was all of the testimony heard in the cause. Prom the judgment of the circuit court is this appeal.

-(a) The original petition of appellants filed before the county court October 22,1923, was but tantamount to a proceeding to contest the result of the election which had been duly declared by proclamation of the election commissioners and attested by the county judge and the county clerk. The act does not provide for such a contest before the county court, and therefore it had no jurisdiction to entertain the petition, and its order of April 22,1924, vacating the prior order of October 8, 1923, was absolutely void. Patterson v. Adcock, 157 Ark. 186.

The act was not rendered unconstitutional and void because of the fact that it was not to be in full force and effect-until the county board of election commissioners issued their proclamation, attested by the county judge and county clerk, that a majority of said landowners in the district voted in favor of the act. See Miller v. Witcher, 160 Ark. 479. Boyd v. Bryant, 35 Ark. 69; Nall v. Kelly, 120 Ark. 277; Fenolia v. Sebastian Bridge District, 133 Ark. 380. A majority of the landowners in the district, who voted at the election to put in operation the law creating the district, voted in favor of the district. Under the provisions of the act it was to take effect when a majority of the landowners in the district had voted in favor of the law. This provision was complied with when a majority of the landowners in the district voting at the election on the question favored putting the law into effect. Graves v. McConnell, 162 Ark. 167; Watts v. Bryan, 153 Ark. 313.

(¡b) Furthermore, the judgment of the county court of April 12, 1924, was likewise void because the court had no jurisdiction at that term of the court to set aside the final order and judgment of the court rendered at its October term, 1923. Courts of record lose control over their judgment's after a lapse of the term and, in the absence of a statute conferring such power, cannot at a subsequent term alter or vacate the same.” Spivey v. Taylor, 144 Ark. 301, and cases there cited.

The appellants contend that certiorari was not the remedy to review the order of April 12, 1924, because the appellees had appealed from that order, and the remedy was therefore by appeal. The order of the county court of April 12, 1924, setting aside the former order and judgment of the county court rendered at its October term, 1923, was purely a judicial act, and, as the judgment of April 12, 1924, as we have seen was absolutely void and not merely irregular, certiorari was a proper remedy, even though such void judgment -might also have been vacated and set aside on appeal therefrom. This is not a case where the county court had jurisdiction, and where its judgment was simply irregular and voidable, but not absolutely void, as in the cases upon which appellants rely, to wit: Ex parte Goldsmith, 87 Ark. 519; Carolan v. Carolan, 47 Ark. 511; Petty v. Ducker, 51 Ark. 281; Aven v. Wilson, 61 Ark. 287. Here the judgment of April 12, 1924, was void because the court h-ad no jurisdiction, and the above cases have no application to the facts of this record.

It follows that the judgment of the circuit court is in all things correct, and it is therefore affirmed.


author: Hart, J.,

text:
    Meekins v. Meekins.
    Opinion delivered July 6, 1925.
    1. Marriage — curative act — extra-territorial effect. — Crawford & Moses’ Dig., § 7040, which wias -aipprovedoFehruary 6, 1867, in providing that “all negroes and mulattoes who are now cohabiting as husband and wife and recognizing each other as such shall be deemed lawfully married,” etc., had no application to negroes residing in -another State at the date of the passage of the act.
    2. Marriage — burden of proof. — -One who was born an illegitimate child, if he relies upon -a subsequent marriage between his parents to entitle him to share in bis father’s estate, has the burden of proving when and where such marriage occurred.
    Appeal from Ouachita Chancery Court, 'Second Division; George M. LeCroy, Chancellor;
    affirmed.

      STATEMENT BY THE COURT.
    Appellant, Thomas J. Meekins, brought this suit in equity against appellees to cancel an oil and gas lease executed by Aimer Meekins, Luvonia Yarbrough, and Carrie Cole to James Giould, trustee, and by him transferred to the Grulf Refining Company of Louisiana, and also to vest the title to an undivided one-fourth interest in the land embraced in said oil and gas lease in appellant.
    It appears from the record that Reuben Meekins a negro, was born in Claiborne Parish, Louisiana, and lived there until sometime after the Civil War. He was a slave and raised a large family. About three years after the close of the Civil War Reuben Meekins moved with his family from Claiborne Parish, Louisiana, to Union County, Arkansas, and took with him his wife and children including a son named Isom Meekins. Aimer Meeldns, Luvonia Yarbrough and Carrie Cole are the legitimate children of Isom Meekins. Thos. J. Meekins is an illegitimate son of Isom Meekins. Isom Meekins was a slave in Claiborne Parish, Louisiana, until the emancipation proclamation was issued. Thomas J. Meekins is the illegitimate son of Isom Meekins and a negro woman with whom he lived. Subsequently Isom Meekins was legally married, and Aimer Meekins, Luvonia Yarbrough and Carrie Cole are the children of that marriage.
    Isom Meekins acquired title by patent from the United States government to the forty acres of land in controversy situated in Union County, Ark., and died intestate in said county and State owning the said forty-acre tract of land. He left surviving him his widow and the children named above. His widow died in January, 1916. Since her death the land in question has been in possession of the legitimate children of Isom Meekins, deceased, who are appellees in this case.
    Thomas J. Meekins seeks to recover an undivided one-fourth interest in said land on the ground that, while he was born as an illegitimate child, he became legitimate under the law by the subsequent acts of his father, Isom MeeMns, and introduced evidence in support of his contention.
    On the other hand, evidence for appellees tends to show that Thomas J. MeeMns continued to-be the illegitimate son of Isom MeeMns, and was therefore not entitled to inherit from, his father under the laws of either the State of Arkansas or of the State of Louisiana.
    The chancellor found the issues as to both the law and the facts in favor of appellees, and the complaint of appellant was dismissed for want of equity.

      I. Stanley Pinkett and Avery M. Blount, for appellant.

      J. W. Warren and Patterson & Rector, for appellee.
   Hart, J.,

(after stating’ the facts.) The principal reliance of counsel for appellant for a reversal of the decree is based upon the construction to be given to § 7040 of Crawford & Moses’ Digest, which was an act _ approved February 6,1867. It reads as follows:

“All negroes and mulattoes who are now cohabiting as husband and wife, and recognizing each other as such, shall be deemed lawfully married from the passage of this act, and shall be subject to all the obligations, and entitled to all the rights appertaining to the marriage relation; and in all cases, where such persons now are, or have heretofore been so cohabiting as husband and wife, and may have offspring recognized by them as their own, such offspring shall be deemed in all respects legitimate, as fully as if bom in lawful wedlock.”

At the outset, it may be ¡stated that ¡the general rule is that the statutes of one State have no force except within the territorial limits and jurisdiction of that State. Therefore, it will be seen that the section of the statute copied above can only operate upon those living in this State. Indeed, the statute does not by its terms purport to have any extra-territorial effect and to. enable Thomas J. Meekins to inherit as the legitimate son of Isom Meekins the land left by the latter in Arkansas when he died. The language of the statute is that all negroes who are now cohabiting as husband and wife and recognizing each other as such shall be deemed lawfully married from the passage of the act, which was the 6th day of February, 1867. This means negroes who are cohabiting as husband and wife and recognizing' each other as such in the State of Arkansas at the date the act was passed.

It is true that this court has upheld the validity of the act in Scroggins v. State, 32 Ark. 205; Gregley v. Jackson, 38 Ark. 487, and Black v. Youmans, 120 Ark. 209; but it is apparent from the principles of law laid down in these decisions that the terms of the act did not have any extra-territorial effect, and that it applied only to negroes and mulattoes living in the State of Arkansas as husband and wife and recognizing each other as such at the date of the passage of the act.

In the case before us, while the evidence for appellant shows that Isom Meekins was living with the mother of Thomas J. Meekins in February, 1867, as husband' and wife, it also shows that the parties were residing in the State of Louisiana. Therefore, the Arkansas statute copied above has no application to them.

In this connection it may be stated that Archie Barnes and J. T. Orr were both witnesses for appellant. Archie Barnes was a negro woman between seventy and eighty years old and had lived in Claiborne Parish, Louisiana, all of her life. According to her testimony, she had 'known Thomas J. Meekins all of his life, and he is about sixty or sixty-five years old. She knew his father, Isom Meekins, who was a slave. Isom Meekins, while a slave lived in Louisiana, and in the year 1866 moved on the place,- where the witness resided, with a negro woman named Lucy, and during the same year Thomas J. .Meekins was born. Isom Meekins admitted that Thomas J. Meekins was his son and treated him as such. Lucy lived with Isom Meekins, and they lived together as husband and wife.

J. T. Orr was a white man eighty years of age and a resident of Junction City, Louisiana. According to his testimony, lie had been a resident of Claiborne Parish since 1849. Hje knew Isom Meekins and Lucy Johnson. Isom Meekins admitted that Thomas J. Meekins was his son and lived with Lucy Johnson as husband and wife in Claiborne Parish, Louisiana, at the time Thomas J. Meekins was born. Isom Meekins recognized Thomas J. Meekins as his son, and Thomas J. Meekins was born between the years 1867 and 1869 and as near as the witness could recollect in the year 1868.

According to the evidence for the appellees, Thomas J. Meekins was not born on the 6th day of February, 1867. In tliis connection it may be stated that we think the preponderance of the evidence shows that Thomas J. Meekins was,not born until after February 6, 1867; but, even if it be conceded that he was born in 1866 as testified to by Archie Barnes, still according to her testimony he was born in Louisiana and resided there with his father, Isom Meekins, and his mother, Lucy Johnson in February, 1867. Hence, as above stated, the Arkansas statute relied upon does not apply because the parents of Thomas J. Meekins were not living in Arkansas at tlie date of the passage of the act, and the fact that they afterwards came to Arkansas with their illegitimate son did not bring them within the terms of the act.

If it be claimed that the status or condition of Thomas J. Meekins as to inheritance be determined by the laws of Louisiana, he is in no better position. It is true that the Supreme Court of Louisiana has decided that a slave marriage which existed at the date of the emancipation and where the parties afterwards continued their marital relations, might become legal and valid under certain conditions prescribed by the statute. Pierre v. Fontentee, 25 La. Ann. 617, and Rowe v. Blackburn (La.) 94 So. 325.

But, in the first place, it may be stated that the preponderance of the evidence shows that Thomas J. Meekins was not born until after the date of the emancipation proclamation. Only one witness, Archie Barnes, testified that he was born before the close of the Civil War, and she appears to have been a very illiterate old woman. In contradiction to her testimony is the testimony of J. T. Orr, a white man, who appears to have been well educated and who has been a resident of Claiborne Parish, Louisiana since 1849. He stated positively that Thomas J. Meekins was born on either the farm of R. E. Thompson or George Johnson in Claiborne Parish, Louisiana. He further stated that Thomas J. Meekins was born between the years 1867 and 1869, and, as near as he could recollect, in the year 1868. His testimony is corroborated by the evidence of Aimer Meekins, a son of Isom Meekins, and Crawford Meekins, a brother of Isom Meekins. It is true that Aimer Meekins and Crawford Meekins think that Thomas J. Meekins was born in Arkansas; but they corroborate the testimony of Orr to the effect that Thomas J. Meekins was not born until after the close of the Civil War.

In the second place, it cannot be said that Thomas J. Meekins was legitimated by the subsequent marriage of his father and mother as provided by the Civil Code of Louisiana; or by notarial act as provided by that code. There is no proof in the record tending to show that Thomas J. Meekins was legitimated by the subsequent marriage of his father and mother, or by acts declaratory of their intention to legitimate him before a notary public, as provided by the Civil Code of Louisiana.

The undisputed evidence shows that Thomas J. Meekins was the illegitimate son of Isom Meekins and Lucy Johnson, and that their illicit connection and cohabitation continued after his birth in Claiborne Parish, Louisiana. This being so, it'was incumbent upon him, if he relied upon a subsequent marriage between the parties, to show when and where it occurred. The reason is that the presumption would be that the connection between the parties continued to be illicit until that presumption was overcome by distinct proof of marriage.

It follows that, in any view of the matter, the decision of the chancellor was correct, and the decree will therefore be affirmed.


author: Hart, J.

text:
    Ayer-Lord Tie Company v. Puckett.
    Opinion delivered July 6, 1925.
    1. Nuisance — noxious odors from sewer. — Evidence that defendant constructed a sewer for its employees having an outlet in a cypress brake partly situated on plaintiff’s land, and that plaintiff’s tenants were materially affected.in the enjoyment of their homes by the noxious smells caused by the refuse therefrom held' to warrant a verdict for plaintiff.
    2. Appeal and error — instruction—harmless error. — Submission to the jury of the question as to defendant’s liability for having permitted creosote to flow from its plant upon plaintiff’s land and injure the crops was prejudicial error where there was neither direct nor circumstantial evidence on which to base such a charge. v
    3. Nuisance — permitting flow of creosote. — Permitting creosote or other waste products from a tie plant to flow upon another’s land to the injury of his crops constitutes an actionable nuisance.
    4. Waters and water courses — causing surface water to back up on land. — One who', by digging ditches .across his land, causes the 'surface water to flow in greater volume across another’s land and to destroy his crop is liable therefor.
    Appeal from Pulaski Circuit Court, Second Division ; Richard M. Mann, Judge;
    reversed.

      Cockrill é Armstead and Jolm W. Newmat%, for appellant. \

    ' A. J. Newman, for appellee.
   Hart, J.

Henry S. Puckett sued the Ayer-Lord Tie Company, to recover .damages by flooding his land with water and with creosote, a liquid used in operating its tie plant, and for constructing a sewer which emptied into a water course which was partly on his land. The case was tried before a jury which returned a verdict in favor of the plaintiff in the sum of $250, and from the judgment rendered the defendant has duly prosecuted and appeal to this court.

The court told the jury not to consider the question of damages claimed to have been sustained by the plaintiff, because of flooding his land with water, but submitted to the jury the question of damages by allowing creosote to be deposited on the land of the plaintiff and also for the construction of the sewer.

• Counsel for the defendant seek a reversal of the judgment on the ground that the evidence was not sufficient to show any liability on its part.

As far as the question of liability for the construction of the sewer and allowing it to drain on the plaintiff’s premises is concerned, we think that there is sufficient evidence to go to the jury. According to the evidence for the plaintiff, the defendant was engaged in operating a tie plant, and had a number of employees working for it, who resided on the land where its plant was situated. The defendant constructed a sewer for the houses occupied by its employees, and the outlet of the sewer was in a cypress brake which was partly on the plaintiff’s land. The outlet of the sewer was a quarter of a mile from one of the tenant houses of the plaintiff, and closer to some of his other tenant houses. The noxious odors from the mouth of the sewer and the refuse from it made it very uncomfortable for thedenants residing on the plaintiff’s land. They were materially affected in the enjoyment of their homes by the noxious smells which came from the refuse deposited at the outlet of the sewer. These facts were sufficient, if believed by the jury, to warrant a verdict in favor of the plaintiff against the defendant on account of the offensive odors coming from the outlet of the sewer and the refuse deposited there. Yates v. Mo. Pac. Rd. Co., 168 Ark. 170.

It is also insisted by counsel for the defendant that the evidence is not legally sufficient to warrant a verdict against it ou account of allowing creosote from its plant to flow in the -ditches with the water on the land of the plaintiff and injure his crops.

In this contention we think counsel are correct. There is nothing in the record from which it might be legally inferred that the defendant drained its land by the construction of ditches and thereby allowed creosote to flow in the water down the ditches upon the land of the plaintiff and injure his crops. It is true that the proof shows that ditches were constructed upon the land of the defendant which drained the surface water from its land on the land of the plaintiff; but the testimony falls short of showing that creosote was allowed to drain into these ditches and thereby flow with the water on the land of the plaintiff. There is testimony tending to show that some of the water which flowed upon the land of the plaintiff was greasy in appearance; but the evidence shows that this greasy appearance resulted from the sinks of the tenant houses which flowed down the sewer and then on the land of the plaintiff.

On the other hand, the evidence for the defendant showed that no creosote was allowed to be deposited in the ditches constructed by it and thereby flow on the land of the plaintiff. It is shown that creosote has a peculiar odor and appearance, and, if it had been allowed to become deposited on the land of the plaintiff, this fact could have been established directly by the evidence or by such circumstances as would fairly and legally warrant the jury in inferring that fact. It is not sufficient that the alleged fact that creosote was allowed to be deposited upon the land of the plaintiff to the damage of his crops be shown by surmise or conjecture merely. Such fact must be established by direct evidence or by circumstances directly tending to establish such fact.

In this connection it may be stated that counsel for the defendant specifically objected to that part of the instruction of the court which allowed plaintiff to recover damages on account of the defendant permitting creosote to flow from its plant upon the plaintiff’s land. It has been uniformly held by this court that it is prejudicial error to submit to the jury a ground of recovery -where there is no evidence upon which to base it. In the present case the court submitted to the jury the question of the liability of the defendant on account of the offensive odors from the outlet of its sewer, and also by allowing the creosote to be emptied in the drainage ditches and thereby to flow upon the plaintiff’s land. As we have just seen, there was no evidence upon which to base a recovery -on the latter ground. Prom the instructions given we do not know that the verdict of the jury was not based in whole or in part on the ground that creosote from the plant of the defendant was allowed to flow in its drainage ditches on the land of the plaintiff; or on finding that noxious odors were allowed to escape from the outlet of the sewer and the refuse there deposited damaged the plaintiff and his tenants in the enjoyment of his premises; for both of these questions were submitted to the jury by the instructions. The defendant having specifically objected to the instruction submitting the injury from the creosote on the ground that there was no evidence upon which to base it, the action of the court was prejudicial and calls for a reversal of the .judgment. St. L. I. M. & S. Ry. Co. v. Denty, 63 Ark. 177; Ayer-Lord Tie Co. v. Martin, 90 Ark. 100, and Western Union Tel. Co. v. McMullin, 98 Ark. 347.

In view of another trial of the case, it may be stated that, if the plaintiff proves that the defendant allows creosote or other waste products from its tie plant to be deposited on his land to its injury or the injury of the crops growing upon it, this will constitute a nuisance and be actionable. Czarnecki v. Bolen-Darnell Coal Co., 91 Ark. p. 58.

In view of another trial of the case, it may also be stated that the evidence in the record before us shows that the defendant dug ditches on its land and caused the surface water thereon to flow in greater volume, in the cypress brake and to back up upon the land of the plaintiff and to destroy his crops. While this issue is not before us on the present appeal, because the action in this respect was taken from the jury, and no appeal was taken by the plaintiff, still, if the evidence is the same upon a new trial of the case, it will be the duty of the court to submit to the jury the ground of recovery of the plaintiff on account of digging the ditches and flooding his land by the back water from the cypress brake into which the ditches empty. St. L. I. M. & S. R. Co. v. Biggs, 52 Ark. 240; Turner v. Overton, 86 Ark. 406, and St. L. I. M. & S. R. Co. v. Miller, 107 Ark. 276.

For the error in submitting to the jury the question of liability from allowing creosote to flow through defendant’s drainage ditches on the land of the plaintiff, the judgment must be reversed, and the cause will be remanded for a new trial.


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    Murphy v. State.
    Opinion delivered July 6, 1925.
    Witnesses — recaul for cross-examination. — In a felony prosecution, it was not error, after the jury has been partially instructed, to refuse to permit the defense to recall a witness for re-cross-examination, where the issue was simple and the defendant had had full opportunity for cross-examination.
    Appeal from Sebastian Circuit Court, Ft. Smith District; John E. Tatum, Judge;
    affirmed.

      Holland, Holland <& Holland, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Hart, J.

Lucile Murphy prosecutes this appeal from a judgment of conviction for having in her possession morphine in violation of the statute.

This is the second appeal in the case, and reference is made to the opinion on the former appeal for a fuller statement of facts. Starr v. State, 165 Ark. 511.

It appears that Lucile Starr had married, and that Murphy was her real name when she was convicted. The only ground relied upon for a reversal of the judgment is that the court erred in refusing to reopen the case for the purpose of allowing additional testimony to be taken before the jury. After the evidence had been taken and the jury partially instructed, the defendant requested the court to instruct the jury that, if it should find from the evidence that the defendant had three grains of morphine in her possession, and that she had procured it from a druggist on the prescription of a physician and possessed it for her own use, then such possession of three grains of morphine would not be a violation of the statute.

The court modified the instruction by changing the amount of morphine to ten grains and gave it to the jury as modified. The defendant then asked the court to recall one of the witnesses for further cross-examination with reference to the amount of morphine in her possession. The court refused to allow the defendant to recall the witness because the witness had been excused, and there might be a delay in the ease by reopening it for further testimony.

There was no error in the ruling of the court. This was the second trial of the case, and the issue of fact was simple. The attorney for the defendant had full opportunity to cross-examine the witnesses, and the record shows that each one was cross-examined at length. No witness testified that the defendant had only three grains of morphine in her possession. According to her own testimony, she had ten grains, which she had received on the prescription of a physician to be taken as medicine.

On the part of the State, it was shown that she had twelve grains of morphine in her possession when she was arrested, and there was other evidence tending to show that she was a morphine addict. Under these circumstances it cannot be said that the court abused its discretion in refusing to reopen the case as requested. Teel v. State, 129 Ark. 180; Jones v. St. L. I. M. & S. R. Co., 96 Ark. 366.

Therefore the judgment will be affirmed.


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    Dickinson-Reed-Randerson Company v. Stroupe.
    Opinion delivered July 6, 1925.
    1. Usury — sufficiency of evidence. — -The rule of evidence in usury cases is the same as in any other civil action, and a fair preponderance of the evidence is all1 that is required to sustain a plea of usury.
    2. Usury — device to evade statute. — There is no device or shift on the part of the lender to evade the statute against usury under or behind which the law will not look in order to ascertain the real nature of the transaction.
    3. Usury — usurious device. — Where plaintiff loaned defendants $10,000 -payable to itself in -ten years, and took ten interest coupon notes for $700 each, bearing 10 per cent, interest and secured by a -first mortgage on land, and at the same time took two notes for $1000 each payable to itself one and two years after date, secured by a second mortgage, the transaction is usurious, and it is no defense against the charge of usury that plaintiff sold the notes for $10,000 to one of its customers and retained the other notes as its commission.
    Appeal from Logan Chancery Court, N-ortliern District; J. V. Bourland, Chancellor;
    affirmed.

      Pearson £ Baird, Geo. F. Youmans and Kincannon £ Kincannon, for appellant.

      Evans £ Evans and W. B. Rhyne, -for appellee.
   Hart, J.

On July 10,1922, Dickinson-Beed-Banderson Company, a corporation, brought this suit in equity against Henry Stroupe and E'lla Stroupe, his wife, to foreclose a mortgage on real estate and to obtain judgment against them in the sum of $2,000 on notes which the mortgage was given to secure.

The defendants pleaded usury as a defense to the action. The chancellor sustained the plea of usury and it was decreed that the complaint of the plaintiff be dismissed for want of equity. The case is here on appeal.

It appears from the record that Dickinson-Reed-Randerson Company is a corporation organized under the laws of State of Oklahoma, and that it is authorized to do business in the State of Arkansas. Ella Stroupe is the owner of 320 acres of land in Logan County, Ark., and made an application in writing to said corporation for a loan of $10,000. The application resulted in the execution of a written contract between said parties for the loan. The loan contract was also signed by Henry Stroupe, the husband of Ella Stroupe. The contract recites that the applicant appoints the Dickinson-Beed-Banderson Company as her agent to negotiate for her a loan of $10,000 for ten years from December 1,1920', with interest at the rate of 7 per cent, per annum on the first day of December in each year. The notes and the mortgage given to secure their payment were to be paid to any one designated by the agent. The contract further recites that the applicant agrees to pay said corporation the sum of $2,000 as compensation for its services in negotiating the loan. This amount is to be payable according to the terms of the two notes for $1,000 each, due respectively December 1, 1921 and 1922.

Pursuant to this contract, on the 7th day of December, 1920, Ella Stroupe and Henry Stroupe, her husband, executed a mortgage on said 320 acres of land in Logan County, Ark., to' Dickinson-Reed-Randerson Company, a corporation, to secure the sum of $10,000 for money borrowed evidenced by a promissory note of even date, with interest thereon from date until maturity, at the rate of 7 per cent, per annum, payable annually, which interest is evidenced by certain coupon interest notes; but with interest after maturity at the rate of ten per cent, per annum until paid. This mortgage was duly acknowledged and filed for record. On December 7,1920, Ella Stroupe and Henry Stroupe also executed two promissory notes for $1,000 each, due respectively on the first day of December 1921 and 1922. These notes were also payable to the order of Dickinson-Reed-Randerson Company, with interest at the rate of 10 per cent, per annum after maturity until paid. The notes were .secured by a second mortgage oxx said 320 acres of land. This mortgage, as well as the first mortgage referred to above, contained a provision that in xio event should the rate of interest upon the indebtedness secured exceed 10 per cent, per annum.

R. S. Randerson was a witxiess for the plaintiff. According to his testimony, he is secretary and treasurer of the Dickinson-Reed-Randerson Company and testified that said company never intended to make a usurious loaxi ixx the State of AJrkansas, and did xiot intend to make a usurious loan out of the one in question. The plaintiff sold and transferred the first mortgage, which was given to secure the $10,000 to axiother person and has no interest whatever in it. It simply took the loan in its own name and sold it to oxie of its customers for the purpose of obtaining the moxxey which was loaned to the defendants. According to his testimoxxy, the plaintiff simply acted as ageixt for the defexidants in the transaction. His testimony was corroborated by that of L. F. D'otson, chief clerk of the plaintiff.

Henry Stroupe was a witness for the defendants. According to his testimony, he acted as agent for his wife in securing the loan. He had the negotiation exclusively with Gr. S. Minmier and Harry Raines. It was his understanding that they were to secure a loan of $10,000 with interest payable annually at the rate of 7 per cent, per annum each year for ten years, which was to be until the maturity of the loan. They further agreed to pay 2 per cent, commission on $10,000 to be apportioned durixxg the ten years so that the interest would be 9 per cent, per annum each year. At the end of the first year he made arrangements to pay $900. That is $700 interest and two per cent, commission on $10,000 as the defendants had agreed to do. The plaintiff refused - to accept this offer and demanded the full amount claimed to he due which was $700 interest and $1,000 principal making a total of $1,700.

The record shows that the mortgage which was given to secure the two notes for $1,000 each contains a clause making both notes due at the option of the holder upon default of the payment of the first note when it became due.

The chancellor found that the whole transaction was a mere device to evade the usury law of the State of Arkansas, and that the case was ruled by the principles-of law decided in Tompkins v. Vaught, 138 Ark. 262, and Dupree v. Virgil R. Coss Mtg. Co., 167 Ark. 18.

Without attempting to discuss the evidence in detail, we deem it enough to say that it was sufficient to justify the conclusions of the chancellor. The rule -of evidence is the same in usury cases as in any other civil action, and a fair preponderance of the evidence is all that is required to sustain a plea of usury. It also results from the principles of law decided in the cases above cited that there is no device or shift on the part of the- lender to evade the statute under or behind which the law will not look in order to ascertain the real nature of the transaction.

The record shows that Ella Stroupe made a written application to the plaintiff for a loan to bear 7 per cent, interest from-date payable annually. She gave her note payable to the order of the plaintiff for $10,000, ten years after date. She also executed ten coupon interest- notes for $700 each for the interest. On the same day Ella Stroupe also executed to the plaintiff two notes for $1,000 each, due respectively one and two years after date, and executed a mortgage on the same tract o.f land to secure- these notes.

It is true that agents of the plaintiff testified that these notes were given as commission to the plaintiff, and that it sold the $10,000 note to one of its customers for the money which it loaned the defendants. It is also true that each mortgage recites that there was no intent on the part of the lender to charge usury. The fact remains, however, that the whole transaction was had between the plaintiff and the defendants. The defendants never received but $10,000 from the plaintiff. They executed coupon notes for the interest in the sum of $700 each for ten years which was the period of the loan. In addition the defendants executed to the plaintiff two notes for $1,000 each, and no part of this amount was received by them, and this amount under the finding of the chancellor became a part of the interest charged.

The chancellor was justified in finding the transaction to be one where the plaintiff made the loan and subse' quently sold it to an investor of money. If the plaintiff in fact made the loan, it could not divest the transaction of the taint of usury by afterwards selling the note and mortgage to another. To sanction such a transaction would be to uphold a palpable evasion of our usury statute. The formalities and contrivances resorted to, when considered in the light of the testimony, warranted the court below in holding that the evidence showed the transaction to be usurious. If the loan was in fact made by the plaintiff, and it did not act as a broker in the matter, it needs no argument to demonstrate that an unlawful rate of interest was charged. In all essential particulars the facts in the case at bar parallel the facts in the cases above cited.

It follows therefore that the decree must be affirmed.