text:
    McEachin v. Burks.
    4-3597
    Opinion delivered November 12, 1934.

      N. A. McDaniel and Covkrill, Armistead é Rector, for appellants.

      Anderson Burks and John L. McClellan, for appellee.
   Butler, J.

Appellee recovered a verdict in the sum of $10,000 for injuries suffered while employed by the appellants, a partnership, as a common laborer in the construction of a concrete tank at the State Hospital near Benton. Appellee is a married man, ivas a manual laborer, strong and in good health and had been employed on this job since it was started two months before his injury, at which time he was twenty-one years old. Before that he had farmed and worked for a while on State highway construction.

The appeal in this case involves only the question of the employers’ negligence. It is appellants’ contention that there is no legal evidence sufficient to support the verdict. No evidence was offered by the appellants. Th©> case was submitted on the testimony adduced by the appellee in which there is no conflict. The difference of opinion arises as to what are the just inferences reasonably deducible from the evidence.

The tank on which appellee was working when he sustained his injury is a rectangular pit. It was excavated with a steam shovel to the depth of twelve feet. On the bottom and sides wooden forms were installed into which concrete was poured thus making the walls around the pit and a partition wall. The wooden forms had been removed, leaving the walls, which were sixteen inches wide. On the outside of the walls the dirt had been excavated for the purpose of installing drains. At intervals along the walls and near the middle were holes four inches square. The top of the walls had not been smoothed or plastered over, leaving the surface more or less uneven. On the date of the injury to appellee, August 25, 1933, the partition was being used for the storing of lumber and the laborers were engaged in the afternoon of that day in rolling loads of cement and sand in wheelbarrows along and on top of the walls surrounding the pit, under the supervision of their boss or foreman. For just what purpose this material was intended to be used is not disclosed, nor is that fact important. During the afternoon and .just before appellee sustained his injury, he had rolled along the wall a couple of loads of sacks of cement in a wheelbarrow. He had also rolled along- the wall two wheelbarrow loads of sand. Herman Lott, a fellow workman, had rolled a load of sand up in another wheelbarrow. Appellee’s superior directed him to leave the wheelbarrow in which he had brought up the sacks of cement with the last load remaining in it and directed him to take the wheelbarrow Lott had been using and ■ get another load of sand. That wheelbarrow still had some sand in it which appellee unloaded and immediately went to the sand pile, reloaded it, and began pushing this wheelbarrow so loaded along the top of the wall as he had been directed to do. In pushing the wheelbarrow he held the handles which extended on either side of him with his hands. That was the first day he had rolled a wheelbarrow on top of the wall. The holes were am-covered, and it was necessaiy to guide the wheelbarrow so as to miss them. It was while making this trip that he lost his balance and fell into the hole resulting in serious injury to himself.

In describing the manner in which he pushed the wheelbarrow and how he happened to fall, appellee stated that he had no knowledge of the condition of the wheelbarrow and had had no opportunity to ascertain it. He took the one he had been instructed to take and never got far enough with the load on it to be able to discover its condition. He was uncertain what caused him to fall — he was trying to avoid the holes as he propelled the wheelbarrow, which, as he stated, “just rolled some way on the rocks or hole and got me overbalanced and kicked me in. I can’t tell just exactly — I was trying to keep the wheelbarrow under control to keep from falling. I can’t say exactly what the wheelbarrow hit.’’

Appellee was required to repeat several times, both on direct and cross-examination, the manner in which he rolled the wheelbarrow and how his fall was occasioned, but the above quotation contains essentially all that he stated in regard to the incident and his knowledge of its cause. No other person observed appellee as he fell or just before his fall. Three of his fellow employees testified. All that two of them knew was that they heard the fall of the wheelbarrow and the outcry of the appellee and saw his condition when they reached him in the pit into which he had fallen. The third employee did not see the accident but went also at once to his injured fellow and noticed the wheehbarrow and described its condition at that time. His testimony is to the effect that he examined the wheelbarrow a little— but not much; that he looked at it as it was being taken out of the pit sufficiently to observe its condition, which he described as “pretty shackly.” In the frame part there were bolts missing and wire had been inserted where they should have been to hold the frame together.

At the conclusion of the testimony the appellants moved for a peremptory instruction which the court refused, and this action on the part of the court is the principal ground of error assigned. The contentions are (1) that there is no evidence to sustain the claim that the accident resulted from youth, inexperience, of failure to warn; (2) that there is no legally sufficient evidence to show _ that the wheelbarrow was defective before the accident, or that any defect in the wheelbarrow caused the accident; (3) that the risks were obvious and assumed. In disposing of the first contention it is sufficient to say that the allegations of the youth and inexperience of the appellee and failure to warn were abandoned and were not issues in the case. Contentions numbered two and three will be discussed in the order above stated, which is the reverse from the order of discussion in appellant’s brief.

It is contended that there is no competent and legal evidence tending to show the condition of the wheelbarrow before the accident. We agree with the appellants that evidence is incompetent where the defects discovered are such that they may reasonably be supposed to have been the result of the accident itself when there are no circumstances in proof from which there may arise a reasonable inference that the defective condition of the instrumentality existed prior to the accident. In this case, however, it appears that a jnst inference may be drawn from the evidence relating to the condi.tion of the wheelbarrow that such condition had existed for a considerable time. Its ramshackle condition might reasonably be deemed to have been occasioned by the loss of the bolts from the frame of the barrow and the substitution of wire in their stead. Learned counsel contend that the manner of construction of wheelbarrows is one of common knowledge. We agree that this is true, but differ with counsel in their conclusion that wheelbarrows are not rigidly built; as to the frame or “body” of a wheelbarrow, the reverse is. true. It is likewise the case that while wire is often substituted for a lost bolt, it cannot, and does not draw the parts together as firmly.as a bolt well tightened. The fact that immediately after the accident the barrow was found to be held together with wire, justified the jury in concluding that this condition had existed for a considerable time and was the cause of the frame of the barrow being “shaky.” Common experience in the ordinary affairs of life and the fact that wheelbarrows are ancient vehicles in common use would also jiustify the jury in the assumption that a wheelbarrow with a loose frame would be easily overturned when loaded, because it would be liable to move from side to side as it is being rolled along, and that the condition of the wheelbarrow in question was the proximate cause of its being overturned while being rolled along the wall which caused the appellee to lose his balance and to fall within the pit.

The next question is, was the danger attendant on the movement of the barrow along the wall so great and so readily discoverable as to constitute a lack of ordinary care under the circumstances on the part of the appellee and create an assumption on his part of the risks involved. It is the general rule that a servant assumes the risks ordinarily attendant upon his work and also those risks created by the negligence of the master which create a situation of danger open and obvious and readily appreciable by a person of ordinary intelligence who continues to work in such situation. There are exceptions, however, to this rule. One of these is that where the work is being done under the direct command and supervision of the master, the risk will not be assumed by the servant unless it is so grave and apparent that no person of ordinary intelligence, regardful of his own safety, would engage in the work despite the command.

In the recent case of National Refining Co. v. Wreyford, ante p. 598, the cases bearing on this question were collected and the general rule drawn from them was thus stated: “In cases of this sort” [where the employee is working under the direct supervision of the master and obeying his commands] “the employee is not required to weigh the degree of danger and decide whether it is safe for him to act, and, in a measure, he is relieved of the usual obligation to exercise ordinary caution in the performance of his work. In ordinary cases he may assume that the employer has superior knowledge and may rely thereon. * * * This rule is founded on the psychological truth that habits of obedience are formed by employees to a degree which often overrules independent thought and action and thus deprives them of the exercise of intelligent foresight and prudence, which would otherwise protect them. The rule, however, has application (as will be discovered by a review of the cases cited) where the superior who gives the command is present in person actually directing the performance of the work, or where the command is given with a degree of knowledge equal to that of the employee as to the situation and circumstances surrounding the performance of the act commanded. The question of assumption of risk of the danger arising from an act commanded by a superior, under the rule stated, is always under circumstances from which the .jury might find that the command was negligence in that it directed the performance of an act which, from its very nature, or from the attendant situation and circumstances, might be reasonably apprehended as \ dangerous to the employee. ”

In the instant ease the work was being done under the direct supervision and direction of appellee’s superior, the representative of the master, who commanded him to use a particular wheelbarrow, load it with sand, and to roll it along the top of the wall. Was the risk attendant upon this work so manifestly great and so appreciated by appellee as to justify him in refusing to obey the command and to create on his part by obedience to it an assumption of the dangers involved? We think the evidence was sufficient to submit that question to the jury. It is true that the appellee, as a reasonable man, would know that his movement along the wall would be attended by some danger, but which he had the right to believe could be overcome by the exercise of due care on his part. He knew the condition of the wall and the existence of the pit, but did he know the condition of the wheelbarrow, and had he had a reasonable opportunity of appreciating the danger to be expected from such condition within the time he had taken charge of the barrow under the command of the master until the accident occurred? And was the knowledge of the entire situation and appreciation of the danger sufficient to cast upon him the assumption of the risks involved? These were questions for the jury, which have been resolved in favor of the appellee upon substantial evidence.

We have already discussed the proposition that the jury might have justly concluded that the defective condition of the wheelbarrow was the proximate cause of appellee’s fall and his injuries. The next question is, what was the duty of the master with respect to affording’ the appellee safe tools with which to work and the effect of his command to use the particular tool? Counsel argue that a wheelbarrow is a simple tool, and that there was no duty resting upon the master to inspect the same for defects. While a wheelbarrow is a common tool, it cannot be said to be a simple tool — like a chisel, a woodman’s axe, or tools of such nature which are commonly used. The simplicity of the tool, however, is not always the criterion by which the duty of the master with regard to it is to be established, but rather the use to which the tool is to be put, the locality where the work is to be performed, and the attendant circumstances. It must be conceded that where a servant is employed in pushing a wheelbarrow loaded with material like loose sand along level ground where there is no danger to be reasonably anticipated from a false movement of the barrow, or its being overturned, no duty would rest upon the master to inspect its condition before command tó a servant to use it. A different situation, however, presents itself in the case at bar. The master knew the ordinary danger to be expected from any movement along the wall with tools in good condition, and therefore, before directing the servant to use an instrument with which he was not acquainted, it was the duty of the master to acquaint himself with it sufficiently to discover whether or not it was reasonably safe and in condition for the purpose intended. Therefore, it must be assumed that the master knew the condition of the barrow. If, then, the command to use it directed the performance of an act which from its very nature or from the attendant situation and circumstances, might reasonably be apprehended as dangerous to the servant, the jury would be warranted in finding that the master was negligent in giving such command. National Refining Co. v. Wreyford, supra.

Appellants complain of instruction No. 2, given at the request of the appellee, because it submitted to the jury the question of the negligence of the appellant as alleged in the complaint. The contention is that there were several grounds of negligence alleged in the complaint which were not supported by any evidence, and that the instruction given was therefore erroneous. The jury could not have been misled or the appellant prejudiced on account of the quoted language contained in the instruction. All of these allegations had been abandoned except the one relating to the defective condition of the wheelbarrow and the negligence of the master in that regard, the case being submitted to the jury on that sole issue. This appears to have been the thought of counsel for the appellants at the time the objection was interposed to the instruction during the course of the trial, because, in the specific objection made, there was no complaint about any particular word or phrase in this instruction. The specific objection made was, “because there is no testimony to show any negligence oil the part of the employer.” This had the effect of waiving other specific objections to the instruction. Trumbull v. Martin, 137 Ark. 495, 208 S. W. 803.

Instructions Nos. 3 and 4 submitted the question of the right of the servant to rely upon the command of the master and whether or not, under the circumstances, the servant should be held to have assumed the risks. These instructions, which we deem it unnecessary to set out in full, correctly state the law of the case, which is in effect that as approved in the cases heretofore referred to.

The appellant requested instruction No. 6 which would have told the jury that the master was under no duty to furnish the servant with a safe place to work where the servant is engaged in work of such nature that it changes his place of work from time to time and the situation where the work is performed, and that any hazards arising under those conditions are assumed by the servant. There are several reasons why this instruction should not have been given. In the first place, the appellee was not engaged in work which was constantly-changing in character. The pit had already been constructed and the walls were undergoing no change at the time of the accident. The servant was working under the direct supervision of the master and obeying his command, and the duty of making his working place and appliances safe had not been delegated to him.

Instruction No. 7, requested by the appellants, would have told the jury that there could be no recovery for any defective condition of the wheelbarrow. Instruction No. 8, requested by appellants, would have directed no recovery because of post holes in the wall. Instruction No. 10, requested -by appellants, was to the effect that it was not the duty of appellants to put railing around the wall or flooring upon its top. Instruction No. 7 was properly refused, and what has previously been said, with no further discussion, is sufficient to dispose of that instruction. Instructions Nos. 8 and 10 were properly refused because the questions presented by these instructions were not issues. For the same reason, instruction No. 13, requested by appellant, was properly refused. This instruction dealt with the duty of the master with relation to young and inexperienced servants.

Instruction No. 9, requested by appellants and refused by the court, would have told the jury that no-recovery could be had if appellee accidentally lost his balance and fell or if he accidentally stepped from the wall. Instruction No. 14, requested by the appellants and refused by the court, related to the assumption of obvious risks by the servant. These instructions were fully covered by instructions previously given, and it ivas not required of the court to restate propositions of law already given. What we have said of instructions Nos. 10 and 14 disposes of the question of the court’s refusal to give instruction No. 11, requested by appellant. This related to an employee knowingly working under an unsafe condition or who should have known of the same, and that a continuing of the work with knowledge of these risks, or those which became known to him during the progress of the work, would create the assumption of such risks by him under such circumstances.

The sufficiency of the evidence to support the amount of the verdict is not questioned. Therefore, since there appears to be substantial evidence fixing liability on the appellant and since the court committed no prejudicial error in its charge to the jury, the verdict is upheld, and ihe judgment of the court affirmed.


source: Caselaw Access Project

author: Johnson, C. J.

license: Public Domain

text:
    Board of Improvement of Paving Improvement District No. 23 v. Matheney.
    4-3508
    Opinion delivered October 8, 1934.

      Herbert V. Betts and Graham Moore, for appellant.

      M. P. Matheney, for appellee.
   Johnson, C. J.

Appellant Paving Improvement District No. 23 of El Dorado was organized in 1927, and immediately thereafter appellee Matheney was employed as attorney for the district. The services rendered and to be rendered bj? the attorney were the usual and ordinary ones consisting of collecting past-due assessments of benefits,, bringing suits to enforce payment of such past-due assessments and representing the district generally in its litigation. Appellee’s contract of employment with appellant district is evidenced by the minutes of the board of date June 4, 1927, and expressly provides compensation to the amount of 75 per cent, of all penalties collected against defaulting property in the district. On June 25,1928, appellee’s contract was amended, and his compensation increased to all the penalties collected against delinquent property. This contract is evidenced by the minutes of the board meeting of that date. On March 2, 1931, appellee was employed by the district as collector of all assessments of benefits due the district, and his compensation as such was fixed by the board at 3 per cent, of all collections effected. This contract is evidenced by the minutes of the meeting of the board of that date.

Appellants, Board of Commissioners, was reorganized in the early part of 1933, and appellee’s services as attorney and collector were dispensed with by the new board, and soon thereafter this suit was instituted for an accounting'. Upon trial the chancellor stated the account as follows:

Balance alleged due under the complaint..................$4,006.60 CREDITS
Item 1 — Penalties ...........................................................................$1,451.27
Item 2 — 3% Collector’s commission on $9,392.90 ........................................................ 281.78
Item 3 — 3% on former Collector’s shortage of $960.25 ..........................................................................v..... 28.81
Item 4 — 3% on T. N. Wilson tax of $1,111.25...... 33.33
Item 5 — 3°/o on State aid vouchers, $1,031.17...... 30.93
Item 7 — Expenses of collection, 1919........................ 15.00
Item 8 — Expenses as collector, 1931........................... 24.76
Item 9 — Expenses as collector, 1932................. 26.80
Item 10 — Investment of district in properties acquired in 1930-1931............................................. 534.25
Item 11 — Additional court costs paid on same...... 23.70
Item 12 — Investment in district properties acquired in 1932...................................................... 698.80
$4,006.60 $3,149.43 Less Credits..............................$3,149.43
Balance .........................................$ 857.17
IMPROPER CHARGES
Item 1 — Voucher for $107.65.......................................................$107.65
Item 3 — Charles Carpenter 1927 tax.................................... 36.00
Item 4 — Mrs. Kate Harris, interest....................................... 31.08
Item 5 — Expenses paid by district on district property ................................................................................ 412.90
’ $857.17 $587.63
Less improper charges .........$587.63
Balance due from defendant to plaintiff.................................$269.54

And entered a decree accordingly, from which this appeal is prosecuted by appellant district.

Appellant’s first contention is that item one allowed to appellee by the court aggregating $1,451.27, same being penalties collected by appellee from delinquent lands is unlawful, unauthorized and improvident. This allowance is based upon an express contract of the board of improvement with appellee, and was faithfully performed by all parties thereto over a period of approximately six years. The law is well settled in this State that boards of commissioners of improvement districts have full power and authority to make contracts — such as the ones here under consideration — save only that the compensation awarded by such contracts must be reasonable.

In Bowman Engineering Co. v. Missouri Highway District, 151 Ark. 47, 235 S. W. 399, we stated the rule as follows: “The commissioners have power to make contracts, but tke3 are trustees of the property owners, and can only make reasonable ones. The owners of the property have a right to challenge the validity of such contracts by showing that the3 are unreasonable. Of course, in testing the validdy of such contracts, the court should not substitute its own judgment primarily for that of the commissioners, the authority- to make the contract being-lodged by the lawmakers in the commissioners, but the inquiry of the court is to determine whether or not the contract is so improvident as to demonstrate its unreasonableness. ’ ’

Again in Martin v. Street Improvement District No. 349, 178 Ark. 588, 11 S. W. (2d) 469, we restated the rule as follows: “As the commissioners had the right to contract with appellant in regard to his fee as attorney, their contract is binding unless it be found that the contract was so improvident as to demonstrate its unreasonableness, and unless and until its improvidence be first found as a fact, the question of its reasonableness does not arise. In other words, the contract between the attorney and the commissioners must be enforced unless it be found that it is so improvident as to demonstrate its unreasonableness. When this finding is made, the contract is treated as being void, as it would be in the case of actual fraud, and in such case the recovery would be on a quantum meruit basis.”

Tested by the rules thus stated, the chancellor was fully warranted in finding that the compensation awarded appellee by appellant for collecting delinquent assessments under his contract of employment as attorney for the district Avas reasonable.

Next, it is urged that item three allowed by the court to appellee should have been rejected. Appellant admits that item two is a proper charge under the contract of March 2, 1931, but contends that item three does not come within the purview of the contract. This item represents a shortage of a previous collector and according to the evidence Avas collected only after determined efforts so to do, and we think the court was correct in allowing compensation therefor.

Items numbered 10,11,12 as alloAved by the court are strenuously objected to by appellant. • These charges arose out of foreclosure sales wherein the improvement district became purchaser of the foreclosed properties. As we understand, it is not contended that the services rendered were not reasonably worth the amount claimed by these, items, but the contention is that the district should pay only after the property passes into private ownership. "When the district became the purchaser of this property at its foreclosure sale, it thereupon became responsible for the expenses incident thereto, and we think the chancellor was correct in so deciding.

Other minor items are urged upon us for review, but Ave deem them of insufficient importance to here discuss in detail. It suffices to say they fall within the rules heretofore discussed.

No error appearing, the judgment is affirmed.


author: Smith, J.

text:
    Bennett v. Younes.
    4-3562
    Opinion delivered October 15, 1934.

      Cotton & Murray and J. Loyd Shouse, for appellants.

      Shinn é Henley, for appellees.
   Smith, J.

On June 10, 1929, the tract of land involved in this litigation was sold by the collector of taxes for Boone. County for the nonpayment of the taxes due thereon for the year 1928. Pursuant to this sale the clerk of the county court executed and delivered to the tax purchaser his tax deed on July 16, 1931. This suit was brought to cancel that deed. There were allegations of a tender of taxes, etc., supported by a proper and sufficient affidavit.

The sale was attacked upon numerous grounds. We do not consider all the irregularities alleged in the assessment of the land for taxation or the proceedings incident to its sale. Having found that the sale was void for the reason herein stated, it is unnecessary to consider whether it was not also invalid for other'reasons alleged.

It appears that § 10,084, Crawford & Moses’ Digest, was not complied with. This section reads as follows: “The clerks of the several counties of this State shall cause the list of the delinquent lands in their respective counties, as corrected by them, to be published weekly for two weeks, between the second Monday in May and the second Monday in June in each year. Such list of delinquent lands shall be published in some newspaper of the county, if any be published therein; if not, in some, newspaper published nearest to said county having a circulation in such county. He shall also keep posted up in or about his office such delinquent list for one year.”

Numerous cases have held that noncompliance with the provisions of this section invalidates the sale, and the testimony of the county clerk discloses the fact that there was a failure to comply therewith. Byrne v. Less, 92 Ark. 211, 122 S. W. 635; Walter v. Swaim, 107 Ark. 242, 154 S. W. 511; Wolf & Bailey v. Phillips, 107 Ark. 374, 155 S. W. 924; Earl v. Harris, 121 Ark. 621, 182 S. W. 273.

The court should therefore have held the sale invalid, and should have canceled the tax deed as prayed, upon compliance with the tender which the complaint alleges was made.

The decree of the court helow will therefore be reversed, and the cause remanded with directions to enter a decree conforming to this opinion.


author:
Mehaffy, J.
      Baker, J.,

text:
    Torrence v. Benton.
    4-3564
    Opinion delivered October 29, 1934.

      8. F. Morton, for appellants.

      W. It. Benton, pro se.

   Mehaffy, J.

On March 30, 1933, W. W. Torrence and Sophronia Torrence presented their claim for $416 against the estate of Elizabeth Jordan, deceased, in due form to W. R. Benton, administrator, for allowance, and classification. The claim was disallowed by the administrator, and notice waived, and claim presented to the probate court for allowance and classification. There was a trial by a jury in the probate court, and a verdict and judgment in favor of claimants for the amount of said claim.

On May 4, 1933, the appellee filed with the clerk of the Dallas County Probate Court an affidavit and prayer for appeal. There is no evidence showing- that an appeal was ever allowed by the probate court.

On November 21, 1933, there was a trial before a jury in the Dallas County Circuit Court, and judgment rendered for appellee. It is the contention of the appellants that this judgment is void, because the circuit court never acquired jurisdiction of the case. The only question therefore for our determination is whether the circuit court had jurisdiction.

The appellant cites § 2258 of Crawford & Moses’ Digest, which provides, among- other things, that the probate court shall order an appeal.

Attention is called to the case of Matthews v. Lane, 65 Ark. 419, 46 S. W. 946. In that case there was a motion filed to dismiss the appeal, and the court held that no appeal had been granted, and the appeal was thereupon dismissed. It appears from the above, case that no appeal was granted, and the court correctly held that it should be dismissed.

This court has repeatedly held that, in order to give the circuit court jurisdiction, the probate court must grant the appeal.

In the case of Speed v. Fry, 95 Ark. 148, 128 S. W. 854, the court held that the granting of the appeal by the probate court was a prerequisite to the right of the court to exercise jurisdiction. In that case the claim was for $95.25. This amount was not sufficient to give the circuit court original jurisdiction.

In all matters of contract, the justice of the peace court has jurisdiction exclusive of the circuit court, where the amount in controversy does not exceed $100. In matters of contract where the claim is less than $100, the circuit court has no jurisdiction.

In the case of Miller v. Oil City Iron Works, 184 Ark. 900, 45 S. W. (2d) 36, the probate court had granted the appeal, but it was contended that it had not been granted within the time allowed by law. Moreover, there was a motion made, to dismiss the appeal because not taken in time, and this court said: “The record does not show whether or not any evidence was introduced on the motion in the circuit court; and, in the absence of such showing from which this court might determine whether or not the circuit court abused its discretion in overruling the motion to dismiss, every presumption that it was correct must he indulged.”

The question we have now was not involved in that case, because there the court granted the appeal.

If the case is such that the probate court has exclusive original jurisdiction, and the circuit court does not have original jurisdiction, then, under the decisions of this court, the appeal must be granted by the probate court, or the circuit court will acquire no jurisdiction. On the other hand, if the circuit court has original jurisdiction of the subject-matter, and the parties appeal and do not object to jurisdiction, they will be bound by the judgment rendered by the circuit court.

In this case the claim was for $416, and the circuit court had jurisdiction of the subject-matter. The. parties appeared, tried the case, no objection was made to the jurisdiction of the court, and the judgment rendered was binding on the parties.

.There, is no question but what the circuit court had jurisdiction of the subject-matter. It is true that our statute says that a suit is begun by filing a complaint, and causing a summons to be issued. While a suit is begun in this manner, it does not follow that the case may be tried, because the summons might never be served, and the court might not acquire jurisdiction of the person.

We recently said: “A defendant appearing specially to object to the jurisdiction of the court must, as a general rule, keep out of the court for all other purposes. In other words, he must limit his appearance to that particular question, or he will be held to have appeared generally and to have waived his objection. If he takes any step consistent with the hypothesis that the court has jurisdiction of the cause and the person, such special appearance is converted into a general one, whether it is limited in its terms to a special purpose or not.” Fed eral Land Bank of St. Louis v. Gladish, 176 Ark. 267, 2 S. W. (2d) 696.

The. court also said in the above case: “But one cannot come into court, assert a claim, ask the court for affirmative relief, and then, when there is an adverse judgment, claim that the court had no jurisdiction over his person. If this could be done, the appellant would have the opportunity and advantage of prosecuting its claim and, in cáse it recovered judgment, it could collect, and at the same time take no chances of a judgment against itself.”

What we have said applies in cases where the circuit court has original jurisdiction of the cause of action. If the circuit court’s jurisdiction depended on the jurisdiction of the lower court, then no jurisdiction would be acquired by the circuit court unless the appeal was allowed by the probate court.

The Ohio court said, in a case appealed from the probate court: “It does not appear that any objection was made because of any lack of jurisdiction in the circuit court to hear and determine the issue, nor was there any objection respecting the way in which the controversy reached that court. Indeed, it seems to be conceded that the circuit court is a court of general jurisdiction, thus possessed of power to pass upon its own jurisdiction, having also chancery powers; and such we understand to be the fact. The parties, therefore, were then in a court which, according to the theory of plaintiffs in error, was such a court as should have been resorted to in the first instance. In that court the parties joined issue, and the cause went forward to final judgment. How can the parties who then entered their appearance at the trial and submitted their controversy be heard now to dispute the jurisdiction of that court? We think they cannot. That the cause got into that court by appeal from a court which had not jurisdiction of it (if that be the case), rather than by original pleadings and process, was, after all, but an irregularity, not affecting any substantial right, and one which was waived.” In re Crawford, 68 Ohio St. 58, 67 N. E. 156, 96 Am. St. Rep. 648.

“Within its limitations respecting subject-matter, a Federal court is a court of general jurisdiction. If organic power to hear the controversy exists, it is immaterial when or how the parties get into court; it is enough if they do come in and waive all preliminaries to the submission of their controversy. And so we deem in point those authorities from State courts which hold that, although the trial court acquired no jurisdiction by the removal of the case on appeal from an inferior court, yet, the trial court having jurisdiction of the subject-matter, the judgment would be sustained because the parties had voluntarily joined in submitting their controversies for decision.” Toledo, St. L. & W. R. Co. v. Perenchio, 205 Fed. 472.

“Where a cause of action is within the general jurisdiction of a court, the voluntary appearance of the parties and submission of the cause on its merits confers jurisdiction to try the issues presented. ’ ’ Rio Vista Mining Co. v. Superior Court of Plumas County, 187 Colo. 1, 200 Pac. 616.

“It is also a well-established rule that, in cases appealed from an inferior court to a superior court having appellate jurisdiction only, the appellate court acquires such jurisdiction as the inferior court had. * * * In cases of this kind the weight of authority holds that where parties on appeal to a court having original jurisdiction of the subject-matter of the action have, without objection, as in the ease at bar, submitted their controversy to the court for trial and adjudication, and the cause proceeds to trial and final judgment, they will be held to have waived their right to object to the jurisdiction of the court to which the appeal is taken. ’ ’ Burt & Carlquist Co. v. Marks, 53 Utah 77, 177 Pac. 224.

It appears that the weight of authority is to the effect that where the circuit court has original jurisdiction of the subject-matter, and the parties appear and try their cases without objection, it is immaterial how the court acquired jurisdiction. Purnell v. Nichol, 173 Ark. 496, 292 S. W. 686.

The judgment of the circuit court is affirmed.

Baker, J.,

(dissenting). The opinion of the court is not supported 'by authorit3. It would seem from an analysis of the opinion that the amount sued for, $416, an amount that is within the jurisdiction of the circuit court, is the controlling factor in a determination of the validity of the judgment, appealed from to this court.

The circuit court would have jurisdiction of the amount when that jurisdiction is properly invoked, either b3r the filing of a suit in the circuit court, according to the usual or statutory processes provided b3r law, or that jurisdiction may be invoked b3r an appeal, in cases of this kind, from an order of the probate court.

Sections 34 and 35, article 7 of the Constitution of 1874, are as follows:

§ 34. “The judge of the county court, shall be the judge of the court of probate, and have such exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians and persons of unsound mind and their estates as is now vested in the circuit court, or may be hereafter prescribed b3r law. The regular terms of the court of probate shall be held at the times that may hereafter be prescribed by law.
§ 35. “Appeals may be taken from judgments and' orders of the probate court to the circuit court under such regulations and restrictions as ma3r be prescribed b3r law.” These constitutional provisions and § 2258 of Crawford & Moses’ Digest, which is the statute governing appeals from the probate court, provide a method of invoking the jurisdiction of the circuit court upon an appeal from an order and judgment of the probate court. It is exclusive.

Said § 2258 is as follows:

“Appeals may be taken to the circuit court from all final orders and judgments of the probate court at an32 time within twelve months after the rendition thereof by the party aggrieved filing an affidavit and prayer for appeal with the clerk of the probate court, and upon the filing of such affidavit the court shall order an appeal at the term at which such judgment or order shall be rendered, or at an3r term within twelve months thereof. The party aggrieved, his agent or attorney, shall swear in said affidavit that the appeal is taken because he verily believes that he is aggrieved, and is not taken for the' purpose of vexation or delay. And any heir, devisee, legatee or judgment-creditor of an estate, who feels aggrieved, may at any time within six months after the rendition thereof prosecute an appeal to the circuit court from any final order or judgment of the probate court by filing an affidavit and prayer for appeal with the clerk of the probate court together with a bond to pay the costs of the appeal if the judgment of the probate court is affirmed, and upon the filing of such affidavit and [bond] for the cost to be approved by the clerk, the court shall make an order granting the appeal at the term at which said judgment or final order shall be rendered or at any term within six months thereafter. And any such heir, legatee, devisee or judgment-creditor of an estate may likewise, upon-executing bond for costs, prosecute an appeal to the Supreme Court from the circuit court.”

The instant case is distinguished in the opinion from the case of Speed v. Fry, 95 Ark. 148, 128 S. W. 854, by reason of the fact that in the Speed case the amount involved was $95.25, which was not sufficient to give the circuit court original jurisdiction. Therefore, it must have reached the circuit court, if at all, by proper appeal.

In the case of Matthews v. Lane, 65 Ark. 419, 46 S. W. 946, there was a motion filed to dismiss the appeal. But both these cases reached the Supreme Court by appeals from: judgments of the circuit court in which the parties in each case took part in the trials.

In the case of Miller v. Oil City Iron Works, 184 Ark. 900, 45 S. W. (2d) 36, it was contended that the appeal had not been granted within the time allowed by law, and the motion was filed in that case to dismiss the appeal because it was not taken in time. The circuit court overruled that motion, and, the evidence offered upon the motion not having been brought forward in the bill of exceptions, the Supreme Court had to indulge the presumption that the trial court was correct, and it furnishes no authority or basis for the new theory advanced in this case.

In the case of Matthews v. Lane, supra, the note sued on was for $1,000 and was filed for allowance in the probate court. The claim was disallowed in the probate court, and Matthews attempted to appeal to the circuit court, and there, upon motion of Lane, his appeal from the probate court was dismissed. Matthews did not take proper steps to bring up the record to show his appeal was proper, but he appealed from the order of the circuit court, dismissing’ his appeal. Lane’s motion to dismiss the appeal is not set out in this case, but, if the suit had been filed in the circuit court originally, and Lane had filed a motion to dismiss for want of jurisdiction, it would have been an entry of appearance, and he would have then been required to answer.

In the case of Tharp v. Barnett, 93 Ark. 263, 124 S. W. 1027, this court construed the section providing for appeals in probate court, using this language: “The law is analogous to that governing the procedure in appeals from justice to circuit courts and from circuit courts to this court under similar statutes.” The court held further in that case that the circuit court being without jurisdiction, it was error to render judgment for costs.

Causes rightfully originating in the probate court may reach the circuit court only by appeal. To that proposition we all agree.

In the case of Walker v. Noll, 92 Ark. 148, 122 S. W. 488, a formal affidavit was tendered by the attorney, who handed to the probate clerk an affidavit, proper in form, signed by himself with the remark: “I will swear to this, ’ ’ and without further formality left ■ the office. The circuit court held this affidavit sufficient and tried the case upon its merits. This court reversed that case, for the reason that the appeal was not perfected under the provisions'! of the statute governing appeals from the probate court to the circuit court and upon the theory that the affidavit was not properly presented to the court, and that no order granting an appeal was made after the filing of that instrument. The amount in controversy in that case is not shown by the opinion. It seems not to have made any difference. The court said: “The direct matter involved in the hearing of the appeal from this order was whether the appeal was taken in the manner prescribed by law. It was not therefore a collateral attack of that order.” This court reversed that case with directions to dismiss the appeal. Numerous cases of this court have held that the affidavit and prayer for appeal from the judgment of the probate court do not invest the circuit court with jurisdiction unless the appeal be also granted by the probate court. Neale v. Peay, 21 Ark. 93; Crow v. Hardage, 24 Ark. 282; Hanna v. Pitman, 25 Ark. 275; Love v. McAlister, 42 Ark. 183.

In the case of Speed v. Fry, 95 Ark. 148, 128 S. W. 854, Justice Hart said this: “The record shows J. C. Speed filed an affidavit and prayer for appeal in the usual form to the circuit court, but it does not show that the probate court made an order granting the appeal. This was necessary in order to give the circuit court jurisdiction.” Citing Kirby’s Digest, § 1348; Matthews v. Lane, supra.

“This court has held that the appellee may waive the want of an affidavit for appeal in the circuit court by failing to move to dismiss. James v. Dyer, 31 Ark. 489. The reason is that the affidavit and prayer for appeal is a regulation for the sole benefit of the appellee. But the order of the probate court granting the appeal is a prerequisite to the right of the circuit court to exercise jurisdiction, and for that reason cannot be waived. It follows, therefore, that the circuit court should have dismissed the appeal because no order of the probate court granting it was made, and for this error the judgment will be reversed, and the cause remanded with directions to the circuit court to dismiss the appeal for want of jurisdiction.” In that case there is no showing that any motion was ever made to dismiss the appeal in the circuit court.

It is true this was an appeal from a case in which the probate court had exclusive jurisdiction, a matter of the guardian’s settlement, but the parties entered upon a trial in the circuit court without objection, as in-the instant case. A judgment was rendered for $126, and Speed appealed to this court. He was also the appellant from the probate court. He attempted to invite the jurisdiction of the circuit court, the appellee tried the case there with him, was. satisfied with it, did not raise the question of jurisdiction, and this question was apparently raised for the first time in the Supreme Court.

In the case of Williams v. Bowen, 116 Ark. 266, 170 S. W. 221, in a controversy over a will, in which the probate court, of course, had exclusive original jiirisdiction, the executor and other legatees, as stated by Chief Justice McCttlloch, attempted to prosecute an appeal to the circuit court. They filed an affidavit with a transcript of the proceeding’s and lodged them in the circuit court, but the record did not disclose any affidavit or prayer for appeal to the probate court, or any order of that court granting’ an appeal. No motion was made below to dismiss the appeal, but the cause proceeded to trial before the court sitting as a jury, and it was insisted, for the first time, in the Supreme Court, that the judgment of the circuit court should be reversed for lack of jurisdiction, and it was urged by the appellees that this objection was waived by the parties proceeding to trial without moving to dismiss the appeal. The Chief Justice certainly had in mind that there was but one method of appealing from the probate court when he wrote the opinion. He says: “This question was expressly decided by this court in the case of Speed v. Fry, supra, where we said that ‘the order of the probate court granting the appeal is a prerequisite to the right of the circuit court to exercise jurisdiction, and for that reason cannot be waived.’ Other decisions of this court bearing on that question are cited in the opinion.” He also cited the case of Drainage District No. 1 v. Rolfe, 110 Ark. 374, 161 S. W. 1034. That case was tried .in the circuit court on appeal from the county court and in that case the matter of jurisdiction was raised in the Supreme Court for the first time. It is true that in Williams v. Bowen, supra, and Drainage District No. 1 v. Rolfe, supra, original exclusive jurisdiction was in the probate court and county court, respectively.

In the case of Mississippi County v. Moore, 126 Ark. 211, 190 S. W. 110, Justice Hart, in reversing the case, in his discussion said in argument: “Section 1348 of Kirby’s Digest provides that appeals to the circuit court from the probate court shall be granted by the probate court. In construing this statute in the case of Speed v. Fry, supra, the court held that the order of the probate court granting the appeal is a prerequisite to the right of the circuit court to exercise jurisdiction, and for that reason cannot be waived. This rule was reaffirmed in the case of Williams v. Bowen, supra. The court held that it was the duty of the circuit court to dismiss the appeal for want of jurisdiction. ’ ’

With all deference to the greater experience of my associates, the writer begs leave to offer the following suggestions:

The jurisdiction of courts in this State is fixed by the Constitution and the laws of the State. It is not sufficient to say that the circuit court has jurisdiction of a certain class of cases merely because the amount, as fixed by the Constitution or law, is sufficient. There are always steps to be taken by one who wishes to invoke that jurisdiction. In the circuit court there must first be filed a complaint. The defendant may be brought in by service or process, or he may enter his appearance. On appeals from justice of the peace courts, municipal courts, probate and county courts, certain things must be done to invoke or call into action the jurisdiction of the circuit court. The circuit court can no more act upon these appeals unless proper steps are taken to invoke the exercise of that appellate jurisdiction by the circuit court, than it can in cases in which it has original or exclusive jurisdiction without proper procedure.

The statute prescribes a definite, certain, and complete method of perfecting appeals from the probate court. Unless this method be substantially followed, the circuit court is without power to exercise that jurisdiction. If there be an exception, it would have, in all probability, been suggested at some time.

We are saying now, in this opinion the writer is criticising, that one who desires to' take advantage of the fact that an appeal was not granted by the probate court must carefully prepare his motion, objecting solely to jurisdiction and reserving his rights thereunder, or he will be deemed to have entered his appearance and must go to trial, provided the amount in controversy be in excess of $100. In all of these appeal cases heretofore determined in this court, a motion to dismiss has been treated as the proper pleading, but by this new method of appeal, if it be an appeal, one dare not make a motion to dismiss without specially reserving his rights, for, if he should fail to do so, it will be treated as an entry of appearance. We so held in a per curiam opinion rendered in the case of Crain v. St. Francis Levee District, ante p. 721, and cited as authority therefor Federal Land Bank v. Gladish, 176 Ark. 267, 2 S. W. (2d) 696. Such must be the ultimate result of the opinion in this case when it is followed as a guide for future procedure.

It is unnecessary to cite authorities showing that the probate court is a court of superior jurisdiction. In the probate court a judgment was rendered. Under the statute there has been no appeal prayed for or granted, and that judgment is necessarily in force and effect. In the circuit court of Dallas County another judgment has been rendered on the same cause of action. Under the opinion rendered, that judgment is valid, and it must be conceded that it was not rendered on appeal from the probate court, because the decision is based upon the proposition of the original jurisdiction of the circuit court and not upon the matter of appellate jurisdiction from the probate court.

We therefore have the anomalous situation of two judgments relating to the same subject-matter. The first of which is impervious to collateral attack. It has not been attacked fay appeal. The time to appeal from the judgment has probably expired. The second judgment, that of the circuit court, has no more vital force than the probate court judgment. The supervising power of the circuit court is exercised by appeal. The circuit court has no more power to reach over into the probate court and settle this controversy than has the probate court to pluck from the files of the circuit court the cause pending there. Shall we now create a new remedy, judicial in character, to correct this obvious error!

It is of no importance to the public generally as to how this case is settled. It is of the greatest importance to the members of the legal profession and to their clients to understand whether we shall follow the time-honored processes prescribed by statute. The circuit court should have dismissed the purported appeal upon its own motion. A failure to do that did not, and could not, give jurisdiction. We are dealing with a shadow that had no substance to produce it.

Mr. Justice Butler concurs.


text:
    Ball v. Ball.
    4-3573
    Opinion delivered November 12, 1934.

      Oscar E. Williams, for appellant.

      Bernal Seamster, for appellee.
   Smith, J.

James P. Ball filed suit on October 5, 1933, in the Washington Chancery 'Court against Lina M. Ball, his wife, for divorce, and alleged her desertion of him as the ground therefor. A decree was rendered as prayed in March, 1934, from which is this appeal.

An answer was filed in which Mrs. Ball denied that she had deserted her husband. She alleged that, on the contrary, her husband had, without cause and against her wishes, deserted her, and that she had been at all times, and was now, willing and desirous to resume the marital relation. She pleaded also, in bar of the suit, the judgment of the circuit court of Jackson County, Missouri, at Kansas City, in which her husband had been denied a divorce. That court was alleged to be a court of competent jurisdiction, having jurisdiction of the subject-matter of the suit and of the parties thereto, and that the final judgment of the court, rendered on the merits of the case after a full hearing on June 23, 1933, denied Mr. Ball’s prayer for a divorce. A copy of all the pleadings and proceedings in that case, duly authenticated, was offered and admitted in evidence at the trial from which this appeal comes. Hall v. Roulston, 70 Ark. 343, 68 S. W. 24.

In the complaint or petition for divorce filed in Missouri it was alleged that the parties were married December 4, 1916, in Norwalk, Connecticut, and lived together as husband and wife until June, 1924, since which time they have lived separate and apart, and that'Mrs. Ball had offered such indignities to her husband as to render his condition as her husband intolerable and made it impossible for them to live together, the details of which allegations need not be stated. It was also alleged that the petitioner’s business required him to establish his abode at various places throughout the country for long periods of time, and, although he requested his wife to accompany and remain with him, she refused to do so and insisted on remaining at the home of her mother in Norwalk, Connecticut, remaining away from him continuously since June, 1924, notwithstanding the fact that he had discharged all his duties as a husband and had treated his wife with kindness and affection.

In the suit filed in this State a decree was prayed on the sole ground of desertion, a fact which was sufficiently alleged in the complaint, and testimony was offered to support that allegation.

As opposed to the plea of res judicata, it is insisted that the second suit for divorce — the one filed in this State — is upon a different cause of action from the one alleged in the Missouri suit, and, as appellee insists, “the causes are contradictory,” and, this being true, the former suit bars only the cause of action there relied upon and does not bar a cause of action then existing but not then and there adjudged.

It is insisted that desertion was not relied upon as a cause of divorce in the Missouri suit, for the reason that the complaint did not allege that the absence was with-' out reasonable cause, whereas that allegation and proof thereof is essential, under the laws of Missouri, to obtain a divorce on the ground of desertion. Freeland v. Freeland, 19 Mo. 354; Hoffman v. Hoffman, 43 Mo. 547; § 1801, Revised Statutes of Missouri, 1919.

In answer to this insistence, it may be first said that we do not construe the complaint filed in Missouri as being deficient in this respect. By fair intendment the allegations thereof do charge an absence from the husband during a long number of years, and without reasonable cause, and desertion was therefore alleged, although the proof in that case was directed, not to that charge, but to the charge of indignities rendering the condition of the husband as such intolerable. However, there is no allegation or proof in the instant case of any change in the situation or relations of the parties to each other since the rendition of the decree in Missouri. If the husband is entitled to a divorce now on the ground of desertion, he was entitled to it for the same reason when the Missouri decree was rendered.

It is true we held in the case of McKay v. McKay, 172 Ark. 918, 290 S. W. 951, that, if one spouse leaves another without cause and absents himself or herself from the innocent spouse for a year or more, a complete cause of action for divorce arises, which the offending spouse may not destroy by an offer, even though made in good faith, to resume the marital relation. But no such question is presented here. The husband has those causes of action which existed then, and none other.

It is conceded, of course, that full faith and credit must be given by us to the decree of the Missouri court. It could not be otherwise in view of § 1 of article 4 of the Constitution of the United States, which requires that: “Pull faith and credit shall be, given in each State to the public acts, records, and judicial proceedings of every other State.”

In the famous and leading case of Haddock v. Haddock, 201 U. S. 562, which involved the validity in one State of a decree for divorce rendered in another, it was held (to quote a headnote) that: “The requirement is not that some, but that full, faith and credit, equal to that to which it is entitled in the State where rendered, shall be given to a judicial decree of another State.” See also Harding v. Harding, 198 U. S. 317.

In the case of Viertel v. Viertel, 99 Mo. App. 710, a headnote reads as follows: “The husband brought divorce on the ground of adultery with D. His bill was dismissed on the ground of connivance. Held, such connivance would not be a complete bar to a subsequent bill for adultery with C committed after the dismissal, or for adultery with P committed prior to the former suit of which the husband had no knowledge at that time, but such judgment of dismissal bars an action for adultery with P, since it might have been raised and litigated in the former action.” In the body of the opinion it was there said: “The court found that plaintiff at the time he brought his first suit was unaware of the former infidelity. We have examined the testimony, and it does not appear that any evidence was offered to show such fact. The plaintiff himself failed to state whether or not he was in possession at said time of any knowledge of such prior adultery. It devolved on him to prove that, at the time he brought his said former suit for divorce, he included his whole case, and he will not be permitted to open up the same subject of litigation in respect to matters which might so have been brought forward. ‘All the issues that might have been raised and litigated in-any case are as completely barred by the final decree therein as if they had been directly adjudicated and included in the verdict.’ Donnell v. Wright, 147 Mo. 639, 49 S. W. 874. Under the rule the plaintiff was not entitled to a decree against his wife for the alleged act of adultery with said Parker, as it was a matter for litigation in said former suit.”

It would appear to follow from this holding that the courts of Missouri would not now grant Mr. Ball a divorce for desertion, inasmuch as that cause of action existed and was known to him, if true at all, at the time of the trial in Missouri, and nothing has since occurred to confer a cause of action which did not then exist. See also Searcy v. Searcy, 196 Mo. App. 311, 193 S. W. 871.

We have many cases holding the judgments of courts of competent jurisdiction of other States to be conclusive as to the merits of the original cause of action. Among others are these: Glass v. Blackwell, 48 Ark. 50, 2 S. W. 257; Jordan v. Muse, 88 Ark. 587, 115 S. W. 162; Taylor v. Bacon, 102 Ark. 97, 142 S. W. 1128; Albright v. Mickey, 99 Ark. 147, 137 S. W. 568; Ederheimer v. Carson Dry Goods Co., 105 Ark. 488, 152 S. W. 142; Rice v. Metropolitan Life Ins. Co., 152 Ark. 498, 238 S. W. 772; Hartford Fire Ins. Co. v. Citizens’ Bank, 166 Ark. 551, 266 S. W. 675; Miller v. Brown, 170 Ark. 949, 281 S. W. 904.

The question here presented is not a novel one. The case of Averbuch v. Averbuch, 80 Wash. 257, 141 Pac. 701, is reported in Ann. Cas. 1916B, and, with the annotations, extends from page 873' to page 920 of that report, and reference is made to it for the use of any one desiring an exhaustive review of the subject. In the body of that opinion a number of' cases are cited in support of the statement there made, that: “It is elementary law that, in divorce actions, as in all others, a judgment is final and conclusive upon all questions which were or might have been litigated,” and the annotations cite many other cases to the same effect.

We have many cases in our reports announcing the same principle. A late case citing a number of others is that of West Twelfth Street Road Imp. Dist. v. Kinstley, ante p. 120, 70 S. W. (2d) 555, in which it was said: “The settled rule of this jurisdiction supported by the weight of authority is that a judgment of a court of competent jurisdiction is conclusive of all questions, legal or equitable, which were raised in the cause or which, being within the scope of the issue, could have been interposed.” (Citing cases.)

Our cases of McKay v. McKay, 172 Ark. 918, 290 S. W. 951, and Butts v. Butts, 152 Ark. 399, 238 S. W. 600, are cited as sustaining the contention that a denial of a divorce upon one ground is not a bar to a suit for divorce upon a different ground, although the latter cause existed and was known when the first suit was determined. But such is not their effect. In the McKay case, sapra, it was said: “We think the present suit of appellant is not barred by the decree in the first suit, for the reason that she alleges a different cause for divorce, one which could not have existed when she filed her first suit — that of desertion — as the parties had not been separated a year when the first suit was commenced. 1 Nelson on Divorce and Separation, § 555. In other words, a denial of a decree upon a particular ground is no bar to a suit for divorce upon a. cause of action which subsequently arose. But, as has already been said, no new cause of action, not existing at the time of the rendition of the decree in Missouri, was alleged or proved.

In the Butts case an appeal from a decree of divorce was dismissed for the reason that the appellant had remarried after the divorce had been granted, and it was held, for that reason, that the appellant had forfeited her right to appeal to this court to correct the alleged error of granting the divorce. Attention, however, was there called to the fact that the. Louisiana court which had granted a divorce a mensa et thoro, pleaded in bar of the suit for divorce in this State, was without jurisdiction to render a decree for an absolute divorce, for the reason that, under the practice in Louisiana, an absolute divorce cannot be rendered on constructive service of process, as had been there prayed. But, as has been said, there is no question about the jurisdiction of the Missouri court to have granted an absolute divorce for either the indignities or the desertion.

Inasmuch as the decree of the Missouri court bars the present suit, it becomes unnecessary to review the case on its merits. We may say, however, that, in our opinion, the testimony does not establish the fact of desertion on the part of Mrs. .'Ball. On the contrary, in our opinion, he is the offending spouse in this respect.

Having held that Mr. Ball is not entitled to a divorce, and that the decree granting the divorce should be reversed, we are now asked to make an order allowing Mrs. Ball an attorney’s fee and the costs of the suit, and also a. provision for her support and maintenance. We heretofore allowed a hundred dollars as expense money, reserving the questions of attorney’s fee and costs until the final disposition of the cause. It is now shown that, since the trial of the case in the court below, Mr. Ball’s income has been very greatly increased through the death of his father; but the facts in relation thereto were not developed at the trial, and we are therefore of the opinion that this feature of the case should be heard and fully developed in the court below, where appropriate orders may be made for Mrs. Ball’s support.

The litigation appears to have been protracted and expensive, and it is now ordered that all the costs thereof, including the costs on the appeal, be assessed against Mr. Ball, and he is further ordered to pay her attorney the sum of $250 as his fee in this case to this date.

The decree of the court below will therefore be reversed, and the cause remanded with directions to set aside the decree from which this appeal came, and for further proceedings in accordance with this opinion.


author: Mehaffy, J.

text:
    Morgan v. State.
    Crim. 3906
    Opinion delivered November 12, 1934.

      Jeff Bratton, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Mehaffy, J.

The appellant, Anthony Morgan, was indicted, tried and convicted of the crime of assault with intent to rape, and his punishment fixed at three, years in the penitentiary. To reverse the judgment of conviction, he prosecutes this appeal.

His first contention is that the court erred in not granting him a postponement of the trial. He was indicted on the 15th day of May, 1934, and his trial was had on May 22, 1934.

The crime was alleged to have been committed on the 23d day of January, 1934, approximately four months before the trial. Appellant was immediately arrested, and waived a preliminary hearing. He had all that time to employ counsel, and he need not have waited until the indictment was returned before employing counsel. This court said: “We must repeat the settled rule that motions for continuance are addressed to the sound discretion of the trial judge, and a refusal to grant such a motion is not ground for a new trial unless it clearly appears to have been an abuse of such discretion and manifestly operated-as a denial of justice.” Hamilton v. State, 62 Ark. 543, 36 S. W. 1054. Moreover, the motion to continue did not comply with the statute, and we think the court did not abuse its discretion in refusing a continuance.

It is next contended that the evidence is insufficient to .justify the conviction. In testing the legal sufficiency of the evidence to support the verdict, we must view the evidence for the 'State in the light most favorable to it, and if that evidence is legally sufficient to support the verdict it cannot be disturbed on appeal. ‘This court, in commenting on this rule, stated: “The reason is that the jury are the judges of the credibility of the witnesses, and have decided that question in favor of the State by returning a verdict of guilty. Hence we need only to refer to the evidence adduced in favor of the State.” Begley v. State, 180 Ark. 267, 21 S. W. (2d) 172.

The prosecuting witness, Lurleen Burks, a fourteen year old girl, and her twin sister, attended a party on the night of January 23, 1934, at the home of Boon McDonald, in Greene County, Arkansas. Kathleen Burks, the twin sister of the prosecuting witness, met Galen Hatcher at the party, and made a date with him to take her to her sister’s home after the party. When the party broke up, Kathleen Burks got in Hatcher’s car, and her sister got in the car with them. Kathleen Burks was seated next to Hatcher, and Lurleen was sitting on her right. As they started to drive off the appellant appeared and requested Hatcher to let him ride. Hatcher replied that it was all right with him if it was with the girls, whereupon Lurleen Burks objected to his going. The appellant said he was going to the corner and climbed into the car. The prosecuting witness testified that she then sat on her sister’s lap, and that the appellant afterwards pulled her over into his lap. They then started toward the home of Lurleen’s married sister, but turned off that road. When they got a half-mile or three-quarters beyond the home, he stopped and asked Lurleen to have intercourse with him, and she told him she would not. He said: “Yes, you will, too”, and she again said she would not. About this time the prosecuting witness looked back and saw Vernon Drafton in the rumble seat, and he got out, came around and asked the appellant for Ms overcoat. Appellant gave Drafton his overcoat, and Drafton then got back into the rumble seat. Lurleen testified that the appellant had his clothes down, and got one of her bloomer legs off, and exposed Ms private parts, pulled her dress up, and had her down in the seat holding her, and that he really tried to have intercourse with her then. At this time the sister of the prosecuting witness got out and ran to Mr. Hopkins’ house. Lurleen then got out of the car, and she and her sister walked to the home of her married sister about a half-a-mile, and did not see the boys any more that night. The testimony on the part of the'State showed that appellant was wrestling with Lurleen, trying to push her down on the seat underneath him, and all the time Lurleen was trying to get him to quit and tried to push him off of her, but she could not. It appears from the evidence that he did not desist until the twin sister had gotten out of the caFand gone to Mr. Hopkins’ house, and then Lurleen was permitted to get out of the car and go, and her clothing was torn, and after the girls got out the boys drove away. The Hatcher boy was attempting the same thing with Kathleen that the appellant was with Lurleen.

The evidence on the part of the defendant goes to show that he did not use any force; but it also shows that, while he was trying to get her to have intercourse with him, he did not desist until the sister had gotten out of the car and gone to the Hopkins’ house, and then they drove away. The appellant testified and said that it was not his car, but was Hatcher’s car, and he got in with them to ride, and asked one of the girls to sit in his lap, admitted that he tallied with her about having intercourse, admitted that Hatcher and the other girl left the car, and when Hatcher came back with the other girl she jerked loose from him and ran to the house, and Hatcher then told appellant to let Lurleen out of the car, and tliey let her out and then turned the car and left.

Hatcher was put on the stand, hut declined to answer questions because it would incriminate himself. It appears from the record that he is a co-defendant, that is, he was called a co-defendant, and is probably indicted in a separate indictment.

The evidence is not entirely satisfactory, but the jury may have concluded that he intended to have intercourse with her against her will, and desisted only because the twin sister escaped and appellant thought that other parties would be notified. At any rate, these were questions for the jury, and not for this court. This court has said: “The evidence is far from satisfying, but we cannot say that it is not legally sufficient to sustain the verdict. * * The jury has passed upon her evidence, and we cannot say it is not legally sufficient to support the verdict.” Gray v. State, 125 Ark. 272, 188 S. W. 820. This court said in a very recent case: “It is well settled that an assault with intent to rape is an effort to obtain sexual intercourse by force and against the will of the person assaulted, and the intent is to be ascertained from the commission of some act or acts at the time or during the progress of the assault. The force actually used need be of no specific degree or character, but comes within the meaning of the law if it is reasonably calculated to subdue and overcome; nor need it be persisted in until the assailant’s design is accomplished; if the assault is actually begun and the intent can be inferred from the acts committed, the offense is complete, notwithstanding the fact that the assailant may, for some reason, relent and forbear from the consummation of his purpose.” Boyett v. State, 186 Ark. 815, 56 S. W. (2d) 182.

It is finally contended that the court erred in refusing to give instruction No. 1 requested by appellant. That instruction reads as follows: “You are instructed that force is the essence of the crime of rape, and that persuasion and solicitation coupled with caressing and attempting to force the will of the female to consent to the act of sexual intercourse is not sufficient to justify a verdict of guilty.”

The court did not err in refusing to give this instruction. It not only singles out certain testimony, but it also tells the jury that persuasion and solicitation coupled with caressing and attempting to force the will of the female is not sufficient to .justify a verdict of guilty. If he were attempting to force her will, it could not be said as a matter of law that this was not sufficient to justify the jury in finding that he intended to have intercourse with her against her will. Besides, the court gave instruction No. 4, which fully states the law to the jury. They are told in that instruction that they must find from the evidence beyond a reasonable doubt that the appellant feloniously, wilfully and with malice aforethought did assault Lurleen Burks, with the intent to carnally know her, forcibly and against her will.

It appears that the jury were fully instructed as to the law and as to the sufficiency of the evidence, of which the jury, and not this court, is the judge.

We find no error, and the judgment is affirmed.


author: Butler, J.

text:
    Coca-Cola Bottling Company of Blytheville v. Doud.
    4-3578
    Opinion delivered November 12, 1934.

      Bruce Ivy and Cecil Shane, for appellants.

      Luther H. Graves and Harrison, Smith & Taylor, for appellees.
   Butler, J.

The scene of tbe occurrence out of which this litigation grows is a village called Joiner, populated by three hundred and six persons, which straggles on either side of Highway No. 61 and a railway. Running at an angle across this highway is a gravel road, and at the intersection there is a large triangular space approximately 100 feet at its widest point. The highway runs through the village from northeast to southwest.

At about 3:30 o ’clock on the afternoon of April 28, 1933, an automobile, driven by Miss Ruth Albrecht in which Mrs. Helena A. Doud was riding as a guest, in passing a truck operated by an employee of the Coca-Cola Bottling Company, was overturned. Both ladies were very seriously injured. To recover damages for these injuries, each brought suit against the company on the theory that the negligent operation of the truck by its driver, Hendrix, ivas the proximate cause of the accident and the resulting injuries. William P. Doud and O. P. Albrecht also brought separate suits against the company, the first named to recover for doctor’s bills and other expenses incurred b}^ him in the treatment of Mrs. Doud, his wife, and the other for expenses incurred in the treatment of Miss Albrecht, his daughter.

The suits were defended on the theory that the accident occurred at the intersection of streets in the business district of the town which Hendrix, driving the truck of the company, was in, having entered the same in a prudent manner giving the proper signals and driving with due caution with regard to the traffic and use of the way; that the accident was the result of the negligence of the driver of the automobile; that it ivas being driven recklessly in the business district at an excessive rate of speed, rendering the driver unable to keep the ear under control. The further defense was interposed that, if the driver of the truck was negligent, the driver of the automobile was also negligent by reason of her rapid and careless driving, and that her guest, Mrs. Doud, by acquiescing in the manner of such driving, was also guilty of negligence; that the negligence of the driver of the automobile and her guest directly contributed to the happening of their injuries.

The cases were consolidated for the purposes of trial, which trial resulted in a verdict and judgment in favor of each of the plaintiffs. On appeal no exceptions are taken as to the amount of the judgments.

It is first contended that the trial court erred in refusing to direct a' verdict on the motion of the defendants, the contention being that the evidence failed to establish the negligence of the driver of the truck, and that, under the facts and circumstances proved, the casualty to the automobile was occasioned solely by the reckless driving of the same and the inattention of its occupants.

There is some conflict in the evidence relative to the movement of the truck immediately preceding the accident and a sharp and decided conflict in (he evidence relative to the speed at which the automobile was being driven and the attention of its driver to the conditions of the road ahead.

On the west side of the highway north of the intersection where the gravel road crosses at an angle is a store occupied by Squire Holt. It was in front of this store slightly to the south on'the east side of the highway that the automobile overturned. Just before the automobile appeared, being driven from the northeast to the southwest, the truck of the appellant company was parked parallel with the highway in a space between the west curb of the highway and the front of Holt’s store, approximately in front of the middle door of the store. It appears that the truck was headed toward the south when parked. Hendrix testified that, when he started to leave Mr. Holt’s place of business, he passed around the south end and in front of the truck, speaking to some persons as he did so; that he entered the truck from the side next to the highway; that he looked in each direction and saw no one approaching; that as he put his truck in movement he signaled with his left arm his intention to turn into the highway; that about the time he got the truck moving he heard a horn and stopped instantly; that he then observed Miss Albrecht’s car about thirty or forty feet to the north going off the pavement so fast as to apparently be from under control. Witness stated that where the movement of his truck was being made was a very dangerous place, with which he was familiar; that the front of his truck at the time the Albrecht car was overturned was at about the center of the highway and that the automobile missed him about fifteen feet.

Hendrix’s testimony was corroborated by that of some witnesses regarding the rate of speed at which Miss Albrecht’s car was being driven, the estimated speed being from forty-five to fifty miles per hour.

The testimony of witnesses for the appellees tended to show that Miss Albrecht and Mrs. Doud were traveling at a moderate rate of speed entering the village from the north. Miss Albrecht stated that, before reaching the village, she was traveling at about forty miles an hour, but slowed down on reaching it. She was corroborated by witnesses who stated that she was traveling at from thirty to thirty-five miles an hour after entering the village and that she slowed down as she approached Holt’s store. The testimony further tends to show that, as Miss Albrecht was proceeding in this manner, the driver of the truck without warning made a sudden left turn directly into the highway and directly in front of the approaching automobile, which was sounding its horn.

In describing the situation thus presented, Miss Albrecht said: “As I approached the truck, I gave him a signal that I was going to pass. He turned out the least bit, and as I got closer to him he started to -shoot out straight across the highway. At that point I realized that I was too close to apply my brakes. I have done a great deal of driving, and I saw the only chance I had was to turn in front of him, which I did, and he came right straight through and hit us. The collision made me lose control. We started to roll, and that is all I remember. ’ ’

There was testimony corroborating Miss Albrecht’s statement to the effect that right after the occurrence Hendrix, the driver of the truck, stated that he guessed he was at fault because he pulled out on the highway in front of them, and also testimony tending to show he was engaged in conversation with his friends as he entered the car, “gabbing” as one expressed. On this testimony the trial court submitted to the jury the question of the negligence of the truck driver in the manner of the movement of his vehicle and also the question of the contributory negligence of Miss Albrecht and her guest, Mrs. Doud. We think the testimony abundantly justifies the submission of those questions to the jury. The court properly refused to instruct a verdict in favor of the defendants.

Exceptions were saved to the giving of instructions Nos. 1 and 2 for the plaintiff. These are identical instructions with the exception that No. 1 submits to the jury the question, in Mrs. Doud’s case, as to whether or not Hendrix drove the truck in question upon the highway in front of the oncoming car, and, if so, whether or not it was negligence, and, if so, whether this caused or contributed to Mrs. Doud’s injury. Instruction No. 2 presented the same question as it related to the case of Miss Albrecht. One of the objections urged was that if the jury should find the facts in the affirmative, that such were negligence and the proximate cause of the injuries, “then your verdict will be for the plaintiffs.” The contention is that the expression, “then your verdict will be for the plaintiffs,” offends against the rule stated in Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676, and other cases cited, which is that an instruction ending with the stereotyped “find for the plaintiff” is incomplete in that it ignores and leaves out the question of the defense of contributory negligence. These instructions, however, do not so conclude, but end with the phrase, “unless you should find for the defendants under other instructions given you.” This, with the further instruction given by the court: “You are not to take any one instruction given you as the whole law of the case, but take them all together as such,” differentiates these instructions from those criticized in the cases cited by the appellants.

It also appears that the appellants made a specific objection to these instructions “for the reason the jury might be misled into thinldng that if he drove out there under any condition with a car coming from the north he would be guilty of negligence.” This specific objection waived other specific grounds of objection. St. L., I. M. & S. R. Co. v. Williams, 105 Ark. 331, 151 S. W. 243; Ark. & La. Ry. Co. v. Graves, 96 Ark. 638, 132 S. W. 992; Mo. Pac. Ry. Co. v. Barry, 172 Ark. 729, 290 S. W. 942.

Instruction No. 3 submitted the question of ordinary care of one suddenly confronted with an emergency created through the negligence of another, and instructed the jury that, if such person so situated makes a choice of a course of conduct to avoid the danger such as one of ordinary prudence, under similar conditions, might reasonably make, then there would be no negligence, even though it might subsequently appear that it would have been wiser to have chosen some other course of conduct. It is urged that, the giving of this instruction was error, because of the expression “although it may now appear that it would have been wiser for her to have chosen some other course,” and other expressions of like character. We are of the opinion that the instruction correctly states the law. The general rule is stated in 42 C. J., page 890, as follows:

“Where the operator of a motor vehicle is by a sudden emergency placed in a position of imminent peril to himself or to another, without sufficient time in which to determine with certainty the best course to pursue, he is not held to the same accuracy of judgment as is required of him under ordinary circumstances, and is not liable for injuries caused by his machine or precluded from recovering for injuries to himself or his machine if an accident occurs, even though a course of action other than that which he pursues might be more judicious, provided he exercises ordinary care in the stress of circumstances to avoid an accident.” This is also, in effect, the rule announced in our own cases, one of the more recent being Ark. Gen. Utilities Co. v. Oglesby, 188 Ark. 564-6, 67 S. W. (2d) 180.

There were a number of instructions requested by the defendants which the court refused, which action of the court, it is argued, was error. We do not set out these instructions because to do so would unduly extend this opinion. It is sufficient to say that they were all based on the theory that at the time of the accident the driver of the truck was in, or entering, the intersection of Highway No. 61 with the.gravel road which crossed it at an angle; that therefore he had the right of way and was not guilty of negligence in the movement of his truck. This theory is not supported by the evidence in the case. The plats of the locality and the measurements made by appellants’ own witnesses show that the points on the highway entered by the truck on leaving Holt’s store was not in, or at, the intersection of the highway with the gravel road, but was approximately one hundred feet to the north. Consequently, Miss Albrecht’s car, at the time the truck turned on to the highway, was a still further distance to the north. The truck, instead of turning into the intersection turned directly across Highway No. 61 north of the intersection and across that part of the highway along which Miss' Albrecht’s ear was properly proceeding.

Instruction No. 8, requested by the defendants, told the jury that if, at the time the truck movement was made, its driver made the proper signal of the intended movement, which the driver of the automobile saw or which she could have seen had she been in the exercise of ordinary care in time to slow down or stop the automobile and thus avoid the injuries, she was bound to take notice of the signal and bring her car under control accordingly.

Instruction No. 9, requested by the defendants, instructed the .jury as to the duty of a person operating an automobile upon a public highway, and that this duty required that the automobile be driven with due care at a prudent speed not greater than reasonable and proper, having due regard to the traffic and safety of others, and that the driver had no right to travel at a speed or in a manner as would endanger other persons or their property lawfully upon the highway.

The court gave these instructions except the concluding sentence of each. The sentence excluded from instruction No. 8 is: “And you are further instructed that it was her duty at the time to he driving the car at such reasonable speed and with such reasonable care that she could bring it under control.” This sentence does not correctly state the true rule as to the control of a car by its driver, even though the driver was in, or entering, a highway intersection. The true rule is that the driver must have his car under such reasonable control as would enable him to avoid accidents which might be foreseen by the exercise of ordinary care.

Another objection which justified the court in striking these sentences from the two instructions is that they were grounded on the erroneous assumption that the injuries occurred at the intersection of highways which the truck driver was entering in a careful manner before the automobile had arrived at this intersection. Appellant calls attention to a number of our eases in which the language is identical with the last sentence of instruction No. 9 excluded by the court in this case. This is true. In Smith-Arkansas Traveler Co. v. Simmons, 181 Ark. 1024, 28 S. W. (2d) 1052, the identical language was in fact, approved by the court and reference was made to the approval of the same statement by the court in Madding v. State, 118 Ark. 506, 177 S. W. 410. The statement of law was correct as applied to the facts in those cases, both of which involved a question of liability for injury caused by the movement of automobiles approaching street crossings in cities. The reason for the rule was thus stated in the Smith case, supra: “Danger may always be expected or anticipated at street crossings or at intersections of streets, and every driver of an automobile should keep a lookout and approach same with his machine under control, else he can not be regarded or treated as exercising ordinary care.”

In support of appellants’ contention, a number of other cases of our court are cited, approving declarations similar to the one stricken from instruction No. 9, but all of these relate to the liability resulting from the movement of automobiles at street crossings in cities and the duty of the driver at such places, or when turning a corner; whereas, in the case at bar, as we have seen, the movement of the truck was not at a street crossing. It is apparent that ordinary care in one situation would be the grossest negligence in another and different situation. Railway Co. v. Lewis, 60 Ark. 409-13, 30 S. W. 765, 1135; Railway Co. v. Triplett, 54 Ark. 300, 15 S. W. 881, 16 S. W. 266. In a small village at a point on a hig’hway one hundred or more feet distant from the intersection of that highway with another, the degree of care to be exercised and the rate of speed permissible is quite different from the care required and the proper rate of speed to be maintained in crowded cities at street crossings. It is not to be supposed that a driver of an automobile is required to drive at a rate of sjoeed at all times as would enable him to stop immediately at any given time. If such were the rule, it would nullify that part of our statute making it lawful to travel at thirty-five miles an hour except in business districts at the intersection of highways when the driver’s view is obstructed and in turning corners; and also the further rule that a vehicle on a highway shall be driven at “ a careful and prudent speed, not greater than is reasonable and proper having regard to the traffic, surface and width of the highway, and of any other conditions then existing. ’ ’

Instruction No. 11 contained a part of our statutes relating to the manner in which automotive vehicles may be driven. The first subdivision of the statute given stated the rule quoted, supra. The remainder stated the different rates of speed, prima facie lawful, when approaching and traversing intersection of highways when the driver’s view is obstructed, prescribes the circumstances under which the driver’s view shall be deemed to be obstructed, prescribes certain rates of speed in a business district, the rate of speed permissible under all other conditions, and, in the concluding portion defines “business districts.” Following the language of the statute, an application was sought to be made of its several provisions to the evidence in the case. The court refused to make the application requested, and correctly so. Much of the statute which the court gave at the request of the defendants has no application to the facts of the case at 'bar. As we have seen, the case did not involve an approach within fifty feet and a traverse of the intersection of the highways when the view of the driver is obstructed. There was no proof offered that the scene of the casualty was a business district within the meaning of the act. The court instructed the jury on the applicable portion of the statute in an instruction as favorable to the appellants as they were entitled to. That instruction is as follows: “If you find that the driver of the automobile was violating any of the rules with reference to the use of the road as set out above, then you are told that such violation would be evidence of negligence, and you will determine from all the facts and circumstances introduced in evidence in this case whether in doing so she was guilty of negligence that caused, or contributed to, the injury, and if you find that she was guilty of such negligence, then she and her father cannot recover.

“It shall be prima facie unlawful for any person to exceed any of the foregoing speed limitations.”

Instruction No. 10 requested by the defendants and modified and given by the court as modified, was an instruction on the duty of Mrs. Doud, the invited guest of Miss Albrecht, to exercise ordinary care to protect herself from injury and gave to the jury a guide for the determination of whether her conduct just prior to the injury she sustained contributed to it. The modification consisted in striking from this instruction a provision that it was the duty of the guest in the exercise of ordinary care “to caution the driver of any danger, to keep a lookout for her own safety, to protest against any reckless, unlawful or dangerous driving.” The court, at defendant’s request, gave instruction No. 12 covering the paragraph stricken from instruction No. 10. In that instruction, after telling the jury that, if it should find that the driver of the car was guilty of contributory negligence which proximately contributed to the injury, it was further told if it should find that Mrs. Doud failed to exercise ordinary care for her own safety “by acquiescing in the negligent manner of driving or failing to protest against same, provided she had time to do so acting as a reasonably prudent person, and that such acquiescence or failure to protest contributed to her injury, then she cannot recover.” We do not intend to be understood as approving the language of instruction No. 12, but quote it only for the purpose of showing that instruction No. 10 was covered by it and the modification complained of was not prejudicial.

On the whole case it appears to us that the issues were presented to the jury under instructions about which the appellants have no cause to complain, and that the testimony warranted the verdict of the jury. The judgment is therefore affirmed.