text:
    Powell v. Hayes.
    Opinion delivered March 19, 1928.
    1. Wills — who may offer for probate. — Where the widow of a testator, by taking out letters of administration, in effect refused to offer a written instrument alleged to he a will as such, a devisee named in the will, being an interested party, could offer it for probate. 1 !' f
    2. Wills — instruments entitled to be offered for probate.— Only written instruments of testamentary character may be offered for probate under the statute.

      S. Wills — validity of instrument offered for probate. — A written instrument entitled a “death will,” under which a testator gave to the devisee certain property, with the balance of his property to his wife and heirs, as the law provides, when construed as a whole, and -read in the light of circumstances surrounding testator at the time of making thereof, held a valid will, and entitled to be offered for probate by the- devisee named when the other parties beneficially interested refused to probate it.
    4. Wills — meaning of term “heirs.” — Where a testator gave the balance of his property to his wife and the heirs, as the law provides, the strict legal meaning of the word “heirs” signifies those on whom the law casts the inheritance of land, but this construction will give way if there be on the face of the instrument sufficient to show that it was to be applied to children.
    5. Wills — province of probate court. — It is no part of the proceeding on probate of a will to construe or interpret its provisions or determine what provisions are valid and what are invalid; the construction and interpretation of the will being questions to be determined by other courts having jurisdiction of the matter.
    Appeal from St. Francis Circuit Court; W. D. Davenport, Judge;
    affirmed.
    STATEMENT OE EACTS.
    This proceeding was commenced in the probate court by Annie Hayes offering for probate an instrument in writing purporting to be the last will and testament of E. P. Powell, deceased, which reads as follows:
    “Death will of 1926 to Miss Annie Hayes as follows: One lot, number 12349 and 10 in section 19, arranged two and three including 82 acres of land of which I will to Miss Annie Hayes at my death for her faithfulness and service as an attendant doing her life. This will is not to be annulled and avoided should Miss Annie Hayes be faithful doing the life of giver, otherwise this will be annulled and avoided to the giver. The balance of my property to my wife and heirs as law provides. Given for consideration of the above mentioned statements under my hand and seal of notary this...........*.......................1926.
    “E. P. Powell.”
    Maggie Powell, the widow of E. P. Powell, deceased, had become administratrix of his estate. Maggie Powell,as administratrix of the estate of E. P. Powell, deceased, and as his widow, and George Powell, Robert Powell, Vernon Powell; Ernest Powell and Roosevelt Powell, children and only heirs at law of the said E. P. Powell, were allowed to contest the probating of said alleged will. The probate court rejected the offer for probate of said instrument in writing as the last will and testament of E. P. Powell, deceased.
    Annie Hayes duly appealed to the circuit court. In the circuit court the case was heard upon, the instrument of writing in question and the oral evidence of witnesses introduced. Evidence was adduced in favor of the widow and children of said E. P. Powell, which tended to show that the description of the property in the devise to Annie Hayes was too indefinite to be located. On the other hand, evidence ■ was introduced by Annie Hayes tending to show that said property devised to her was a farm upon which she lived at the time the testator made the will in question and at the time he died.
    The judgment of the circuit court was that said paper writing should be admitted to probate as the last will and testament of E. P. Powell, deceased. The case is here in appeal.

      Mann & Mann, for appellant.

      J. M. Prewett, S. S. Hargraves and M. B. Norfleet, Jr., for appellee.
   Hart, C. J.,

(after stating the facts). The instrument of writing in question specifically names Annie Hayes as one of the devisees therein. The record shows that the widow of E. P. Powell, deceased, took out letters of administration upon his estate, and thereby in effect refused to offer the instrument of writing in question as his last will and testament. In such cases the general rule is that a devisee is .an interested party, and may offer the will for p-robate. 40 Cyc. 1229; Page on Wills, 2d ed., vol. 1, § 535; and 28 R. C. L. 360, § 361.

Of course, the instrument in writing offered for probate should be of a testamentary character, because only wills are entitled to be offered for probate under our statute. This brings us to a consideration of whether the instrument offered for probate is a will.

If it be conceded that the devise to Annie Hayes is too indefinite in description of the property to be capable of enforcement, still we think that, when the instrument is construed as a whole and read in the light of the circumstances surrounding the testator when it was made, it is a will. It will be noted that the testator, after the devise to Annie Hayes, wills the balance of his property to his wife and heirs, ias the law provides. This court has held that a will in which the testator provides for all of his children as a class, without expressly naming them, is a sufficient mention of his children within the statute providing that, when any person shall make a will and shall omit to mention the name of a child, he shall be deemed to have died intestate as to such child. Brown v. Nelms, 86 Ark. 368, 112 S. W. 373.

In the alleged will under consideration in this case the testator gave the balance of his property to his wife and heirs, as the law provides. In its strict legal sense the word “heirs” signifies “those upon whom the law oasts the inheritance of real estate.” But this construction will give way if there be upon the face of the instrument sufficient to show that it was to be applied to children. Flint v. Wisconsin Trust Co., 151 Wis. 231, 138 N. W. 629, Ann. Cas. 1914B, p. 67, and case-note at p. 70; Commentary on Wills, by Alexander, vol. 2, par. 850-852 inclusive; Page on Wills, 2d. ed., vol. 1, p. 1496, § 891; and 28 R. C. L., p. 248, § 216.

The word “heirs” has been held to be susceptible of two interpretations; the one which is technical, and embraces the whole line of heirs; the other, not technical, but common, and is used to denote the heirs who may come under the designation of heirs at a particular time, and it is often used in common speech as synonymous with children. Turman v. White, 14 B. Mon. (Ky.) 450; and Feltman v. Butts (Ky.), 8 Bush. 115. The holding of this court is in accordance with this rule. Robinson v. Bishop, 23 Ark. 378, and Galloway v. Darby, 105 Ark. 558, 151 S. W. 1014, 44 L. R. A. (N. S.) 782, Ann. Cas. 1914B, 712.

Looking at the entire will and all the circumstances surrounding the testator, we think the word “heirs,” as used in the will, manifestly meant children. The word was not used to denote succession but to describe devisees who were to take under the will. The record shows that the testator had several pieces of real estate, and left surviving him his widow and several children, who state that they are his only heirs at law. He devises the balance of his property, after the devise to Annie Hayes, to his wife and heirs as the law provides. This meant that they should take such part of his estate as they were entitled to under our statutes of descent and distribution, and shows that he did not intend to omit any of his children from his will. Under these circumstances the instrument in writing offered for.probate must be considered to be a valid will, and hence was entitled to be offered for probate by a devisee named in the will, when the other parties beneficially interested had failed or refused to probate it.

The question whether or not the attempted devise to Annie Hayes is sufficiently definite in description of the property to be capable of enforcement cannot be considered by us on this appeal, for that would be to construe the will, which, as we have already seen, we can only do in so far as it is necessary to ascertain whether or not the instrument offered for probate is of a testamentary character and might be considered as a will.

In Cartwright v. Cartwright, 158 Ark. 278, 250 S. W. 11, it was held that whether an offered instrument is testamentary in form or in substance so as. to be admitted to. probate is a question of law for the court to determine from the face of the instrument. It was also held that the functions of a probate court, when a will is offered for probate, are limited to inquiring into and determining whether the instrument presented as the last will of the decedent was executed in the manner prescribed by statute and when he was legally competent to execute it, and free from duress, menace, fraud, and undue influence; but questions as to property rights which might arise out of the consideration of the terms of the will are not to be determined in a proceeding for the probate of a will. The court said, if the instrument offered for probate purports to bequeath or devise any property, either in general or in particular terms, to an individual or class of individuals, then it is of a testamentary character, and may be admitted to probate; but that the probate court has no jurisdiction to interpret or construe the will for the purpose of determining its effect upon the distribution of the property of the testator.

This holding is in accordance with the views expressed by the Supreme Court of Oklahoma in construing our statute. Taylor v. Hilton, 23 Okla. 354, 100 P. 537, 18 Ann. Cas. 385. In that case the court had under consideration § 6521, Mansfield’s Digest, which is now § 10525 of Crawford & Moses’ Digest, providing that, when the proceeding to- probate a will is taken to -the circuit court, the court or jury trying the proceeding shall try how much of any testamentary paper produced is or is not the last will of the testator. It is no part of the proceeding on probate to construe or interpret the will or any of its provisions or to determine' what provisions are valid and what are invalid. If the instrument offered for probate is a will, it must be admitted to probate, and the construction and interpretation of the various provisions are to be determined by other courts having-jurisdiction in the matter.

It follows that the judgment of the circuit court must be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Old American Insurance Company v. Hartsell
    Opinion delivered March 19, 1928.
    1. Insurance — health op insured at issuance op policy. — Evidence held insufficient to show that insured was not in good health when the policy was issued, whqre the only evidence was the failure of insured’s attending physician, who first saw him more than a month after the policy was issued, to answer the question whether insured was considered a good insurable risk on the date the policy was issued.
    2. Insurance — burden op proof as to insured’s health. — In an action on a life insurance- policy, evidence that the premiums were paid, the policy delivered, and the proof of death made, established a prima facie case, placing the burden on defendant to show that insured was not in good health when the policy was delivered.
    3. Insurance — evidence op insured’s good health. — In an action on a life insurance policy, evidence held to support a finding that insured was in good health when the policy was delivered.
    4. Insurance — penalty for nonpayment. — The provisions of Crawford & Moses’ Dig., § 6155, imposing a penalty on insurer for failure to pay a loss within the time specified in the policy, applies to a company governed by Acts 1925, p. 390.
    5. .Continuance — absent witness. — It was not an abuse of discretion to deny a motion for continuance for the absence of a witness who had 'been subpoenaed, where there was no showing as to the location of the witness or as to when or where he might be found.
    Appeal from Monroe Circuit Court; W. J. Waggoner, Judge;
    affirmed.

      John L. Crank, for appellant.

      F. C. Nolen, for appellee.
   Smith, J.

This is a suit by Clara E. Hartsell, as the beneficiary named in a policy of insurance issued by the appellant insurance company on December 29, 1925, on the life of her husband, John T. Hartsell, in the sum of one thousand dollars. The complaint alleged the issuance of the policy, the payment of the premiums, the death of the insured, and the proof of loss, and prayed judgment for the amount of the policy, with the statutory penalty and attorney’s fee, as the company had denied liability.

An answer was filed, in which the company admitted the execution of the policy, the payment of the premiums thereon, and that proof of death had been made, bnt denied liability upon the ground that the issuance of the policy had been procured through the false representations of the insured that he was in good health at the time of the issuance and delivery of the policy to him, whereas he was an invalid, and was aware of that fact.

The policy sued on was issued without a medical examination being previously required, but the insured was required, as a condition precedent to the issuance of the policy, to warrant that his health was good at the time of the delivery of the policy. This he did in the application, which contained the following recitals:

“Knowing that my age and insurability will be determined by the company by the answers and statements above made by me, as no medical examination is required of me by the company for determining such facts, I hereby state that I have, before signing this application, read or had read to me each of the foregoing answers and statements, and I state that each of such is unqualifiedly true. I therefore warrant that each answer and statement reflects an existing fact and that the company may rely upon them to such extent. I agree that, in the event any such answer be discovered to be erroneous or false, or, in the event any such statement be discovered to be erroneous or false, even though such be deemed immaterial by me or the beneficiary, then, in either event, this policy shall stand canceled as of the date of its issuance, and this regardless of the date of the discovery of such breach. I further warrant that the statements and answers above set forth are complete, and that I have made no statement or answer touching upon any of the above questions or statements to any agent of the company except as above set forth, and I hereby bind myself and beneficiary to the truthfulness of this warranty; and further, I agree that the policy to be issued on this application shall not be in force or effect until and unless it be delivered to me while I am in good health and alive. In the event I should become ill or die between the date of this application and before such delivery of the policy to rue, then it is agreed that any premium paid with the application shall be returned to me or my legal representatives, the application to be treated as withdrawn.”

The answer alleged that the insured was not in good health when he made his application, nor when the policy was delivered, which facts were well known'to the insured, and that the policy was therefore fraudulently obtained.

The insured was lan active soliciting agent of the appellant company, and sent in his own application, and received his policy directly from the company.

Under the admissions of the answer the plaintiff introduced the policy and rested, whereupon the defendant called appellee as a witness. She admitted signing the following statement, which was offered in evidence:

“April 14-26, as to John T. Hartsell. Moved to Brinkley in Jan. 1926. Was sick 2 weeks. Died 16 Feb. Week with flu and week with pneumonia. Rented from Mr. Cooper house No. 4 in Brinkley and lived there all time we- paid rent. Bad cold about Dec. 1 developed in flu and pneumonia. (Signed) Clara E. Hartsell, wife of John T. Hartsell. ”

She explained this writing by stating that it was prepared by 'an agent of the company after the proof of death had been made, and that it was not read to or read by her, and she was unaware, when she signed the statement, that it recited that the insured had a bád cold about December 1 which developed “in flu and pneumonia,” and that the fact was that the insured was sick for only two weeks immediately preceding his death; that he had the influenza, which developed into pneumonia, and this caused his death, and that his illness extended over a period of only two weeks.

The defendant company offered in evidence the certificate of the physician who attended the insured in his last illness. In the blank furnished the physician for the purpose of making this part of the proof of death, the following question, among others, was asked:

“No. 12. • From your knowledge of the deceased, would you have considered him a good insurable risk on the 29th day of December, 1925?”

The blank space following this question contained no ¡answer. It is alleged that the failure to answer this question is, in effect, equivalent to the statement that the physician did not think the insured was in good health on December 29, 1925. We do not think so. The physician was not called as a witness, and, in answer to another question, in the proof of death blank, the physician stated that he saw the deceased for the first time on February 9, 1926; that the duration of the illness was two weeks, ¡and that deceased died February 16, so that the insured had been ill a week when the physician first saw him.

There was no other testimony tending to show that the insured was not in good health when the policy was delivered to him, except that of a clerk in the home office of the company, who testified that the insured had sent in no application for insurance after the middle of December, except his own.

Upon this record the court charged the jury, in view of the admissions contained in the answer, that the burden was on the defendant to show that the insured was not in good health ¡at the time the policy was delivered.

We think this instruction was correct, as a prima facie case was made when it was admitted that the premiums on the policy had been paid, that the policy had been delivered, and that proper proof of death had been made. Knights & Ladies of Security v. Lewellen, 159 Ark. 400, 252 S. W. 585; Grand Lodge of Knights of Pythias v. Whitehead,. 87 Ark. 115, 112 S. W. 199; Eminent Household of Columbian Woodmen v. Howle, 131 Ark. 299, 198 S. W. 286.

The jury found for the plaintiff for the face of the policy, and we are unable to say that the testimony does not support this finding, as it does not appear that such a showing was made that the insured was not in good health when the policy was delivered that it was arbitrary to find otherwise.

The statutory penalty provided by § 6155, C. & M. Digest, was imposed, and an attorney’s fee was. assessed, pursuant to the authority of that section, and this action is assigned as error, for the reason, as appellant insists, that it is exempt from the provisions of that section under act 137 of the Acts of 1925 (Acts 1925, page 390).

Act 137 is entitled: “An act providing for stipulated premium insurance companies operating on the stipulated premium plan, and regulating same.” Section 16 of this act provides that “all acts or parts of acts repugnant to or in conflict herewith are hereby repealed; and provided, further, that the general insurance laws of this State or any laws governing the organization and control of mutual assessment companies shall not apply to or govern companies organized under this áct.”

Act 137 applies to appellant company, and the act, which yas approved March 7, 19'25, was in effect when the policy here sued on was issued, and it is insisted therefore that the provisions of § 6155, C. & M: Digest, do not apply.

We think, however, that counsel misinterprets the purpose and effect of § 16, above quoted, as the purpose of that section was to make the organization and control of companies “operating on the stipulated premium plan” subject to the provisions of that act. Section 6155, C. & M. Digest, does not relate to the organization or control of insurance companies, as that section was passed to require prompt settlement of any liability “in all cases where loss -occurs, and the fire, life, health, or accident insurance company liable therefor shall fail ’to pay the same within the time specified in the policy, after demand made therefor,” and the provisions of that section apply to the companies named, regardless of the manner in which they may be organized or controlled.

It is finally insisted that the court erred in overruling appellant’s motion for a continuance on account of the absence of James A. Cooper, a witness subpoenaed by it. The motion for continuance recites that “defendant says that he had a subpoena- issued for the above witness about ten days ago, to appear on the 12th day of July, 1927, and that the officer has been unable to serve the same or find the witness.” There was no showing, however, as to the location of the witness, or as to when or where he might be found. It was therefore no abuse of discretion on the part of the court to overrule the motion for a continuance.

As no error appears, the judgment will be affirmed.


text:
    Outler v. Gladson.
    Opinion delivered March 19, 1928.
    1. Sales — implied warranty op second-hand machine. — In an action on a note which showed on its face that it was given in part payment for a second-hand machine, there was no implied warranty of the serviceability of the machine.
    2. Bills and notes — sufficiency of evidence. — In an action on a note, execution of which was admitted, the defense being that the note had been canceled, held, -in the absence of competent testimony that the note had been paid and canceled, it was proper to direct a verdict for plaintiff.
    3. New trial — newly discovered evidence. — It was not error to refuse a new trial for newly discovered evidence, where it was not shown that appellant did not know of such testimony before the trial and could not by reasonable diligence have procured the attendance of witness at the trial.
    Appeal from Garland Circuit Court; Earl Witt, Judge;
    affirmed.

      C. T. Cotham, for appellant.

      Murphy & Wood and Cobb & Cobb, for appellee.
   Smith, J.

Appellee, as administrator of -the estate of A. F. Smith, deceased, brought this suit to recover on a note executed by appellant to the order of plaintiff’s intestate, which was given in part payment of a second-hand Delco light plant, that fact being recited in the face of the note. There was a cash payment of $100, and the note evidenced the balance of the purchase price.

The answer alleged that the plant was worn out and worthless, but did not allege there had been any warranty or breach thereof. An amended answer alleged that the note had been paid and satisfied under an agreement had with one J. B. Chapline, as agent of the Delco Light Company, whereby it was agreed that appellant should purchase a new light plant and should have credit for the amount of' the note sued on. In other words, as a consideration for entering into a contract to buy a new plant it was agreed that the note given for the old one should be canceled.

At the conclusion of all the testimony the court directed the jury to return a verdict for plaintiff for the face of the note and the interest, upon the theory that no valid defense to the note had been shown.

It is quite probable an issue for the jury might have been made upon the question of an agreement between appellant and the payee in the note whereby the note sued on was to be canceled, but for the statute which prohibited him from testifying concerning transactions had with the plaintiff’s intestate. Section 4144, C. & M. Digest. Realizing this handicap, appellant attempted to show, that Smith, the intestate, and Chap-line, the agent of the light company who made the sale of the new plant, were partners in the agency for the light company, and that Chapline had, in Smith’s presence, assented to the arrangement, and he thereby bound his partner, and that both sales were in fact partnership transactions. The testimony was not sufficient to support a finding that Smith and Chapline were partners in the agency, although both were agents, and therefore the court properly refused to submit that question.

The contract for the sale of the new light plant, which appears to have been negotiated by Chapline as agent, was offered in evidence, and it does not appear from, this contract that any diminution of the price of the new plant was to be made on account of the worthlessness of the old one. The note sued on was not given to the light company, but was made direct to Smith, and it does not appear that the light company was in any manner interested in it. On the contrary, the undisputed testimony shows that the old plant, in part payment of which the note sued on was given, was the individual property of Smith.

As the note sued on shows that it was given in part payment of a certain second-hand machine, there was no implied warranty of the serviceability of the machine, and an express warranty could have been shown in this ease only by proving statements of the intestate in the transaction between himself and appellant, the defendant in the case, and this could not be done because the statute prohibited it. Indeed, as we have said, there was no allegation of a breach of warranty in the answer.

Appellant insists there was testimony from which the jury could have found that Smith and Chapline were partners, but, if this were true — and we do not think it is — there is an entire absence of testimony that the partnership owned or was interested in the note sued on. As this note was the individual property of Smith, Chapline could not have agreed to its cancellation. There was therefore no competent testimony that the note had been paid and canceled, and the verdict was therefore properly directed in appellee’s favor, as the execution of the note was admitted.

A new trial was asked upon the ground of newly-discovered evidence, which we do not review, for, even though the testimony were held to be competent and material, no showing was made that appellant did not know of this testimony before the trial and could not, by reasonable diligence, have procured the attendance of the witness at the trial.

As no error appears, the judgment must be affirmed, and it is ordered.


text:
    Lightle v. Blackwood.
    Opinion delivered March 19, 1928.
    1. Bridges — repeal op statute. — Acts 1925, p. 384, authorizing the Highway Department to construct a bridge across Red River at a particular location, was neither expressly nor impliedly repealed by Acts 1927, p. 282, authorizing the Highway Department to build a larger and more substantial bridge.
    2. Bridges — authority op highway department. — Where the High-' way Department found that the bridge contemplated by Acts 1925, p. 384, would be inadequate to accommodate anticipated future travel, it was authorized under Acts 1927, p. 282/ to build a larger and more expensive bridge as part of the State Highway system.
    Appeal from Pulaski Chancery Court; Franlc H. Dodge, Chancellor;
    affirmed.

      Carter & Carter and Robinson, House & Moses, for appellant.

      H. W. Applegate, Attorney General, O. A. Graves, W. H. Arnold, W. H. Arnold, Jr., and David C. Arnold, for appellee.
   Smith, J.

Appellants alleged that the State Highway Department is undertaking to construct a bridge across the Red River at Pulton, and that they are the owners of both banks of the river at the proposed location. That the General Assembly, at its 1925 session, passed an act No. 136 (Acts 1925, page 384) authorizing the Highway Department to construct a bridge across Red River at this particular location, and limited the total cost of the bridge, including the lands which would have to be condemned and acquired for that purpose, and all other expenses, to the sum of $500,000. That the Highway Department is ignoring this act, and now proposes to construct a bridge at approximately the same location, and has obtained orders of the county' courts of the counties in which the proposed bridge is to be located, authorizing a change of route, and that the bridge which the Highway Department now proposes to construct will cost approximately $750,000, and is undertaking to do so under the authority of act No. 104, passed at the 1927 session of the General Assembly (Acts 1927, page 282).

It is alleged in appellant’s complaint that the Highway Department has no authority to proceed under the 1927 act, and that it is without' authority to proceed with the construction of the bridge now proposed, or to condemn appellants’ lands for that purpose, for the reason that the total cost will exceed the limit of cost authorized by the act of 1925.

It appears from the answer filed in the case and the testimony heard in the court below, that the bridge in question supplies a link in one of the principal highways in the State, and the testimony shows that the bridge will be largely used in interstate travel. It.was ascertained by the State Highway Commission that a bridge could be constructed under the 1925 act at a cost not exceeding $500,000, but it was also ascertained by the Commission that such a bridge would not be adequate to accommodate the anticipated future travel over it. Accordingly, the plans were revised and the route slightly changed, and the Highway Commission now proposes to build a larger and -more substantial bridge than could be built under the act of 1925. This suit was brought to determine whether the Highway Commission has this authority.

Opposing counsel agree that the act of 1927 does not repeal the act of 1925, and we concur in that view. It does not attempt to do so expressly, and there is no such repugnancy between the two acts that it must be said that a repeal is implied. See Cordell v. Kent, 174 Ark. 503, 295 S. W. 404, and cases there cited. But it is insisted that, if the act of 1925 is a valid and subsisting statute, the Highway Commission must proceed under it, and cannot exercise the discretion which would otherwise exist to proceed under the act of 1927.

The act of 1925 was upheld as a valid statute in the ease of Fulton Ferry & Bridge Co. v. Blackwood, 173 Ark. 645, 293 S. W. 2, and the Commission might proceed under its authority to erect the bridge, but, if this were done, a bridge could not be constructed the total cost of which would exceed $500,000, as the act contains that limitation. It has been ascertained, however, that a suitable bridge— one which will not only accommodate the present travel, but the anticipated travel of the future — cannot be constructed at a cost of $500,000. The question for decision therefore is whether a suitable bridge may not be constructed under the act of 1927.

We think this authority was conferred by act 104 of the Acts of 1927. This act was construed and upheld in the case of Conner v. Blackwood, ante, p. 139, decided January 30, 1928, it being there held that the act conferred a discretionary authority upon the State Highway Commission-to build bridges as a part of the State Highway system, and that bonds might be issued to pay the cost thereof, the bonds to be paid by tolls collected from the users of the bridge, the collection of which is to cease when the bonded indebtedness had been discharged.

The purpose of the act of 1925 was to secure a bridge across the Red River at Fulton, but the act of 1927 also confers authority to build such a bridge if the Commission elects so to do, and the agency to perform this duty is the same under both acts — the State Highway Department. It is not to be assumed that the Department will build a bridge under both acts, and the pleadings contain no such allegation. But we think a bridge might be constructed under either act. Under the act of 1925 the cost could not exceed $500,000, while the act of 1927 contains no such limitation. The Department has determined, in the exercise of the discretion conferred by the act of 1927, to build a bridge the cost of which will exceed $500,000, and the court below found that in so doing the Department was “proceeding within and according to law,” and upon that finding dismissed appellants’ complaint as being without equity.

As we concur in the finding of the court below, the decree must be affirmed, and it is so ordered. .


author: Humphreys, J.

text:
    Walker v. Brandon & Baugh.
    Opinion delivered March 19, 1928.
    .1. Landlord and tenant — improvements in payment of land.— In & suit on a note given for the rent of land in which defendant ■by answer and cross-bill set up the value of improvements and repairs as an offset, a finding to the effect that the repairs and improvements made were in .part payment of the rent was not against the preponderance of the evidence.
    2. Pledges — right of set-off.' — In a suit to recover rents evidenced by a note pledged by the payees who were cotenants of the tenant to a bank to secure another note, refusal to allow as an offset the maker’s claim against the payees which would reduce the bank’s security below the amount necessary to liquidate the indebtedness to it, and which would in effect result in the preference of the maker as a general creditor of the payees, who were insolvent, was proper.
    Appeal from St.- Francis Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      W. J. Lanier, for appellant.

      Mann & Mann and G. W. Norton, for appellee.
   Humphreys, J.

This suit was brought by appellees, W. P. Brandon, J. D. Baugh, W. W. Campbell (their attorney in fact), .S. H. Mann and W. W. Campbell, as receivers for Brandon & Baugh, and the Bank of Eastern Arkansas, at Forrest City, against appellants, George P. Walker and Ossie Walker, in the chancery court of St. Francis County, to recover rent in the sum of $2,400, with interest for the year 1925 on an undivided one-half interest in the Baugh & Walker farm, in sections 9,17,18 and 20, township 4 north, range 5 east, in said county, and to enforce a landlord’s lien against the crop raised upon said undivided one-half interest by attachment and injunction.

The rent was evidenced by note executed by George P. Walker to Brandon & Baugh, which they indorsed and delivered to their attorney in fact, W. W. Campbell, to pay an additional indebtedness they owed the Bank of Eastern Arkansas of about $2,000, for which they executed their note on the day that the rent note was assigned to W. W. Campbell, as attorney in fact for Brandon & Baugb, with, which to pay said indebtedness. The note is as follows:

“Forrest City, .Arkansas,
“February 13, 1925.
“G. P. Walker.”
“1st day of November, 1925, after date, I promise to pay to the order of Brandon & Baugh twenty-four hundred and no/100 dollars at (as) rent on the Baugh & Walker farm for 1925.
“Value received, with interest at ............ per centum per [annum.
“G. P. Walker.”

The indorsement appearing upon the back of the note is as follows:

“We hereby name, constitute and appoint W. W. Campbell ortr agent and attorney in fact, exclusively and irrevocably, for the collection of the within note, including the right to bring suit and enforce our lien therefor, and to proceed otherwise as in his judgment may seem best for the collection thereof, in our name and stead and with the same and like effect as though done by us in person, and to apply the proceeds as collected for the payment of any indebtedness we may owe the Bank of Eastern Arkansas, of Forrest City. This 25th day of February, 1925. Revenue stamps canceled 23c.
“Brandon & Baugh
“By J. D. Baugh,
“W. P. Brandon.”

Appellant filed an answer, admitting that George P. Walker executed the note, but interposing as a defense thereto two items, one being for $1,482.93 for repairs and improvements made by G. P. Walker on said lands during the years 1920-1925,■ and the other an item of $2,710, which G. P. Walker claimed was due him out of a loan procured by iall of them from S. M. Williamson & Company on said land, but which it was alleged Brandon & Baugh appropriated to their own use. In the answer and accompanying cross-bill G. P. Walker admitted that Brandon owned one-fourth interest and Baugh one-fourth interest and himself one-half interest in the land, and prayed for a partition thereof in kind, requesting that. hi£ portion be assigned to him so as to include the improvements he had made thereon, and, if it could not be divided so as to effect such purpose, that he be allowed the value of his improvements out of the proceeds thereof when sold, and that same, together with taxes paid by him upon the undivided one-half interest of Brandon & Baugh, be declared a lien upon such portion of the land as might be assigned to Brandon & Baugh.

The cause was heard by the court upon the pleadings and the testimony introduced by the respective parties, which resulted in a decree in favor of W. W. Campbell, attorney in fact of Brandon & Baugh, for the face of the note and interest, to be paid out of a check which the Walkers deposited with the clerk of the court in lieu of the crops, which had been released, by agreement, from attachment, with direction that, when collected, the amount collected should be paid to the Bank of Eastern Arkansas in satisfaction of the debt which Brandon & Baugh owed it and for which the rent note was pledged as security. The offset for improvements was disallowed, and judgment was given against the receivers of the estate of Brandon & Baugh in favor of G-. P. Walker for $769.04, the amount found by the court due Walker out of the S. M. Williamson & Company loan. The court rendered judgment in favor of Gr. P. Walker for $143.09 taxes paid by him for them, and declared same a lien on their interest in said land. A partition of the land was also decreed, subject to a mortgage which the parties had placed thereon in favor of Sweet.

An appeal has been duly prosecuted to this court from said decree.

Appellant contends for a reversal of the judgment on the ground that the improvements made by Walker ' upon the lands during the years 1920 to 1925 are attributable to the relationship of the cotenancy of the parties in the land, and were not made by Walker in part payment of his rental contracts during that period, as found by the court. The testimony reflects that G. P. Walker rented the Brandon & Baugh interests in the land during the period mentioned, and paid the rents due them under the contracts each year until 1925, without deducting ¡any amount for or claiming any deduction on account of repairs and improvements. He executed the note set out above for the rents of 1925, and never made any claim for repairs he made prior to 1925 until he was sued upon the note. .After the rent note matured, he promised Campbell that he would pay it, from time to time, without claiming any offset on account of repairs and improvements he had placed upon the property, either prior to or after he executed the note. Campbell’s testimony is undisputed upon this point, and is as follows:

“Q. Then, up to the time this suit was filed, April 9 (1926), what was your information as to whether Mr. Walker admitted owing this debt or not? A. He had admitted owing it, and told me that he would pay this note. Q. Up to the time of filing this suit, April 9, 1926, had he ever denied owing it? A. Not to me. Q. You had had several conversations with him about it? A. Yes sir. Up in the spring he offered me a note- — ■ he offered to put up a rent note of T. B. Sellers to secure $2,000 as part payment on the note. Q. .As part payment on this 1925 rent note? A. On this 1925 rent note, and pay the balance cash. Q. And that was in the spring of 1926? A.. Yes, in the spring of 1926.”

During the years 1920 to 1925 inclusive Walker did not charge Brandon & Baugh for the repairs and improvements on his books, but charged them to his farm account. In the answer filed by Walker he alleged he was entitled to an offset for the improvements on account of a contract with Brandon & Baugh to the effect that they were to pay one-half of the repairs and improvements upon the place, but he admitted in his testimony that he had no such contract with them. Brandon testified that G. P. Walker agreed to make ¡all repairs and improvements, during the period he had entire charge of the lands, at his own expense. Walker denied doing so. Baugh testified both ways on the proposition.

Walker’s payment of rent each year, without claiming anything for repairs and improvements, his failure to charge Brandon & Baugh for them on his books, his promises to pay the note to Campbell, all strongly corroborate the testimony of Brandon, and we cannot say, in this state of the record, that the finding of the chancellor to the effect that the repairs and improvements made by Walker were in part payment of the rent was contrary to a clear preponderance of the testimony.

Now, with reference to the $2,700 item claimed as an offset by Gr. P. Walker, growing out of the loan they obtained from S. M. Williamson & Company, GL P. Walker admitted, on cross-examination, he had received credit in his accounts with Brandon & Baugh for his portion of the loan, except $769.04. The court gave him a judgment for this amount as a general creditor against the receivers of Brandon & Baugh. The rent note sued upon was pledged by Brandon & Baugh for the payment of a $2,000 note and interest to the Bank of Eastern .Arkansas, and to allow an offset of $769.04 against the rent note would reduce the security below the amount necessary to liquidate the bank’s indebtedness. Again, should this offset be allowed, it would result in a preference to one general creditor of Brandon & Baugh over another. The item of $769.04 is not connected in any way with the rental contract, so that in equity the one ought to be offset against the other.

No error appearing, the decree is affirmed.


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    Robinson v. Cravens.
    Opinion delivered March 19, 1928.
    1. Ejectment — plaintiff’s title. — To recover in ejectment, plaintiff must prevail upon the strength of his own title.
    2. Ejectment — sufficiency of evidence. — In ejectment the failure of plaintiff to show the location of boundaries in a deed under which he claimed on account of inability to locate the beginning point or to find any plat which would determine the boundaries, held to require a reversal of judgment for plaintiff.
    Appeal from Greene Circuit Court, First Division; W. W. Bandy, Judge;
    reversed.

      M. P. Huddleston, for appellant.

      Jeff Bratton, for appellee.
   Humphreys, J.

Appellees brought suit in the circuit court of Greene County, First Division, against appellant, in ejectment, to recover a strip of land five feet wide 'by thirty-six feet long, described as follows: “Beginning at a point 60 feet south of a point 75 feet east of the northwest corner of said lot 6, block 1, of Hunt’s Addition to Paragould, Arkansas, running thence east 36 feet, thence south 5 feet, thence west 36 feet, thence north 5 feet, to place of beginning. ’ ’

Appellees claim title to the strip by purchase and warranty deed of date November 16, 1923, from Robert Rutherford, alleging that said strip was embraced in the land described in the deed, which description is as follows: “That part of lot 6, in block 1 of Hunt’s Addition to Paragould, Arkansas, described as follows: Beginning at the northwest corner of said lot 6 and run east on north line thereof 75 feet, thence south 50 feet, thence east 36 feet, more or less, to the alley, thence south 30 feet, thence west to the east line of Pruett Street, at a point which is 48 feet south of the beginning, and thence north to the northwest corner of said lot 6.”

• It was further alleged in the complaint that appellant was in the unlawful possession of the land, claiming title thereto by mesne conveyances from Robert Rutherford.

Appellant filed an answer to the complaint, denying that the strip of land was embraced in the land described in appellee’s deed of date November 16, 1923, from Robert Rutherford, or that he was in the unlawful possession of same. He admitted that he was in possession of the strip of land in question, but alleged that he was in the rightful possession thereof by deed from Dora Bridges, who obtained title thereto by devise from Robert Rutherford.

According to the allegations contained in the pleadings, it will be obseryed that each claimed title to the strip in question from the same source.

The cause was submitted upon the pleadings,' the testimony introduced by the respective parties and the instructions of the court, which resulted in a verdict and judgment in favor of appellees for the strip of land in question, from which is this appeal.

Appellant contends for a reversal of the judgment, because he alleges that there is no substantial evidence in the record to-sustain same. Appellee introduced his deed and an engineer by the name of J. E. G-arrett, as a witness, in an effort to show that the strip of land in question was embraced within the boundaries of the land described in his deed from Robert Rutherford. The engineer was unable to locate the boundary lines in the deed, because he could not locate the beginning point. He was unable to find any plat of Hunt’s Addition to Piaragould, or any other plat by which he could determine the width of Pruett Street, referred to in the description, so as to definitely locate the east line thereof, or to find any map or plat showing the width of the alley referred to in the description, or to obtain any other accurate information by which he could determine the beginning point called for in the deed. After acquiring such information as he did, he made a tentative plat of lot 6, block 1, of Hunt’s Addition, which he admitted was not accurate or dependable.

Before the dispute as to the division line between the land claimed by appellees and that claimed by appellant can be determined, it will be necessary to definitely locate tbe beginning point in some way in appellee’s deed. If be recovers at all be mnst recover upon tbe strength of bis own title, and, in order to show that tbe strip is embraced in tbe boundaries mentioned in bis deed, be must in some way definitely locate tbe boundaries.

We are not quite sure that tbe case has been fully developed, else we would reverse tbe judgment and dismiss tbe case. Thinking perhaps that these boundaries can be definitely ascertained in some way, we reverse tbe judgment, and remand tbe case for a new trial.


text:
    Ætna Insurance Company v. Mills.
    Opinion delivered March 19, 1928.
    1. Automobiles — use of unregistered oar.' — Where an insurance company claimed an automobile through transfer from insured to whom the insurance company paid insurance because of theft thereof, and defendant sought damages 'for its detention, the insurance company could not claim that the car had no usable value when seized or during its detention because it had not been registered, under Crawford & Moses’ Dig., § 7413, where defendant testified that it was his intention to place a license thereon when he got it out of the repair shop.
    2. Automobiles — mutilation of serial numbers.' — In replevin for an automobile where defendant claimed damages for its detention, plaintiff could not claim that there was no usable value on it when seized or during detention, because the serial number had been mutilated and its use therefore prohibited under Crawford & Moses’-Dig., § 7437, where the only testimony was that of witnesses who failed to find the serial numbers.
    3. Replevin — usable value of automobile. — In replevin for an automoibile, where defendant prayed damages for its detention under the writ, testimony of defendant, a painter, that he purchased the ear to go to and from work and to haul materials from place to place, together with testimony of witnesses as to- its worth per day in such use, held sufficient to show a usable value of the ' car to defendant.
    4. Replevin — evidence as to usable value of vehicle. — In replevin for an automobile where defendant claimed damages for its detention, testimony as to defendant’s use of the car during the period of detention should be limited or restricted to the character of use he was making or intended to make of it.
    5. Evidence — value.—In proving values, it is generally a matter of opinion.
    Appeal from Faulkner Circuit Court; W. J. Wag-goner, Judge;
    affirmed.

      C. A. Holland, for appellant.

      George W. Clark and R. G. Bruce, for appellee.
   Humphreys, J.

Appellant brought suit against appellee in the circuit court of Faulkner County to recover a Nash sedan automobile, 1925 model, engine number 181580, serial number 2971566, alleging ownership thereof by transfer from John D. Eeagon, to whom it paid $800 on an insurance policy on account of same being stolen. A replevin bond was executed by appellant. Appellee’s Nash sedan, which had no engine or serial number upon it, was seized by the, sheriff under the writ of replevin issued in the suit, and detained thereunder for five months and twenty days, or until the trial of the cause.

Appellee filed an answer, denying appellant’s title, and claiming and praying for damages for the detention of his automobile under the writ.

The cause was submitted to a jury upon the pleading’s, testimony, and instructions of the court, resulting in a verdict and consequent judgment in favor of appellee for the car and for $342 damages for the detention thereof.

Appellant has prosecuted an appeal to this court from that part of the judgment awarding damages against it for detention of the car under the writ. It contends for the reversal thereof upon two alleged grounds:

First, that the automobile had no usable value when seized or during its detention, because it had not been registered and a license paid thereon, under the requirements of § 7413 of Crawford & Moses’ Digest, and because the motor and serial number had been mutilated, which prevented its use under inhibitions contained in § 7437 of Crawford & Moses’ Digest. Second, because the testimony failed to show any usable value of the car to' appellee.

(1) . Appellee testified that it was his intention to register his automobile and put the license thereon as soon as he could get it out of the repair shop. It does not lie in the mouth of appellant to say that appellee would not have carried out this intention, after seizing and detaining the car at the time it was being repaired. This disposes of appellant’s suggestion that the car could not have been used on ¡account of the penalty imposed by failure to comply with the requirements of % 7413 of Crawford & Moses’ Digest with reference to registering it and paying a license to use same. The other statute referred to persons, firms and corporations having automobiles in their possession upon which the motor and serial numbers have been mutilated so that the same cannot be read. There is no testimony in the record showing that the numbers had been mutilated. The witnesses testified that they failed to find any motor or serial number upon the car. Unless the testimony showed mutilation of the numbers, the statute could have no application to the facts in the case.

(2) . Appellee testified that he purchased the auto-. mobile in question to go and come home from his work, and to haul his ladders and materials from place to place. He was a painter, and lived out a mile from the town in which he carried on his business. The testimony relative to the usable value of the chr took a wide range, without any objection to the introduction of same by the appellant. C. E. Ramsey testified that, in his opinion, a car used for business and pleasure both would be worth two or three dollars a day. C. E. McNutt testified that the usable value-of the car was four or five dollars a day. McNutt based his opinion upon the fact that the car would carry four or five passengers and that the fare per passenger from the home of appellee to Little Rock would be two or three dollars.

The court instructed the jury that the measure of' damages was the usable value of the car, meaning, of course, that the use to which appellee intended to put the car governed in arriving at the amount of his damages for the detention of same. In the case of Kelley v. Altemus, 34 Ark. 184, 36 Am. Rep. 6, wliich was cited and approved in the case of Minkwitz v. Steen, 36 Ark. 265, this court announced that the true measure of damages during the unlawful detention of property in replevin suits, which has a usable value, is the value for the use thereof during the time. In stating the rule the court also announced that special damages, for deterioration might be shown. In § 883 of the 8th edition of Huddy on Automobiles it is stated: “In case of unlawful detention of a vehicle, there being no physical injury to the vehicle, the value of the use during the period .of detention fairly represents the damages.” The rule thus announced seems to be sustained by the decided weight of authority. In the application of the rule, of course,- the testimony relative to the use during the period of detention should be limited or restricted to the character of use the owner was making or intended to make of the automobile. -It was disclosed by the record in the instant case that the owner intended to use the automobile going to and returning from the town where he did business, and in hauling his ladders and materials from place to place. Being a sedan, it is reasonably inferable that he. would use it to some extent for pleasure. One of appellant’s witnesses testified that, in his opinion, where it was used for business and pleasure both it would be worth from two to three dollars a day. In proving value it is generally a matter of opinion, and there is substantial evidence of this kind in the record unobjected to. It cannot therefore be said that the instruction was abstract. We cannot agree with appellant that there is no evidence in the record at all justifying or warranting the court in submitting the issue of damages to the jury.

No error appearing, the judgment is affirmed.


text:
    Jackson v. Roach.
    Opinion delivered March 19, 1928.
    1. Infants — proceeding to declare children dependent and neglected. — 'Since proceedings under the Juvenile Court Act (Crawford & Moses’ Dig., § 5751 et seq., as amended by Acts 1921, p. 419), to .declare children to be dependent and neglected, is a special proceeding, any judgment procured thereunder, to be valid against collateral attack, must recite the necessary jurisdictional facts.
    2. Infants — adoption—collateral attack. — Where a judgment of the juvenile court declared certain children dependent and neglected, a subsequent contest in the probate and circuit courts over the adoption of one of the children, upon the ground that the previous order of the juvenile court was void, constituted a collateral attack on such judgment, relied on as a basis for the adoption proceedings.
    3. INFANTS' — VALIDITY' OF ORDER DECLARING CHILDREN DEPENDENT AND neglected. — A judgment of the juvenile court declaring a child to be dependent and neglected, which failed to show that its mother was a party to the proceedings and duly served by summons, as required .by Crawford & Moses’ Dig., §§ 5758, 5759, was void for failure to recite such jurisdictional fact, and was subject to collateral attack.
    Appeal from Independence Circuit Court; S. M. Bone, Judge;
    reversed.

      T. A. Gray, for appellant.

      W. M. Thompson, for appellee.
   Humphreys, J.

This is an appeal from a judgment of the circuit court of Independence County affirming judgments of the probate court of said county appointing Mrs. Lula G-. Parse, probation officer of said county, guardian of the person of Lewallen Jackson, a minor, and adopting said minor to Lamon Roach and his wife.

The judgments of the probate court, which were affirmed by the circuit court, from which is this appeal, were based upon a judgment rendered and entered of record by the juvenile court of said county on the 14th day of September, 1926. That judgment is as follows :

“September 14, 1926.
“State of Arkansas v. Cady, Charles, Hadley, Lewallen and Virginia Jackson. In the juvenile court of Independence County, Arkansas.
“Now on this, the 14th, day of September comes Lula G-. Parse, probation officer, who brings into court G-ady, Charles, Hadley, Lewallen and Virginia Jackson, age of 11, 9, 7, 5 and 4 years, respectively, who are charged with being dependent and neglected children, said children appearing by their uncle, Jeff Engles, who has legal custody and control of said children, and the court, after hearing the evidence and being fully advised in the premises, finds said children are dependent and neglected children.
“It is therefore considered by the court that the said children be and remain wards of the court, that they be permitted to go hence subject to the visitation of the probation officer, and that siiitable home or homes be found for them. E. R. Hooper, Judge of Juvenile Court.”

The juvenile court judgment was procured under §§ 5758 and 5759 of Crawford & Moses’ Digest, which provides the method by which either a dependent or neglected child may be taken from its unfit parent or parents, custodian or guardian, and placed under the guardianship of some suitable person. The statutes mentioned require, among other things, that the parents or parent, if living, of the child shall be named in the written petition, made defendants, and notified of the proceeding by summons, if residents of this State.

The proceeding unde£ the juvenile court act is a special proceeding, so any judgment procured thereunder, to be impervious against collateral attack, must recite all necessary jurisdictional facts. The appeal in the instant case from the probate court judgments to the circuit court and from the circuit court to this court is 'a collateral attack on the juvenile court judgment relied upon as a basis for the guardianship and adoption proceedings. By reference to that judgment, which is set out in full above, it will be seen that it fails to show that the mother of Lewallen Jackson, the appellant herein, was made a party to the proceedings and duly served by summons, as required by §§ 5758 and 5759 of Crawford & Moses’ Digest. The juvenile court judgment is void for failure to recite this jurisdictional fact, and subject to collateral attack.

The trial court erred therefore in affirming the probate judgments, and, on account of such error, the judgment of the circuit court is reversed, and remanded for further proceedings not inconsistent with this opinion.

Mr. Justice Wood and Mr. Justice McHaney dissent. They are of the opinion that the judgment of the juvenile court herein set out is not void on its face and therefore open to collateral attack, also that the order of adoption is a valid order. The judgment of the circuit court was based on oral testimony not preserved in a bill of exceptions, and should be affirmed for that reason.


author: Kirby, J.

text:
    Bennett v. Bell.
    Opinion delivered March 19, 1928.
    1. Automobiles — duty op driver toward passengers. — The driver of an automobile is bound to exercise ordinary care in its operation for the safe transportation of his passengers, whether they ■are guests by sufferance, invited, or self-invited.
    2. Negligence — instruction disregarding issue. — In an action for personal injuries by a passenger against the driver of an automobile, an instruction allowing the jury to find for defendant if they believed the injury was caused by the road condition and not from the high rate Of speed, if persons of ordinary experience and sagacity could not have foreseen the alleged accident might have occurred, held erroneous as disregarding the alleged negligence in operating the car at an excessive and dangerous rate of speed, considering the condition of the road.
    3. Negligence — instruction disregarding issue. — In a personal injury action by a passenger against the driver of an automobile, an instruction permitting a finding for defendant if the jury found another automobile was approaching the one in which plaintiff was driving, and that it was necessary for defendant to drive to the side of the.road in meeting said car, and that loose gravel caused the car to skid without defendant’s fault, and that an accident was caused thereby, held erroneous as disregarding the alleged negligence in operating the car at an excessive and dangerous speed in view of the condition- of the road.

      4. Negligence — sole cause of injury. — Negligence need not be the sole cause of injury to render one liable therefor.
    5. Negligence — -proximate cause. — The law will regard the proximate cause as the efficient and responsible cause of an injury.
    6. Trial — matter outside of pleading. — In a personal injury action iby a passenger against the driver of an automobile, an instruction telling the jury that, if they believed plaintiff got into defendant’s automobile knowing that defendant was so intoxicated as to make him unduly reckless in driving the automobile, plaintiff assumed the risk and could not recover, held erroneous as ¡being outside of the pleading and ignoring contention as to the nature of the ride.
    7. Trial — instruction unduly stressing release. — In a personal injury action by a passenger against the driver of an automobile, an instruction that the jury was called upon first to determine whether there had been a settlement of the claim for damages and that they need not consider either the question of defendant’s negligence or the extent of plaintiff’s injuries until they had decided such matter, held erroneous as unduly stressing the settlement and release.
    8. Compromise and settlement — instruction.—In an action by an automobile passenger against the driver for personal injury in which it was admitted that the defendant had paid part of plaintiff’s damages, an instruction from which the jury might have understood that if the passenger settled any part of his damage claim he could not recover, held erroneous.
    Appeal from Columbia Circuit Court; L. S. Britt, Judge;
    reversed.
    STATEMENT Of? EAOTS.
    Appellant brought this suit for damages for personal injuries received while riding in appellee’s automobile at his invitation.
    The complaint alleged that he, with E. D. Thomas, was invited by appellee, 'Brooks H. Bell, to ride in his car from Bell’s garage around to a restaurant near the hotel where they were stopping. They got into the ear for that purpose, and appellee, instead of driving around to the restaurant, turned his car, over the protest of appellant and Thomas, and drove off in an opposite direction from -Smackover; that, upon coming to a place about two and one-half miles out, where a bridge had been burned, he turned the car around, and started back at a dangerous and reckless rate of speed, appellant and Ms friend both protesting against such speed, and, in turning a sharp curve in the road, he ran into some loose gravel, and the car turned over, injuring plaintiff terribly; three of his ribs were broken, and his spinal column was fractured, and he had suffered great pain, and he will continue so to do, and he is permanently injured, and his earning capacity destroyed.
    The answer denied the allegations of the complaint, and alleged that Thomas had suggested the drive, and he and the appellant got into his car, and he drove on down to where the bridge was burned out; that appellant and Thomas were licensees merely, and that, if he was driving at a high rate of speed, they knew it, and made no protest against it, and were guilty of contributory negligence, and assumed the risk, which barred appellant from any right of recovery.
    It appears from the testimony that appellant, Bennett, and Thomas had driven over to Smackover on the afternoon of the injury in the evening, where they were engaged in work on a schoolhouse. They stopped at the hotel where they had been staying, and went down to put their car in Bell’s garage, where they had been keeping it. That Bell had a new Lincoln car, and insisted on taking them driving. They protested that they had had enough driving, and did not care to go. He finally suggested that they get into the car and he would take them around to the restaurant or cafe, near their rooms, where he was going for supper. They got into the car, and he started off in a different direction, but they still thought he was going to turn at a place further on, but, instead of doing so, he drove on into the Smackover-El Dorado Road and down towards El Dorado, to the burnt bridge, ¡about two and one-half miles. That he turned the car there and started back, saying to appellant, “You don’t believe this car will make sixty-five miles per hour in second gear, do you?” to which he replied, “Yes, but you be damn sure you don’t try to make it.”

      Appellee drove about one hundred yards, and shifted the gears again, and Bennett asked him not to drive so fast, and Thomas said: “Slow down; you are on this curve.” Bennett said he looked at the speedometer, ¡and it was standing on 65 when they struck the curve, and the light shone out through the brush, and he saw that they were close to the ditch. That Bell gave the car a cut, and the hind end could not turn, and the car turned over, and virtually turned around, the front of the car being in the opposite direction from which they were going. Bennett stated it turned over on them, and he and Mr. Thomas went under it, and it rolled again, and he went with it, and the car' turned over again after it fell on them.
    The roadbed was about three or four feet high where ■ the injury occurred, with a ditch by the side, cut by the grader. There was some loose gravel on the road at the place where the wreck occurred.
    Bennett stated that his back was broken, and he couldn’t get up, and that Thomas hád not yet regained his breath, and couldn’t talk when Bell asked if they were hurt. About that time another car drove up and carried Bennett and Thomas to a little hospital in Smack-over, but nobody was there, and they carried them to the hotel, and went back to get Mr. Bell.
    Plaintiff was severely injured, his spinal column being broken, and his legs paralyzed to some extent. He has been operated on since, and some of the fractured bone removed. He will never recover.
    Appellee denied that he had asked appellant to ride in his car, and that-he was driving or handling the car recklessly, and said he was only driving about 35 or' 40 miles per hour when the accident occurred; that, on account of meeting an approaching car at the curve, he had tried to turn out to the side, when the loose gravel caused the car to skid and finally turn over. Said that they had had one or two drinks before going out for the drive, but nobody testified that appellee, the driver of the car, was intoxicated or under the influence of liquor. Appellee also pleaded a release in bar of the .action.
    The court instructed the jury, giving, over appellant’s objections, general and special, instructions Nos. 2, 6, 8,10,11 and 14, and from the judgment against him this appeal is prosecuted.

      Joiner & Stevens and Jones & Jones, for appellant.

      McKay & Smith, for appellee.
   Kirby, J.

The driver of an automobile or motor vehicle is bound to the exercise of ordinary care in the operation thereof for the safe transportation of his guests and other passengers and to avoid personal injury to them, and this duty extends to all such passengers, whether guests by sufferance, invited or self-invited. Black v. Goldwebber, 172 Ark. 862, 291 S. W. 76, 2 R. C. L. 1183; Huddy, Automobiles, 117, § 18; Mitchell v. Raymond, 181 Wis. 591, 195 N. W. 855, 859.

There are two acts of negligence alleged in the complaint; the driving of the car at an excessive and dangerous rate of speed, and the handling of it in its operation in a careless, negligent and dangerous manner, and it is complained that some of the instructions given for the appellee disregard altogether.one of the charges of negligence.

Instruction No. 11 allowed the jury to find for the defendant if they believed from the evidence that the plaintiff’s injury was caused by the condition of the road at the place of the wreck, and not from the high rate of speed it was being driven, if a person of ordinary experience and sagacity could not have foreseen that the accident might occur.

Under instruction No. 14 they were told, if they found an automobile was approaching the one in which plaintiff was riding from an opposite direction, and that it was necessary for defendant to drive to the side of the road in meeting said automobile, and that loose gravel on the side of the road where the defendant necessarily drove caused the car to skid, without the fault of the defendant, and that the wreck of the automobile was caused thereby, they should find for the defendant.

These instructions disregarded the alleged negligence in operating the car at an excessive and dangerous r;ate of speed as combined and concurring with the operation of the car upon the bad road, and were .'both erroneous. If the injury was caused by the alleged negligence of operating the car at a high and dangerous rate of speed on the bad road, or- in turning out on the loose gravel to avoid the oncoming car, the defendant would still have been liable for the injury.

It is well settled that negligence, in order to render a person liable, need not be the sole cause of the injury, and that one is liable if his negligence concurred with an inanimate cause producing it. The negligent act or omission must be the cause which produced the injury, but it need not be the sole cause, nor the last or nearest one. The law will regard the proximate as the efficient 'and responsible cause. Of course, no injury could have resulted from the bad condition of the road or the loose gravel unless the car was being operated thereon, and its operation at the place and in the manner might have been negligent because of such bad condition, even though it had been driven at a much lower rate of speed than alleged; in other words, ordinary care in the operation of the car required the driver to take into consideration the existing bad condition of the iroad over which he was driving.

Appellee stated that the road was new, had just been completed, and there was no watchman on it since the bridge had burned out, and there was a curve where ihe accident happened, something like a mile from the creek, and he was almost around the curve, “and I saw the lights of a car coming, and I got out of this little place where the tracks had been running, and when I did I got over the side, and my hind wheels skidded, and that gravel had not been packed, they just throwed it up there on the bed of the road; they did not subgrade, and all I could account for is that the hind wheel's got out of the ruts and skidded in that loose gravel, and my car turned right square to the left, and I like to have gone over in the ditch to the left, and then I turned to the right, and that is when the car turned over.”

The court also erred in giving defendant’s requested instruction No. 8, telling the jury that, if they believed from the evidence-that plaintiff got into the defendant’s automobile knowing he was in such an intoxicated condition' as to make him unduly reckless in the driving of the automobile, he assumed the risk of riding in the automobile under such conditions, and cannot recover for any injury caused thereby. -This instruction was abstract, defendant’s, intoxicated condition not having- been pleaded, nor any risk assumed by plaintiff on account of it, and the evidence offered to show such condition was objected to, and the instruction disregards altogether appellant’s contention that, he only consented to ride around the block to the restaurant, in accepting the invitation and getting into the car.

The instructions relative to the settlement and release were also erroneous. No. 4 -unduly stresses the question, and told the jury they were called upon, first, to determine whether there had been a settlement of the claim for damages, and that they need not consider either the negligence of the defendant or the extent of the plaintiff’s injuries until they had decided the question. Instruction No. '2 told the jury that, if the defendant went to the residence of the plaintiff, and plaintiff offered to accept from the defendant the sum of $400, or any other sum, in full settlement “of any claims that he might have against the defendant for damages,” and that, pursuant to said agreement, the defendant paid said sum to the plaintiff, he was bound by the settlement, and could’ not recover, notwithstanding that they, the jury, might believe the settlement was improvident and unwise.

The plaintiff testified that the defendant wanted to pay certain hospital bills and expenses, which he was entitled to, specifying them, as part of his-damages if he recovered, amounting to $400, and that he permitted him to do so. That nothing was said about a settlement of his entire claim for damages, and that he had no intention of doing so, and did not make any settlement of it.

Said instruction No. 2 was misleading, and the jury could have understood from it that," if he settled any claim or any part of the damages,'he could not recover in the suit, and especially was this true since the court had laid so much stress on. the question of settlement, having 'told the jury to first determine whether a settlement had been made, and not to regard either the negligence of the defendant or the extent of the plaintiff’s injuries until they had decided the. question of settlement. Of course, if pláintiff had made, without-fraud or imposition, a full settlement of his claim for damages for $400, and accepted -the payment thereof-, he would have been bound thereby, and could not have recovered anything further, as the court told the jury, in instruction No. 3 given at appellee’s request.

For the errors designated the judgment is reversed, and the cause remanded for a new trial.


author: Kirby, J.,

text:
    Hill v. Cone.
    Opinion delivered March 19, 1928.
    1. Spates — building contract — extension of time. — Under a contract for the construction of a tuberculosis sanatorium under Acts 1927, pp. 64, 1130, which contract provided for liquidated damages for delay unless the contractor obtained an extension of time approved by the architect, the obligation of the contractor to make a claim for extension was a condition precedent to the rig-ht thereto.
    2. States — building contract — conclu^iveness of architect’s decision. — The architect’s decision that a contractor constructing a tuberculosis sanatorium under Acts 1927, pp. 64, 1130, was not entitled to an extension of time for completing the work, held binding on the contractor in the absence of fraud or such gross mistake as to imply bad faith, where the contract provided that the extension of time must be approved by the architect.

      3. States — building contract — waiver of stipulated damages.— Where a contract for construction of the tuberculosis sanatorium provided that an extension of the time for completion must be approved by the architect, the action of the hoard of trustees of the sanatorium in allowing- the contractor an extension of 14 days, notwithstanding- the architect’s refusal to approve it, held not to constitute a waiver of the right to insist on stipulated damages for other delay.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    reversed.
    STATEMENT OE FACTS.
    The appellants, the hoard of trustees of the Arkansas Tuberculosis Sanatorium, broug’ht this suit against the Auditor of State for a mandamus to compel him to issue to them a warrant for $6,000, the balance alleged to have been appropriated for the sanatorium under acts Nos. 21 and 351 of the Acts of the General Assembly of 1927, and incidentally to determine what amount, if any, was still due the contractor, George W. Pair, for the construction of the hospital at the Tuberculosis Sanatorium.
    The hospital at the sanatorium was destroyed by fire on January 13, 1926, and on January 20, 1926, the Governor, under authority of § 2839, C. & M. Digest, issued a proclamation authorizing the board to incur an indebtedness of $35,000, with interest at the rate of six per cent, per annum, for the purpose of constructing a new hospital. That the indebtedness was incurred and a contract was entered into with George W. Pair, contractor, for the construction of the hospital building, which has been completed, and is now occupied.
    The Legislature by said act 351 appropriated for the use of the board of trustees of the sanatorium the sum of $35,000 principal and $1,050 interest, for paying the indebtedness incurred in the construction of the hospital building, the act containing a provision that the Auditor shall issue no warrants pursuant thereto unless and until there shall have been filed with the said board of trustees receipts showing payment in full of all claims by contractors, laborers, materialmen and others, for material and labor furnished and used in connection with the erection of said hospital building.
    It was alleged that the auditor had issued warrants for all the said apppropriation except $6,000, and, notwithstanding the board had filed the receipts with him, as required by the act, for all claims of whatever kind incurred in the construction of the hospital building, he had refused to issue a warrant to the board for the $6,000 of said appropriation, withholding the same on account of the pretended claim of-George W. Fair, which he claims the board owes him. It was alleged that Fair was the contractor, land claimed there was an.unpaid balance due him, under his contract, which was unjust and unfounded, and also that they had paid him all the amount due under the contract, and filed with the Auditor his receipt for the last and final payment, which ivas certified to by the architect superintending the construction, as the full amount due him; that Fair declined to receive the amount in full payment, however, and unjustly claims the boárd owes him some amount, land because of the pretended claim the Auditor refused to issue a warrant for the balance of the appropriation.
    Fair was made a party defendant, so that he might "assert his claim and have the court determine whatever amount, if any, was due him, so that the Auditor be required to issue a warrant for the amount due the board, and, if any amount is found to be due Fair, for such amount as might be due him.
    The Auditor answered, admitting the passage of act 351, making the appropriation of the sum of $36,050 for paying the indebtedness incurred by the board in the construction of the hospital building. He set out the provisions of the act requiring receipts showing full payment of all indebtedness for the construction, before warrants should be issued in its payment, and admitted that he had issued warrants to the board for all the appropriation except $6,000, the board having first certified to him that they had paid out $46,124.21 for the construction of the, building, which constituted full payment of everything, labor and materials, used in the building, for which the board was liable. 'Stated that he knew nothing about the controversy between the board and the contractor, but that, before issuing any warrants to the board, it had entered into a stipulation with Fair consenting that the Auditor should issue warrants in favor of the board for all the appropriation except $6,000, which was sufficient to cover the amount in controversy between the board and contractor. That he was ready and willing to issue warrants against the $6,000 appropriation' to the persons entitled thereto after, they are determined by the court. -He asks that the controversy be determined, and that he be directed to issue warrants on the balance of the appropriation to the persons entitled thereto.
    Fair answered, admitting the allegations of the complaint, except he denied that he had been paid the amount due under the contract and that the board had filed with the Auditor his receipt for the last and final payment, and denied that said payment was certified to by the architect as the just amount due him under the contract. Admitted 'that he declined to receive it in full payment. Alleged that the Auditor could not lawfully issue a warrant to the board for the- $6,000 claimed to be due him, because it had not filed a receipt showing the payment of all claims for the construction of the building. Also alleged that the board of trustees had not filed with the Auditor the receipts required to be filed showing payment in full of all claims for the construction of the hospital, in accordance with § 1 of Acts 23 of 1927. Stated that he had made a contract for the erection of the building, the amount that had been paid him thereunder, that he was required to do certain extra work, and that there was a balance due him under the contract of $5,936.42, with interest at 6 per cent, from October 1, 1926. Prayed that the petition of- the board be denied, and that they should be ordered and directed to pay the said sum, with interest.
    The testimony shows that there were 43 patients in the building before it had been destroyed in January, and that there were many others on the waiting list, necessitating an increase in the capacity of the hospital. About $14,000 was realized from the insurance, and, with the deficiency appropriation authorized, the board made a contract for the construction of the new building with George W. Fair. This contract was in writing, and specified how the building should be constructed, under the direction and supervision of the architect, whose decision should be final upon any question about the plans and specifications, and no alterations should be made in the work except upon the written order of the architect, which- should state the amount to be paid or allowed the contractor by virtue of such change, and required the completion of the building under article 6 of the contract, as follows:
    “The contractor shall complete the several portions and the whole of the work comprehended in this agreement by and at the time or times hereinafter stated, to-wit: The contractor agrees to complete the building not later than June '24, 1926. The contractor shall pay to the owner as liquidated damages the sum of $50 per day for every day that the building remains uncompleted after said date for completion. Additional time is only to be allowed for delays beyond the contractor’s reasonable control, and approved in writing by the architect; it being distinctly understood by the parties hereto that said sums of money are agreed upon as the amounts due the owner as liquidated damages for the owner’s inability to use said building.” • .
    Article 7 provides that, if the contractor should be delayed in the prosecution or completion of the work, the time fixed for the completion should be extended an equivalent period by reason of the causes specified therein, the extension to be determined by the architect; but no allowance should be made unless a claim therefor was presented to the architect within 48 hours after the occurrence of such delay.
    No claim was made by the contractor in writing for any extension of time on account of delay under the contract. The contractor claimed he lost a certain amount of time for which he should not be charged as delay, because of having to tear out and rebuild certain stairways after the building was virtually completed, and that he should not .be charged with 30 days for -the delay caused by inability to procure sand for the construction, on account of the high and overflowing condition of the river from which the sand had to be taken. He also insisted that more of the delay was occasioned by his inability to procure the tiling agreed to be used in the construction, which was a patented article, and could not be supplied by any one else nor furnished any sooner than it was delivered by the person with whom he had made the contract of purchase thereof.
    There was some testimony tending to show that the contractor was not proceeding with diligence and that there was unnecessary delay, and, although the board allowed the contractor for a part of the time which he claimed to be for delay in the procuring of the sand, it did so over the certificate of the architect that he was not entitled thereto, and the board refused to allow any part of the contractor’s claim for extension for delay for the construction of the stairway and the extra cost thereof, the board contending and the architect deciding that the contractor alone was responsible for not having- built the stairway in accordance with the contract, and was not entitled to any of the expense incident to tearing it .out and rebuilding it in accordance with the specifications, nor to an extension for any delay of the completion of the building because thereof.
    The testimony showed the amount that had.been paid the contractor, and the court virtually snlit the difference on the contention about crediting him and in requiring him to pay the $50 a day claimed to be liquidated damages for only one-half the time which the board contended it should- be paid.

      Moore, Gray & Burrow, for appellant.

      Downie & Schoggen, for appellee.
   Kirby, J.,

(after stating the facts). Appellants insist that, upon a correct construction of the provision of the building contract relative thereto, the amount per day provided and required to be paid.and allowed to be charged against the contractor for the time required to construct and finish the improvement beyond the time it was agreed to be finished, should have been charged, and that the court erred in not rendering a judgment for the full amount claimed as liquidated damages by the board for such delay, and this contention must be sustained. The authorities are reviewed and the rule for assessment of liquidated damages again announced in Robbins v. Plant, 174 Art. 639, 297 S. W. 1027, 31 L. R. 491.

Said article 6 binds the contractor to the completion of the building not later than June 24, 1926, and to the payment to the owner as liquidated damages the sum of $50 per day for each day the building remains uncompleted after said date; that additional time, for delays beyond the contractor’s reasonable control, is only to be allowed when approved in writing by the architect, and that it is expressly understood that said sums of money are agreed upon as the amount due the owner as liquidated damages for the owner’s inability to use said building.

The damages for the breach of the contract in respect of delay in the completion of the building are in their, very nature uncertain and difficult of ascertainment, it being well-nigh impossible to prove any pecuniary loss to the board or the State on account of it, all of which was recognized by both parties thereto, and it was expressly agreed that such amount should be regarded as liquidated damages.

In Rutherford v. Kohler, 174 Ark. 894, 298 S. W. 9; Robbin v. Plant, supra, the court quoted from Wait v. Stanton, 104 Ark. 9, 147 S. W. 446, which had passed upon precisely the same as article 7, already set out herein, and held: “The obligation of the contractor to make claim for an extension was a condition precedent to his right thereto.”

There is no evidence showing that the contractor made any claim to the architect for an extension of time, in accordance with said article 7 of the contract, or otherwise, at any time during the period of the claimed delays, or at all, before the completion of the building. Nor does the proof show nor is it even claimed that the delays were caused by the act, neglect or default of the owner or its architect. Then, too, the architect testified that the contractor was not entitled to an extension of time on account of any of the delays, because they resulted from his own failure to order and arrange for procuring his materials on time, as he was bound under the contract to do.

The architect’s decision was binding on the contractor, too, in the absence of fraud or such gross mistake as necessarily implied bad faith on the part of the architect, and none such was even alleged, nor was there any proof conducing to that effect. Boston Store v. Schleuter, 88 Ark. 213, 114 S. W. 242; Carlile v. Corrigan, 83 Ark. 136, 103 S. W. 620; Federal Grain Co. v. Hayes Grain Commission Co., 161 Ark. 51, 255 S. W. 307; Hayes Grain Commission Co. v. Federal Grain Co., 169 Ark. 1072, 277 S. W. 521; U. S. v. Gleason, 175 U. S. 588, 20 S. Ct. 23, 44 L. ed. 284; Ripley v. U. S., 223 U. S. 695, 32 S. Ct. 352, 56 L. ed. 614.

The board did allow the contractor for 14 days’ ■ extension of time for delay claimed by him to have been caused by frequent rises' in the river, preventing his being able to get the sand necessary for the construction, notwithstanding the architect’s judgment that he was not entitled to it, but this constituted no waiver of its right to insist upon the stipulated damages for all the rest of the delay in the completion or construction and delivery of the building, as the lower court erroneously held.

The judgment is accordingly reversed, and, the contractor having been fully paid, as well as all other claims for construction of the building, the cause is remanded with directions to issue a mandamus to compel the Auditor to issue warrants for payment of the balance of the appropriation to the board, in accordance with the law and the prayer of the petition.