author: Mehaeey, J.

text:
    Bird v. McCrory Special School District.
    Opinion delivered December 5, 1927.
    1. Schools and school districts — validity of order annexing territory to district. — An order of the county hoard of education annexing territory of a common school district to a special school district, showing a compliance with the provisions of Crawford & Moses’ Dig., § 8949, held valid on its face.
    2. Schools and school districts — change of boundary lines.— A county board of education is authorized under Crawford & Moses’ Dig., § 8949, to alter'the boundary lines of common school districts, and to annex common school districts to special school districts.
    3. Schools and school districts — order annexing territory— review. — Since Acts 1925, p. 546, expressly authorizes an appeal from decisions of the county board of education- to the circuit court, certiorari will not lie to review an order annexing territory to a special school district, showing on its face a compliance with all the provisions of Crawford & Moses’ Dig., .§ 8949, relative to annexing territory to a single school district.
    4. Certiorari — right of appeal. — Certiorari cannot be used-in any case where there is or has been a right of appeal, unless the opportunity for right of appeal has been lost without petitioner’s fault.
    Appeal from Woodruff Circuit Court, Southern District; W. Zb Dave.nport, Judge;
    affirmed.

      W. J. Dungan, for appellant.

      Jonas F. Dyson, for appellee.
   Mehaeey, J.

On the 14th day of September, 1926, a petition of the electors of School District No. 17 of Woodruff County, Arkansas, was filed with the county board of education, asking* that all of the territory of the School District No. 17 be annexed to McCrory Special School District, and at the same time an accompanying request signed by four members of the school board of the McCrory Special District. The board of education, acting on said petition, made an order which annexed all of District No. 17 in Woodruff County to McCrory Special District. The McCrory Special iSchool District was signed to the application by the president and secretary and two other members of the school board. Among other things, the board of education stated in its order that the petition was presented by F. A. CChert and J. P. Gibson, representing No. 17, and Vance M. Thompson, representing M cCrory .Special District. It was found, upon investigation, that this petition met with the requirement of § 8949 of the general 'school laws, and the annexation was made.

Among other things, ^ 8949 provides: “The county board shall annex contiguous territory to single school districts, under the provisions of this act, when a majority of the legal voters of said territory and the board of directors of said single district shall ask, by petition, that the same shall be done.”

It will be observed that the statement in the findings' of the board of education is that this section had been complied with. That is, a majority of the legal voters of the territory of District No. 17, and the board of directors of the special school district signed the petition. Then, in the transcript showing the pleas and procedure before the county board of education of Woodruff County, is the finding of the board that all of the provisions of law had been complied with.

The order of the board of education is valid on its face. It shows that all the provisions of law were complied with.

Act 183 of the Acts of the General Assembly of 1925 expressly provides for an appeal by any person or persons being- a party to the record or proceeding in a matter brought before any county board of education who feels ag-grieved by any final order or decision by any such board of education. The law provides that he may appeal within 30 days after the date of the final order or decision.

Appellant’s first contention is that the court had no jurisdiction, because it is contended that the order of the county board of education was not only erroneous but absolutely void, and cites the case of Acree v. Patterson, 153 Ark. 188, 240 S. W. 33, and relies on that and other cases to show that certiorari is the proper remedy for review by the circuit court of the orders of the board of education. And appellant calls attention also to the case of McCrory Special School District v. Curtis, 174 Ark. 343, 295 S. W. 971. In that case the court held that the legislators did not intend that any part of the territory once organized into a rural special school district could thereafter be taken and organized into another district of like kind. That was a rural special school district. District No. 17 is a common school district.

It was also said in that case that the board of education at that time was not authorized to change the boundary lines of a school district formed by the Legislature. But it has been expressly held several times that the county board of education has the authority to change the boundary lines of common school districts and to annex common school districts to special school districts,

This court, in construing § 8843 of Crawford Moses ’ Digest, said:

“The language in the act is broad enough to include any kind of school districts, and should not be limited by construction to apply to any particular classes of districts. The argument is made that the act should be construed as being applicable to rural districts only, because another mochos operao'odi for the annexation of territory to single or special school districts was provided by § 15 of act February 4, 1869, subsequently amended and digested as § 8949 of Crawford & Moses’ Digest. It is provided in that section that the ‘ county board shall annex contiguous territory to single school districts, under the provisions of this act, when a majority of the legal voters of said territory and the board of directors of said single school district shall ask, by petition, that the same shall be done.’ We do not think the provision quoted is inconsistent with or repugnant to the provisions of act No. 116 of the General Assembly of 1911. (Crawford & Moses’ Digest, §§ 8843-6). The modus opermidi provided in the annexation act permits the annexation of la part of the rural district as well as all of it, to a single district, whereas, under act 116 of the General Assembly of 1911, provision is made for the consolidation of school districts in their entirety only.” Murph v. Consolidated School Dist. No. 39, 168 Ark. 587, 270 S. W. 973.

It will be observed that the court in the above case decided adversely to the contention of the appellant in this case. The court stated there expressly that the act permitted the annexation of a part of a rural district as well as all of it to a single district, and we think there can now be no question about the authority of the county board of education to annex District No. 17. The order annexing the territory shows on its face a compliance with all of the provisions of law, and the law expressly authorizes an appeal from the decisions of the board to the circuit court, and therefore certiorari will not lie.

In the case of McCrory Special School Dist. v. Curtis, supra, the court said that certiorari was proper in that case because the order of the county board of education was absolutely void, and not merely irregular or erroneous. It was void because at that time the law did not authorize the county board of education to take any part of the territory of a rural special school district and organize it into another school district or annex it to another .school district. That was not true, even at that time, with reference to common school districts.

The court in the above case said:

“The county board of education, in the absence of a statute giving it the power to annex rural special school districts to other districts, special or common, had no jurisdiction whatever in the matter, and its judgment was absolutely void.”

In this case the board ■ of education did have the authority to annex District No. 17, and its order is valid on its face, and the law expressly provides for an appeal, and in such case certiorari will not lie.

This court has said that a writ of certiorari cannot be used in any case where there is or has been a right of appeal, unless the opportunity for appeal has been, lost without fault of the petitioner. Lamb & Rhodes v. Howten, 131 Ark. 211, 198 S. W. 521; Brown & Hackney, Inc., v. Stephenson, 157 Ark. 470, 248 S. W. 556; Pruitt v. International Order of Twelve, etc., 158 Ark. 437, 260 S. W. 331; Tilghman v. Russell, 158 Ark. 593, 251 S. W. 353.

Appellant’s remedy was by appeal, and the judg- • ment and order of the county board of education was valid on its face, and the judgment of the circuit court must therefore be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    American Trust Company v. Vandertuuk.
    Opinion delivered December 5, 1927.
    Corporations — liability op stockholders. — .Stockholders of a foreign corporation are not liable in this State for the debts of the . corporation simply because the corporation does business in another State without complying with the laws of such State by filing their charter.
    Appeal from Chicot Chancery Court; John E. Martillean, Chancellor, on exchange;
    affirmed.

      Cooley, Adams & Ruhr, for appellant.

      Church & Ganaway and Coleman S Riddick, for appellee.
   Mehaeey, J.

Suit was brought in the Chicot Chancery Court by the appellant against the appellees, who were the stockholders of the Holland-Delta Company, a corporation organized under the laws of the State of Delaware, on December 14, 1915, with a capital stock of $500,000, divided into shares of $100 each. The capital stock was afterwards increased to $1,000,000.

The agreement of counsel contains the following paragraph: “That the sole business of Holland-Delta Company was the operation of two large cotton plantations, one in East Carroll Parish, ■ Louisiana, and one in Chicot 'County, Arkansas, and the operation of la plantation store in connection with each one of the same for the purpose of supplying the tenants on said plantations, and successfully conducting said farming operations, and the making of all contracts necessary for the financing .and operation of said plantations. That at all times during its business existence it was properly qualified to do business in the States of Arkansas and Louisiana, but never at any time did it file a copy of its charter or an abstract thereof with the 'Secretary, of State of Tennessee or any official of the State of Tennessee, and did not undertake in any way to comply with the foreign corporation laws of the State of Tennessee. That W. P. Markle, who was president of the company from its organization, lived in Memphis, Tennessee, and had an office there. That said Holland-Delta Company maintained an office at all times at 1315 Bank of Commerce Building, Memphis, Tennessee. That said Holland-Delta Company paid the rent for said office, and its name appeared on the door of the same. That the meetings of the .stockholders and directors of this company were held in this office, and that from this office W. P. Markle, a.s president and manager, purchased a part of the merchandise and supplies used by Holland-Delta Company in its farming operations in Arkansas and Louisiana, and paid most of the bills for the same, using remittance sheets bearing the name of Holland-Delta Company, and giving its address 1315 Bank of Commerce Building, Memphis, Tennessee. That the said W. P. Markle used letterheads and the employees used letterheads in their correspondence for the Holland-Delta Company bearing the same name and addres-s. That the ones used (by .the employees on the plantation bore the plantation address. That the general books of the company were kept in said office in Memphis, and the plantation and store books were kept at the plantation.”

It is stipulated by counsel that Holland-Delta 'Company filed an answer in the courts in Tennessee, admitting that it was a foreign corporation doing- business in Tennessee. That is, it filed an answer admitting the allegations in the complaint to the effect that it was a foreign corporation doing business in Tennessee.

The American Trust Company had obtained judgment in the Arkansas courts, in which there was a balance due of -something more than $22,000. The Holl-andDelta Company became bankrupt, owing large sums of money. This suit is brought to enforce liability against the stockholders, who are made defendants, for the debt of the corporation.

It is claimed by appellant that the stockholders are liable for the debts of the company under the Tennessee statute, which prohibits foreign corporations doing business in the State without -complying with the Tennessee laws, and the courts of Tennessee hold that, when a foreign corporation does business in Tennessee in violation of tluis statute, the stockholders become liable for the debts of the corporation.

There is no dispute about the Holland-Delta Company be-ing a foreign corporation. It is agreed that it did not comply with the laws of the State of Tennessee; that it maintained an office in Memphis*, Tennessee, and that the appellees are stockholders of said corporation.

There is no controversy about the claim of the appellant. It is admitted that the Holland-Delta Company is indebted to the appellant in the amount -sued for. The only question to be determined by this court is whether that indebtedness of the.Holland-Delta Company can be enforced against the -stockholders of said corporation in the courts of Arkansas.

Section 2546 of Shannon’s Code of Tennessee reads as follows:

“Each and every corporation created or organized under or by virtue of any government other1 than that of this State, for any purpose whatever, desiring to own. property or carry on any business in this State, of any kind or character, shall first file in the office of the Secretary of State a copy of its charter. It shall be sufficient to authenticate .such copies so filed by the certificate of the secretary or secretaries of such corporations and by attaching thereto the corporate seal.”

Section 2547 of Shannon’s Code provides for a penalty or fine for any foreign corporation doing business without complying with the laws with reference to foreign corporations filing a copy of their charter, etc.

The courts of Tennessee hold that, whenever a foreign corporation does business in the 'State of Tennessee without having complied with the laws' authorizing foreign corporations to do business in the State, the stockholders of such corporation shall be liable for its debts. As to the liability of stockholders for the debts of the corporation, the authorities are not in harmony. It is not claimed here that the stockholders .owed the debt themselves, but the contention is that the corporation owed the debts, and that, because it did business in Tennessee without authority, the stockholders thereby became liable for the debts of the corporation, and the Tennessee courts so hold.

We do not think that it is necessary to decide whether the Holland-Delta Company was doing business in the State of Tennessee or not, because the settled rule in Arkansas is that the stockholders are not liable for the debts of the corporation.

“There was evidence tending to show that plaintiff had dealt with the Cypress Lumber Company as a corporation and recognized it as such; that the same was a corporation formed and existing under the laws of Wisconsin; that defendant did not owe plaintiff anything individually, and never had any dealings with him except as officers and members of the corporation. That they were owing nothing to the corporation. It is therefore difficult to see how the court below could take the case from the jury and direct a verdict against the defendant. ’ ’ Bayington v. Van Etten, 62 Ark. 63, 35 S. W. 622.

“It was not important in this case to show that the Wichita Coal & Material Company had complied with the laws of the State of Arkansas authorizing foreign corporations to do business here, although the proof was probably sufficient to show that it had, for the reason that the mortgage and note sued on were executed to said hank in the State of Kansas, the domicile of both corporations, where the money was borrowed; nor would the doing of business in this State by a foreign corporation that had not complied with our laws, prescribing condition^ upon, which such corporations may do business here, have the effect to dissolve such corporation and render said corporation in effect a partnership and its officers partners as to such business done within the State, as was held by the lower court.” Nat. Bk. of Wichita v. Spot Cash Coal Co., 98 Ark. 597, 136 S. W. 953.

We deem it unnecessary to refer to authorities of other States, because, as we have said, the rule is settled in Arkansas that the stockholders are not.liable for the debts of the corporation.

Appellánt contends that the liability is a contractual one. We think la complete answer to this is that this court has held that the stockholders are not liable for the debts of a corporation, and that the Arkansas cases referred to by appellant in its reply brief are cases where the statute itself expressly makes the persons liable. Our statute provides:

“If the president or secretary of any such corporation shall neglect or refuse to comply with the provisions of § 848, and to perform the duties required of them respectively, the persons so neglecting or refusing shall jointly and severally be liable to an action founded on this statute, for all debts of such corporation contracted during the period of any such-neglect or refusal.”

It will thus fee seen that these, persons are liable because the statute expressly makes them so. We know of no statute, either in Arkansas or Tennessee, that malíes the stockholders liable for the debts of the corporation simply because the corporation does business in the State without complying with the laws by filing their charter, etc. If the statute in Tennessee made the stockholders liable for the -debts -of the corporation, this court might then hold, as it did with reference to the president and secretary, that the debt was contractual, but we have no such case here. The only contention here is that the corporation did business in Tennessee in violation of its law and that, for that reason, the stockholders are liable, and this court has decided adversely to the contention of appellant on this question.

Since we hold that the liability of the stockholders for debts of a corporation will not be enforced in the courts of Arkansas, it become unnecessary to determine whether the corporation was -doing business in Tennessee or' not, because, whether it was or not, we hold that the stockholders did not become liable for the corporation debts, and the case is therefore affirmed.


author: McHaney, J.

text:
    Brotherhood of Railroad Trainmen v. Deaton.
    Opinion delivered December 5, 1927.
    1. Contracts — construction.—Courts must construe contracts as the parties have made them; and where they are unambiguous, and their meaning definite and certain, nothing is left for construction.
    2. Insurance — liability under policy. — Where a policy of insurance entitled the beneficiary to recover for certain disabilities, and ’ further provided that all claims for disability not coming within the disabilities insured against should be held to be addressed to the systematic benevolence of the brotherhood, and should not be made the basis of any legal liability on the part- of the brotherhood, but should be referred to the beneficiary board of the fraternal society, held that claims addressed to the society’s benevolence could not be made the basis of legal liability, notwithstanding Crawford & Moses’ Dig., § 6156, providing that no insurance policy should contain any provision depriving beneficiary of the right to jury trial on any question of fact arising under the policy.
    Appeal from Lonoke Circuit Court; W. J. Waggoner, Judge;
    reversed.

      W. D. Jackson and Reed & Beard, for appellant.

      Bogle & Sharp, for appellee.
   McHaney, J.

Appellee is a railroad brakeman, and is a member of the Desha Lodge No. 162 B. of R. T., and held a beneficiary certificate issued by appellant as follows :

“This beneficiary certificate, issued by the Grand Lodge Brotherhood of Railroad Trainmen, witnesseth: That Brother Dewey Deaton, a member of Desha Lodge No. 162 of said brotherhood, is entitled to all the rights, privileges and benefits of membership, and to participate in the beneficiary department, class D, of said brotherhood, to the amount set forth in the constitution thereof, which amount, in the event of his total and permanent disability, as defined in § No. 68 of the. constitution, shall be paid to him, or, at his death, shall be paid to Jewel Deaton, his wife, if living; if not, to the executor or administrator of said member’s estate, in trust, however, for and to be forthwith paid over to his heirs at law, and the amounts to be paid hereunder shall become due only upon the presentment of proper proofs of the death of the assured, and the legal right of such executor or administrator to receive the same, such proofs to be made in accordance with the constitution and general rules of the brotherhood.
“This certificate is issued upon the express condition that the. said Dewey Deaton shall comply with the constitution, general rules and regulations now in force or which may hereafter be adopted by the within named brotherhood, which, as printed and published by the grand lodge of the said brotherhood, with the application for this certificate as signed by him and the medical examination of said D. Deaton, copies of which application and medical examination are attached hereto, all of which are made a part hereof, and, together with this certificate, constitute the contract between said D. Deaton gjid said brotherhood, and that he pay all dues and assessments imposed upon him within the time specified hy the constitution and general rules * * * ”

Section 68 of the constitution referred to in the beneficiary certificate reads as follows:

“Any beneficiary member in good standing who shall suffer the amputation or severance of an entire hand at or above the wrist joint, or who shall suffer the amputation or severance of an entire foot, at or above the ankle joint, or who shall suffer the complete and permanent loss of sight-of one or both eyes, or, upon becoming seventy years of age, shall be considered permanently and totally disabled, but not otherwise, shall thereby be entitled to receive, upon furnishing sufficient and satisfactory proofs of such total and permanent disability, the full amount of his beneficiary certificate. A disabled member paid under this section shall automatically become a non-beneficiary member, beginning with the month following the month in which his claim was approved, provided he pays such dues- and assessments that are required from non-beneficiary members.”

Appellee relies for a recovery in this case on the provisions of § 70 of the constitution, which reads as follows:

“All claims for disability not coming within the provisions of § 68 shall be held to he addressed to the systematic benevolence of the brotherhood, and shall in, no case be made the basis of any legal liability on the part of the brotherhood. . Every such claim shall be referred to the beneficiary board, composed of the president, assistant to the president, and general secretary and treasurer, who shall prescribe the 'Character-and decide as to the sufficiency of the proofs to be furnished by the claimant, and, if approved by said board, the claimant shall he paid an amount equal to the full amount of the certificate held by him, and such payment shall be considered a surrender and cancellation of such certificate; provided, that the approval of said board shall be required as a condition precedent to the right of any such claimant to benefits hereunder, and it is agreed that this section may be pleaded in bar of any suit or action at law, or in equity, which may be commenced in any court to enforce the payment of any such claims. No appeal shall be allowed from the action of said board in any case; but the general secretary and treasurer shall report all disapproved claims made under this section to the board of insurance at its next annual meeting for such disposition as such board of insurance shall deem just and proper.”

The-undisputed facts are that, while riding on top of a box-car at Colliston, Louisiana, the air hose “bursted,” automatically setting the air brakes on the train, and threw him off of the top of the car, breaking his right ankle and foot, fracturing his backbone, and breaking his left heel. He was permanently disabled and incapacitated from performing any work as a railroad brakeman. He did not suffer the loss by amputation of either hand at or above the wrist joint, nor either foot at or above the ankle joint, nor did he suffer the loss of either eye. The case was submitted to the court sitting as a jury, and appellant requested the court to enter judgment for it. Its motion to this effect was overruled, and judgment entered in favor of appellee for the sum of $2,800 under the benefit certificate and $129 dues paid subsequent to the date of said injury, or % total of $2,929, from which comes this appeal.

Counsel for appellee concede that § 68 of the constitution does not cover the injury sustained by appellee, but, contend that they are entitled to recover under the provisions of § 70 of the constitution, both of which have heretofore been set out. The constitution, general rules and regulations of the brotherhood are made a part of the contract between the parties, and appellee’s right to recover in this case depends upon the proper ‘construction to be given the beneficiary certificate when read in connection with §4 68 and 70 of the constitution. And, since it is conceded that § 68 has no application in this case, the right to a recovery will have to be based upon a 'Construction of the beneficiary certificate and said § 70, together with that section of the constitution defining class D certificates.. There is no question raised about the correctness of the amount of insurance covered by class D, nor the amount of premiums paid since his injury. It will be noticed that the beneficiary certificate recites that he “is entitled to all the rights, privileges and benefits of membership, and to participate in the beneficiary department, class D, of said brotherhood to the amount set forth in the constitution thereof, which amount, in the event of his total and permanent disability as defined in § No. 68 of the Constitution, shall be paid to him,” etc. Since appellee did not receive any “permanent disability as defined in § No. 68 of the constitution” by suffering the loss of either hand at or above the wrist joint, or either foot at or above the ankle joint, or the loss of either or both eyes,” which was all appellant agreed- to insure appellee against, it necessarily follows that appellee has not brought himself within the terms of the policy or beneficiary certificate by showing that he suffered an injury covered by the policy.

Section 70 has no application. Appellant did not agree to insure appellee against all total and permanent disability, but only such total and permanent disability as is covered by § 68. All claims under § 70, as stated therein, which include all claims other than those arising under § 68, “shall be held to be addressed to the systematic benevolence of the brotherhood, and shall in no case be made the basis of any legal liability on the part of the brotherhood.” In other words, appellant and appellee agreed that, for any other disability suffered by appellee than those defined in § 68, he would leave*it to the brotherhood to say whether his claim should be paid. In the event his claim is allowed, the full amount of the certificate must be paid him, but, as to whether he will be paid this amount or nothing, is left absolutely to the discretion of an agency of appellant. Courts must construe contracts as the parties have made them, and, where they are unambiguous and their meaning definite and certain, nothing is left for construction. As was said in the case of Pool v. Brotherhood of Railroad Trainmen, 143 Cal. 650, 77 Pac. 661:

“We must apply the ordinary rules governing contracts to the agreement made by the defendant with plaintiff in this case. He was guaranteed to be paid a certain sum in-case of total disability from the causes set forth in § 45 of the constitution. He paid for and was insured against the loss of a hand or a foot, or of both eyes. His contract was absolute in case his disability had been permanent and caused in the manner defined in the last cited section. In other cases the claim was of a purely benevolent nature. The beneficiary board had the power to allow it or reject it, but no duty was imposed upon such board to allow it. If the board reject such claim, the claimant may have it acted upon by the next biennial convention, and the convention may make such disposi-' tion of it as may be deemed just and proper. We know of no reason why such a contract may not be made. The plaintiff was not compelled to become a member of the defendant, but, having become such member, he must show a legal liability within the terms of his contract before he can recover in court.”

In that case the California court had under consideration §§ 45 and 46 of appellant’s constitution, which were at that time identical with the sections now under consideration, §§ 68 land 70.

In a well considered case, Grand Lodge Brotherhood of' Railroad Trainmen v. Smith, 129 Miss. 738, 92 So. 837, 27 A. L. R. 863, the Supreme Court of Mississippi had under consideration the identical provisions of the contract as'in this case, and held that the plaintiff was not entitled to recover under § 70 for injury received to his back, whereby he became totally and permanently dis-. abled. This opinion reviews many of the cases arising in other jurisdictions under the same provisions of the constitution of the brotherhood, and in which the court said:

“Neither these constitutional provisions of appellant nor any like them have been 'before this court for interpretation. Bnt, so far as the question here involved is concerned, we see no difficulty in said constitutional provision, even without the help> of authority from other States. There is nothing whatever either in the constitution or laws of appellant in conflict with or which 'broadens the meaning of siaid §§68 and 70 of its constitution to the extent of giving appellee any contract right for his disability. And those two sections, in unmistakable terms, provide that there shall be no liability whatever on the part of appellant for any permanent and total disability except that provided for in § 68. And § 70, taken alone, in equally plain terms provides that claims by members for any other permanent and total disability shall be addressed alone to the benevolence of appellant society, for which there shall be no legal liability on the part of appellant. This amounts simply to an invitation on the part of appellant to appellee that, if he shall suffer a permanent and total disability other than that provided for in said § 68, appellant will hear his application for a donation, which it will grant or not as it sees fit, expressly providing that there shall be no liability, either at law or equity, for such disability. Construing appellant’s constitution, laws and beneficiary certificate most strongly against it, as argued should be done, they mean that, and nothing more, so far as the question here is concerned. Appellee accepted a contract by the plain terms of which there is no liability to him by appellant for the disability he suffered, and we 'are unable to see any reason why he should not be bound by it. The decision of this question goes to the root of the whole case, and renders it unnecessary to decide the question whether a party to a contract can bargain away his rights to resort to the courts, for, if he has no rights, there is nothing to contract away. And it follows also from these views that appellee was not entitled to recover back from appellant the dues paid by him to appellant since his injury in order to keep his beneficiary certificate alive, which question is involved in appellee’s cross-appeal.”

Appellee recognizes the force of these decisions in other jurisdictions, hut says that the rule in this State should be different, because of § 6156 of C. & M. Digest, which-, reads as follows: “No policy of insurance shall contain any condition, provision or agreement which shall directly or indirectly deprive the insured or beneficiary of the right to trial by jury on any question of fact arising under such policy, and all such provisions, conditions or agreements shall be void.” He contends that to deny him the right to recover under § 70 is in violation of said section of the Digest, for the reason that it is left to the beneficiary board of appellant to determine appellant’s liability, instead of the courts. In other words, that appellant sets up a tribunal of its own to pass upon the claims of its members for the purpose of ousting the jurisdiction of the courts therein. We cannot agree with appellee in this contention, as § 70 does not create an absolute liability on the part of appellant for any total disability. Section 68 does create such a liability, and, as to its liability under this section, appellant could not provide for a board of arbitration or set up a tribunal of its own to determine its liability, because it absolutely binds itself to pay for a loss covered by such section. Therefore the authorities cited by appellee, holding that it is not competent for parties to contract in advance of a dispute that the decision of the board of arbitration or tribunal named in the contract shall be final and binding on the parties, thereby ousting the jurisdiction of the courts, have no application to this case. We therefore conclude that said § 70 of the constitution cannot be made the basis of a cause of action against appellant, and that the court should have granted appellant’s request for a judgment in its favor.

The judgment of the circuit court must be reversed and the cause dismissed. It is so ordered.


text:
    Owen v. Continental Supply Company.
    Opinion delivered December 5, 1927.
    1. Mines and minerals — implied contract to pay for materials. —Where defendant, one of three owners of an. oil and gas lease, who operated the lease for himself and co-owners with authority to order materials to he charged to the co-owners, used materials ordered by him and charged to the co-owners’ account on a lease belonging solely to himself, held, that the law will imply a contract by defendant to pay for such materials.
    2. Mines and minerals — materialman’s lien — parties.—Where the law created an implied contract by defendant to pay for materials ordered by him and charged to the account of his co-owners in an oil and gas lease, but used by him on his own lease, his co-owners were not proper or necessary parties in a materialman’s suit to enforce his lien on defendant’s lease.
    3. Mines and minerals — notice of lien. — The statutory 10 days’ notice of an intention to file the claim of a materialman’s lien was not required to be given to the owner of an oil and gas lease who ordered the materials and who was liable therefor on implied contract, nor to the purchasers of the lease subsequent to the accrual of the lien and within the 90 days given to file the lien, and who were properly made parties to the action.
    4. Mines and minerals — lien for materials — evidence.—In an action to enforce a materialman’s lien on an oil and gas lease, evidence held to show that the materials forming the basis for the action were used on the leasehold against which the lien was established.
    5. Mines and minerals — materialman's lien — insolvent purchasers. — Purchasers of an oil and gas lease, after the accrual of a materialman’s lien thereon and within the 90 days allowed • in which to file a lien after the materials had been furnished, were not innocent purchasers of the property, but took subject to the lien.
    6. Mines and minerals — materialman’s lien — estoppel.—.Statements of the owner or his agent to purchasers, of an oil and gas lease that there were no claims for liens did not bind one claiming a materialman’s lien from whom no inquiry was made, and who made no misrepresentations regarding the matter.
    Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    affirmed.

      Goodwin & Goodwin and Patterson <£ Rector, for appellant.

      Kitchen & Harris, for appellee.
   McHaney, J.

This is a suit to enforce a material-man’s "lien on a ten-acre oil and gas lease in Union County, near Norphlet, commonly referred to as the Edwards farm, in the sum of $1,346.20, which lease was owned by G. G. Baggett. It appears that Gano, Honan and Baggett owned an oil and gas lease on a town lot in Norphlet, Arkansas, referred to as the townsite lease, and that Baggett operated this lease for' himself, Gano and Honan, and had authority from them to order materials for repairs and equipment from appellee, to. be charged to Gano and Honan, with whom they had a line of credit. Baggett had no credit or account with appellee. Between November 14,1924, and February 21,1925, he ordered material and supplies from appellee in the above sum of money, which were charged to Gano and Honan, which were not used upon the townsite lease of Gano, Honan and Baggett, hut were used in and upon the Edwards farm lease owned by Baggett himself, without any authority from Gano and Honan. After discovering that material and supplies in the above' sum had been delivered to the Edwards farm lease, without authority from Gano and Honan, appellee restated its account with Gano and Honan, and charged Baggett with said amount, and, upon his failure to pay therefor, filed a lien upon the Edwards farm lease, and, in apt time, brought suit to foreclose same. On March 6, 1925, Baggett sold and assigned the lease in controversy to appellant, S. H. Riggs, for a consideration of $10,000 in cash, warranting the title against liens and incumbrances. On May 13, 1925, Riggs sold and assigned the lease in controversy to his co-appellees, E. R. Owen and Mrs. Irma G. Day, for a consideration of $2,500 in cash and short term notes, and an oil payment of $5,000, payable out of 7/32 of the first production, in which he warranted the title and covenanted against liens and incumbrances. This last assignment was not filed for record until February 9, 3926. Suit was brought against Baggett and C. G. Graham, on the theory that Baggett and Graham were partners, for a personal judgment against them, and against Riggs, Owen and Day as purchasers of said lease after the accrual of said lien. No service was ever had on Graham. On a trial of the case the court decreed personal judgment against Baggett in the above sum, and fixed a lien in favor of appellee on said lease, and ordered it sold in satisfaction thereof if not paid within ten days. The decree also gave personal judgment in favor of Owen and Day against Biggs in the «ame sum for breach of his covenant of warranty, and also in favor of Biggs against Baggett for breach of his covenant of warranty. Owen, Day and Biggs have appealed from the decree fixing a lien against the property and ordering foreclosure, and Biggs has appealed from the decree awarding judgment against him in favor of Owen and Day.

Appellants first insist, for a reversal of the case, that there is no evidence sufficient to establish a contract, either express or implied, between appellee and Baggett, or Baggett and Graham, relating to the furnishing of any material by appellee for the lease in controversy, and that, since a contract, express or implied, is the very foundation of the right to a lien, under the statute, appellee must fail. We cannot agree with counsel in this contention, as we think the evidence amply sufficient to show an implied contract between Baggett and the appellee. His letter of May 19 is a recognition of the indebtedness and a promise to pay. The undisputed evidence shows that Baggett, the owner of the Edwards lease, ordered these materials himself from appellee, although charged to G-ano and Honan, and that they were used upon his property. Under such circumstances the law will imply a promise to pay for them, which makes a contract between him and the appellee. The case of Crown Central Petroleum Co. v. Frick-Reid Supply Company, 173 Ark. 983, 293 S. W. 1012, is authority for this holding. We do not review the evidence on this point, but have read same carefully and hold that it is amply sufficient to establish a ease of an implied contract between Biaggett and appellee for the purchase and sale of the material sold and delivered to his lease.

It is next contended, that, if it be held that there was a contract, express or implied, then appellee is a subcontractor for Grano and Honan, to whom the material was sold and charged, and who, it is insisted, furnished the material as principal contractors with Baggett, and that hence they are necessary parties to this action. We do not agree with this contention, for the reason that we have already stated that there was an implied contract between appellee and Baggett for the purchase and sale of these materials, and, since they were furnished and went into his property, there was an implied contract on his part to pay for them, and an express promise on his part in his letter of May 19 to pay therefor. Under this state of facts appellee is a materialman, and made a sale of the materials directly to the owner., entering into a property in which Glano and Honan had no interest, and they are not therefore proper or necessary parties to this action.

It is next insisted that no notice of the intention to file the claim of lien was given or served on the property owner, as required by the statute as a prerequisite to the filing of the lien. Appellee, being an original contractor with the owner, is not required, under the statute, to give the ten days’ notice. Appellee is not a subcontractor, but an original contractor for the material furnished. Where material or labor is furnished under a contract with the owner, the necessity for the notice is dispensed with. It was not necessary therefore to notify Baggett, as he was the owner at the time the material was bought. It was unnecessary to notify Biggs, Owen and Day, because they were purchasers subsequent to the accrual of the lien, and within the ninety days given to appellee within which to file Ms lien. They were properly made parties to the action, and cannot complain of the failure to give them the ten days’ notice. Eddy v. Loyd, 90 Ark. 340, 119 S. W. 264.

It is next insisted that the proof is not sufficient to show that the items of materials which form the basis of this action were in fact actually placed on, or used in or upon, or became a part of, tbe property 'against which the lien was established. Not only did Baggett acknowledge this indebtedness, the correctness of the account. for materials furnished, and promise to pay therefor, which is testified to by Mr. Harter, witness for appellee, and as shown in Baggett’s letter .written subsequent to the separation of the account, but it is shown in the testimony of Honan, who testified to the effect that he took the entire account of appellee against Gano and Honan, went upon the respective leases, and checked the materials, item by item, and stated that the items included in the suit to establish this lien went upon Baggett’s lease. This evidence was not disputed by appellants, and this was sufficient to establish the fact that the materials furnished were used upon the leasehold in question.

It is finally insisted that-appellants are innocent purchasers, without any notice of appellee’s claim of lien, or that it had furnished anything for the lease, or that Baggett, or Baggett and Graham, or any one else, owed appellee for anything that went on the lease. This position cannot be sustained, as there can be no innocent purchasers of property as against mechanics’ liens which are asserted within the time and in the manner provided by law. They must take notice of the statute giving liens to material furnishers and laborers and allowing ninety days in which to perfect their liens after the material and labor have been furnished, and that an otherwise good record title may be incumbered thereby within such time.

In the recent case of Bell v. Koontz, 172 Ark. 870, 290 S. W. 597, this court passed upon the same point adversely to appellants’ contention, and, in the course of its opinion, said: “They bought subject to Bell’s lien for material, because the statute required them to take notice of the existence thereof during the ninety-day period given him after furnishing the last item to file his lien or to bring suit to enforce it.” Citing § 6911, C. & M. Digest; Eddy v. Loyd, 90 Ark. 340, 119 S. W. 264.

We adhere to the above holding, and announce again that purchasers of property must take notice of the statute giving materialmen and laborers ninety days after the materials are furnished and the labor done in which to file a lien, and that, during such time, there can he no innocent purchasers of the property. Statements of the owner or his agent that there are no claims for liens cannot bind the lien claimant from whom no inquiry was made, and who made no misrepresentations regarding the matter.

We find no reversible error, arid the decree is accordingly affirmed.


author: Hart, C. J.,

text:
    Carney v. Walbe.
    Opinion delivered December 12, 1927.
    1. Municipal corporations — improvement district — property benefited. — The determination by a city or town council as to what real property would be benefited by a proposed improvement and should be within the improvement district is conclusive, save for fraud or demonstrable mistake, that is, a mistake of fact as to the existence of which there is no room for doubt.
    2. Municipal corporations — improvement district- — collateral attack. — Proceedings of a city or town council establishing an improvement district, or of a board of assessors assessing benefits to real property therein, can only be set aside when they appear on their face to foe demonstrably erroneous, if they are not attacked until after the period allowed by the statute within which to make a direct.attack has elapsed; a subsequent attack being collateral.
    3. Municipal corporations — improvement district — demonstrable mistake. — Exclusion from an improvement district for paving streets of certain lots within its boundaries, held únder the evidence not a demonstrable mistake apparent on the face of the proceedings, such as would render the proceedings subject to collateral attack.
    Appeal from Logan Chancery Court, Northern District; John E. Chambers, Chancellor;
    affirmed.
    statement by the court.
    Appellant, a property owner in a street improvement district, brought this suit in equity against the commissioners of said district to restrain tliem from issuing bonds or from proceeding further with the work of the improvement. The suit was defended on the ground that the district had been legally established.
    The record- shows that the ordinance laying off and establishing the district was approved on the 15th day of February, 1927, and the present suit was commenced on the 15th day of October, 1927. The ordinance provides that the local improvement is for draining, grading, curbing, guttering and paving certain streets within the district, which are specially named and described. The ordinance also contains a specific and definite description of the boundaries of the district. A certain area within the limits of the district is excepted from the provisions of the ordinance laying off and creating the district.
    The chancellor found that the district had been legally established, and it was decreed that the complaint should be dismissed for want of equity. The case is .here on appeal.

      Anthony Hall, for appellant.

      George A. Hall and L. P. Biggs, for appellee.
   Hart, C. J.,

(after stating the facts). The sole contention for reversal of the decree is that the court acted in an arbitrary and discriminatory manner in excluding from the provisions of the ordinance creating the district a certain area, which is specifically described.

At the outset of the discussion it may be stated that, in the construction of our Constitution and statutes relating to the formation of improvement districts in cities and incorporated towns, it has been uniformly decided by this court that the determination by the common council of a city or town as to what real property is benefited and should be included within the limits of the district is conclusive, except for fraud or demonstrable mistake. By the expression “demonstrable mistake” is meant a mistake of fact as to the existence of which there is no room for doubt. Little Rock v. Katzenstein, 52 Ark. 107, 12 S. W. 198; Lenon v. Brodie, 81 Ark. 208, 98 S. W. 979; Hill v. Walthour, 165 Ark. 243, 262 S. W. 680; Little Rock v. Boullioun, 171 Ark. 245, 284 S. W. 745; and Paving Dist. Nos. 2 and 3 of Blytheville v. Baker, 171 Ark. 692, 286 S. W. 945.

Where the property owner delays until after the period of time prescribed by statute for a direct attack on the action of the council establishing the district and the assessment of -benefits to the real property situated therein, a suit by the property owner to review the proceedings of the common council establishing the district or the board of assessors in assessing the benefits- to the real property within the district is. a collateral attack, and such proceedings can only be set aside when they appear on their face to be demonstrably erroneous.

In the case last cited, in discussing the rule as to a collateral attack on a street improvement district, it was expressly stated that the court could only look to the face of the papers to discover whether or not there was a demonstrable error in the assessment of benefits, and House v. Road Improvement District, 158 Ark. 357, 251 S. W. 21, was cited. In the House case the court was dealing with a similar question as to a road improvement district created by special act, and it was said that the rule anounced in our former decisions was that, when it appears from the face of the act creating an improvement district, or from conditions or situations of which the court will take judicial knowledge, that lands of complaining owners are entirely separated from the roads to be improved by intervening lands excluded from the district, or by impassable obstructions or barriers, the inclusion of the lands thus situated renders the act void because arbitrary and discriminatory. In the application of the rule the court said there was nothing in the act or any matter of which the court'could take 'judicial notice that would cause the formation of the district and the assessment of benefits under the act creating it to be held arbitrary or discriminatory., In the Baker case, a property owner whs attacking the validity of a street improvement district in the city of Blytheville on the ground that a certain omitted area must have been 'benefited if the other lots within the limits of the district were benefited. A map of the district was included to show the relative situations of the omitted lots to those embraced in the district. In that case, as in the present one, the omitted area was situated within the limits- of the boundaries of the improvement district. In the Baker case the court said that the fact that property is omitted from the assessment does not, regardless of the -situation of the property or its extent in comparison with the whole area embraced in the district, demonstrate a mistake which renders the assessment void. In that case it was recognized that the maps of the district and the assessment list showed that lots or blocks, similarly situated, apparently, to those assessed, were omitted. Notwithstanding this fact, it was held that the omission was not necessarily demonstrated to be a mistake of fact. It was said that there may have been reasons not apparent from a mere inspection of the lists and maps why the omitted lots were not in fact benefited, and that on collateral attack the court could only look to the face of the papers to discover whether or not there was demonstrable error in the assessments.

The principles above announced control the present case. The ordinance creating and laying off the district was approved on February 15,1927, and the present suit was not commenced until October 15, 1927. Hence the suit is a collateral attack upon the validity of the proceedings of the common council establishing and laying off the improvement district and excepting a certain area therefrom. The map showing the extent and area of the excluded lots, as to its situation with relation to the other lots in the district and the streets to he improved, is a part of the record, but there is nothing in the examination of the map itself or of facts from which the court will take judicial notice to conclusively show that there was a demonstrable mistake of fact in omitting the area-in question. It may he that- the omitted area, because of the topography of the city as being hilly, or from other causes not apparent from the plat of the town, would not receive any benefit by way of drainage or otherwise from the proposed improvement. If the property owner thought otherwise, he should have made a direct attack upon the proceedings laying off and establishing the district, to the end that he might have shown by proof that the omitted area was arbitrarily left out of the district and that the action of the council in omitting it was a demonstrable mistake of fiact.

It follows that the decree of the chancery court was correct, and it will be affirmed.


text:
    Krummen Motor Bus & Taxi Company v. Mechanics' Lumber Company.
    Opinion delivered December 12, 1927.
    New. trial — inadequacy of verdict. — In an action to recover damages resulting from an automobile collision, tbe verdict for plaintiff in the sum of $1, under undisputed evidence showing a sufo- . stantial injury, cannot be set aside and new trial ordered on the question of damages only, but the new trial should be on the entire case.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    reversed.
    STATEMENT OP PACTS.
    Krummen Motor Bus & Taxi Company sued the Mechanics’ Lumber Company to recover damages on account of the alleged negligence of the defendant in an automobile collision, whereby the plaintiff’s automobile .was damaged in the sum of $1,000. The defendant answered, denying negligence on its part, and, by way of cross-complaint, asked judgment against the plaintiff in the sum of $1,875 on the ground that.its automobile was injured in the collision on account of the negligence of the plaintiff.
    Evidence was adduced by each party, to sustain its allegations of negligence.
    The record shows that an automobile motor-bus of-the plaintiff collided with a truck of the defendant in the city of Little Rock, Arkansas. Both motor vehicles were badly damaged. The undisputed proof on the part of the plaintiff shows that it cost $534.20 to have its motor-bus repaired. The evidence as to whether or not it was in better or worse condition after it was repaired than it was before the collision occurred is conflicting.
    The jury found for the plaintiff and assessed its damages in the sum of one dollar. Judgment was entered upon the verdict, and the plaintiff has duly prosecuted an appeal to this court.

      Busbee, Pugh & Harrison and Floyd Wingo, for appellant.

      Price Shofner, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for the plaintiff insists that the undisputed evidence shows that the motor-bus of the plaintiff sustained substantial injury in the collision, and that a judgment based upon the verdict for nominal damages should be reversed because they were inadequate. Counsel for the defendant concede that the judgment should be reversed, and the parties only differ as to the method of procedure after the reversal of the judgment. Counsel for the plaintiff insists that the verdict as to damages should be set aside and a new trial ordered on the question of damages only. On the other hand, counsel for the defendant insists that, under our practice, when the verdict is. set aside a new trial of the whole case should be granted. There is some conflict in the authorities as to whether, -where a verdict has been set aside as being inadequate, the new trial may be restricted to the question of damages or whether there should be a new trial of the whole case. The practice in this State has been, when a verdict is set aside as ibei-ng inadequate, to set aside the verdict on that account and grant a new trial in the whole case. The reason is that a verdict as the foundation of a judgment at law is an entity and cannot be divided by the trial court. Dunbar v. Cowger, 68 Ark. 444, 59 S. W. 951; Carroll v. Texarkana Gas & Electric Co., 102 Ark. 137, 143 S. W. 586; Bothe v. Morris, 103 Ark. 370, 146 S. W. 1184; and Martin v. Kramer, 172 Ark. 397, 288 S. W. 903.

In the case last cited it was held that, where the undisputed evidence showed that plaintiff’s automoibile was damaged in the sum of $47 in a collision, hut the evidence was conflicting as to responsibility, a judgment for one dollar was inadequate, justifying a new trial. It follows that the judgment will he reversed, and the case remanded for a new trial.


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

text:
    Williams v. State.
    Opinion delivered December 12, 1927.
    1. Witnesses — impeachment on cross-examination. — In a prosecution under Crawford & Moses’ Dig., § 2527, for cutting a baribed wire fence, questions propounded to a witness for the State.on cross-examination whether it was not customary for her to drive around with the prosecuting witness while his wife was at home, and whether they had been caught in a compromising attitude, held proper as throwing light on the credibility of witness.
    2. Criminal law — harmless error. — Judgments in criminal prosecutions will not be reversed by the Supreme Court, except for errors prejudicial to the rights of defendant.
    3. Witnesses — cross-examination as to collateral matter.— Where a State’s witness was questioned on a cross-examination as to whether it was customary for her to drive with the prosecuting witness while his -wife was at home, and whether she was caught in a compromising attitude with him, a negative answer by the witness would be binding on defendant and would have ended the matter.
    4. Witnesses — cross-examination as to collateral matter. — The object of a cross-examination of a State’s witness in a collateral matter is to enable the jury to comprehend just what sort of a person they are called upon to believe; but because the character of the witness is collateral to the main issue, which is the guilt or innocence of defendant, he is bound by the witness’ answer as to such collateral issue.
    5. Criminal law — prejudicial error. — Where a question addressed to the State’s witness on cross-examination as to her relation with the prosecuting witness was excluded, and the record did not show what the answer of the witness would have been, the Supreme Court cannot determine whether any prejudicial error was committed.
    6. Criminal law — exclusion of evidence — prejudice.—Where the record does not show what the answer of a witness to a question would have been, exclusion of such evidence is not ground for reversal of judgment.
    7. Criminal law — instruction as to reasonable doubt. — Where the defendant in a criminal prosecution desired specific instruction on the question of reasonable doubt, he should have requested it.
    8. Criminal law — instructions as to reasonable doubt. — In a prosecution for maliciously cutting a barbed wire fence, an instruction to convict if the testimony showed that the defendant cut the fence beyond a reasonable doubt, an instruction on the presumption of innocence defining reasonable doubt, sufficiently covered the requested instruction to acquit if not proved guilty beyond a reasonable doubt.
    9. Criminal law — improper remarks of court. — In a prosecution under Crawford & Moses’ Dig., § 2527, for maliciously cutting a barbed wire fence, where a question addressed to a State’s witness on cross-examination as to her improper relations with the prosecuting witness, was excluded, remarks of the court to witness, “Your character is not on trial here; we all know you have a good character,”-was reversible error, as invading the province of the jury and violating Const., art. 7, § 23, expressly prohibiting the judge from charging the jury with regard to matters of fact.
    10. Criminal law — prejudicial effect of court’s remarks. — Where questions on cross-examination to a State’s witness concerning specific acts of immoral conduct were excluded, the prejudicial effect of remarks of the court that the witness was of good character, invading the province of the jury, held not cured by an instruction that the jury were the sole judges of the credibility of witnesses and of the weight to be given their testimony, where the court did not withdraw its remarks nor instruct the jury not to consider same.
    Appeal from Logan Circuit Court, Southern District ; J. 0. Kincannon, Judge;
    affirmed.

      W. L. Kincannon, John P. Roberts and Cochran & Arnett, for appellant.

      II. W. Applegate, Attorney General, and Barden Moose, Assistant, for appellee.
   Hart, C. J.

Oscar Williams prosecutes this appeal to reverse a judgment of .conviction against him for willfully and maliciously cutting a barbed wire fence belonging to Frank McKinzie, in the Southern District of Logan County, Arkansas, in violation of § 2527 of Crawford & Moses’Digest.

The evidence for the State tended to establish the guilt of the defendant, and the evidence for the defendant tended to show that he was not guilty. Inasmuch as the evidence for the State was legally sufficient to warrant a verdict of guilty, and as the defendant does not ask for a reversal of the judgment and sentence of conviction on the ground that the evidence was not legally sufficient to warrant a verdict of guilty, we need not abstract the evidence in the case.

The main ground relied upon for a reversal of the judgment is that the court erred in refusing to permit Lizzie Williams, a witness for the State, to be asked certain questions on cross-examination. Lizzie Williams is a sister to the wife of Frank McKinzie, the prosecuting witness, and a sister of Oscar Williams, the defendant. She lived in the house with Frank McKinzie and her sister since their marriage for about thirty years. Bad feeling had existed between the (family of the prosecuting witness and the family of the defendant. She was out watching, and saw the defendant cut the fence on the night in question. She went to the house and reported to her brother-in-law, and they both went down and saw the defendant cutting the fence. Several shots were exchanged betwen Frank McKinzie and Lizzie Williams on'the one. hand and Oscar Williams on the other. On cross-examination of Lizzie Williams, we copy from the record the following:

“Q. Isn’t i.t customary for you and Frank McKinzie to drive around in his car and leave his wife at home? Mr. Evans: We object. The court: We are. not going into that. Witness: If they are going to try my character, I want to get a lawyer. The court: Tour character is not on trial here; we all know you have a good character, Miss Williams. Mr. Boberts: We object to the remark of the court. The court: Save your exceptions. Mr. Eoberts: We except. Q. Didn’t Oscar Williams catch you and Frank McKinzie in a compromising attitude about two weeks ago? Mr. Wilson : We object. Witness: I want a lawyer, if they are going to try my character. The court: We are not going into that, Miss Williams, that is not competent here. We know you have a good character. Mr. Roberts : We save our exceptions. Q. You did leave your mother and father and went to .Frank McKinzie’s house and have been there ever since? A. Yes sir.”

At the outset it may be stated that the questions asked the witness on cross-examination by counsel for the defendant were proper under Hughes v. State, 70 Ark. 420, 68 S. W. 676; and Martin v. State, 161 Ark. 177, 255 S. W. 1094. In the Martin case, the defendant assigned as error the 'ruling of the court in allowing a witness for the 'defendant to be asked, on cross-examination, whether or not she had, late on the night that the alleged crime was committed, been out riding with a man in a stolen car. The witness admitted that she was out riding that night in the car at a very late hour, when there was a collision with another car, and that the man who was driving the car ivas arrested for speeding. The court said that the testimony drawn out on cross-examination was competent for the purpose of throwing light on the credibility of the witness.

In the Hughes case the question propounded to the prosecuting witness was: “Do you ever go over to the levee camp and sit around there with the negroes?” The court said that the question was. proper, and should have been allowed. The reason was that, if she had answered in the affirmative, the answer would have had some tendency to reflect her record for truth and morality, and thus her credibility. The court said that cross-examination is a means of sifting the testimony of a witness, and is especially important to the defendant in a case of this kind, and should not be denied unless there is a clear abuse of the right. It will be noted that in the Hughes case the record does not show what the answer of the witness would have been, or that the judgment was reversed on the ground that there had been an abuse of discretion in interfering with the right of the defendant to cross-examine a witness for the State. The 'Case was reversed on other grounds. In this connection it may be stated, however, that it .is a settled rule of this court not to reverse judgments except for errors that are prejudicial to the rights of the defendant. Perkins v. State, 168 Ark. 710, 271 S. W. 326; and Middleton v. State, 162 Ark. 530, 258 S. W. 995. Now, if Miss Williams had answered the question copied above in the negative, the defendant would have been bound by her answer, and that would have ended the matter. The object of cross-examination in a collateral matter is to enable the jury to comprehend just what sort of a person they are called upon to believe, but, because the character of the witness is collateral to -the 'main issue, which is the guilt or innocence of the defendant, the latter is bound by the answer of a witness as to a collateral issue. McAlister v. State, 99 Ark. 604, 139 S. W. 684; Perkins v. State, 168 Ark. 710, 271 S. W. 326; and Smith v. State, 172 Ark. 156, 287 S. W. 1026.

So it will be seen that, if Miss Williams had answered the question in the negative, this would have ended the matter. If she had answered it in the affirmative, the answer should have been allowed to g*o to the jury for what they considered it worth as affecting her credibility. She did not answer it at all, and a majority of the court are of the opinion that this brings the case within the general rule that, where evidence is ruled out as being incompetent, theire must be set out in the record what the answer of the witness would have been. Otherwise the court would not know whether or not there had Ibeen any prejudicial error committed. It is only where a witness is rejected on the ground of incompetency that it is to be presumed that the witness would have been rejected, no matter how material the evidence might have been. Rickerstricker v. State, 31 Ark. 207.

Where the record does not show what the answer of a witness to a question would have been, this court has repeatedly held that exclusion of evidence is not ground for reversal of the judgment. Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S. W. 720; Battle v. Guttrey, 137 Ark. 228, 208 S. W. 289; Johnson v. Mo. Pac. Rd. Co., 167 Ark. 660, 269 S. W. 67; and Smith v. State, 172 Ark. 156, 287 S. W. 1026.

The court is of the opinion that the record does not present an instance where the testimony of the witness was excluded on the ground of inoompetency, but merely Where the answer to a single question was excluded; and we think that it comes within the rule that, in order to show prejudice, the record ought to show whiat the answer of the witness would have been to the question. In short, before any prejudice would result from the failure to allow the witness to answer the question, counsel should have informed the court what he expected the answer of the witness to he. We cannot know whether the witness would have answered “Yes” or “No” to the question.

But it is insisted that the remarks of the court in connection with its ruling on the matter amounted to a statement to the jury that the witness was of good character. We have copied above the whole of the record on this point, and a majority of the court are of the opinion that the remarks of the court, under the circumstances, did not amount to an expression of opinion to the jury as to the credibility of the witness. It amounted to nothing more than telling the witness that her character was not the main issue in the case, and that it would not he necessary for her to have a lawyer to advise her whether or not she should answer a question as tending to incriminate herself. The character of the witness for morality was presumed to he good until attacked in some manner. The jury was presumed to be composed of men of common sense, and would not be misled by a remark made by the court to the witness which, under the circumstances, we do not think was an attempt to express an opinion to the' jury as to the general credibility of the witness as viewed or characterized by the court.

In this connection it may be said that the court gave to the jury specific and definite instructions, telling them that they were the sole judges of the credibility of the witness and the weight to be given to their testimony. A majority of us think that no prejudice resulted from what we have copied in the record on this point, because the court was explaining to the witness that it was not necessary for her to have a lawyer on a collateral issue. If the record had contained a statement to the effect that counsel for the defendant had expected the witness-to answer in the affirmative, then the result would be different, but we cannot know from the state of the record whether she would have answered “Yes” or “No,” and if she had answered no it would have ended the matter. We cannot go into the realms of speculation or conjecture as to what her answer might have been, and if the defendant expected it to be “Yes,” his counsel should have, in a spirit of candor to the court, so stated, and had the expected answer placed in the record. Not having done so, we do not think any prejudice resulted to the rights of the defendant.

The next- assignment of error relied upon foir a reversal of the judgment is that the court failed to instruct the jury that, if the defendant was not proved guilty beyond a reasonable doubt, they should find him not guilty. If the defendant wished a specific instruction on the question of reasonable doubt, he should have asked for it. We think the instructions given by the court fully submitted that question to the jury. In instruction No. 3 the jury was specifically told that, if it should find from the testimony beyond a reasonable doubt that the defendant, at the time and place mentioned in the indictment, willfully and maliciously cut the barbed wire fence of Frank McKinzie, it should find the defendant guilty. In the succeeding instruction the jury-Was fully instructed upon the presumption of innocence in favor of the defendant and told that this presumption ■ protects him from conviction until his guilt is established to the satisfaction, of the jury beyond a reasonable doubt. Continuing, the court, in tbe same instruction, fully and fairly defined the term “reasonable doubt.” In instruction No. 5 tbe jury was fully and fairly instructed upon tbe credibility of witnesses and the weight to be given to their testimony.

Error is also assigned in tbe motion for a new trial upon certain remarks made by tbe special counsel for tbe State, in his argument to tbe jury, but this assignment of error has been abandoned by counsel for tbe defendant in their brief. Moreover, we are of tbe opinion that, when tbe remarks of special counsel for tbe State are considered in tbe light of the evidence introduced, they constitute no more than what was considered a reasonable deduction to be drawn from -the evidence.

It follows that tbe judgment should be affirmed.

Justices Wood and Sm:ith dissent because they think the remark of tbe judge as to tbe reputation of tbe witness was erroneous and prejudicial.

Wood, J.,

(on rehearing). The facts are fully stated in the original opinion. It will be seen that tbe testimony of Lizzie Williams was exceedingly prejudicial to tbe appellant. She positively identified tbe appellant as tbe one who was cutting tbe fence of McKinzie on tbe night alleged. According to her testimony, if believed by the jury, the appellant was unquestionably guilty. The appellant therefore bad tbe right on cross-examination to attack the credibility of the witness by proving specific acts of immoral conduct on her part. Lockett v. State, 145 Ark. 415, 224 S. W. 952; Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41; Jordan v. State, 141 Ark. 504, 217 S. W. 788; Kiles v. State, 143 Ark. 409, 220 S. W. 458; Martin v. State, 161 Ark. 177, 255 S. W. 1094; Sweeney v. State, 161 Ark. 278, 256 S. W. 73.

As set forth in tbe original opinion, counsel for tbe appellant asked Lizzie Williams on cross-examination tbe following question: “Isn’t it customary for you and Frank McKinzie to drive around in bis oar and leave bis wife at home?” Counsel for appellant objected, and the court announced, “We are not going into that.” Tbe witness then said: “If they are going to try my character, I want to get a lawyer.” Thereupon the court further remarked: “Your character is not on trial here. We all know you have a good character, Miss Williams.” Counsel for the appellant objected to the remark of the court, and duly saved his exceptions to such remark. Counsel for appellant then further asked Miss Williams: “Didn’t Oscar Williams catch you and Frank McKinzie in a compromising attitude about two weeks ago?” Counsel for the. State objected, and witness again said: “I want a lawyer if they are going to try my character. ’ ’ Thereupon the court remarked: “We are not going into that, Miss Williams; that is not competent here — we know you have a good character.” Appellant duly objected, and excepted to the remarks of the court.

A majority of the court have concluded on rehearing that the remarks of the court in ruling on the objection by the State to the cross-examination of the witness invaded the province of the jury and were in violation of art. 7, § 23, of the Constitution, which expressly provides that judges shall not charge juries with regard to matters of fact. The court, it will be observed from the record, did not permit counsel for the appellant on cross-examination to go into the question as to whether Miss Williams was of good moral character, but the court instead assumed, and stated, as. a fact, in the presence of the jury, that the witness’ character was not on trial, and that all knew she had a good character. It is difficult to conceive how any stronger language could be used to express the fact that the witness, Miss Williams, was of good character than that used by the court. The language is susceptible of.no other construction than that not only the presiding judge knew that the witness was of good character, but that all who were present knew the same fact.

In Sharp v. State, 51 Ark. 147, 155, 10 S. W. 228, 231, 14 Am. St. Rep. 27, a leading case in our reports, Judge Battle, speáking for the court, uses the following language: “In all trials the judge should preside with impartiality. In jury trials especially lie ought to be cautious and circumspect in his language and conduct before the jury. He should not express or intimate an opinion as to the credibility of a witness or as to controverted facts.” See also Jones v. State, 166 Ark. 290, 265 S. W. 974; Railey v. State, 170 Ark. 979, 282 S. W. 5. The above language of Judge Battle is quoted literally in 26 R. C. L., page 1027, § 28, where many cases to the same effect in other jurisdictions are cited in notes, to the section. The learned Justice, with his usual painstaking research, cited and quoted from several cases to support the holding of the court, and from McMinn v. Whelan, 27 Cal. 300, as follows: “From the high and authoritative position of a judge presiding at a trial before a jury, hrs influence with them is of vast extent, and he has it in his power by words or actions, or both, to materially prejudice the rights and interests of one or the other of the parties. By words or conduct he may on the one' hand support the character or testimony of a witness, or on the other hand may destroy the same, in the estimation of the jury; and thus his personal and official influence is exerted to the unfair advantage of one of the parties, with a corresponding detriment to the cause of the other. We regret the necessity for an expression of our disapproval of the irregularity of which complaint is made, and though we do not impugn the expression as designed to aid the side of the plaintiff, we may say, we should not hesitate to reverse the judgment because of it, if the same defended in any material degree upon the testimony of the witness whose character and standing was thus indorsed.” The language of the trial judge in the California case was to the effect that the witness, who was being cross-examined, “was a woman of respectability.” The above quotation from the California Supreme Court is therefore especially pertinent here, because the trial judge in the case at bar used even stronger language in saying, “We all know that you have a good character, Miss Williams.”

In 16 C. J., p. 832, Mr. Clark, the author of the article therein on Criminal Law, says: “It is also improper for the trial judge to intimate that the witnesses for the prosecution are credible, or to hint that those for the defense are not credible” and at page 834 he further says: “The remarks or conduct of the judge during the trial indicating his opinion as to the credibility or lack of credibility of a witness or of the weight of any evidence he may give, constitutes error.” Numerous cases are cited in notes to support these texts.

Under the above authorities it occurs to the majority of the court that it was manifest error and necessarily-prejudicial to the appellant for the learned trial judge to declare as. a fact that one of the material witnesses for the State was. of good character. We said in the original opinion that the questions asked the witness on cross-examination by counsel for the defendant were proper under Hughes v. State, 70 Ark. 420, 68 S. W. 676, and Martin v. State, 161 Ark. 177, 255 S. W. 1074. Such being the case, the court should have allowed the witness to answer the questions without comment, and should have given the jury an opportunity to determine from her answers as to whether or not she was a credible witness, instead of declaring in advance of her answers that she was of good character. If the witness had answered the questions in the affirmative (at least the last one) her answers would have proved conclusively that she was a woman of. immoral character, and even if- she had answered in the negative, the issue as to the credibility of the witness was still for the jury; and it was the jury’s, sole function to determine that issue. But, under the circumstances disclosed, the remarks' of the court were tantamount to saying to the jury, “Miss Williams is. a woman of good character and therefore a credible witness, and you are not at liberty to disbelieve her testimony.” The prejudicial effect of such remarks of the trial court was not cured by telling the jury that they were the sole judges of the credibility of the witnesses and the weight to be. given their testimony, because the court had already declared that she was. a woman of good character, and therefore a credible witness, and the court did not, while instructing the jury, withdraw his previous remarks in their presence that “Miss Williams was a woman of good character,” and did not instruct the jury that these remarks could not be considered by them. Therefore the prejudicial effect of such remarks was never removed from the minds, of the jury.

Because of the error in the improper remarks of the trial court the judgment must be reversed, and the cause will be remanded for a new trial.

Hart, C. J., and Kirby, J., dissent.