author: Smith, J.

text:
    Anderson v. Southern Realty Company.
    Opinion delivered March 26, 1928.
    1. Fixtures — -intention of parties. — Where an intention is shown on the part of the parties interested to make articles of personalty permanent parts of the building in which they are installed, and such articles serve a distinct and permanent purpose, intimately and necessarily related to the use and purpose for which the building - is constructed, they become a part of the realty, and the title thereto passes by a sale of the building.
    2. Fixtures — kitchen cabinets, refrigerators, and gas stoves.— Kitchen cabinets, refrigerators, and gas stoves in an apartment, placed therein after execution of a mortgage under which the building w-as sold, held not fixtures, in the absence of evidence showing an intention that such unattached articles would constitute fixtures therein.
    3. Fixtures — gas stove. — The fact that a gas cooking stove in an apartment building was fastened to the gas supply pipe by a screw which could be detached by any one by merely unscrewing it, without damaging the building, held not to operate to make a fixture of such stove, contrary to the intention of the parties.
    Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor;
    reversed in part.

      Buzbee, Pugh & Harrison, for appellant.

      John L. Carter and Utley & Hammock, for appellee.
   Smith, J.

This suit was brought to restrain appellee from removing from an apartment building certain kitchen cabinets, kitchen stoves and refrigerators, the title to which was claimed by appellant apartment company, which company had bought certain lots in the city of Little Rock on which there was an apartment building, consisting of twenty apartments, at a commissioner’s sale. In each apartment there was a kitchen cabinet, a refrigerator, and a gas kitchen cooking stove, which articles were alleged to be fixtures which were acquired under the commissioner’s deed. The sale by the commissioner was under a decree foreclosing a mortgage on the lots, but the alleged fixtures here involved were bought and placed in the .building some months after the execution of the mortgage.

The defendant filed an answer, in which it admitted that plaintiff had bought the apartment building, in which the articles alleged to be fixtures were located, at a commissioner ’s sale, and that it was the owner of the record legal title to the lots on which the apartment building stood, and that it had, as alleged in the complaint, executed a quitclaim deed to these lots to the plaintiff. It appears, however, that the quitclaim deed was executed after a conference for the purpose only of clearing up the title conveyed by the commissioner under the decree foreclosing the mortgage and to clear up a controversy which had arisen as to the payment of a premium on a fire insurance policy o.n the building, and that no question was made at the time of the execution of the quitclaim deed about conveying the stoves, etc., as fixtures, and that the grantor in this quitclaim deed had no such intention. Defendant asserted ownership of the alleged fixtures, in its answer, for the reason that they were no part of the apartment building, and were not embraced or included in the quitclaim deed.

The architect who erected the apartment building, and who owned an interest therein at the time of its erection, testified that the contract for the erection of the building did not include the stoves, etc., and that, when a building contract included such articles as fixtures, they were shown on the plans of the building, and the alleged fixtures here involved were not included in the plans.

V. N. Carter, who at one time owned the building, and who installed the stoves, etc., testified that it was not a fact that all apartment buildings have the equipment here involved, and that he rented one apartment in this building to a tenant who furnished his own stove, and that he himself occupied one of the apartments for a time, during which he also furnished his own stove.

By stipulation signed by the parties the value of the equipment here in litigation was agreed upon.

The court found for the plaintiff for the stoves and for the defendant for all the other property, and the plaintiff appealed, and the defendant has perfected a cross-appeal.

It appears that the stoves were fastened to the gas-supply pipes by a screw, which could be detached by any one by merely unscrewing it, and that doing this would inflict no damage whatever to the building, and would, in fact, leave no evidence that it had been done. The other articles were not in any manner attached to the floor or walls of the building’. There appears therefore no distinction in regard to the ownership of the equipment, except that the stoves were screwed to the gas-supply pipes and that the other articles were not in any manner attached to the building.

"We are of the opinion that this circumstance is not sufficient to distinguish thé ownership of the stoves from the other articles. In other words, the plaintiff acquired all the property here involved by the commissioner’s deed or none of it, and the title to all of it depends upon the intention of the parties at the time of its installation in the building.

The law appears to be that, where an intention is shown on the part of the parties interested to make articles of personalty permanent parts' of the building in which they are installed, and where those articles serve a distinct and particular purpose, intimately and necessarily related to the use and purpose for which the building was constructed, they become a part of the realty, and the title thereto passes by ¡a- sale of the building. The law on the subject was discussed and the authorities reviewed in the recent case of Stone v. Suckle, 145 Ark. 387, 224 S. W. 735. No useful purpose would be served by again reviewing these authorities.

The case of Hanson v. Vose, 144 Minn. 264, 175 Minn. 113, 7 A. L. R. 1573, contains an annotator’s note on the specific subject of “Gas Range as Fixture,” and it is there said that: “The rule adopted in a majority of the decisions is that a gas range, when installed in a dwelling- and connected with a supply-pipe, does not thereby become a fixture, although it may become such by agreement between the parties.” The annotator’s note reviews a number of cases on the subject. A more extended note on the same subject is found appended to the case of Gauche Realty Co. v. Janssen, 158 La. 379, 104 So. 132, 39 A. L. R. 1042.

The testimony shows that the equipment had not been installed when the mortgage was executed through and under the foreclosure of which the plaintiff claims, and that the quitclaim deed was executed for the purpose only of clearing the title acquired iat that sale and of adjusting the matter of the insurance premium.

The court below evidently found the fact to be that there was no intention that the unattached articles should become fixtures, and this finding does not appear to be contrary to the preponderance of the evidence, but that the stoves had become fixtures because ofi tlieir attachment to the gas-supply pipes. As we have said, this attachment would not operate to make a fixture of the stoves if such was not the intention of the parties. The law is so declared in the annotator’s notes in the cases cited.

It follows therefore that the decree of the court below will be affirmed on the direct appeal and reversed on the cross-appeal, and the bill seeking to enjoin the appellee from removing the equipment will be dismissed as being without equity.


source: Caselaw Access Project

license: Public Domain

text:
    Bridges v. State.
    Opinion delivered March 26, 1928.
    1. Homicide — sufficiency of evidence. — Evidence held sufficient to sustain a conviction of murder in the second degree.
    2. Criminal law — opening statement of prosecuting attorney.— ' In a prosecution for murder, the opening statement of the prosecuting attorney that defendant’s father told deceased that defendant would kill him, not subsequently supported by testimony, was not prejudicial where no ruling was asked concerning the statement and defendant was convicted of murder in the second degree only.
    S. Homicide — evidence of conviction of deceased for assault. — In a prosecution for murder, in which defendant claimed that he acted in self-defense, it was not error to exclude the certified copy of the record offered to prove deceased’s conviction for assault by shooting, as it involved a specific act of violence and not a mere general reputation of deceased.
    4. Homicide — reputation of deceased. — Where the testimony leaves it in doubt as to who was the aggressor, defendant may show deceased’s reputation for peace and quietude, but he may not ■ prove the evidence of specific acts of bad conduct on deceased’s part.
    5. Criminal law — admissibility of specific acts of bad conduct. —Where, in the murder prosecution, the witness failed to testify as to deceased’s general reputation as to peace and quietude, but was called to prove only a specific act which was incompetent, cross-examination by the prosecuting attorney did not render admissible such rejected testimony of the witness, since there was no occasion to test the credibility of the witness.

      Appeal from Miller Circuit Court; James II. McCollum, Judge;
    affirmed.

      Will Steel, Dexter Bush and John N. Cook, for appellant.

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

Appellant, Kenneth Bridges, was tried under an indictment charging him with the crime of murder in the first degree, alleged to have been committed by shooting and killing one Hiram Kirby. He was found guilty of murder in the second degree, and given a sentence of twenty-one years in the penitentiary.

L. R. Bridges, appellant’s father, had been engaged in the mercantile business, and deceased owed him a small account. In an effort to collect this account L. R. Bridges went to the home of Kirby, who became incensed at Bridges, who is an old man and a cripple, and struck Bridges a blow with a rock, which rendered Bridges insensible. Robert Yogel accompanied Bridges to the Kirby home, to which place they drove in an automobile. After striking Bridges, Kirby went hurriedly on towards his home, and Yogel, thinking Kirby had gone after a gun, drove rapidly away without waiting to turn his car in the direction they wished to go.

Appellant was advised, about eleven o’clock that night, of what had happened, by Paul Hastings. Prentice Smith spent the night with appellant, and the next morning appellant, after furnishing Smith a shotgun, went to his father’s home, where he procured a rifle. According to the testimony in appellant’s behalf, he and Smith, who is a young man about nineteen years old, planned to go hunting, and they had their guns for this purpose, but appellant decided he would 'first go to Kirby’s home and find out Kirby’s version of the trouble with appellant’s father. The two walked to the Kirby home, and were there told that Kirby had gone to the home of a Mr. Pate, who lived a mile and a half away. They started to Pate’s home, and had gone about half a mile, when they met Kirby. No one saw the shooting or heard what immediately preceded the killing, except appellant and 'Smith, and, according to their version, appellant asked Kirby why he had struck appellant’s father. Kirby became angered, and dropped a sack of potatoes which he had in his hand, and ran his hand into the side of his overalls as if he intended to draw a weapon, and started towards appellant. Smith immediately fired both barrels of his shotgun, but, as Kirby did not fall, and kept advancing, appellant fired three shots with his rifle. Several persons heard the shooting, and one witness placed the number of shots as high as ten. When Kirby was found he had no weapons of .any kind on his person. .

The testimony is therefore amply sufficient to sustain the verdict returned by the jury.

In the opening statement the prosecuting attorney stated that “old man Bridges (appellant’s.father) told Hiram Kirby that his son Kenneth would kill him.” An objection to this statement was overruled, and that action is assigned as error. The testimony ’did not show that this statement was made, but the attention of the court was not called to that fact, and no additional ruling was made or called for concerning the statement of the prosecuting attorney. Evidently the purpose of this statement was to show that there had been deliberation and premeditation, and that the homicide had thereby been raised to the grade of murder in the first degree. The statement is not one which would have been incompetent under any and all circumstances, and appellant was not convicted of murder in the first degree. It may be said here, as was said in the case of Ragsdale v. State, 132 Ark. 210, 200 S. W. 802, that: “It is true the statement contained matter not subsequently proved, but there is nothing to show that it was made in 'bad faith. The matters set forth in the statement were not foreign to the issue, and might have been offered in proof. There was no manifest abuse-in the exercise of the court’s discretion in permitting the statement.”

Appellant offered testimony to the effect that deceased was a turbulent and dangerous man, and on the cross-examination of the witnesses who gave this testimony the prosecuting attorney asked if these witnesses had ever known deceased to shoot or kill any one, and they answered that they had not. Appellant then offered to prove that deceased had been charged and convicted on April 6,1927, in the municipal court of Texarkana, of an assault by shooting at a woman, and a certified copy of the record of that court was offered in evidence. The court excluded this testimony, and that ruling is assigned as error.

There was no error in this ruling, as the reputation of the deceased was a collateral matter, which could be shown only as a circumstance bearing on the question as to who was the probable aggressor in the fatal encounter, for it is as much a violation of the law to kill a bad man as it is to kill a good one. But, where the testimony leaves in doubt the question as to who was the aggressor, defendant may show the reputation of the deceased for peace and quietude as a circumstance having some probative value as to who was probably the aggressor when the killing involved at the trial occurred; but this proof must be made by showing the general reputation of the deceased in this respect, and not by proof of specific acts of bad conduct. Underhill on Criminal Evidence (3 ed.), 504; Jett v. State, 151 Ark. 439, 236 S. W. 621; Pope v. State, 172 Ark. 61, 287 S. W. 747.

It is argued that the cross-examination by the prosecuting attorney of the witnesses made the rejected testimony both admissible and necessary, as the character witnesses knew only the deceased’s general reputation without knowing anything about specific acts of violence. We do not think so. The witness who offered in evidence the record of conviction of deceased in the municipal court did not testify as to the general reputation of the deceased, but was called to prove only a specific act of violence, and such testimony is not competent.

In the case of Woodard v. State, 143 Ark. 404, 226 S. W. 124, it was said:

‘ ‘ The rule applicable to the cross-examination of witnesses who testify as to reputation is stated in 3 Enc. of Ev., p. 49, as follows: ‘It is generally held that such a witness may be asked on cross-examination as to an existence of particular facts, vices, or associations of the other persons inconsistent with the reputation attributed to him by the witness, not for the purpose of establishing the truth of such acts, but to test the witness ’ -credibility, and to enable, the jury to ascertain the weight to be given to his testimony.’ ” _

But, as we have said, this witness who w¡as asked about the conviction in the municipal court did not offer to testify as to deceased’s general reputation, and there was therefore no occasion to cross-examine him as to specific acts for the purpose of testing his -credibility, and the offered testimony was therefore incompetent, and no error was committed in excluding it.

The court gave what might be called the usual charge in homicide -cases, consisting of eighteen separate instructions, to -all of which appellant objected,- except instructions numbered 7 and 14. Instruction numbered 7 told the jury that -appellant, to be .justified, must have fired the fatal shot through fear of impending danger, and not in a spirit of revenge, and instruction numbered 14 defined a reasonable doubt as that term had been employed in other instructions.

Appellant requested twenty-six instructions, of which ten were given as requested and four were given as modified. To discuss the instructions given to which objection was made, and those refused would require a restatement of the law of homicide in this State, which we think would serve no useful purpose, as all the questions discussed in the briefs have long been settled by numerous decisions of this court.

It must suffice to say that we have carefully reviewed these instructions, both those given and those refused, and we find that the court submitted appellant’s theory of self-defense under instructions which would have resulted in his acquittal had his version of the killing been accepted by the jury as true.

Upon a consideration of the whole case we find no error in the record, and the judgment will therefore be affirmed.


author: Humphreys, J.

text:
    St. Louis-San Francisco Railway Company v. Albright.
    Opinion delivered March 26, 1928.
    1. Railroads — -construction of sheds along tracks. — -Under Acts 1921, c. 124, §§ 3, 4, conferring jurisdiction on the Railroad Commission in all matters relating to the regulation and operation of common carriers and requiring public service corporations to provide adequate and suitable facilities for operation of business and convenience and safety of the public, the Railroad Commission had jurisdiction to require railroads to construct sheds along their tracks for convenience of the traveling public in going to and from trains.
    2. Railroads — construction of sheds. — An order of the Railroad Commission requiring railroads to construct sheds over their platforms for the use of passengers discharged from trains -approximately 150 yards from the depot, held not arbitrary and unreasonable.
    3. Railroads — right to require construction of sheds. — -The fact that two railroads at their junction had established a union depot for the protection of passengers does not deprive the Railroad Commission of authority to order construction of sheds for the use of passengers in going to and from the trains where the trains stopped approximately 150 yards from' the depot.
    4. Constitutional law — dub process. — An order of the Railroad Commission requiring two railroads to construct sheds along their tracks for the use of -passengers in going to and from the trains, held not a taking of property without due process in violation of the Fourteenth Amendment.
    5. Commerce — burden of interstate commerce. — An order of the Railroad Commission requiring railroads to construct sheds along their tracks for the use of passengers in going to and from trains, held not void as constituting a burden on interstate commerce, where the order did not fix the cost' of the sheds, but left the matter open for determination of expense by the railroads on approval of the Railroad Commission.

      Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.

      Thomas B. Pryor, Harvey G. Combs, E. T. Miller, E. L. Westbroohe, Jr., and E. L. WesWroohe, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for Arkansas Bailroad Commission, appellee.
   Humphreys, J.

This is an appeal from an order of the circuit court of Pulaski County, Second Division, affirming an order of the Bailroad Commission requiring appellants, to erect umbrella sheds along the tracks of each of the railroads at Hoxie, where they intersect, from the depot jointly used by them to the place where the trains stop to discharge and receive passengers. Certain passenger trains on each road stop before crossing- the track of the other, about 410 feet from the depot, for passengers to get on and off the train. The necessity for the Frisco trains to stop north of the Missouri Pacific tracks and for the Missouri Pacific trains to stop east of the Frisco tracks is to enable them to make one stop to use the water crane for taking water and to load and unload passengers at the same time. Otherwise certain of the trains would have to make two stops, one to take water and the other at the depot to receive and discharge passengers. The order of the circuit court appealed from is in part as follows:

“Certain citizens of the town of Hoxie filed a petition with the Arkansas Bailroad Commission to require the Missouri Pacific Bailroad Company and the St. Louis-San Francisco Bailway Company to construct sheds along the tracks of each of the railroads for the convenience of the traveling public in going’ to and from trains. Testimony was heard as to the necessity of such sheds. After a hearing, the Arkansas Bailroad Commission entered an order requiring each, of the said railroads to construct sheds aggregating- in length one thousand feet, the plans for the sheds, however, to be subsequently filed with the Bailroad Commission for its approval. The railroads have appealed from this decision.
“The order of the Bailroad Commission, being a separate branch of the State Government, will not be set aside or disturbed unless it appears unreasonable or arbitrary.
“The two railroads intersect at Hoxie, and passengers leave the trains of each railroad before the train-crosses the track of the other, or reaches the station. Consequently passengers going to and from the station to the trains are of necessity required to walk quite a distance. Under the circumstances of 'this peculiar case, in the opinion of this court, the order of the Arkansas Bailroad Commission does not appear unreasonable or arbitrary. It is. claimed that the construction of sheds, at Hoxie would require an unreasonable outlay by the railroads, considering the results to be obtained. The matter of expense is to be determined by the railroad companies on the approval of the Bailroad Commission. Considering the whole case, this court is of the opinion that the order of the Arkansas Bailroad Commission is not arbitrary or unreasonable, and will therefore be affirmed. ”

The order of the Bailroad Commission and the order of the circuit court affirming said order are assailed upon the grounds: first, that authority was not conferred upon the Bailroad Commission by statute to order railroads to construct umbrella sheds over their platforms, or, to put it differently, that the Bailroad Commission was without jurisdiction to order appellants to build sheds over their platforms from the depot to where they stopped certain of their trains to receive and discharge passengers ; second, that the order was. arbitrary and unreasonable, there being no necessity shown for the construction of the sheds; third, that the facilities already furnished are adequate; fourth, that the order of the Commission will deprive the railroads of their property without due process of law and in violation of § 1, article 14, of the Federal Constitution; fifth, that the order for the' construction of these sheds ■ is a burden on interstate commerce, and void. »

(1) Section 3 of act 124 of the Acts of the General Assembly of 1921 confers jurisdiction upon the Railroad Commission in all matters relating to the regulation and operation of common carriers and railroads; and one of the requirements in § 4 of the same act is that public service corporations shall provide and maintain adequate and suitable facilities for the operation of the business, and for the reasonable convenience and safety of the public. The sections referred to are broad enough to and do confer jurisdiction upon the Railroad Commission to require public carriers to provide such protection and convenience for its passengers.

(2) The contention that no reasonable necessity was shown by the testimony for the construction of the sheds is without merit. The distance between the depot and places where certain of the passenger trains stop to receive and discharge travelers, is one hundred and fifty yards or more, and too great a distance to expect passengers to go during* inclement weather. Their health and comfort are involved, and must necessarily be considered in arriving at the reasonableness or unreasonableness of the order. The testimony reflects that Hoxie is a junction of the two systems of railways, where many passengers change trains and where there are many incoming and outgoing passengers. Hoxie has about 1,500 inhabitants, and the large number of passengers debarking and embarking should have protection from rain and snow.

(3) It is true that the testimony reflects that a union depot has been built at this point, modern and adequate for the protection of passengers when once in it. The argument that adequate facilities have been furnished because such a depot has been constructed does not meet the situation at Hoxie. It would, if the trains all stopped beside or near the depot where the passengers could reach it without exposing themselves to inclement weather. The depot, however, can furnish no protection to passengers who are compelled to go a distance of one hundred and fifty yards- before they can board a train,- or go that distance after debarking to reach the depot. The protection required against the elements is protection afforded at the place of getting on and off trains. We think it the clear and reasonable duty of appellants to stop their trains at the depot, or else build umbrella sheds for the protection of the passengers, who are compelled to come and go one hundred and fifty yards in order to board the trains or reach the depot.

(4) We do not understand that the requirement that public carriers build depots of ample facilities for the protection of its passengers at the place where they are received and discharged in any way conflicts with the provision of the Constitution inhibiting the taking of property without due process of law. We think the peculiar situation at Hoxie makes it just as necessary to construct the umbrella sheds as it does to construct depots. It is one of the necessary facilities to protect the passengers. The requirement of the construction of necessary facilities in the operation of the business of a public carrier is in no sense taking its property without due process of law.

(5) The contention that the order to build the sheds will unnecessarily burden interstate commerce is without foundation in fact. The argument is made that the cost of building the sheds will amount to $16 per lineal foot, or a total of $15,000, without benefiting any one. The order does not fix the cost of the umbrella sheds to be built. That matter is left open. The expense is to be determined by appellants, on approval of the Railroad Commission. Certainly the Railroad Commission will not require that an unreasonable amount be expended in the construction of the sheds. We cannot agree that there is no necessity for the sheds. The record reflects the necessity for them in order to protect passeng;ers from the elements, because appellants stop certain of their passenger trains an unreasonable distance from the depot for the reception and discharge of passengers. The size of the town, together with the fact that Hoxie is the junction of the two systems, indicates that the traffic is sufficient to justify the construction of the sheds for the protection of the passengers against the elements.

No eryor appearing’, the judgment is affirmed.


text:
    Barnett v. Bank of Malvern.
    Opinion delivered March 26, 1928.
    1. Appeal and error — review of order directing verdict. — On review of the action of the circuit court in directing a verdict in defendant’s favor, the testimony tending to support plaintiff’s cause of action will be given its highest probative value.
    2. Mortgages — penalty for failure to satisfy mortgage. — In a suit to recover the penalty under Crawford & Moses’ Dig., § 7396, for a failure to enter satisfaction of a mortgage as provided by § 7395, it is no defense that the plaintiff had the intent to sue for the penalty at the time he made demand for satisfaction of the mortgage.
    3. Mortgages — right to demand entry of satisfaction. — The purchaser of mortgaged property requesting that satisfaction of the mortgage be entered as provided by Crawford & Moses’ Dig., § 7395, is an interested party and entitled to demand that the mortgagee enter ■ satisfaction.
    4. Mortgages — settlement of debt. — Where the assignee of a mortgagee accepted the sum tendered as full payment of the balance due on the mortgage, when the duty to satisfy the mortgage arose, the fact that the assignee voluntarily elected to accept in full payment a smaller sum than the amount actually due would be no defense in an action for damages for failure to enter satisfaction of the mortgage.
    5. Mortgages — demand for entry of satisfaction. — A demand to satisfy a mortgage as provided by Crawford & Moses’ Dig., § 7395, either oral or written, is sufficient where it calls attention of the mortgagee to the fact that the indebtedness secured by the mortgage has been paid and requests that satisfaction of the mortgage be made.
    6. Mortgages — acknowledgment of’ satisfaction. — In a suit under Crawford & Moses’ Dig., § 7396, for failure to satisfy a mortgage as provided by § 7395, the fact that the attorney for the mortgagee indorsed upon a decree of the chancery court payment in iull oi the indebtedness secured by the mortgage, held not to comply with the requirements of § 7395.
    Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge;
    reversed.

      Oscar Barnett, for appellant.

      Glover, Glover & Glover, for appellee.
   Smith, J.

This appeal comes from a judgment in appellee’s favor which was rendered upon a verdict which the court directed the jury to return: In testing the correctness of the action of the court in directing a verdict in appellee’s favor we must give to the testimony tending to support appellant’s cause of action its highest probative value, and the facts may therefore be stated as follows.

The suit was brought to recover damages under §§ 7395 and 7396, C. & M. Digest. These statutes read as follows:

“Section 7395. If any mortgagee, his executor, administrator or assignee shall receive full satisfaction for the amount due on any mortgage, he shall, at the request of the person making satisfaction, acknowledge satisfaction thereof on the margin of the record in which such mortgage is recorded.
“Section 7396. If any person thus receiving satisfaction do not, within sixty days after being requested, acknowledge satisfaction as aforesaid, he shall forfeit to the party aggrieved any sum not exceeding the amount of the mortgage money, to be recovered by civil action .in any court of competent jurisdiction.”

Appellant alleged and offered testimony tending to show that, immediately after the affirmance of the decree of the Hot Spring Chancery Court in the case of Barnett v. Bank of Malvern (an unreported case), he applied to the cashier of the bank to pay the indebtedness, secured by the mortgage, which we held in that case to be an outstanding lien on the land, which appellant had purchased subject to the bank’s mortgiage. The decree there appealed from had directed the foreclosure of this mortgage. Appellant testified that the cashier demanded a sum $11 in excess of the amount due the bank and secured by the mortgage, and that he then applied to the clerk of the chancery court for a statement of the correct amount due under the decree, including the costs and the interest, and that the clerk advised him that the amount due the bank was $519.40, which, sum he tendered and paid to the attorney of record for the bank, after giving separate checks for the costs of the suit. The bank’s attorney thereupon entered upon the margin of the records of the chancery court the following indorsement: “This judgment is satisfied in full, this 9th day of March, 1927. D. D. Glover, attorney for plaintiff.”

Thereafter appellant requested the cashier of the bank to enter satisfaction of the mortgage upon the margin of the record thereof, and, after waiting sixty days for this to be done, his request not having been complied with, he brought this suit to recover damages, under the sections of the statute quoted above.

Appellant testified that he negotiated a sale of the property described in the mortgage, which he was unable to consummate because of the failure of the bank to satisfy the mortgage of record. On the day after the institution of this suit the cashier of the bank properly satisfied the mortgage record.

Appellee insists that the judgment of the court below should be affirmed for the following reasons:

(1) That the suit was not brought in good faith, as the testimony shows that appellant called a witness to' whom he privately gave directions to make a note of the date upon which the request to satisfy the mortgage was made. This witness testified that he was present when appellant made this request of the cashier of the bank, and that the witness made a note of the date upon which this demand was made. (2) That the payment made by appellant to the clerk was $2.21 less than the amount actually due the bank. (3) That the notice was insufficient. (4) That the satisfaction of the decree of foreclosure was a substantial compliance with the statute, inasmuch as the mortgage -lien was merged in the.lien of the decree.

The testimony does show an apparent intent on appellant’s part to sue for th,e penalty at the time he made the demand for the satisfaction of the mortgage, and that he brought this suit at the earliest date possible. But that fact does not constitute a defense to this suit. It is the duty of the mortgagee, or his assignee, at the request of the person making satisfaction, to acknowledge satisfaction .thereof on the margin of the record in which such mortgage is recorded, and, if this is not done, a cause of action arises, because the statute gives it, and it is no defense thereto that the person making the satisfaction was prompted by a mercenary motive. In this connection it may be said that appellant was the proper person to make this request, although he was not the mortgagor, as he had bought the property subject to the mortgage. In the case of Johns v. Rollison, 152 Ark. 52, 237 S. W. 448, in construing the statute above quoted, it was said: “In other words, our statute penalizes the ones receiving satisfaction for not satisfying the record, upon the request of those making satisfaction. The statute, of course, means interested parties, not volunteers. Appellant was an interested party, and not a volunteer, and the bank was fully advised of that fact and the nature of appellant’s interest through the previous litigation involving this mortgage.

Appellee insists that appellant did not pay the sum due the bank and secured by the mortgage. It is, of course, essential that the mortgagee be paid the full amount due under and secured by the mortgage before a cause of action could arise under the statutes quoted. However, if the bank, or its authorized agent, accepted the sum tendered as full payment of the balance due, then the duty to satisfy the mortgage arose, and it would be no defense to say that the tender was insufficient, there being no contention that appellant had deceived the bank in this respect. In other words, if the hank voluntarily elected to accept in full payment of the mortgage indebtedness a smaller sum than the amount actually due, it could not thereafter be heard to say that the indebtedness had not been paid.

Upon the question of the form of demand which should be made upon the mortgagee, it may be said that the statute does not prescribe how the demand shall be made, as it provides only that satisfaction shall be made “at the request of the person making satisfaction.” In the case of Johns v. Rollison, supra, the request to satisfy was made “through the medium of a letter,” and this was treated, without discussion of the subject, as a sufficient demand to comply with the statute. "We' are therefore of the opinion that a demand to satisfy is sufficient which calls to the attention of the mortgagee the fact that the indebtedness secured by the mortgage has been paid, and requests, in consideration of that payment, that satisfaction of the mortgage be made. The statute does not require a written notice, but makes a “request” sufficient, and this request may be either oral or written.

It is true the attorney for the bank indorsed upon the margin of the decree of the chancery court the payment in full of the indebtedness secured by the mortgage the foreclosure of which was there decreed, and it is true also that this indorsement could have been shown in bar of any action on the part of the bank to -foreclose or otherwise proceed under that decree. But that indorsement did not comply with the requirements of the statute quoted. The purpose of the statute was to require that the record showing the mortgage óf record should show also its satisfaction, so that one' examining the records might be advised that the lien of the mortgage had been satisfied. • ■ ■ ■

At § 354 of the chapter on Mortgages, in 19 R. C. L., 548, it is said: “Although there-is some conflict oh the question, the weight of authority favors the doctrine that a decree of foreclosure does not merge the lien of the mortgage until it has been consummated by sale - and satisfaction. This is in harmony with settled general rules, because a mortgage lien is extinguished only by payment or release.” Among the cases cited in the note to the text quoted is that of Ford v. Harrison, 69 Ark. 205, 62 S. W. 59, 86 Am. St. Rep. 192, in which case the syllabus reads as follows: “While the general lien of a decree continues in force as to the judgment debtor’s land only three years from the date of the decree, unless revived, the lien of a mortgage on land, enforced by decree, doeá not lapse after three years from the date of the decree.”

The indorsement of the satisfaction of the decree of foreclosure would,:of course, prevent the bank from proceeding thereunder, but the payment of the indebtedness, without this indorsement, could also be pleaded in bar of any action on the part of the bank to sell the land. But the statute contemplates that the record 'which shows the existence of the mortgage shall also show its satisfaction, and that this evidence of satisfaction shall be indorsed upon the margin of the mortgage record. The satisfaction of the decree of foreclosure was not a compliance with this statute, as the mortgagor was entitled to have the mortgage record satisfied.

We conclude therefore that the court was in error in directing a verdict in appellee’s favor, and the judgment of the court below must therefore be reversed,, and it is is so ordered.


text:
    Whitney v. State.
    Opinion delivered March 26, 1928.
    1. Homicide — variance as to name of person killed. — In an appeal from a conviction of voluntary manslaughter, a variance between the indictment and the proof as to the name of the person alleged to have been killed could not be raised on appeal when not called to the trial court’s attention.
    2. Homicide — sufficiency of evidence. — Evidence held to sustain a conviction of voluntary manslaughter.

      3. Criminal law — duty of court to- admonish jury. — In a murder trial the court’s failure to admonish the jury that they could consider evidence as to whether defendant had previously killed another man only as to defendant’s credibility held not - error, where the court had previously so instructed the jury on similar evidence, and no request was made for a second instruction, and defendant' had contented himself with a general objection and exception to such question and answer.
    4. ' Criminal law — -instruction as to reasonable doubt. — In a prosecution for murder, refusal of a requested instruction which in effect told the jury that they should not convict defendant unless his guilt had been established to the exclusion of every other reasonable hypothesis of his innocence, was not error where the jury had been instructed on the burden of proof and reasonable doubt.
    Appeal from Miller Circuit Court; James H. McCollum, Judge;
    affirmed.

      Pratt P. Bacon and Jones & Jones, for appellant.

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

Appellant was indicted for murder in the first degree in the circuit court of Miller County, for shooting and killing Sam Warren. Upon a trial of the cause he was -convicted of voluntary manslaughter,- and, as a punishment therefor, was adjudged to serve a term of seven years in the State Penitentiary, from which is this appeal.

The first assignment of error is an alleged variance between the indictment and proof with reference to the person killed. The indictment charged that appellant killed Sam Warren, whereas the proof showed that he killed Son Warren. No question was raised in the trial of the cause as to the identity of the person murdered. All witnesses referred to the person killed as “Son Warren” or “Son Morris.” Appellant did not claim in the trial that the person he killed was a different man from the man he was charged with killing. He did not ask any instruction on the issue of variance, nor set out the variance between the indictment and proof in his motion for a new trial. The issue of variance raised for the first time on this appeal was one of fact for the jury, under the rule announced by this court in the cases of Bennett v. State, 84 Ark. 97, 104 S. W. 928; Woods v. State, 123 Ark. 111, 184 S. W. 409, Ann. Cas. 1918A, 348; Sutton v. State, 67 Ark. 155, 53 S. W. 890. It is too late to raise this question for the first time on appeal. Clayton v. State, 159 Ark. 592, 252 S. W. 589; Anderson v. State, 162 Ark. 14, 257 S. W. 365.

The second assignment of error is that the evidence is insufficient to support the verdict and judgment for voluntary manslaughter. .According to the testimony of the State, briefly stated, appellant and Melvin Knighton got into a fight in one of the front rooms in Plato Perkins’ house, where several negroes had been gambling. They fought back into the kitchen. After they entered the kitchen, and while the fight was in progress, Son Warren, with an open knife in his hand, pushed his way into the room. During the fight appellant received a knife wound on the cheek. Appellant retired from the conflict, going through the back door of the kitchen. After he left, Knighton and Son Warren went out to the car in which they, with appellant and others, had come to the Perkins home. After thqy had got into the car for the purpose of driving away, appellant returned with a shotgun, approached the car, and asked for Knighton. Knighton had taken refuge behind the car, and, when Son Warren stepped out on the running-board, appellant shot him. Son Warren died in a short time after, from the effect of the wound. The evidence introduced by the State was contradicted, but the jury accepted it as true. It is sufficient to support the verdict and judgment.

The third assignment of error is that the court did not admonish the jury that the testimony of appellant, on cross-examination, to the effect that he had killed another man, could only be considered by them in passing on his credibility as a witness. Immediately before this question was asked and answered in the affirmative, a similar one had been asked and answered, at which time the court did instruct the jury that they should only consider the evidence in passing on appellant’s credibility as a wit ness, and not as any evidence of his guilt. It was. unnecessary for the court to instruct the jury a second time upon the point, even though the question .was asked and answered a second time. When asked and answered the second time, the jury necessarily understood for what purpose they might consider it. Besides, appellant , did not request that the jury be instructed a second time on the point. He contented himself with a general objection and exception to the question and answer.

The last assignment of error is that the court erred in refusing to give a number of instructions requested by him. It would unduly extend this opinion.to set .out each instruction and show that it was fully covered by some other instruction or instructions given by the court, which is the case, except as to requested instruction No. 6. Requested instruction No. 6 told the jury, in substance, that they should not convict appellant unless his guilt had been established to the exclusion of every other reasonable hypothesis of his innocence. It is not error to refuse such an instruction, if the jury had been correctly instructed on the burden of proof and reasonable doubt, which was done in the instant case. Bost v. State, 140 Ark. 254, 215 S. W. 615; Bartlett v. State, 140 Ark. 553, 216 S. W. 33.

No. error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    Arkansas-Missouri Power Company v. Brown.
    Opinion delivered March 26, 1928.
    1. Electricity — contract to furnish electricity. — Where a city by ordinance grants a franchise to a public service corporation to furnish electricity to its inhabitants on certain rates, terms and conditions, -which are accepted in writing by the company, a contract between the parties is constituted by which their rights are to be determined, the terms and conditions becoming binding on the municipality and the company.
    2. Electricity — duty to furnish electricity. — A public service company, which has accepted a franchise requiring it to furnish electricity to private consumers in the. city at a certain rate, cannot justify an absolute refusal to furnish service to a building, on the ground that furnishing the service would be too expensive.
    3. Appeal and error — right tq dismissal op cause. — Though, since ■ a judgment was rendered for damages and injunction against a public service company for refusal to furnish electricity to a building, the territory embracing the ¡building has been detached and excluded from the city limits, an appeal will not on that account be dismissed, the right to affirmance of the judgment for damages not being affected thereby.
    Appeal from Randolph Chancery Court; A. S. Irby, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    Appellees "brought this suit to compel appellant to furnish lights, and for damages for failure to do so, under its charter, to his filling station located within the city limits of Pocahontas, hut about a mile south of Black River, the improvements in the city being all virtually north of the river.
    It was alleged that the appellant company was the assignee of the franchise granted to W. H. Skinner under the ordinance providing therefor, and by its terms was bound to provide consumers in the incorporated town of Pocahontas electrical energy at the price designated, not exceeding 15c per kilowatt hour. That he had repeatedly requested the company to furnish his filling station with electricity for lighting purposes, in accordance with the franchise ordinance, but that the company had neglected, failed and refused to comply with his demand and requests, to his damage in the sum of $250. It was further alleged that appellant company had refused to furnish electricity for lights for the said filling station for the alleged reason that it could not do so at a profit, thereby refusing to comply with the terms of its contract or franchise with the city. Stated further that they were without adequate remedy at law, and prayed a mandatory -injunction to compel the company to furnish electricity for lights, in accordance with its franchise.

      The appellant company admitted that it had not furnished electricity for lighting the station, because it was situated a mile or more from the main residence section of the city of Pocahontas, across Black River, to the east and south. That the station was located on the public, highway, and not on the city streets, there were no other residences or business houses near it, and it would be the only consumer in the vicinity to be served, and that it would cost several thousand dollars to extend a line with necessary equipment to supply lights to the filling station, and that the demand for such service was unreasonable, unfair, and unjust to it, and could not be complied with without great loss, and that such service, under the circumstances, could, not have been in contemplation of the parties to whom' the franchise was granted by the city at the- time of granting it.
    Appellees amended their complaint, setting out that J. W. Brown was the owner of the filling station, having purchased the same at a time when the company was furnishing lights and power to the station; that it had ceased furnishing power and lights without any notice of any intention on its part of doing so, and that the said Brown had purchased the filling station relying upon lights and power service being furnished, which was one of the inducements to the purchase.
    These allegations were all denied by appellant company.
    It appears from the testimony that Brown, one of appellees, wias the owner of the lands upon which the filling station was situated, having purchased same in August, 1924; that it was located in the limits of the city of Pocahontas, and, at the time of Brown’s purchase, was being furnished with lights by the appellant company, being wired for lights :and current at thát time. The company ceased furnishing -current and lights when it built its high-power lines, and the station rented for $'20 per month when lights were furnished, and for only $15 when they were discontinued.

      There was testimony tending to show the necessary cost for supplying the lights under present conditions would he about $1,000, and that only a small amount of electricity would be consumed by the filling station, the minimum charge of $1 per month, which could not be served by the company without a great loss, since there were no other probable consumers in the locality of the filling station.
    The court rendered judgment for $140 damages, and granted a mandatory injunction requiring appellant to install the lighting service at the filling station, from which judgment this appeal was prosecuted.
    A motion to dismiss the cause has been filed here, showing that on May 18, 1927, after the rendition of the decree appealed from, an ordinance was passed.by the city council of Pocahontas providing for changing the boundary of the city, and excluding all the territory lying east of Black River from the city limits; that it had been duly submitted to the qualified electors of the city, and voted upon and ratified, and the territory lying east of Black River, upon which was situate the filling station, was detached and excluded from the corporate limits of the city. Prayer that the case 'be dismissed as to the question of the right to the mandatory injunction as settled by the exclusion of the territory upon which the filling station in situate from the city limits, within which only the lighting company was bound under its charter to furnish lights, and an affirmance only of the judgment for the $140 damages.
    A response was filed-to this motion, in which it is insisted that the entire judgment should be. affirmed, leaving the appellant to further proceedings in a lower court to avoid the effect of the mandatory injunction, if it shall have any right to do so, etc.

      H. L. Ponder, for appellant.

      John L. Bledsoe and Schoonover & Schoonover, for appellee.
   Kirby, J.,

(after stating the facts). It has long been settled law that, where a municipal corporation by ordinance grants ia franchise to a public service corporation to furnish electricity or gas to its inhabitants upon certain rates, terms and conditions, which are accepted in writing by the public service company, a contract between the parties is constituted, by which their rights ¡are to be determined, the terms and conditions becoming binding on the municipality and the company. Pocahontas v. Central Power & Light Co., 152 Ark. 276, 244 S. W. 712; Arkansas Light & Power Co. v. Cooley, 138 Ark. 390, 211 S. W. 664; Lonoke v. Bransford, 141 Ark. 18, 216 S. W. 38.

In § 2 of the ordinance granting the franchise to W. H. Skinner, of which appellant is now the assignee and owner, it agrees “to furnish to private consumers in said corporate town electrical energy at a rate of not exceeding 15e per kilowatt hour,” allowing a minimum charge not to exceed $1 per month.

It is not denied that the filling station of appellee, Brown, where he demanded that power and lights should be installed under the terms of the franchise granted by the city, was situate within the limits of the incorporated town. Neither is it denied that appellant refused to furnish appellee Brown power and lights for consumption at said filling station, attempting to justify its refusal to do so because of the small amount of power and electricity that would be consumed at the filling station and the high cost of supplying it to but one consumer, there being no other business house or residences in the vicinity of the filling station where other probable consumers might be served, and'for these reasons alleged that the .demand was unreasonable, unfair and unjust, and could not be complied with without great loss and damage to it.

There was no attempt made to disclose the amount of the revenue that was being derived from the entire service to the consumers in the city of Pocahontas, the •cost of such service, the value of the property devoted to the public use, upon which appellant had the right to expect a reasonable return, nor the profit derived from the service rendered, as to whether it yielded a reasonable return or a just compensation to the power company. Neither did the appellant company offer to furnish the service, which it was bound under the terms of its franchise or contract with the city to supply, to appellee’s filling- station in the corporate limits of the city for a rate which it regarded reasonable, but refused to supply it at all.

It could have applied to the city council for a change of rates for supplying consumers similarly situated, or permission to charge an increased or higher rate, if the rate was regarded unreasonable, but it could not show that the demand for the service under its franchise was so unreasonable as to excuse it from furnishing the service, by proving- only the probable expense for the service to be rendered the particular consumer with the revenue to be derived therefrom.

It is also true that appellee could only compel the furnishing of the lighting service to his filling station, under the terms of the franchise held by appellant, while his station was within the corporate limits of the city of Pocahontas. The fact that the territory upon which the filling station is situate has since been regularly detached and duly excluded from the corporate limits of the city, which have been contracted as shown by the motion to dismiss the cause, does not warrant such dismissal here, since appellee is entitled to an affirmance of the judgment for the damages recovered, in any event.

A dismissal of the appeal would still leave the order for a mandatory injunction in force, and while we do not determine whether appellant can be compelled under such injunction to supply the lighting service to appellee’s filling station, which is no longer in the corporate limits of the town, we do not find any reversible error in the record, and the judgment is affirmed.


text:
    Tchula Cooperative Store v. Quattlebaum.
    Opinion delivered March 26, 1928.
    1. Automobiles — liability of company hiking trucks. — Where a plantation manager hired trucks to convey'laborers to its plantation under an arrangement that the truck owner would furnish one driver and the manager two, held in a suit against the plantation owner for damages caused by the driver of one of the trucks running into another automobile, that the driver of such truck was the servant of the defendant company, though he had been placed in charge of the truck by the driver furnished by the truck owner, such driver being the servant of defendant company.
    2. Trial — specific objection to instruction. — Objection that an instruction is doubtful in meaning should be raised by specific objection.
    3. Appeal and error — conclusiveness of verdict. — A verdict of the jury on conflicting evidence will not be disturbed on appeal.
    Appeal from Jefferson Circuit Court; T, G. Parham, Judge;
    affirmed.
    statement of facts.
    This appeal comes from judgments- for damages for personal injuries and to an automobile caused by a collision with a truck alleged to have been negligently operated by appellant company and driven on the wrong sido of the road at the time of the collision.
    It was alleged that the appellant company was a corporation engaged in farming upon the Lake Dick place, about 15 miles from Pine Bluff. That, in order to secure; laborers for cotton chopping, it hired from' E. "W. 'Hood, the proprietor of a “U-Drive-’Em” establishment, three trucks for carrying its farm hands and laborers from in and near Pine Bluff to its store on said plantation. After, the day’s work was finished the cotton-choppers, were again loaded on the trucks to be retunied to Pine Bluff, and, before reaching the city, one of the trucks collided with a Studebaker Special Six automobile, driven by the' son of appellee, Quattlebaum, and injured W. W. Nelson, a passenger therein, and almost demolished the automobile. It was alleged that the truck was being driven upon the wrong side of the road, the same side upon which the oar- was lawfully proceeding, and at a reckless rate of speed, which caused the injury.
    The appellant company denied all the allegations of negligence of the complaint; that the Studebaker car was proceeding at a moderate rate of speed, as alleged, and that the truck was driven upon the same side of the road as the car at the time of the collision; denied that it was upon the wrong side of the road and that the driver did not slacken speed in attempting to avoid the collision; denied that plaintiffs had been damaged in the sums as alleged, or at all; denied that it was operating the truck or responsible for its operation at the time of the collision, or that it had anything to do with causing the damage, if there was any damage; alleged that the driver of the Studebaker car was crippled and physically incapable of controlling* or managing an automobile, and that Quattlebaum was negligent in permitting* him to drive it, and that the car was being negligently and carelessly operated and driven at an excessive rate of speed, with headlights which were so bright as to blind the operator of the truck at the time of the collision, and pleaded such contributory negligence in bar to recovery.
    The complaint of W. W. Nelson, who was riding in in the car with appellee Quattlebaum’s son at the time of the injury, contained the same allegations of negligence, and the answers thereto denied the material allegations of the complaint, and alleged contributory negligence of the driver of the wrecked car. The cases were consolidated for trial.
    E. W. Hood, who was sued jointly with appellant, answered, denying* the material allegations of each complaint, and the suits were later dismissed as to him.
    It appears from the testimony that the manager of the plantation for the appellant company, Mr. McKenzie, had employed from Hood, who was operating a “U-Drive-’Em” garage, three trucks for transporting farm laborers from Pine Bluff to Lake Dick plantation, the proprietor of the hiring agency agreeing to send along one driver in order to look after any necessary mechanical repairs and adjustments on the trucks; the other two drivers to be supplied by Mr. McKenzie. On the morning of the day of the collision the three trucks were loaded, and proceeded to carry the laborers down to the farm, J ack J aggers being the driver supplied by the hiring agency, and Sterling Starks driving another truck, which was in the collision in the evening. Mr. McKenzie accompanied the trucks, riding in his own car with two or three others, either in front or along behind the loaded trucks. When they had proceeded to near Bevo, Jack Jaggers put J. W. Wells in charge as driver of the truck which Sterling Starks had been driving.
    McKenzie stated that he had nothing to do.with the change of the dxnvers after they left Pixxe Bluff, and was ixot aware that the driver had beexx chaxxged until the xxext day after the wreck. Said he was not present at any place along the road where the driver was substitxxted for Starks, axxd did not come back; with, the haxxds. that night, having’ left the plaxxtatioxx about three o ’clock that afternoon. That there was xxo oxxe else connected with the appellaxxt company or having anything’ to do with the transportation of the hands or laborers who had authority to change drivers or make'any change ixx the drivers selected by him for the trucks. Did not know Starks until ' he hired him, the Sunday before, to drive the truck. Said he left town about the same time the trucks .did, and they proceeded aloxxg pretty well together ■ to the street car crossing* called Bevo. That he passed the trucks just out of town, and stopped xxear the free bridge to see how they were gettixxg along. They were heavily loaded, and he had a lieavy load on his Hudsoxx car.
    Two or three of the witnesses testified that Mr. McKenzie was there when the change of drivers was made, and others said he was near at the time. One witness who was ridixxg in the car with Mr. McKenzie said she saw the change was made, and axxother witness said that Starks was driving the truck when they left Bevo, and that after they got to the store she noticed that the other man was driving. Did not know that Mr. McKenzie noticed the difference, however.
    • Jim Greer, whose business it was to arrange to hire the hands, take them down to the plantation, and see that the work was done properly, was also • along with the trucks, and was given money at the free bridge by Mr..McKenzie to buy a fan belt, the one on the particular truck having broken or come off.
    Starks, the driver employed by McKenzie to drive the truck, and who started out with it in the morning, left the plantation in the afternoon and went over to the railroad station, and came back on the train. The driver, Wells, who had been put on the truck after it left Bevo in the morning, started back with it, loaded, in the evening, and near the free bridge collided with the car driven by Quattlebaum, appellee’s son, injuring Nelson, and smashing up the car.
    The appellant offered- to introduce in testimony a statement made by Wells, the substituted driver, about the wreck or occurrence, in testifying in another case, a different suit for damages resulting from the same collision, and excepted to its exclusion from the jury.
    The court instructed the jury, and from the judgment on the verdict in favor of Quattlebaum for $500 damages to the car, and in favor of Nelson, who was riding in the Quattlebaum car, for $1,000 for personal injuries, this appeal is prosecuted.

      Coleman & Gantt, for appellant.

      Jones & Hooker, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted for reversal that there is no testimony sufficient to support the judgment, and that the court erred in giving certain instructions in which it is’ claimed the driver of the truck causing the damage in the collision was assumed to'be the agent of appellant, instead of leaving the question to be determined by the jury.

It is true that the plantation manager who hired the trucks to be used in the transportation of the hands or laborers from Pine Bluff to the plantation testified that lie employed Starks as the driver of one of them, the one afterward in the .collision, and put him in charge thereof, and had no knowledge or information that another driver, Wells, had been substituted for him on the trip to the farm in the morning, and knew nothing about the different driver taking the loaded truck back to Pine Bluff in the evening, until after hearing of the collision and wreck that night; stated, however, that he did come along in his own car. near the trucks, when they started out, and had waited, for them at the free bridge to inquire how they were proceeding, and had given Jim Greer, the agent of the company, who collected the hands and accompanied them to the plantation in their work there, money to purchase a fan belt for one of the trucks. The change of drivers, was made about this time, or had been made before.

Several witnesses testified that Mr. McKenzie, the 'manager, was present when the change was made. One or two of the witnesses being carried in his car stated they had noticed the driver being changed, and that Wells had been substituted for Starks at the store near the bridge. The testimony also shows that the hands were paid off by the bookkeeper at the store upon the identification of Jim Greer, and that Wells was paid as a truck driver at his suggestion.

The driver, Jack Jaggers, furnished by the hiring ' agency for one of the trucks, was necessarily the servant of the appellant company, engaged in its business in transporting the hands or laborers to the plantation, and subject to the control and direction of his employer, as was also Jim Greer, whose business it was to collect the hands, assist in getting them to the plantation, and see that they did the work which they were employed to do.

The testimony tends to show that McKenzie, the manager, was present when the change of drivers was made, and one witness said that he knew it was done. In any event, whoever drove this truck taking the laborers to the plantation for cotton chopping, was engaged in the service of the master, whose duty it was to carry them to and from their place of labor, under the terms of their employment.

The driver of one truck sent along by Hood, from whom the three trucks were hired, was not charged with any duty to Hood, the proprietor of the “U-Drive-’Em” agency, to procure or supply drivers for the other two trucks, nor for their safe operation, being sent along by the hiring agency, so far as the other trucks were concerned, only to keep them in good mechanical condition. He was otherwise the servant of appellant company in the transportation of its laborers to and from the plantation.

If Starks, the driver employed by appellant’s manager, had abandoned the truck on the trip without reason or excuse, in the absence of the manager, McKenzie, who had started out with and accompanied the trucks for some distance on the way, and either Greer, who had employed and collected the laborers and was accompanying them to the'plantation, or Jaggers, who was the driver hired with one of the trucks for transporting them, had assumed to place another driver in charge of the truck abandoned by Starks for completion of the trip, there is no reason to say that such substituted driver would not have been the servant of the appellant company in such operation. This substitute for Starks drove the truck on down to the plantation, and was paid off by the bookkeeper of appellant company, upon the designation by Jim Greer as a truck driver, when the other laborers were paid for the day’s work.. He started on back to Pine Bluff, driving the truck, the former driver, Starks, having departed on the afternoon train, transporting and returning the farm laborers to their home in the evening in accordance with their contract of employment, and we hold that he was a servant of the master engaged about the master’s business in so doing, and necessarily for whose negligence, so far as the public is concerned, the master must be held to account.

The instructions complained of do not tell the jury that the truck was operated by the agent of the appellant company, bnt it is. apparent that it was -the intention to leave the jury to find from the evidence that it was operated or driven by the agent of the appellant; and if its meaning was regarded doubtful on this point, the error should have been corrected by a specific objection, which was not made.

The jury has found, on conflicting evidence, that the collision with appellee’s automobile and its destruction and the injury to appellee Nelson was caused by the negligent operation of appellant’s truck in the conduct of its business, and its verdict will not be disturbed.

The assignment that the damages adjudged for personal injury to appellee Nelson are excessive seems to have been abandoned here, but the testimony is sufficient to support the verdict, in any event.

We find no prejudicial error in the record, and the judgments are affirmed.


author: Mehaffy, J.

text:
    Hicks v. Norsworthy.
    Opinion delivered March 26, 1928.
    1. Curtesy — birth op child. — The claim of curtesy by a surviving husband in his wife’s land is established by proof of the birth of a child which lived a short time.
    2. Appeal and error — conclusiveness op chancellor’s finding. • — -The findings of the chancery court will not be disturbed unless found to be against the preponderance of the testimony, and this applies to inferences as well as to direct proof.
    3. Judgment — conclusiveness.—A suit in which a surviving husband claims an estate of curtesy in his deceased wife!s land is not a collateral attack on a decree rendered in a prior suit brought by the husband for the purpose of canceling the deed by which the property was conveyed to his wife on the ground that it was made to the wife instead of to the husband through', mistake.
    4. Judgment — collateral attack. — The judgment Of a court of general jurisdiction is presumed to be valid as against collateral attack.
    5. Curtesy — liability, for taxes. — The owner of an estate of curtesy, rather than the remainderman, held required to pay the ordinary taxes and the amount required- to redeem from a tax sale.

      6. Curtesy — liability for permanent improvements. — Assessments for permanent improvements must be ratably apportioned between the tenant by the curtesy and the remainderman, and a decree requiring the former to pay the entire assessment in an improvement district was erroneous.
    Appeal from Union Chancery Court, Second Division ; George M. LeCroy, Chancellor;
    reversed in part.

      Mahony, Yocum & Saye, for appellant.

      Wilson & Martin and Compere & Compere, for appellee.
   Mehaffy, J.

The appellee, in April, 1921, filed suit in the Union Chancery Court against John Bradley, and alleged that he, Charles Norsworthy, was the owner in fee of a block of land in section 33, township 17 south, range 15 west, and gave a particular description of said land. That he purchased the land from B. R. and C.,0. Bras-well on November 11, 1898, and paid for it $12.50, and the improvements on it had cost him. more than $1,000, and that he and his wife lived on the same, and he paid ' taxes for more than 20 yéars. consecutively.' That it was his homestead. That his wife, Mandy Norsworthy, died in May, 1918, and left surviving her one son, John Bradley, the defendant in this suit. That Bradley sought to obtain the legal title without having any legal or equitable ’rights to it. He alleged that, when he purchased the land, the1 deed was by mistake made to his wife, Mandy Norsworthy. fíe asked that the deed be canceled, title to said land vested- in him, and the title quieted against the said John Bradley.

Bradley filed a disclaimer, alleging that he had conveyed the land to J. ~W. Hicks. Hicks filed an intervention, ’ denying the allegations of the complaint, alleging that he was an innocent purchaser, and that the record title was in Mandy Norsworthy, the mother of John Bradley, from whom he purchased.

The decree was in favor of the defendant or inter'vener, and Norsworthy appealed to the Supreme Court. This court, in the case of Norsworthy v. Hicks, 170 Ark. 877, 281 S. W. 660, affirmed the decree of the chancery court, and held that the testimony was not sufficient to establish a mistake in the execution of the deed to- Mandy instead of Norsworthy; at least, that it was not clear and satisfactory, and, for that reason, affirmed the decree of the chancery court.

In the meantime, and before the decision of the case in this court, J. W. Hicks filed a suit in the Union Circuit Court on May 14, 1921, against Charles Norsworthy and H. O. Lawn, alleging that he was the owner and entitled to the possession of the above described land; that he purchased it from John Bradley, and attached a copy of the deed. He alleged that John Bradley was the son and only heir of Mandy Norsworthy, deceased; that she was, at the time of her death, the owner and in possession of said land; that she was. the wife of Charles Norsworthy, and that Charles Norsworthy and Mandy Norsworthy never had any issue born alive by'said marriage. Judgment was prayed for possession, and for costs, and for damages for the rental value of the land.

In September, 1924, this case was transferred to the chancery court of Union County, and in October, 1926, this case was dismissed without prejudice.

The decision in the Supreme Court of the case of Norsworthy v. Hicks was April 5, 1926, and it was in October after that that the case was dismissed without prejudice. The present suit was brought by Norsworthy November 4, 1926, alleging that he was the owner of an estate of curtesy in the lands described, and alleging that he and Mandy Norsworthy, his wife, had children born alive to them as the issue of said marriage; asked the court to make, an order restraining Hicks and the sheriff of Union County from interfering with or disturbing Norsworthy’s possession, and asked thajt the court declare that Norsworthy had an estate by curtesy in and to said land.

There was an answer filed, denying the material'allegations. Testimony was taken and a decree entered in favor of Charles Norsworthy, after there were amended complaints and amended answers filed.

The first contention of appellant is that the decree is not supported by the evidence, and states that the testimony as to their having children born was too absurd to appeal to intelligent minds or be worthy of any credence whatsoever.

There was very little testimony tending to show that any children were born alive, but Claricy Maryweathers testified that she knew Charles and Mandy Norsworthy; that three children were born to them — two little boys; that two were born dead; that the first one had no life in it at all, and the second had life in it, but did not live, and was not a developed child; that the third one was a girl, and that it lived about three-quarters of an hour. That Charles Norsworthy was a brakeman on the railroad, and was absent from home at the time each of said children was born.

Delia Morgan testified that she was at the home of Charles and Mandy Norsworthy just after two children were born. That one was a boy and the other a girl. That they were breathing, and she heard the little girl whine. That the little girl lived 15 or 20 minutes.

Charles Norsworthy testified that he and Mandy • Norsworthy were married in 1895, and lived together until she died; that he was a brakeman on the Iron Mountain Railroad, and was on the road pretty nearly all the time; that he stayed at Gurdon, which was the headquarters, and ran between Gurdon and El Dorado; that sometimes he would be turned around when he got to El Dorado and would not even get to go home; that Mandy lived in El Dorado; that he was never at home at any time when any children were born to him. and Mandy; that Mandy had been married before to one Ed Bradley, and had a boy named John.

John Bradley testified that he was the son of Mandy Norsworthy; lived with her until her death, and never knew of any children being born after her marriage to Charles Norsworthy.

Claricy Maryweathers was recalled, and testified that John Bradley was about three or four years old when Charles Norsworthy and Mandy Norsworthy were married ; that he was away from home with his aunt when one of Mandy Norsworthy’s children was horn.

While the testimony as to children being born to Charles Norsworthy and Mandy Norsworthy is not very strong, yet it is undisputed, and there is no effort made to impeach the witnesses testifying to the facts. And the rule is well settled that the findings of a chancery court will not be disturbed unless we can say that the findings are against the preponderance of the testimony.

This court said in a recent case: “The well settled rule here is that the findings of the chancery court will not be disturbed unless found to be against the preponderance of the testimony, and this applies to inferences as well as to direct proof.” Rainwater v. Merchants’ National Bank, 172 Ark. 284, 288 S. W. 388. See also Farrelly Lake Levee Dist. v. McGeorge, 172 Ark. 460, 289 S. W. 753; Alexander v. Stack, 172 Ark. 530, 289 S. W. 484; Pettigrew v. Pettigrew, 172 Ark. 647, 291 S. W. 90.

We cannot say that the finding of the chancellor was against the preponderance of the evidence.

It is next contended by the appellant that this suit is a collateral attack upon the decree rendered by the Union Chancery Court on November 6, 1924, and it is 'also contended that the decree of November 26 is. res judicata and a complete bar to appellee’s cause of action in this case. We do not agree with appellant that this is a collateral attack upon the decree rendered by the Union Chancery Court on November 6,1924. That decree was rendered in a case brought for the purpose of. canceling a deed which it was alleged was made to Mandy Norsworthy instead of Charles Norsworthy, through mistake. The only issue in the case was whether the deed made to Mandy Norsworthy when the land was purchased by Charles Norsworthy was made to her through mistake and should be canceled. The question of curtesy was not mentioned by either party. If the contention of appellant was. correct, he would have had no estate by curtesy. He could not be the 'owner of the fee and also have title or right of possession by curtesy. In other words, if the deed had been made to her by mistake and had been canceled, then Norsworthy would have been the owner of the land, and that would be entirely inconsistent with any .claim of a right by curtesy. It would not only have been inconsistent, but both parties regarded the suit as involving nothing but the question of the title to the land. The evidence shows that the appellant, on May 14, 1921, while the chancery case was pending, brought a suit in the Union Circuit Court, putting in issue the question involved in this suit — that is, the question of appellee’s right of curtesy. The question was whether Charles and Mandy'Norsworthy had children born alive. That suit was transferred to the chancery court on September 22, 1924, and remained there without anything being done until Ocotber, 1926.

The decree in the .chancery court, which appellant claims to be a bar to this suit, was decided by this court on April 5, 1926, and thereafter, in October following, appellant dismissed the suit without prejudice, the suit that involved the question of Norsworthy’s right'by curtesy. Of course a judgment of a court of general jurisdiction is presumed valid on collateral attack, but, as we have said, this is not a collateral attack on the judgment.

It is earnestly contended by appellant that it was Norsworthy’s duty to interpose in that suit every defense that he had to the intervention, both legal and equitable, and he calls attention to numerous authorities.

We have already stated that a claim of absolute title in himself was inconsistent with the claim that the absolute title was in his wife and that, because of that, he was entitled to curtesy in the property. He could not be the absolute owner, as he claimed in the original suit filed by him, and have any right by curtesy at all.

Appellant calls, attention to the case of Wilson v. Pannell, 157 Ark. 22, 247 S. W. 64, as authority in the contention that it was the duty of Norsworthy to interpose every defense that he had, both legal and equitable. The .-ourt, however, in that case said: “A comparison of the statement of facts made by the .court in the suit brought in equity by Wilson against Mrs. Pannell to quiet his title to the lot with the statement of facts in the present case will show that they are in all essential respects the same.”

In the'instant case the facts are not the same as the facts in the former case. In the first case, Norsworthy claimed to be the owner in fee, and claimed that the deed made to his. wife was through mistake, and the suit was for the purpose of canceling that deed. And the question of curtesy was in no way involved, was not raised by the pleadings, and, as we have already said, would have been inconsistent with the position that Norsworthytook that he was the owner in fee.

In the above case of Wilson v. Pannell, the court also said:

“Therefore, in a suit between the same parties for the same property, under a state of facts essentially the same, the court having held that the equitable title was in Mrs. Pannell, her plea of res judicata is fully established. ’ Under our Civil Code a defendant may set forth in his answer as many grounds of defense, whether legal or equitable, as he shall have. * * * Under this provision of the Code it is well settled that the defendant in an action at law must interpose all defenses, legtil and equitable.” Wilson v. Pannell, 157 Ark. 22, 247 S. W. 64.

That is true, and if the plea of res judicata was made against the person who was defendant in the former suit, he would have had to interpose all the defenses he had in the former suit. But certainly plaintiff was under no obligation to bring a suit alleging that he was entitled by curtesy because his wife owned the property, when his suit was based on the claim that he himself was the owner of the property.

Appellant also calls attention to the case of Baker v. Hudson, 117 Ark. 492, 176 S. W. 337. The court said in that case, quoting from the case in 96 Ark. (Fourche, etc., v. Walker) 540, 132 S. W. 451, which appellant also refers to:

“It is true that a judgment is conclusive, not only upon the question actually determined, but upon all matters which might have been decided in that suit, but this refers to all matters properly belonging to the subject of the controversy and within the scope of the issues. In other words, the defendant must set forth in his answer all grounds of defense that he may have, or he will be held to have waived such defenses as he failed to set out.”

Certainly it cannot be contended that the facts or issne as to curtesy properly belonged in a suit where the plaintiff was. claiming absolute title in himself. And the question involved in the instant suit was not within the scope of the issues in the former suit.

This court has said:

“These rulings are conclusive of this case, but the contention made by appellee, that appellant was precluded from claiming the homestead in this action on the ground that it was necessarily included within the issues made on the bill to set aside the conveyance for fraud, and therefore res judicata; and the contrary contention of appellant, that he was not precluded by that adjudication, but had a right to claim his homestead exemptions until ousted by writ of possession, together with the suggestion that there is a conflict in this particular between the case of Baker v. Hudson, 117 Ark. 492, 176 S. W. 337, and Bunch v. Keith, 64 Ark. 654, 44 S. W. 452, moves us to announce that we adhere to the doctrine in Bunch v. Keith, supra, as a rule of property. It does not follow that the case of Baker v. Hudson, supra, is. overruled. ’ In the latter case the widow and children, in whose names the cause was revived, had been ousted from possession of the property claimed as a homestead by legal proceedings, and, after remaining out of possession for several years, brought suit for the possession thereof. The case of Baker v. Hudson, supra, was decided right, but it should have been put on the ground that the homestead claimant had been ousted from the homestead by legal proceedings before instituting suit to recover same, and not upon the ground that the homestead right was necessarily involved within the issue presented by the pleadings and evidence in the original suit. * * * A decree of foreclosure in a suit wherein the widow of the mortgagor was made a party -will not bar her from afterward claiming dower, unless her right of dower was actually put in issue. * * * If this, be true as to the dower right, we can see no good reason why the same rule should not apply to the homestead right.” Gray v. Bank of Hartford, 137 Ark. 232, 208 S. W. 302.

Appellant calls attention to a number of other cases on the question of res judicata, and the rule as announced by this court is that a defendant must interpose all the defenses, that he may have, but we know of no rule that requires the plaintiff, when he brings a suit claiming absolute title, to undertake to litigate at the same time his right by curtesy, which is inconsistent with the right he might have as absolute owner. It would not be a bar unless the right by curtesy was actually involved in the suit, and in this case it was not, and neither party seemed to believe that it was, because the appellant himself brought a suit while this original suit was pending, raising the question of right by curtesy.

The appellee filed a cross-appeal from the decree of the court requiring him to deposit a sum of money equal to all of the taxes and interest which had been paid by Dr. Hicks. This amount was $219.14. Appellee has prosecuted a cross-appeal, and contends that he should not be required to pay the full amount of assessments in improvement districts. He concedes that he must pay the ordinary taxes. The order for the deposit of the money for the ordinary taxes or redemption from tax sale is correct, but the court should not have required a deposit of the amount paid as assessments in improvement districts.. This court has decided the question, but the rule is well stated in R. C. L. as follows:

“Where public improvements are made by the municipality, the liability for the assessment therefor, as between life tenant and remainderman, is usually held to depend upon the character of the improvement, whether permanent or temporary, and, according to .the great weight of authority, a special municipal assessment for the cost of a permanent improvement must, with res.pect to property subject to a life estate, be ratably and equitably apportioned between the life tenant and the remainderman. There are, however, a few decisions which apparently hold that the entire cost of permanent improvements falls on the remainderman. One method adopted is to apportion the costs in the proportion which the value of the life estate bears to the value of the whole estate; and in some cases, the burden has been apportioned by requiring the tenant for life to contribute to the extent of interest during- his life, the remainderman to pay the principal. Where, however, the improvement is of a temporary character, requiring repeated renewals during a lifetime, the entire cost thereof falls on the life tenant. Permanent public improvements include the opening, widening or paving of streets, .the construction of a sewer or drainage ditch, and, in some jurisdictions, the paving of a sidewalk; but in other States such paving is regarded as an improvement of a temporary character. Obviously, the question whether the life tenant or the remainderman must ultimately bear the cost of a public improvement may be determined by the provisions of the instrument by which the life estate is created.” 17 E. O. L. 638.

We hold that thq assessments for permanent improvements must be ratably and equitably apportioned between the life tenant and the remainderman. But the evidence in this case is not sufficient to determine what part, if any, of the assessments should be paid by the remainderman. It appears that there were taxes paid for paving districts and sewer districts.

In addition to the rule as stated in E. O. L., this court has decided that the life tenant must pay all the ordinary taxes, and this court said:

“The only questions presented are whether or not the court was correct in rendering a decree in favor of appellees for the recovery of taxes paid and for a proportionate part of the proceeds of the sale of timber and in perpetuating- the injunction against appellant concerning the cutting of timber. The proof shows that appellant failed to pay taxes on the land for certain years, as was his duty to do because he was the life tenant and in possession, enjoying- the rents and profits.” Ussery v. Sweet, 137 Ark. 140, 208 S. W. 600.

It has been many times held that improvement taxes or assessments for public improvements are not ordinary taxes, and that taxes of this kind must be paid ratably by the life tenant and remainderman, when the improvements are permanent. See 21 C. J. 957.

It appears that there was $130.87 improvement taxes for sewer district tax and paving- improvement district tax. In order to determine whether the remainderman should pay any portion of this amount, and, if so, what portion, it will be necessary to take the testimony and for the court to find whether the improvements are permanent, and, if so, what proportion of said taxes should be paid by each, the life tenant and the remainderman.

The case on direct appeal is affirmed, and the decree of the court as to the $130.87 improvement taxes is reversed, and remanded with directions to ascertain whether, under the rules above announced, the remainder-man should pay any portion of this, and, if so, what portion. It is so ordered.

Smith and McHaney, JJ., dissent.