author: Mehaffy, J.

text:
    Jones v. Kelley Trust Company.
    Opinion delivered June 24, 1929.

      Warner ■& Warner and Hardin & Barton, for appellant.

      Pryor, Miles & Pryor, for appellee.
   Mehaffy, J.

This suit was brought in the chancery court of Sebastian County, Fort Smith District, by appellant, asking that the appellees be permanently enjoined from the operation of a. quarry and rock crusher in the city of Fort Smith. The chancellor heard the testimony, made findings of fact, and entered a decree restraining the appellees from doing certain things, but permitted them to operate the quarry and rock crusher under certain conditions. This appeal is prosecuted to reverse said decree.

Many witnesses testified. The testimony is voluminous, and it is too lengthy to set out. We have, however, carefully considered the entire testimony, and have reached the conclusion that the finding of the chancellor on the facts is not against the preponderance of the evidence.

The chancery court found that the rock quarry and crusher are located within the city of Fort Smith, and states that the issues presented by the pleadings are whether or not the appellees are committing, or about to commit, a nuisance by the operation of a stone quarry and crusher in such a manner as to become a nuisance to the plaintiff, or any of them, so as to work material injury to them, or any of them, they 'being respective residents, owning their respective homes, occupied by themselves and members of their families, within the vicinity of the said rock quarry and crusher, the nearest one of said residents being approximately 390 feet from the rock crusher.

The chancery court found that the quarry had been in operation for 30 years or more, but had not been operated in recent years; that the appellees, in anticipation of running it, had contracted with the State Highway Department for the delivery of a large amount of crushed stone, and that they had purchased considerable machinery and were ready to iustall the same, but had not begun actual operation at the time the suit was begun, but were prepared to do so, and would have been operating but for this suit. The chancellor also found that the necessary consequence of the blasting and dynamite was noise and the throwing of broken particles of stone, and, unless done with great care, such noise and throwing of stone will cause material injury to plaintiffs in the enjoyment of their homes.

The court found that the operation of the quarry and the rock crusher, unless done with the highest degree of caution and care, will be a nuisance, keeping the appellants in daily fear of injury to their persons or to the persons of their families, and would be a source of material vexation and anxiety to them, or probable injury to their homes, or some of them. And the court further found that, while there is a conflict in the testimony, there is likely to occur, .in the operation of the quarry, injuries which entitle them to injunctive relief; but found that the quarry and rock crusher may be so operated as to not be a material injury to plaintiffs and their families and their right of property.

The court also found that the city commission had granted a permit to operate the quarrv'and rock crusher, and the court limits the decree in its injunctive effect so as to reduce the noise incident to the operation and the danger of hurling' rocks to the lowest possible terms, so as to safeguard appellants’ rights, as far as this may be accomplished by a decree.

The court therefore decreed that the appellees, and each of them, their agents, employees and servants, be and they are jointly and severally restrained from disturbing the peace and quiet of the families of plaintiffs, or any of them, by the explosion, at or near said rock quarry, of dynamite, either for blowing out or loosening stone from the bluff, or by reducing stone that had been thrown from the bluff, except at the times mentioned in the decree, under the supervision of an expert employee. After having conditioned the dynamite shot, so that the noise produced will be reduced to the lowest possible terms, and so that the stone will not be hurled so as to in any way injure the plaintiffs, or any of them, or members of their families, or injure their property, or fall upon the same. The court then enjoined the appellees from blasting at any time except within the hours from 10:30 to 12 a. m. and 5:30 to 7 p. m., and enjoined them from firing any shots except under the supervision of an expert, manager or superintendent, being personally present. The decree also required the appellees to give notice of the hours when such shots would be fired, and enjoined appellees permanently from making any secondary shots, known as doby shots, and decreed also that injury to appellants, their families on property, from noise or from flying stone, shall be conclusive of an intentional or grossly negligent disregard of the terms of this decree. The court retained jurisdiction for the purpose of enforcing the decree, but the decree was otherwise final. Both parties appealed.

Appellants’ first contention is that the permit granted by the city commission is no defense, and we agree with the appellants in this contention. Ft. Smith v. Western Hide & Fur Co., 153 Ark. 99, 239 S. W. 724; Wilder v. Little Rock, 150 Ark. 439, 234 S. W. 479; Sander v. Blytheville, 164 Ark. 434, 262 S. W. 23, 20 R. C. L. 501.

It is next contended by appellants that they are not estopped, and in this contention of appellants we also agree. 46 C. J. 777; Ft. Smith v. Western Hide & Fur Co., 153 Ark. 99, 239 S. W. 724; Osceola v. Haney, 147 Ark. 555, 227 S. W. 407; Tatum v. Ark. Lumber Co., 103 Ark. 254, 146 S. W. 145; Gus Blass v. Reinman, 102 Ark. 290, 143 S. W. 1087; Brede v. Minn. Crushed Stone Co., 143 Minn. 374,173 N. W. 805, 6 A. L. R. 1095.

The evidence in this case shows that, while there had been a quarry and rock crusher operated at this place for many years, yet it had not been in' operation in recent years; and, moreover, the operation of the plant by ap-pellees appears from the evidence to be materially different from the operation of the quarry and rock crusher formerly. The parties would certainly not be estopped, under the circumstances in this case, when they not only notified appellees, but began the suit before any operation was begun.

Appellants next contend that the' streets and alleys were duly dedicated. The court, however, in its decree finds from the facts, and declares as a matter of law, that the question of streets is not presented for consideration at this time in this decree.' But, if it had been presented, we think the evidence in the case clearly shows that the occupation of the streets, or the land where streets might be laid out, does not entitle the plaintiffs to an injunction. However, as this question does not seem to have been passed upon by the court below, and while the court held that it was not presented to the court at this time, it becomes unnecessary to decide it here.

It is then contended that the record abundantly sustains the complaint, and a permanent injunction should have been ordered. That is, the appellant contends that a permanent injunction preventing the operation of the quarry and rock crusher entirely should have been granted. The court did grant a permanent injunction against operating the quarry and rock crusher in such a manner as to endanger the plaintiffs, or their families, and permanently enjoined the appellees from so operating the quarry and crusher that any stone would fall on the lands of the appellants, and restricted the operation between the hours of 10:30 and 12 a. m. and the hours of 5:30 and 7 p. m., and appellees are permanently enjoined from operating the quarry and rock crusher at any other time, and the court retained jurisdiction for the purpose of enforcing the decree.

Operating a quarry and rock crusher may or may not he unlawful, depending upon the circumstances in each particular case. What might be a nuisance done in one place would not necessarily he a nuisance done in a different place.

“The locality is to be considered in determining whether there is a nuisance, although it is not conclusive, but is to be considered in connection with all circumstances in the case. There are some nuisances in which the act complained of may he wrongful, hut constitutes a nuisance only by reason of its location, and there may be an act or condition that is rightful, or even necessary, but may become a nuisance by reason of its location. What might be a nuisance in one locality might not he so in another. A business which might be perfectly proper in a business or manufacturing neighborhood may be a nuisance when carried on in a residential district; and, conversely, a business which might well be considered a nuisance in a residential portion of a city or village may be proof against complaint when conducted in a business or manufacturing locality.” 46 C. J. 666.

The law is well settled by the decisions of this court that the operation of a business may be a nuisance in one locality and not in another. See Ft. Smith v. Western Hide & Fur Co., 153 Ark. 90, 239 S. W. 724.

The operation of a quarry and rock icrusher is a lawful business, but this court has said that, if on© does an act in itself lawful, which yet, being done in that place, necessarily tends to the danger of another’s property, it is a nuisance, for it is incumbent on him to find some other place to do that act where it will be less offensive. Yaffe v. City of Ft. Smith, 178 Ark. 406, 10 S. W. (2d) 886; Bickley v. Morgan Utilities Co., Inc., 173 Ark. 1038, 294 S. W. 38. The court in the instant case, however, found that, unless operated with restrictions mentioned in the decree, the operation of the quarry and rock crusher would he a nuisance, and therefore permanently enjoined the doing of certain things, and permitted the operation only upon condition that it should he so operated as not to damage the appellants.

Every person is entitled to the undisturbed possession and enjoyment of his own property. The anode of enjoyment is necessarily limited by the rights of others; otherwise it might be made destructive to their rights altogether. Where it was contended that the defendant had a right to operate its plant, although large quantities of gravel, slate and stone were thrown on plaintiff’s land, the court said: “The use of land by the proprietor is not therefore an absolute right, but qualified and limited by the higher right of others to the lawful possession of their property. To this possession the law prohibits all direct injury, -without regard to its extent or motives of the aggressor. A man may proseioute such business as he chooses upon his premises, but he cannot erect a nuisance to the annoyance of the enjoining proprietor, even for the purpose of lawful trade. * * * He may excavate a canal, but he cannot cast the dirt or stones upon the land of his neighbor, either 'by human agency or the force of gunpowder. If he cannot construct the work without the adoption of such means, he must abandon that mode of using his property, or be held responsible for all damages arising therefrom. He will not be permitted to accomplish a legal object in an unlawful manner. And it would seem that one who makes a blast on his own land and thereby causes rock to fall upon the lands of another, or upon the highway, is liable as a trespasser for injuries inflicted, although the blast is fired for a lawful purpose and without neglect or want of skill.” Central Iron & Coal Co. v. Vanderheurk, 147 Ala. 546, 41 So. 145, 6 L. R. A. (N. S.) 370.

We think the chancellor was therefore correct in permitting the appellees to operate only on condition that they did not throw stones on the lands of appellants and did not do anything that injured or damaged the appellants or their families.

‘ ‘ Counsel for defendants cite a case holding, in effect, that, if the injury complained of is caused by the operation of a lawful 'business, carried on in the district given over to kindred classes of business, and the injury is only such as naturally flows from the operation of a business of that icharacter, an injunction will not he granted if it would entail a serious injury to the defendant or to the public as. compared to the injury complained of by the plaintiff. This is commonly referred to as the comparative injury doctrine. The cases in which this doctrine has been given effect are icollected in a note to Bristol v. Palmer, 31 L. R. A. (N. S.) 881, 893, and in 20 R. C. L. 480.” Brede v. Mmn. Crushed Stone Co., 143 Minn. 374, 173 N. W. 806, 6 A. L. R. 1092.

The oases holding that the rights of habitation are superior to the rights of trade, and, whenever they conflict, the rights of trade must yield to the primary or natural right, are also collected in note to the case of Bristol v. Palmer.

The chancellor found in this case, on conflicting* testimony, that appellees should be permitted to operate the quarry under the conditions named in the decree, and that they should be permanently enjoined from operating it in any other way.

A majority of the court are of opinion that the finding of the chancellor is correct, and that it should be affirmed. The writer does not agree with the majority, hut is of opinion that a permanent injunction should have been granted. However, if operated only between the hours mentioned by the chancellor, and so that no damage can be done to the appellants, in compliance with the decree of the chancellor, appellees should be permitted to operate. The chancellor can at any time permanently enjoin the operation, if the decree is not complied with, or if the operation results in damage to the appellants,

The decree provided for a special bailiff, at $150 a month, to he paid by the appellees, and from this part of the decree of the chancellor there is a cross-appeal'. Counsel say they have found no authority which grants the ichaneellor the right to appoint a bailiff at the sole expense of one of the parties. It has been repeatedly held that a chancery court has the right to ascertain what damages will result in the doing of a certain thing and require the party wishing to do the act to pay the damages, and, upon its refusal to do so, to enjoin the commission of the act. In this case the chancellor found that this was necessary in order to protect the appellants, and the appellees are permitted to operate under the conditions named in the decree or not, just as they wish. If they do not want to be permanently enjoined, they must comply with the decree of the chancery court. The chancery court had authority to issue a permanent injunction, but he also had authority to permit the operation under the conditions named. This leaves the appellees with the option to comply with the terms of the decree or be permanently enjoined from operating.

The decree of the chancellor is correct, and is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Carter v. St. Louis-San Francisco Railway Company.
    Opinion delivered June 24, 1929.

      W. L. Pope and Tom W. Campbell, for appellant.

      E. T. Miller, E. L. Westbroohe, Jr., and E. L. West-brooke, for appellant.
   Mehaffy, J.

Appellant brought suit in the Lawrence Circuit Court for the value of a carload of flour, alleging in his complaint that on December 12,1927, he purchased from the Buhler Mill & Elevator Company of Buhler, Kansas, a carload of flour, which was then and there loaded by said company- and delivered to said railway company, consigned to the appellant at Walnut Bidge, Arkansas, said railway company then and there delivering to the said mill company a bill of lading for said flour, showing the consignment thereof to appellant, which bill of lading was promptly forwarded to appellant; that, when said flour arrived at Walnut Bidge, said railway company wrongfully delivered it to the Dixie Wholesale Corporation, and wrongfully permitted said wholesale corporation to convert said flour to its own use, to plaintiff’s damage in the sum of $1,369. It asked judgment for this amount, with interest.

Attached to the complaint as Exhibit A was a copy of said bill of lading, with the following caption: “Uniform straight hill of lading prescribed by the Interstate Commerce Commission. Original — Not negotiable.”

The appellee answered, admitting that the carload of flour was delivered to it and duly consigned to appellant; admitted the issuing of the bill of lading covering the same, and admitted that it delivered said car of flour to the Dixie Wholesale Corporation, and alleged as a defense that it so delivered the flour on the oral order of the plaintiff to defendant’s agent.

The appellee’s witnesses testified that appellant came to the office, asked whether the flour had come, and, when told that it had not, appellant told witness to deliver said flour to the Dixie people when it did arrive, and witness did it. About the time suit was brought, appellant asked witness about it, but had never said a word about it up to that time. Witness was in the employ of the Frisco.

John Poindexer, a clerk in the Frisco office, testified that he remembers Carter coming down and talking about the car of flour; Carter asked if there was a car for him, but did not produce the bill of lading. The car was not there at the time, 'but it came on the morning of the 17th. Carter told them he was expecting a car of flour, and for them to deliver it to the Dixie Wholesale Corporation when it came. Does not know who signed for the flour, but it was signed, “John Carter, by E. Burrow.” He testified that W. P. Burrow was present when Carter had the conversation with witness Ludwig.

Harry Dulaney testified that he saw John Carter at the Frisco depot; that he asked in regard to a car of flour, and the agent told him the flour had not come; Carter replied, “If this flour comes in, will you turn it over to the Dixie people?” Mr. Ludwig said, “Yes.”

Ludwig testified again that he was present when the freight delivery receipt was signed, and it was signed by Mr. Burrow’s son.. The freight wa.s paid by Mr. Burrow, the manager of the Dixie Wholesale Corporation. Carter did not sign the freight bill, and was not present when it was signed. W. P. Burrow, the manager of the Dixie Wholesale Corporation, was present when Carter told witness to deliver the flour to the Dixie Wholesale Corporation.

John Carter, the appellant, testified that he did not tell the agent or anybody else to deliver the flour to the Dixie Wholesale Corporation; that, when the flour was shipped from Kansas, the bill of lading was sent to him and he received it in due course. He identified the bill of lading covering shipment. The bill of lading was stamped with a rubbei- stamp: “St. Louis & San Francisco Railroad Co., Buhler, Kansas, Dec. 12, 1927.” Received this hill of lading about December 14. He went to Walnut Ridge to see about it five or six days after he got the bill of lading; when he went the agent was not in; nobody there that morning. Then he went to the Dixie Wholesale Corporation store, and saw they had a fresh shipment of flour; inquired about it, and they admitted they had unloaded his flour. He then went back to see the agent. He then testified that the agent did not claim that appellant had given him any authority to let the Dixie Wholesale Corporation have the flour; that he had just made a mistake. Appellant said that he had not given any such authority as to this car, but had given authority to deliver another car that he had signed up for. Agent Ludwig replied, “Well, maybe you are right about it, but I was thinking maybe you gave me authority to deliver this one;” whereupon appellant replied, “You know I didn’t do anything of the kind;” and agent Ludwig replied, “Well, that is right, you didn’t, and it was that other one I had in mind. ’ ’

Appellant was in the brokerage business; was never agent for the Dixie Wholesale Corporation; never had any connection with the company in any way. He is a cousin to Burrow; had no connection with Burrow or his company further than he had with other companies he sold stuff to; had a number of oars before this delivered to the Dixie people. E. Burrow is a son of the manager of the Dixie Company.

Mrs. Cleveland Burrow testified that she heard the conversation that appellant told about between appellant and Mr. Ludwig, and corroborates the statement of appellant. Her husband is a cousin to Carter.

Ludwig was called in rebuttal, and testified about the conversation, but stated that he asked Carter to withdraw the lawsuit, and again testified about Carter directing’ him to deliver the car to the Dixie Wholesale Corporation.

The plaintiff requested the court to give to the jury the following instruction:

‘‘You are instructed that, if you find that the defendant railroad company delivered the car of flour to one other than the plaintiff, and that such other person did not have possession of the bill of lading issued on the car of flour in question, you will find for the plaintiff. ’ ’

The court refused to give this instruction, and gave the following instruction:

“ Gentlemen of the jury, this is an action brought by John Carter, the plaintiff, against the St. Louis-San Francisco Bailway Company, in which the plaintiff, Carter, seeks to recover the sum of $1,369 which he claims is due him on a car of flour shipped to him at Walnut Bidge, Arkansas, and which he alleges was wrongfully delivered by defendant railroad company, or its agent, to another party in Walnut Bidge.

“Now to this complaint the defendant filed its answer, in which it admits that it delivered the car of flour mentioned in the complaint of plaintiff to the Dixie Wholesale Corporation, and that it did so at the direction of the plaintiff, John Carter.

“2. Now, gentlemen, the only question for you to determine is whether or not the plaintiff, John Carter, directed the agent nf the defendant, Frisco Bailroad Company, here at Walnut Bidge, to deliver this car of flour to the Dixie Wholesale Corporation. The burden is upon the defendant, the Frisco Bailroad Company, to show by a preponderance of the evidence, which simply means the greater weight of the evidence, that the plaintiff, John Carter, authorized and directed the agent here of the Frisco Bailroad Company to deliver this car of flour to the Dixie Wholesale Corporation.”

After giving instruction one and two, the court gave the following instructions, over appellant’s objections:

“Now, if you believe from a preponderance of the testimony that the plaintiff, John Carter, authorized and directed the Frisco Bailroad Company’s agent here in Walnut Bidge to deliver this car of flour to the Dixie Wholesale Corporation, then it would be your duty to find for the defendant railroad company; and, unless you so believe, you should find for the plaintiff in the amount sued for, which is $1,3-69, with interest at 6 per cent, from December 12, 1927.
“You are instructed that, if you find that the defendant railroad icompany delivered the car of flour to one other than the plaintiff, which was John Carter, and that such person did not have possession of the bill of lading issued on the car of flour in question, you will find for the plaintiff; unless you further believe from the evidence that this plaintiff, 'Carter, authorized and directed the Frisco agent here in Walnut Bidge to deliver it to the Dixie Wholesale Corporation.”

The court then gave instruction number 5, requested by appellant, which is as follows:

‘ ‘ If you find that the greater weight of the evidence in this case sustains the plaintiff’s contention that he did not authorize the railroad company to deliver the car of flour to the Dixie Wholesale Corporation, or if you find that the evidence is evenly balanced on this question, then in either of such events your verdict should be for the plaintiff. In other words, this is' simply an instruction (bearing on the preponderance of the testimony.
“No. 6.. Now, you are the sole and exclusive judges of the credibility of the witnesses and the weight to be attached to the evidence of witnesses who have testified here before you. In'weighing the testimony of these witnesses you should take into consideration their demeanor on the witness stand; their means and opportunities of knowing the facts to which they have testified; the reason- ■ ableness or. unreasonableness of their statements; the con- ’ sistenoy or inconsistency of their statements one with another and with other facts and circumstances proven in the case; their relationship to the parties at interest, if any is shown; their interest in the result of your verdict, if -any — weighed under these rules you would be authorized to believe or disbelieve the whole or any part of what any witness has testified to in the case.
“No. 7. Now, if you find for the plaintiff, the form of your verdict will be: ‘We, the jury, find for the plaintiff in tlie sum of $1,369, with interest at 6 per cent, from December 17, 1927.’ If you find for the defendant, the form of your verdict will be: ‘We, the jury, find for the defendant’.”

The jury returned a verdict for the defendant. Before the verdict was returned, however, after argument of counsel and after the jury had retired to consider of their verdict for a time, they returned into court and stated that they had not agreed upon a verdict, but sought the court’s information on the following question: “Is it authority for him to notify the agent in person to release the flour and turn it over to another person?”

The court said: “Well, I think the court covered that in his instructions. The instruction was that the burden is on the defendant to show that the plaintiff, Carter, authorized the agent to deliver these goods and instructed him to deliver them to the Dixie Wholesale Corporation. If he did that, why, you would find for the defendant, and unless you believe that he did, why, you would find for the plaintiff. If that authorization was done either way, in writing or orally, if it was done either way, it would be sufficient.”

One of the jurors then said: “What we want to know about it is, we do not know how it comes that people can keep the bill of lading without the railroad company being responsible for the flour.”

The court said: “Well, I think the court covered that with its instructions there. The main instruction on that —if you would like to hear all the instructions, we will have them read to you. These instructions here seem to cover that. ‘You are instructed that, if you find that the railroad company delivered the car of flour to one other than the plaintiff, which w.as John Carter, and that such other person did not have possession of the bill of lading issued on the ear of flour in question, you will find for the plaintiff; unless yoci further find that the plaintiff, John Carter, authorized the defendant railroad company, or its agent, to deliver the flour to the Dixie Wholesale Corporation’.”

The juror then said: “Well, he would have to deliver the hill of lading when he got the flour, wouldn’t he?”

The court: “No sir; he wouldn’t have to do that. That seems to cover the situation as the court sees it. As the court sees it, gentlemen, it is not a question as to the hill of lading. That simply shows that the car was shipped. The question involved in this case is whether or not the plaintiff authorized the Frisco agent here in Walnut Bidge to deliver this flour to the Dixie Wholesale Corporation. If he did, then, gentlemen, you should find for the defendant. If he didn’t authorize it, why you should find for the plaintiff. And the burden is on the defendant railroad company to show by a preponderance or greater weight of the testimony, which means the testimony that is most convincing, that the plaintiff, Carter, authorized them to deliver this flour to the Dixie Wholesale Corporation. It is not material, gentlemen, about the bill of lading and the other papers in connection with it. Now, as I stated, that is simply the only question that is submitted to this jury. I believe, gentlemen, that you ought to be able to agree on that. It is getting late in the day, but I think I will let you try it a while longer. ’ ’

The jury then returned a verdict for the defendant.

Appellant filed and presented to the court his request fon a judgment notwithstanding the verdict, upon the ground that, under the undisputed testimony in the case, plaintiff is entitled to .such judgment. This motion was by the court overruled, and exceptions saved.

Appellant then filed a motion for a new trial, which was overruled, exceptions saved, and this appeal duly prosecuted to this court.

Appellant contends that the shipment of the flour involved in this case was an interstate shipment, and is therefore governed by the Federal Bills of Lading Act of 1916, and in this appellant is correct. It is true, as stated by appellant also, that the almost universal rule is to require the production of the bill of lading- before making a delivery. The carrier has, of course, a right to require this, and if it delivers goods without the production of the bill of lading, it does so at its peril. Even a direction in the bill of lading to notify another person does not authorize the carrier to deliver the goods to such person without the surrender of the hill of lading.

Appellant relies on a statement of the rule quoted by him from 4 E. C. L. 840. It is also true that a carrier will be justified in delivering the property to the true owner, whether he has the hill of lading or not, and without the surrender of the hill of lading, because the right of the true owner of the property is paramount to the claim of all others, no matter what may he their relations to each other.

“When a common ¡carrier deliver goods to one other than the consignee, however, he does so at his peril, and it devolves on him to prove that he has delivered them to the real owner. Consequently it is held to be only just and reasonable that the carrier, when a demand is made on him for the goods by a person other than his bailor or consignee, should be allowed to hold the goods for a sufficient time to investigate in good faith and to satisfy his honest doubts as to their ownership before delivery, without making himself liable in conversion. ” 4 E. C. L. 843.

In the instant case the owner himself, according to the testimony of appellee, directed the carrier to deliver to the Dixie Wholesale Corporation. As to whether he did direct the carrier to deliver to this company was a question of fact.

“The general rule holding the carrier liable for a delivery of goods to the wrong person does not apply where the delivery is due to- the negligence of the consignor. This is true, for instance, where the delivery to the wrong person is due to the fact that the goods are not clearly marked. * * * Also, of course, a delivery of goods by a carrier to the wrong person may be ratified by the consignor, and in such a case the carrier i.s relieved from liability.” 4 E. C. L. 846.

Although the carrier might have the right to require the bill of lading, and although it would be liable if it delivered to tlie wrong person without the bill of lading, this action on its part could be ratified, and of course, if it could be ratified, it could be authorized by the true owner. It is not always necessary that a consignment be delivered to the party to whom it is addressed in person. It may be lawfully delivered to an agent, clerk or employee, duly authorized by him to receive the same. 4 R. C. L, 839. .

Certainly, if he could direct one person or authorize one person to receive the goods, he could authorize another, and the appellant had the right to authorize the carrier to deliver the goods to the Dixie Wholesale Corporation. And if he did this, and the carrier complied with this direction of the owner and delivered to the Dixie Wholesale Corporation, it would certainly not be liable to the owner, who had given such directions. One cannot authorize a thing to be done and then recover damages because it is done. Delivery to the agent of the consignee, o.r any other person entitled to the goods, who has been authorized to receive the goods, will relieve the carriers from further liability. If the person to whom the goods are delivered is the agent authorized to receive them, the delivery will be sufficient.

“And when the carrier is sued for misdelivery, it must show that the agent was authorized to receive the goods, or at least that he had been clothed with such apparent authority as to justify it in presuming his authority; but no greater degree of proof of authority in the person to whom they were delivered is required than for any 'other issue in a civil case. ” 10 C. J. 261.
“Consequently, where the goods are deliverable by the bill to the order of the consignee, as in this case, the consignor could authorize his agent to receive the goods for him without surrendering the bill, as long as he is the holder of the bill. And the delivery would be a legal delivery as between him and the carrier, no rights of a third person intervening.” Fere Marquette Ry. Co. v. French Co., 254 U. S. 564, 41 S. Ct. 195.

While the hill of lading must be in writing, the order directing the agent to receive the goods is not required to be in writing. Kempner Mill & Elevator Vo. v. Hines, 293 Mo. 88, 239 S. W. 803.

The only question in this case is whether the consignee, the owner of the goods, could lawfully order the carrier to deliver to another person orally, and we hold that he can lawfully do this. It makes no difference whether the person to whom he orders the carrier to deliver the goods is 'his agent or whether he has sold the goods to this person; in either event, if the consignee directs the carrier to deliver to another person 'and the carrier does deliver to such person, it is not liable to the consignee who made the order.

The testimony in this case is conflicting, and it was therefore a question of fact for the jury, if there is any substantial evidence to support it. There can be no dispute about there being substantial evidence to support the verdict, and the judgment is therefore affirmed.


author: McHaney, J.

text:
    Home Telephone Company v. North Arkansas Highway Improvement District No. 2.
    Opinion delivered June 24, 1929.

      H. A. Northcutt and Oscar E. Ellis, for appellant.

      Coleman & Reeder and S. M. Casey, for appellee.
   McHaney, J.

This is the second appeal of this case. The facts are stated in the opinion in the former case, North Arkansas Highway Improvement District No. 2 v. Home Telephone Co., 176 Ark. 553, 3 S. W. (2d) 307. To repeat briefly, appellant sued the Davis Construction Company in the Fulton Circuit Court to recover for damages done to its telephone line in building the highway being constructed in the district. The Davis Construction Company answered, and prayed that appellee be made a party defendant, and that, if a judgment be obtained against it, it have judgment against the district for a like sum. The court made an order making the district a defendant, and some land of service was had upon the district, and judgment was entered by default against it, and in favor of the Davis Construction Company. When it discovered that a judgment had been entered against it, it filed a motion to quash such judgment on the ground that it had not been properly served in the action, and that it could not be sued in Fulton County, by reason of the provisions of § 4, act 473, Acts of 1917, page 2181.

Appellant interposed a demurrer to the motion to quash, which the court sustained, and the district appealed to this court, which resulted in a reversal, and the case was remanded, with directions to overrule the demurrer, and for further proceedings in accordance with law and not inconsistent with the opinion.

Mandate was taken out and filed in the lower court, and appellant thereupon filed a response to the motion to quash, to which the appellee interposed, and the court sustained, a demurrer. On the former appeal, the court said: ‘ ‘ The court was without jurisdiction to bring the highway district into court in Fulton County, its domicile, being fixed by law in Izard County, and service being required to be had in all suits against it by service had on the commissioner of that county. Section 4, act 473 of the Acts of 1917.”

Upon an examination of the response in connection with the opinion of this court in the former appeal, we think the demurrer to the response was properly sustained. This court expressly held that the Pulton Circuit Court was without jurisdiction to bring the highway district into its court, under the authority of the act creating the district, and there is no showing that the commissioners voluntarily entered the appearance of the district in the action so as to give the Pulton Circuit Court jurisdiction, even though it be conceded that they could do so. Moreover, appellant is in no position to complain at the action of the court in quashing the judgment against the district in favor of the Davis Construction Company. True, it has garnished the district on its judgment against Davis, but that would not authorize appellant to resist a motion to quash a judgment obtained by the Davis Construction Company against the district.

We find no error, and the judgment is affirmed.


author: Butler, J.

text:
    Phillips v. Jones.
    Opinion delivered June 24, 1929.

      J. J. Montgomery and Jesse Reynolds, for appellant. G. 0. Patterson, A. S. Hays, Hugh Basham and W. L. Cunningham, for appellee-.
   Butler, J.

The .suit involves the contest of the last will and testament of Henry W. Jones, deceased, who left surviving him three children by a former marriage and a widow who had -been married before her marriage to Jones, and who, at that time, was the mother of a number of children. Jones executed his will in 1916, by which he gave to his wife all of his property for her life, and at her death to her children, the -stepchildren -of Jones, and his own children were bequeathed the sum of $5 each. The will was contested by the deceased’s children, Robert Jones, Charlie Jones and Rhoda Burkett, on the ground of lack of testamentary capacity, and undue influence. There were no children born to the testator by his second marriage.

In the circuit court the case was submitted to the judge sitting as a jury, who, after having -heard the testimony, found against the will, and it is to review his decision that this appeal has been prosecuted.

The judge, in trying the case, necessarily -considered the question of testamentary capacity and undue influence together, and this court is concluded by his -finding, if there was any substantial evidence adduced which would tend to establish and sustain Ms finding and judgment. In determining the sufficiency of the evidence this court must give to the evidence heard by the court tending to establish the correctness of his finding its strongest probative force and value. This rule is so well settled that we deem it unnecessary to cite the authorities sustaining’ this view.

As we have said, the questions of testamentary capacity and undue influence are so interwoven in any case where these questions are raised that the court necessarily considered them together (St. Joseph’s Convent v. Garner, 66 Ark. 623, 53 S. W. 298), for in one case where the mind of the testator is strong and alert the facts constituting the undue influence would be required to be far stronger in their tendency to influence the mind unduly than in another, where the mind of the testator was impaired, either by some inherent defect or by the consequences of disease or advancing age. It is clear that feeble intellect will not be of itself sufficient to establish lack of testamentary capacity, for that condition must be so great as to render the testator incapable of appreciating the nature and consequences of his act; but this feebleness may be inferred when, from the facts in proof, it is apparent that he was incapable of appreciating the deserts and relations of those whom he excludes from participating in his estate, although he might have had the ability to retain in memory, without prompting, the extent and condition of his property, and to comprehend to whom he was giving it. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Mason v. Bowen, 122 Ark. 407, 183 S. W. 973, Ann. Cas. 1917B, 713.

The facts constituting undue influence largely depend upon the condition of the mind of the person alleged to have been influenced. It has been said in the case of Kelly’s Heirs v. McGuire, 15 Ark. 555, that if one is of such great weakness iof mind as to be unable to resist importunity, and his act is not that of a judgment deliberately exercised, but the result of the control of a stronger mind by any means or artifice, cunning or fraud, that act is void.

The court, in discussing what would amount to undue influence, associates the state of mind with the causes operating upon it to induce the commission of an act. In the case of Tobin v. Jenkins, 29 Ark. 157, where the question before the court was whether or not the testator was of disposing mind and memory to make the will, and, if he was, was he also at the same time free to act, this language was used:

“Free agency and capacity to contract are each indispensably necessary to make a valid contract or execute a valid will. The lack of mind comprehends both, because without mind there can be no free agency; but if there is mind it must be free to act, and if restrained unduly to the extent that free agency is destroyed, the act is void. This incapacity, or undue restraint, must exist ait the time the act is done; if capacity and free agency exist then, the act is valid, irrespective of the state of mind or degree of restraint, whether before or after that time. 'But, in order to determine the capacity and its free action at the time- the will is made, a wide range of inquiry is permissible into facts and circumstances, whether before or after the time of the making of the will, the better to enable the jury to determine the probable state of the mind and the extent and force of the restraint at the time the will was executed. And as regards undue restraints, it may be proper to remark that it is not necessary that the mind should act under influences at the time brought to bear, or then employed, but they may be such as have at a previous time been so fixed and impressed as to retain their controlling influence at the time the act is done. Nor is such restraint necessary to be effected by force or intimidation; for it has been held, upon authority, that if the mind acts by force of long training to submission, .so that the will of another is adopted for its own, and without reflection, the party thus influenced is incompetent to contract. * * * There is another ground, which, though not so distinct as actual force, nor sio easy to be proved, yet, if it should be made out, would certainly destroy the will, and this is, if a dominion was acquired over a mind of sufficient sanity for general purposes, and of sufficient soundness and discretion to regulate his affairs in general; yet if such a dominion or influence were acquired over him as to prevent the exercise of such discretion, it would be equally inconsistent with the idea of a disposing mind.”

This reasoning is adopted by the court in the case of Kennedy v. Quinn, 166 Ark. 509, 266 S. W. 462. There may be, however, influences which determine the action of the testator which axe legitimate in their nature, such as that which springs from natural affection and which is occasioned by the associations of the testator with the beneficiaries in the ordinary affairs of life and by the confidential relations existing between them at the time of the making of the will. The influence which the courts reprehend, and which is considered sufficient to overturn the act of the testator, is that evil influence which springs from fear, coercion, or other causes which deprive the testator of his free agency and the disposing of his property. Milton v. Jeffers, 154 Ark. 516, 243 S. W. 60.

With these principles of law in mind, we proceed to the examination of the testimony introduced at the trial in the court below.

There is evidence that at the time of the execution of the will there was no one of the beneficiaries present, but the testator, unaccompanied, appeared in the office of an attorney and there informed the attorney as to how and to whom his estate should be given. The attorney, and others who happened to be in the office at the time, and who witnessed the will, gave as their opinion that, from their previous knowledge of the testator and of his conduct at the time, he had sufficient mental capacity to understand and appreciate the full force and effect of his testamentary act. Others, his neighbors, and men with whom he had had business transactions, told of the way he transacted his ordinary business — how he would make purchases for himself and his neighbors, how he would sell his own and their products and account' to those for whom he was acting for the proceeds of the sales made— and, basing their opinions on these facts detailed by them, stated that he was able to and did, through the course of many years, both before, about the time, and after the execution of the will, act with fairly good business judgment, and that they thought that he had sufficient mental capacity to execute his will and to make disposition of his estate in the manner he desired.

There was other testimony that his own children had virtually deserted him, electing to make their home with their mother, and that Mr. Jones resented this conduct on their part, and stated that they had “thrown him down,” and that he was going to “throw them down;” also that he was happy in the association of his second wife, who survived him, and her children, who had lived with him through many years, and that the wall executed by him was the expression of a just resentment toward his own children and a reward for the care and affection which he had received from strangers to his blood.

But there was another state of facts presented by the testimony which was in conflict with that we have above related, and we are now to consider this testimony, giving the same its strongest probative value to ascertain if it was sufficient to warrant the trial judge in his finding against the will. For the purpose of this decision, we must view this evidence through the eyes of the trial'court, who viewed the witnesses, considered their interest in the case, their knowledge and means of information, their demeanor while upon the stand, with all other surrounding circumstances, -and whose province it was to judge as to their credibility and the weight of their testimony. Two facts are apparently undisputed in the evidence; the first is that the 'testator could, and did, attend t'o his ordinary business affairs with a fair degree of business judgment; the other is that he was a man of feeble intellect, of low moral standards, and easily influenced by bis associates. It appears that he had bnt a small amount of property, and that he made his livelihood by tilling' a small farm and selling the produce derived from it, the most of his property having been acquired by inheritance from his parents, but which he did not dissipate, and perhaps made some slight additions to it. He married apparently early in life, and lived with his wife until 1893, she having borne him four children— two boys and two girls. In that year his wife obtained a divorce from him, and was awarded the custody of her children, all of tender years, the youngest being at that time only two years of age and the oldest being nine years of age. She was given, for the support of herself and these four children, one horse, one cow, ten head of hogs, and one-third of the proceeds of a hillside forty acres of land, all of which amounted to the sum of $150, and with this she and her four children went out into the world to live and thrive as best they might. It is shown that she asked for and obtained the divorce because of the thriftless and foolish conduct of her husband. A number of years after the divorce the father brought them back to his farm and there kept them for a short time. But in the meantime he had moved upon that farm a widow — the widow Poteet, with her numerous brood. He installed the widow and her children in the good house on the front of the farm, and put his own children, two of whom were girls, in a log hut on the back part of his farm, and in the evenings he spent his- time with the widow.

It developed that about that time he sought to make his union with the -widow more legitimate and lasting, she made a condition for the marriage that he should ‘ ‘ get rid of his dern kids, ’ ’ which he did, telling them that they would have to go, and that, while he was fond of them and would love to keep them and send them to school, he couldn’t do it. So the children, at that time ranging from fifteen to eight years of age, were again sent out into the world, human wreckage, while the father was rewarded by the heart and hand of the charming widow. Jones, the testator, had frequently boasted about the country of his relations with the widow and with other women, so much so as to arouse the indignation of the community. After his marriage to Mrs. Poteet he permitted his children to return, and they were allowed to live with their father and stepmother for a year or thereabouts,, when their stepmother again compelled their father to drive them from home. It seems he loved his children in a way, and was reluctant to make them leave, for, as his youngest son started away, the old man walked with him for two miles down the road and sorrowfully bade him a goodbye, telling him that he couldn’t help it.

His second wife was about nine years older than he, and there was testimony of some of the neighbors that she could make her husband do anything she wanted him to do. It is clear that, if the testimony of his children is to be believed, she did have influence enough with him to coerce his will and compel him to drive his own flesh and blood from his door and deprive them of house and home. Later on, beginning with the year 1914 and at several times after that, one of his sons, who had grown to manhood and who had married, tried to rent land from his father, and was refused, because, as the old man said, “Your stepmother and her children don’t want you here,” the stepchildren during all of these years having lived upon the farm of the ancestors of the Jones children, who had been dispossessed and driven away.

It was in 1916 that the will was executed, the testator at that time being 58 years of age, and he survived about nine years after the date of the execution of the will; There was testimony that, at or about the time of the execution of the will and continuing, the old man’s mind was more feeble than it had been.' When he was stricken with his last illness, the stepmother and her children appeared to resent the ministrations of his own children, who had come to be with their father in his last illness and to wait npon him, and they stndionsly prevented any of his own children being- alone with him during that time.

These are the facts indicated by the testimony of the witnesses introduced on behalf of the contestants. In the eyes of the trial judge the malevolent figure which stalks through the scenes of this sordid drama is the former widow Poteet, whose stronger will and vindictive nature and love for her own children controlled the will and actions of her husband with respect to his own flesh and blood. Applying the principles of law above announced to this testimony and indulging in the wide range of inquiry into the facts and circumstances, there is substantial testimony, which is permissible in cases like this, to warrant the trial judge in concluding that the influence of the testator’s second wife, beginning even before their marriage and continuing on to the time of the execution of the will, had so fixed itself upon the mind of the testator as to dominate his will and be the controlling influence operating upon him at the time of the execution of the will. It was dominion acquired over a mind of sufficient sanity for general purposes and sufficient soundness and discretion to regulate his affairs in general, but, on account of the inherent weakness of his character, was such as to prevent the exercise of untrammeled judgment. It was not such restraint on the will as was effected by force or intimidation, but by a long training to submission, so that her will became his and his act the result of that influence so acquired and continued through the years.

As we have stated, this court is bound by the finding of the trial court, even though it might have been against the great preponderance of the testimony, if there was any substantial evidence to warrant his finding, and the testimony to establish that evidence must be given its strongest probative force. Under the rules announced, we think that there was legal testimony to warrant the trial court in its finding and judgment that the will was invalid, and should be set aside. The judgment is therefore affirmed.

Kieby, J., dissents.