text:
    Leonard v. Helms Printing Company.
    4-3249
    Opinion delivered November 13, 1933.

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

      Ned Stewart, for appellee.
   Smith, J.

This is an appeal from an order of the Pulaski Circuit Court awarding a writ of mandamus directing the State Treasurer to pay three certain warrants held by petitioners, who published the journals of the House and Senate of the regular session of the 48th General Assembly and tbe journals of tbe first and second extraordinary sessions of that body.

Funds to pay for these publications were not available, and certificates were issued by the State Auditor for the amounts due therefor. This was done pursuant to the authority of § 4463, Crawford & Moses’ Digest, which provides that, “in all cases where the law recognizes a claim for money against the State, and no appropriation shall be made by law to pay the same, the Auditor shall audit and settle such claim, and give the claimant a certificate of the amount thereof, under his official seal, if demanded, and report the same to the Governor, who shall lay the same before the General Assembly.” Certificates thus authorized were issued for the publication of each of these three journals.

At the ensuing 49th session of the General Assembly, there was passed an act No. 5 (Acts 1933, page 13), entitled: “An act to reduce the cost of operating the several departments, institutions and agencies of the State of Arkansas, to place each of them on a cash basis of operation, to provide for the issuance of certain evidences of indebtedness in payment of outstanding obligations, and for other purposes.” . .

Section 4 of this act found and declared the fact to be “that the revenues of the State are insufficient to discharge the obligations now owing and at the same time to carry on the essential departments of the government.” After thus reciting the reason for the legislation, it was enacted, in the same section, that “all unexpended balance in, and moneys accruing to, the General Eevenue Fund from and after the passage of this act shall be, and are hereby, impounded and all thereof except the portion going into a sinking fund as herein provided are hereby set apart and dedicated to the payment of the current expenses of the various departments of the government, to the end that the State may operate on a cash basis and within the limits of its income, and that the outstanding-obligations may be retired in an orderly manner. ’ ’ This act was approved January 27, 1933.

There was passed at the same session act 229, approved March 28,1933 (Acts 1933, page 706), which made the following appropriations: $11,104.70 to pay for printing the journals of the regular session; $1,430 to pay for printing the journals of the first extraordinary session, and $1,755.80 to pay for printing the journals of the second extraordinary session. It was specifically provided that each of these sums should “be paid from the sinking fund authorized by act No. 5 of the Forty-ninth General Assembly,” set out above.

To make act 5 effective, another section thereof provided that: “For the purpose of retiring* the obligations of the State of Arkansas payable from the general revenue fund, the Treasurer of State shall, on and after July 1, 1933, provide a sinking fund into which he shall place twenty per cent, of all moneys accruing to the general revenue fund from all sources. Said sinking fund shall be used solely for the retirement of warrants and obligations outstanding against the general revenue fund on January 10, 1933.”

It was the opinion of the court below that the act '229 required the payment preferentially of petitioners’ claims without reference to other claims payable out of the sinking fund authorized by act 5, and upon that theory the writ of mandamus was awarded.

The question for decision is therefore whether it was the intention of the General Assembly, in enacting act 229, to pay the warrants there authorized out of the first moneys accruing in the sinking fund, or to place the holders thereof along and in a class with the holders of other warrants and obligations which accrued prior to January 10, 1933, and enable the holders thereof to exchange the certificates of indebtedness for the bonds which act 5 authorized.

It is apparent that these acts, passed at the same session of the General Assembly and each dealing with the unpaid obligations of the State, must be read and construed together. Wilkin v. Special School District of Hazen, 181 Ark. 1029, 29 S. W. (2d) 267. When thus read, we think there was no intention to give petitioners tlie preference in payment which is prayed. On the other hand, we think it more reasonable to hold that the act 229 merely placed petitioners on a basis of equality with other holders of the State’s obligations existing prior to January 10, 1933.

' The act 229 expresses no purpose to give a preference. In fact, it was enacted to authorize the payment of petitioners’ claims out of this sinking fund and pursuant to the provisions of § 4463, Crawford & Moses’ Digest, which required the Governor to lay before the General Assembly the fact that there was such a claim, to the end that its payment might be provided for. This the act 229 authorized, and, by virtue thereof, it may be paid in the manner provided by act 5, but not preferentially, for no such legislative purpose was expressed or manifested.

The judgment of the court awarding the writ of mandamus is therefore reversed, and the petition will be dismissed.

Johnson, C. J., dissents.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Baldwin v. Pilgreen.
    4-3191
    Opinion delivered November 13, 1933.

      R. E. Wiley and Richard M. Ryan, for appellant.

      H. B. Means, for appellee.
   Humphreys, J.

Appellee recovered judgment for $2,000 damages against appellant in the circuit court of Hot Spring County for injuries alleged to have been received on the night of the fifteenth of March, 1932, while walking on a pathway along the railroad track just north of the depot in Malvern, through the negligence of appellant in permitting a lump of coal to fall from the tender and knock him down, causing the wheels of the train to pass over and mash off the ends of two of his fingers.

The testimony introduced tended to show that he might have been injured in one of .three ways: First, in the manner alleged; second, by a robber; and, third, by an unknown person who knocked him off the running-board of an automobile.

After the rendition of the judgment, and at the same term of court, appellant filed a supplemental motion for a new trial on the ground of newly-discovered evidence, which motion was regular in form and in compliance with all the statutory requirements of such a motion. The newly-discovered evidence was to the effect that about twelve o’clock on the night appellee was injured, Mrs. Linnie Martin and Andy Graham saw him, appellee, riding on the running board of an automobile in which a man and a woman were riding; that this automobile had stopped on First Street near the point where appellee was found; that appellee was trying to get the woman out of the car, at which time the automobile door slammed, and appellee hollered as though he were in pain; that the man in the automobile struck appellee, which caused him to fall off of the car into the street, where he was later found.

This testimony was relevant and material to the issue involved, and was of such character and cogency that it might have had the effect of changing the result, and on this account the court should have granted a new trial. The rule as applied herein was announced and applied in the case of Forsgren v. Massey, 185 Ark. 90, 46 S. W. (2d) 20.

On account of the error indicated, the judgment is reversed, and the cause is remanded with directions to sustain appellants’ supplemental motion for a new trial.

Mr. Justice McHaney concurs.


author: Butler, J.

text:
    Perry v. State.
    Crim. 3863
    Opinion delivered November 6, 1933.

      Leonard D. Caudle and Festum Gillam, for appellant.

      Hal L. Norwod, Attorney General, and John H. Caldwell, Assistant, for appellee.
   Butler, J.

A jersey beifer had been stolen in Sebastian County, and the appellant was indicted, tried and convicted, on the charge of having received the same knowing it to have been stolen, and on appeal presents various assignments of error for reversal. In addition to the bill of exceptions certified by the presiding judge, appellant prepared in proper form a bystanders’ bill of exceptions under the provisions of § 1322 of Crawford & Moses’ Digest. As the truth of the matters set out therein was not controverted by counter affidavits as provided in said section, these must be taken as true, although they conflict with the statements contained in the bill signed by the judge. Boone v. Holder, 87 Ark. 461, 112 S. W. 1081; Wingfield v. State, 95 Ark. 71, 128 S. W. 562.

At the trial the defendant did not testify, and exception is taken and assigned as error to that part of the argument of the prosecuting attorney to which objection was made as in effect a comment on the defendant’s failure to testify in liis own defense. The language objected to appears in the bystanders ’ bill of exceptions and is as follows:. “Take Carl Mortenson, the puor, little, freckled-face, stuttering kid, raised around here. Practically all of you know him. He would never have thought of this. He said so. It has never been denied. Perry said that: ‘If you have got any ‘hot stuff’ over there, bring it over. I can use it.’ By ‘hot stuff’ he meant anything that Carl would steal. In fact, the defendant has not denied a single, solitary iota of evidence that has been given against him from the stand here today. There’s the 'brains of this thing,’ [pointing to defendant] Herman Perry. ’ ’

The necessary effect of this language was to direct to the jury’s attention the failure of the defendant to testify. This court, in Bridgeman v. State, 170 Ark. 709, 280 S. W. 982, said: “This court is committed to the rule that, under § 3123 of Crawford & Moses’ Digest, it is improper and presumptively prejudicial for the prosecuting attorney to call the attention of the jury to the failure of the accused to testify. Lee v. State, 73 Ark. 148, 83 S. W. 916, and Starnes v. State, 128 Ark. 302, 194 S, W. 506.”

In overruling the objection made to the argument, the court said to the. appellant’s attorney: “You have opened the way. He is only arguing the point you raised.” This action of the court and the reason given is sought to be justified by the rule announced in Collins v. State, 143 Ark. 604, 221 S. W. 455, on the theory that in this case, as in that, the error had been invited by appellant’s counsel. In Collins v. State, supra, in announcing its conclusion, the court said: “But it appears from the record that the objection to this remark was overruled because counsel for defendant had stated that appellant had not taken the stand, for the reason that it was not necessary for him to do so, the inference being that there was nothing for appellant to deny; and to that statement the prosecuting attorney replied that appellant could have taken the stand and denied selling the stuff. This is a case of invited error. Appellant’s counsel should not have commented upon appellant’s failure to take the stand. He should have based his argument upon the testimony which went to the jury without commenting upon the fact that appellant had not testified at all. The statute is a shield, and not a sword. It gives the defendant the right to testify at his election, and provides that his failure to make such request shall not create any presumption against him. But it does not give his counsel the right to discuss the failure to make this request and to furnish explanations concerning it.”

It was on the testimony of Carl Mortenson, the admitted thief, that the State chiefly relied to establish the charge that .the animal stolen was in defendant’s possession with the guilty knowledge of the commission of the larceny. Several persons had testified as to the repeated statements of this witness that defendant knew nothing about his having stolen the animal. In commenting on the action of Mortenson and the testimony of these witnesses, appellant’s counsel in his argument to the jury, said: “What was Mortenson’s story of this affair all the way through up to the time and sometime after he was placed in jail? He said that Perry did not know anything about it. He told Jim Efurd that Perry did not know anything’ about it. He told Jess Wilson in Perry’s presence that Perry did not know anything about it. Perry told Jess Wilson, in Mortenson’s presence, that he, Perry, did not know anything about it. About what? About the heifer having been stolen, of course. We say that Perry did not know anything about it, about the heifer having been stolen, and when you hear from Perry again he will still be saying that he did not know anything about it.”

This is the statement which, it is claimed by the appellee, brings it within the rule announced in Collins v. State, supra. Here the statement of appellant’s counsel and the language used is quite different from that used in the case of Collins v. State. Appellant’s plea had put in issue the truth of the charge, and it was of itself a denial, and the statement just quoted, as we view it, can in no just or fair sense be interpreted as any reference to the failure of the defendant to testify, or an attempt to justify that omission, as was done by defendant’s counsel in Collins v. State, supra, but was a legitimate argument based on the evidence that Mortenson’s testimony in the court was unworthy of belief, and that, although the animal was in appellant’s possession, he knew nothing of its having been stolen. If the testimony of appellant’s witnesses were true, this evidence justified the conclusion he reached which he sought to impress upon the jury and which he had a right to urge for their acceptance.

Learned counsel for the State contends that, even though the argument complained of was not invited and was prejudicial, that prejudice was removed because the court had instructed the jury to the effect that, while having the right to testify, defendant’s failure to do so was not to be considered by the jury in determining his guilt or innocence. To sustain this position, we are referred to the cases of Ingram v. State, 110 Ark. 538, 162 S. W. 66, and Starnes v. State, 128 Ark. 302, 194 S. W. 506. In our opinion, these cases do not support the contention made. In the first case the court noticed that in Tiner v. State, 110 Ark. 251, 161 S. W. 195, any opinion was withheld as to whether comment by the prosecuting attorney would be reversible error where the court directed the jury to disregard it. The court then proceeded to notice the contrariety of view of the courts on this question and the tendency of the more modern or recent cases to hold that, where such reference has been made and is withdrawn and corrected by the charge of the court, it do.es not constitute reversible error. In adopting that view, this court held in the case then before it that, when attention of the court was called to comment by the prosecuting attorney of defendant’s failure to testify, and he reminded the jury that they had been instructed not to consider that fact and emphasized again its duty in that respect, this served to cure the error. In Starnes v. State, supra, the court approved and followed the rule laid down in the Ingram case. In that case, when the prosecuting attorney violated the rule the court immediately instructed the jury as to their duty, charging them not to consider the failure of the defendant to testify or draw any unfavorable inferences against him on that account. In the instant case, the court, while having first instructed the jury on the failure of the defendant to testify and define their duty in that regard, subsequently approved the argument of the prosecuting attorney which appellant construed as a comment on his failure to testify, thus nullifying the force of the charge which had before been given.

Because of the statute, we must presume that prejudice resulted when not removed by prompt action of the court. As said in Bridgeman v. State, supra: “The Legislature has seen fit to pass the statute in question, and there seems to be no discretion with the court in passing upon the probable injury of such allusion. This being true, we have no alternative except to reverse the judgment.”

Because the judgment must be reversed, it becomes unnecessary to notice the other alleged errors as they are not likely to occur again, and, since there must be a retrial of this case, we refrain from commenting on the weight and sufficiency of the evidence.

Reversed and remanded for a new trial.


text:
    Williams v. Priddy.
    4-3304
    Opinion delivered November 13, 1933.

      A. M. Dobbs, for petitioner,

      Dean, Moore & Brazil, for respondent.
   Humphreys, J.

This is a petition for a writ of prohibition by petitioner to prevent the judge of the circuit court of Conway County from proceeding in a suit for damages by Bishop Luie against petitioner, his deputy, J. S. McCuen, and his official bondsmen for injuries received by Bishop Luie through the negligent driving by his deputy of a stolen automobile with his prisoner, on highway No. 64 near Blackwell, in said county. The petitioner herein resided in Sebastian County, and the negligent act alleged against the deputy was that he turned off the accustomed rig’ht-hand side of the highway onto the left-hand side thereof and ran into a wagon in which Bishop Luie was riding. All the defendants in the damage suit, including petitioner herein, resided in and were served with process in some other county than Conway County, where the suit was brought and is pending.

Petitioner herein appeared specially and moved to quash service upon him on the ground that the suit should have been brought in the county of his residence, and that, by reason of the failure to do so, the circuit court of Conway County was without jurisdiction to entertain and try the cause.

The motion was overruled over the objection and exception of plaintiff herein, and this suit for a writ of prohibition followed.

It is provided by § 1175 of Crawford & Moses’ Digest that a suit against an officer shall be brought in the county of his residence, and petitioner contends that this suit falls within said section of the statute and should have been brought in Sebastian County, where he resides.

Respondent’s position is that the suit for damages on account of the injury received at the hand .of plaintiff’s deputy was properly instituted in Conway County under the second subdivision of § 1165 of Crawford & Moses’ Digest, which is as follows:

“An action against a public officer for an act done by him in virtue or under color of his office or neglect of official duty must be brought in the county where the cause or some part thereof arose.”

In support of respondent’s position, the case of Edwards v. Jackson, 176 Ark. 107, 2 S. W. (2d) 44, was cited. In the Edwards case, the allegations of the complaint disclose that the sheriff was .acting in his official capacity directly with Edwards when Edwards was killed. Not so in the instant case. Petitioner’s deputy was simply traveling along the highway taking a stolen car and a prisoner to Ft. Smith on highway No. 64 in Conway County and negligently ran into a wagon in which a third party was riding who was wholly disconnected from the duties the deputy was engaged in performing. The proper construction of the second subdivision of § 1165 of Crawford & Moses’ Digest is that the official act complained of must be official conduct resulting in or causing the injury. Unless the official act itself results in the wrong or bears some relation to the injury inflicted, the venue is governed by said § 1175 and not by the second subdivision of said § 1165. Ussery v. Yarnell, 181 Ark. 804, 27 S. W. (2d) 988; Leonard v. Henry, 187 Ark. 75, 58 S. W. (2d) 430. The instant case is ruled by the Leonard and Yarnell cases, supra, and not by the case of Edwards v. Jackson, supra, cited by and relied upon by the respondent herein.

The writ is therefore granted.


author: Kirby, J.,

text:
    Continental Casualty Company v. Toler.
    4-3246
    Opinion delivered November 13, 1933.

      Cockrill, Armistead & Rector, for petitioner.

      John L. McClellan, Sam T. & Tom Poe and McDonald Poe, for respondents.
   Kirby, J.,

(after stating the facts)-. Petitioner insists that the action of the circuit court in overruling the motion to quash service of summons and retaining jurisdiction of the suit of Floyd against it was erroneous. .

We do not agree with this contention, however, holding that insured was entitled to maintain the action filed against the petitioner in the circuit court of . Grant County, Arkansas, the county of the residence of insured under the pro-visions of the statute, §§ 6150-51, Crawford & Moses’ Digest, as amended by § 5 of act 493 of 1921; § 5975e, Castle’s Supp., 1927, to Crawford & Moses’ Digest.

The policy of insurance sued on was a policy of insurance on the life of a human being, as well as a policy of accident insurance within the meaning of said statute, §§ 6150-51, Crawford & Moses’ Digest, etc., which expressly allows the beneficiary or his assigns to maintain an action against the insurance company that has taken the risk in the county of the residence of the party whose life was insured, or to maintain an action against such accident insurance company that had taken the risk in the county of the residence of the party insured or in the county where the accident occurred, and that a service upon the Insurance Commissioner as prescribed by law returnable to the court having jurisdiction under this statute shall be good service. Travelers’ Protective Ass’n v. Gilbert, 101 Fed. 846.

The venue statutes relate to both life and accident insurance, and the fact the policy is one providing indemnity against loss of life by accident as well as accidental injury can make no difference whether it be considered one or two policies, since the statutes expressly provide where the suit should be brought in either case, and an action for insurance against injury by disease in the same policy necessarily takes the same venue.

The court did not err in so holding and in overruling the motion to quash service and in retaining jurisdiction; and the petition will be denied. It is so ordered.

Smith and Butler, JJ., dissent.


author: Mehaffy, J.

text:
    Missouri Pacific Railroad Company v. Baker.
    4-3193
    Opinion delivered November 13, 1933.

      R. E. Wiley and E. W. Moorhead, for appellant.

      P. S. Seamons, for appellee.
   Mehaffy, J.

F. Y. Baker and John Finley brought separate suits against the Missouri Pacific Railroad Company for damages, alleging that the appellant negligently allowed culverts on its road to become .clogged with mud, sticks and debris to such an extent that the surface waters could not pass through said culverts, thereby flooding the lands of appellees, and causing the destruction of growing crops.

The complaints were the same, except the description of the lands and the amount sued for. Finley asked damages in the sum of $800, and Baker asked damages in the sum of $1,100.

The appellant filed answer in each suit, denying the material allegations in the complaints. There was a verdict and judgment in favor of Baker in the sum of $250, and in favor of Finley in the sum of $162. The case is here on appeal.

There was some conflict in the evidence, but there was ample evidence to justify the jury in finding that the culverts had become clogged and partially stopped up, so. as to retard the flow of the water, and canse it to damage the crops.

It is first contended by the appellant that the evidence is insufficient to support the verdict. Several witnesses testified in substance that in the mouths of the two culverts was everything that grows, cockle burs, grass, weeds, blackberry bushes and debris. None of the witnesses testified that the culverts were completely stopped up, so that no water could pass through, but they testified that they were partially filled, so as to retard the flow of the water, and cause the water to stand on the land and damage their crops.'

It is next contended that the court erred in refusing to give instruction No. 3 requested by appellant. That instruction, among other things, told the jury that it was the duty of the appellees to minimize the damages by opening the drain, and charge the appellant with the expense of doing so. The instruction also stated that any part of said damages that they could have thereby prevented they cannot recover for.

It is true the evidence shows that it would not have cost very much to clear the culverts out, but we do not agree with the appellant that this was the duty of the appellees. <

The first case relied on by appellant as supporting this contention is the case of Wisconsin & Arkansas Lumber Company v. Scott, 167 Ark. 84, 267 S. W. 780. That was a case where a suit was brought for negligently burning plaintiff’s fence, and the court held that, if the fence was negligently burned, still if the appellee knew of such destruction in time that, by the exercise of ordinary care, he could have prevented the escape of his stock, and failed to exercise such care, then the proximate cause of his damages was his own negligence. However, this was the landowner’s fence. He could have repaired the damage on his own land without trespassing on the land of another.

The next case is Louisville, N. O. & Texas Rd. Co. v. Jackson, 123 Ark. 1, 184 S. W. 450. That case also holds that it is the duty of a person to minimize, his damages.

Appellant cites other cases, but none of the cases relied on hold that it is the duty of a person to minimize his damages where he must commit a trespass in order to do so.

It is ordinarily the duty of one who has been damaged by the negligence of another to exercise reasonable care to minimize the damages, bnt we have never held that a person should minimize his damages by comm.it-ting a trespass on another’s property. The appellees in this case could not have cleaned out the culverts without trespassing on appellant’s land.

In the case of Wolf v. St. Louis Independent Water Co., 15 Cal. 319, the court said: “There is nothing in the point that plaintiffs might, by ordinary diligence, have avoided the injury of which they complain. They could have done so only by the commission of a trespass, and surely they are not to be denied redress because they have chosen to appeal to the law, rather than violate it.” To the same effect is the case of White v. Chapin, 102 Mass. 138.

The Illinois court said: “If, however, the obstruction is on the right-of-way of appellant, appellees have no right to enter thereon to remove it, as the law will not require them to commit a trespass to remove the obstruction, even if it would, as contended, cost but a trifle, nor can appellant require them to enter its right-of-way to remove obstructions.” C. R. I. & P. Ry. Co. v. Carey, 90 Ill. 514. See also Fromm v. Ide, 23 N. Y. S. 56; Gulf C. & S. F. Ry. Co. v. Reed, (Tex. Cir. App.), 22 S. W. 283; Wabash Rd. Co. v. Campbell, 219 Ill. 312, 76 N. E. 346, L. R. A. 3 (N. S.) 1092.

It was therefore not the duty of the appellees to minimize their damages by trespassing on appellant’s property.

It is next contended by appellant that the court erred by permitting evidence that the culverts were not large enough. The evidence tending to show that the culverts were too small was brought out in answer to a question of appellant’s attorneys. The court, at the request of appellant, gave the following instruction: “You are instructed that the fact that there is a railroad embankment there or that the drains under the embankment may not be as large as necessary in the opinion of some witnesses cannot be considered by you in arriving at your verdict, as this suit is based solely upon the allegations that the- drains were stopped up.”

There was substantial evidence to support the verdict, and the judgment is affirmed.


text:
    Dellinger v. Tilghmon.
    4-3198
    Opinion delivered November 13, 1933.

      Williamson & Williamson, Moore, Gray & Burrow and Everett B. Gibson, Jr., for appellant.

      W. F. Norrell and R. W. Wilson, for appellee.
   Mehaffy, J.

Appellee, Marvin Tilghmon, brought suit in the Drew Circuit Court against the appellant for damages for personal injuries alleged to have been caused by the negligence of the appellant, Ottie Dellinger. Ottie Dellinger owns and operates the Dellinger Truck Line, and is a public carrier of freight for hire over the highway between Monticello and Little Rock, Arkansas, and intermediate points, using a one ton Chevrolet truck with trailer.

On September 25, 1931, appellee was riding on one of appellant’s trucks which was operated and controlled by Travis Blacldedge, who was alleged to have been the agent, employee, foreman and vice-principal of Ottie Dellinger. It was alleged that on said day Blaekledge carelessly and negligently drove said truck off of the highway into a deep ditch, and against a high embankment or side of said ditch; that appellee was thrown from his seat out of said truck, on the ground, and was run over by the truck; that the freight and merchandise in said truck were thrown upon appellee, and his right leg was crushed and broken above the ankle; that the leg had to be amputated; that his body was otherwise bruised; and that he was seriously and permanently injured, both internally and externally.

Appellant filed answer, denying all the material allegations of the complaint, and alleging that appellee and Blacldedge were fellow-servants, which precluded appellee from a recovery for the negligence of the fellow-servant. The case was tried, and resulted in a verdict and judgment in favor of appellee, and the case is here on appeal.

It is first contended by the appellant that the court erred in refusing to direct a verdict for the appellant. There is no dispute about the injury to appellee, and the evidence was ample to submit the questions to the jury.

If appellee and Blaekledge were fellow-servants, then no recovery could be had because of the negligence of Blaekledge. If, on the other hand, Blaekledge was a vice-principal, or if appellee was a passenger, then in either event he would be entitled to recover. The case will have to be tried again, and it is unnecessary to set out the evidence. But it is sufficient to say that we all agree that the evidence was sufficient to submit the questions to the jury.

It is next contended that the court erred in giving' appellee’s instruction O. It reads as follows: “If you find from a preponderance of the evidence that the defendant, Ottie Dellinger, doing business as Dellinger Truck Line, agreed that the plaintiff, Marvin Tilghmon, might ride from Monticello to Little Bock and return for the consideration of services rendered and to be rendered by the said Marvin Tilghmon in loading and unloading freight, and that while so riding the truck in which he was riding was carelessly and negligently driven off the highway, if you find that this was due to negligence, and that plaintiff, Marvin Tilghmon, was injured as the result of negligence in the driving of said truck off the highway, your verdict should be for the plaintiff.”

A majority of the court agree that this instruction should not have been given. Instructions were given at the request of the appellant, submitting the question whether appellee and Blackledge were fellow-servants, and instruction C, quoted above, authorized the jury to find for the appellee if they found that Blackledge was negligent, and the appellee was injured as a result of that negligence.

A majority of the court are of the opinion that, whether Blackledge was a fellow-servant or vice-principal, and also whether appellee was a passenger, are questions that should have been submitted to the jury, and, for that reason the majority holds that instruction C should not have been given.

If appellee was a passenger in the exercise of ordinary care and injured by the negligence of appellant’s servant, he is entitled to recover. If Blackledge was a vice-principal, and not a fellow-servant, appellee is entitled to recover. If, on the other hand, Blackledge and appellee were fellow-servants, appellee could not recover for the negligence of Blackledge.

A majority of this court is of the opinion that these questions should be submitted to the jury under proper instructions.

For the error in giving instruction C, the judgment is reversed, and the cause remanded for a new trial.


author: McHaney, J.

text:
    Tri-State Transit Company of Louisiana, Inc. v. Miller.
    4-3194
    Opinion delivered November 13, 1933.

      E. W. Moorhead, for appellant.

      Robert C. Knox, L. B. Smead and C. E. Wright, for appellee.
   McHaney, J.

Appellee brought this action against appellant and others to recover damages for an injury to his right hand, in which the little finger was crushed and severely injured when it was caught between the door and the long rod which controls the opening of the door on a passenger bus owned and operated by appellant, while a passenger on said bus traveling from Shreveport, Louisiana, to El Dorado, Arkansas. The accident occurred in Union Parish, Louisiana, just before the bus reached Junction. City, Arkansas. It happened in the following manner, according-to the testimony of appellee and his witnesses: While passing over a section of highway under construction, the connection between- the foot accelerator of the bus and the carburetor was broken, or became disconnected, so that the driver could not feed the car sufficient gas to pull through the newly constructed hig'hway, and it became stalled. Appellee was sitting in the front seat, on the right-hand side. The driver got out of the bus, raised the hood and attempted to adjust the connection. He asked appellee to press dofao. upon the foot accelerator for some purpose, with which request appellee attempted to comply and unconsciously caught hold of the rod above-mentioned, and, while attempting to assist the driver in the manner stated, a team of mules owned by the other defendants to the action, Wilson and McKenzie, were being driven by the bus for the purpose of hitching on to it and pulling it out at the request of the driver of the bus, when a singletree, to which one of the mules was hitched, caught in the door through which the driver had left the car and which had been carelessly left open by him, pulled it forward and caught appellee’s hand between the rod and door, severely injuring it as aforesaid. To a complaint alleging the facts as above stated, appellant, on January 9, 1933, filed a pleading which it denominated ‘ ‘ substituted separate answer of the Tri-State Transit 'Company of Louisiana, Inc.” This answer recited that “for the purpose of this ‘answer this defendant admits the allegations of the plaintiff’s complaint as to how said plaintiff was injured,” but denied that it was negligent or that he suffered permanent injuries to his damage in the sum claimed. It then made specific admissions as to the manner of appellee’s injuries as alleged in his complaint, predicating same on the statement that they were made “for the purpose of this answer.” It then alleged that the injury occurred in the State of Louisiana and was governed by the laws of that State; that ‘appellee, at the time of his injury, was assisting the driver of the bus, was an emergency employee himself, and was a fellow-servant of the driver, and that, by reason thereof, the extent of appellant’s liability is controlled and governed by the Workmen’s Compensation Law of that State, pertinent parts of which are pleaded; that appellee, being an emergency employee, brought himself under the provisions of said law; and that the full extent of its liability for the injury complained under said law is the sum of $3 per week for 150 weeks, or a total of $450, together with the sum of $250 allowed by said law for medical expenses, or a total of $700, for which amount it offered to confess judgment together with interest and cost in full satisfaction of appellee’s claim. This answer was superseded and withdrawn by its “second substituted answer,” which denied in detail the material allegations of appellee ’s complaint, pleaded contributory negligence and the fellow-servant rule in force in the State of Louisiana, contending again that appellee was an emergency employee and was a fellow-servant with the driver of the bus. Other pleas were made in this answer which we do not deem necessary to set out.

A trial of the case resulted in a verdict and judgment in appellee’s favor for $2,300. For a reversal of the judgment against it, many assignments of error are argued, but we do not deem it necessary or proper to discuss all of them. Inasmuch as the case must be reversed on one ground, many of the errors complained of may not occur on a subsequent trial.

One of the assignments of error urged is the insufficiency of the evidence to support the verdict. We have carefully examined the evidence 'and find it sufficient to take the case to the jury, considering it in the light most favorable to appellee, as we are required to do under the settled rule of this court. Nor can we agree with appellant that appellee was guilty of contributory negligence as a matter of law, under the facts in this case, nor tha t he lost his status .as a passenger, and became an emergency employee of appellant or a fellow-servant of the driver of the bus. There is no dispute of the fact that appellee was a passenger on said bus, and that appellant is a common carrier of passengers for hire. Appellee was in no sense, according to his evidence, engaged in assisting the driver in making repairs. He was merely asked to press down upon the accelerator so that the driver could make the repairs, a matter wholly incidental to his status as a passenger.

The only assignment of error which we deem to he well taken is the introduction in evidence, over appellant’s objections, of its substituted answer hereinabove set out and which was withdrawn and replaced by the “second substituted answer,” on which the case went to trial. Said answer was filed for a particular purpose, was in the nature of a demurrer and,an offer of compromise. It admitted the allegations of the complaint for the purpose of contending that appellee was an employee and was subject to the Louisiana Workmen’s Compensation Act. It offered to confess judgment for the maximum amount allowed under said act if he were an employee. Its introduction in evidence was manifestly prejudicial, if erroneously done, for the reason that it admitted to be true, “for the purpose of this answer,” all the allegations of the complaint as to how the injury occurred. Said answer was not verified, but was signed only by appellant’s attorney. In the “second substituted answer,” the previous answer was specifically withdrawn. Under such circumstances it was erroneous and prejudicial to admit in evidence the withdrawn answer. In Railway Co. v. Clark, 58 Ark. 490, 25 S. W. 504, this court held that it was error to permit the appellee to read the original answer of appellant as an admission after same had been withdrawn, and Holland v. Rogers, 33 Ark. 251, and other authorities were cited in support of the holding. This case was cited with approval in Murphy v. St. L., I. M. & S. P. Co., 92 Ark. 159, 122 S. W. 636, where it was held, to quote a headnote, that: “Interrogatories prepared by plaintiff’s counsel and submitted to defendant’s counsel, but subsequently abandoned by plaintiff without being propounded to the intended witness, are not admissible, either as testimony or as admissions of plaintiff’s counsel.” The rule announced in Railway Co. v. Clark appears to be against the great weight of authority, for in 14 A. L. R. 65 it is stated: ‘ ‘With but few exceptions pleadings are admitted, other conditions being proper, against the pleader in the proceeding in which filed, * * * as evidence of admissions against interest therein contained.” The exceptions there noted are California, Arkansas, Mississippi, Missouri, Washington and Nebraska. Our own case of Holland v. Rogers and Railway Co. v. Clark, supra, are cited in support of the minority rule. In Valley Planting Co. v. Wise, 93 Ark. 1, 123 S. W. 768, 26 L. R. A. (N. S.) 403, it is held that “a statement contained in a pleading filed by a party in another action between the same parties may be proved against him, but such admission is not conclusive and is subject to explanation.” That referred to a pleading on which the case went to trial between the same parties in the other action. In Taylor v. Evans, 102 Ark. 640, 145 S. W. 564, where error was assigned for the refusal of the trial court to permit defendant to read in evidence the original complaint, and where plaintiff had testified that he did not know what allegations were made in the complaint, this court said: “The evidence being competent only for the purpose of showing an admission, or as establishing a contradictory statement of the plaintiff, it is not admissible, where it does not appear that the plaintiff knew of the allegations of the original complaint, or at least where it affirmatively appears that he was not aware of the contents of the complaint. It would be without probative force, either as an admission or as a contradictory statement, unless it was shown that plaintiff was aware of the contents of the paper. ’ ’ In the recent case of Greer v. Davis, 177 Ark. 55, 5 S. W. (2d) 742, it was held that defendant’s answer is competent as an admission, whether verified or not. But this was an answer on which the case went to trial and was an answer filed by appellant pro se. It was his own pleading upon which the case went to trial, signed by himself, and certainly was competent in the trial of that case. Here, however, as was the case in Railway Co. v. Clark, the pleading was withdrawn and a second substituted answer filed. It no longer remained a part of the record in the case, and was incompetent as evidence thereafter. The holding in Railway Co. v. Clark, may be a little too broad, for the authorities generally appear to hold that if a pleading is verified by the party in whose interest it is filed, it becomes a judicial admission and remains competent evidence where superseded by a substituted pleading.

Tlie admission of this withdrawn answer in evidence, being erroneous and prejudicial, constitutes reversible error. The judgment will therefore be reversed, and the cause remanded for a new trial.


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    Ætna Life Insurance Company v. Carroll.
    4-3199
    Opinion delivered November 13, 1933.

      Owens & Ehrman and J. M. McFarlane, for appellant.

      Robert J. Oliver and Arthur G. Frankel, for appellee.
   McHaney, J.

This is an action by appellee against appellant to recover $1,000, penalty and attorney’s fees, based on a policy of group life insurance issued by appellant to Terry Food Stores, Inc., covering the employees of the latter. Certificates were issued and delivered to the employees and deductions were made from their monthly wages to pay for same. The policy provided that the employer should pay the monthly premium, which should become due on the first of each month, with 31 days of grace allowed the employer in which to pay. It further provided that: “In the event of termination of employment with the employer, the insurance under this policy shall automatically cease at the end of the policy month in which employment terminates.” And it also provided for a conversion privilege under certain conditions upon termination of the employment; that is, the insured might, upon written application therefor and payment of first premium within 31 days after termination of the insurance under the group policy, obtain a policy under the conditions set out.

Appellee’s husband, Thomas P. Carroll, was an employee of Terry Food Stores, Inc., on and prior to May 31, 1932, and held a certificate for $1,000 under said group policy. Said certificate contained this clause: “Said policy provides for termination of insurance whenever the insured ceases to be in the employ of the employer. ’ ’

The undisputed proof shows that Thomas P. Carroll worked for Terry Food Stores, Inc., up to and including May 31, 1932, at which time he was discharged as store manager at 23rd and Arch streets, Little Rock, but that he worked as checker thereafter on June 4 and June 11. He died June 18, 1932. Deduction from his salary was made for the May premium, but no deduction was made from his wages for the two days’ work in June for premium, and the whole amount due him was paid to his widow after his death. Sometime prior to June 14, 1932, Terry Food Stores, Inc., notified appellant’s Little Rock office that Carroll’s and two others’ employment had been terminated, and requested a cancellation- as to them. This notice was received June 14, was forwarded to the home office June 15, and received there June 17, and were canceled as of May 31, 1932. In accordance with appellant’s custom, on June 1, 1932, it sent Terry Food Stores, Inc., a statement showing the total premium due for the month of June based on employees covered in May. This statement included Carroll and the other two because at that time no notice of cancellation had been given or received, and it was the custom of appellant to render bill on the first of each month for employees covered during the previous month. And it was also the' custom for Terry Food Stores, Inc., to pay the full amount of the statement, and appellant would issue a credit memorandum for cancellation and deduct same from the next month’s statement. That was their system of bookkeeping. After receipt at the home office of the notice to cancel as to Carroll and the other two, appellant issued a credit memo on June 23. Terry Food Stores paid the June 1 statement on June 24, which included Carroll and the others as above stated.

Under this state of facts, appellant requested a directed verdict in its favor on the ground that the undisputed facts showed that Carroll was not an employee of Terry Food Stores, Inc., within the terms of the policy at the date of his death or at all after May 31. The court refused this request, and submitted the question as to whether he was an employee or not to the jury, all over appellant’s objections and exceptions. There was a verdict and judgment in appellee’s favor.

The only question for our determination is, did the court err in refusing to direct a verdict for appellant? In other words, was Thomas P. Carroll an employee within the meaning of the policy? Both the policy and the certificate clearly made this a condition precedent. The policy provided that it might be continued from month to month, “but only while the insured remains in the employ of the employer, upon payment by the employer at the beginning of each month, ’ ’ etc. Other provisions relative to a continuation of the employment are set out above. It is well settled in many jurisdictions, in fact in all, so far as our investigation discloses, that such a provision in a group policy is valid, binding and enforceable. Colter v. Traveler’s Ins. Co., 270 Mass. 424, 170 N. E. 407.

The undisputed proof is that Carroll’s employment with Terry Food Stores, Inc., terminated May 31, 1932, and notice thereof was given to appellant’s local office June 14; that he was not thereafter employed except as an extra man on two Saturdays, June 4 and 11. We think the fair intendment of the policy related to regular or salaried employees — those regularly engaged in the service of the employer. The employer so understood the matter and sent in the notice of cancellation. Appellant so understood it, accepted notice of cancellation and credited the employer with the premium. There is no claim that Carroll paid the premium for June, or that he exercised the conversion privilege. Nor does the fact, if it be a fact, that future employment was promised him change the situation. The question is, was he an employee at the time? We hold that he was not, and that the court erred in submitting the question to the jury.

Appellee argues that the 31 days of grace allowed to the employer continued the policy in force to July 1, and that, Carroll having died within that time, appellee should recover, whether the June premium was paid or not. That would be true had the contract been between appellant and Carroll, or if the relation of employee and employer had continued during June. The grace period was personal to the employer. It is also argued that the conversion privilege ran for 31 days, and, since his death occurred on June 18, he had until July 1 to exercise said right. The right of conversion, however, presupposes a termination of the employment. The very beginning of said conversion privilege clause is: “Upon termination of employment with employer, the company will, if desired, issue to the insured * * * a policy * * * on the following conditions.” It is true the insured has 31 days in which to exercise the right of conversion, but during the time he neglects to do so, he is not insured, and, if he dies without having exercised the option, his beneficiary cannot recover. It all goes back to the same proposition that he must be in the employ of the employer.

For the error in refusing to direct a verdict in appellant’s favor, the judgment will be reversed, and the cause dismissed. It is so ordered.


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    Francis v. Turner.
    4-3163
    Opinion delivered November 13, 1933.

      S. S. Hargraves, Louis L. Cohen and Mann & Mann, for appellant.

      Marvin B. Norfleet, for appellee.
   Butler, J.

In March, 1929, Charles Turner died in St. Francis County, Arkansas, .without issue, leaving surviving his widow, Mrs. Marcella E. Turner, and two .sisters, Mrs. Alma T. -Francis of Munson, Iowa, and Mrs. Sadie B. Purinton of Chicago, Illinois, the sole heirs at law. Soon after Mr. Turner died, his widow accompanied by H. A. Sulzer, went to Forrest City and consulted with an attorney, and after some discussion, at Mrs. Turner’s suggestion, Sulzer was appointed administrator and gave bond as such with Mrs. Turner as a surety thereon. Having obtained the- information that Turner liad some property in Mississippi, Mr. Sulzer and the attorney proceeded to that State where they discovered that Turner had on deposit $30,000 in a bank in Tupelo, Mississippi, and an additional sum of $316.68 accrued interest. On the day after their return to Forrest City, Mrs. Turner was informed of this, and on the, same day she executed to the attorney a power of attorney to convey her interest in some property in Munson, Iowa, owned by her deceased husband in his lifetime. The attorney was further authorized to proceed to the residence of the two sisters for the purpose of securing their interest in the Turner estate. The attorney left on this mission and arrived in Munson, Iowa, on April, 1929, where he secured a deed from Mrs. Francis. He went on to Chicago, arriving there the evening of the next day, and on the day following secured a like deed from Mrs. Purinton. By these two deeds all the interest of these two ladies in the estate of the deceased, Turner, was conveyed to his widow in consideration of the. sum of $3,000 in cash paid to Mrs. Purinton and the conveyance under the power of attorney to Mrs. Francis of the Mun-son. Iowa, property at the agreed value of $2,000 and $1,000 in cash paid to her.

Previous to these events no inventory has been filed, but soon after the return of the attorney to Forrest City with the deeds an inventory was filed. After the death of Turner, his widow wrote two letters to Mrs. Francis who immediately forwarded them to her sister in Chicago. The first letter, written March 23rd, requested information as to the value of her husband’s property in Iowa, which was a store building which had been renting for $40 per month, and in this letter a suggestion Avas made that the sisters might take it as their share in the estate. The letter indicated that the value of the estate was small. The next letter was Avritten on April 10th, following, and contained expressions in line, with the letter of March 23rd. The general effect of these letters was that the widow found herself left with very limited resources. When these letters were written, Mrs., Turner did not know of the large sums on deposit in Mississippi, but she learned tills in a day or two after her second letter was written and took no steps to correct the impression her letters were calculated to convey.

This suit was begun by the. sisters filing a complaint in the St. Francis Chancery Court alleging that the deeds had been secured through false representations regarding the value of the estate, which induced them, with the information they had previously received from Mrs. Turner, to believe that the estate was much smaller than it really was; that the representations made were relied upon, and in reliance upon the same the deeds were executed. Certain allegations were made whereby liability against the administrator in his settlement was sought to be established. Testimony was adduced for the plaintiffs and the defendants, Mrs. Turner and the administrator, and at the trial the court found that the conveyances were not procured by fraud, the complaint was without equity, and the same was dismissed. The decree, in so far as it related to the administrator, is not challenged by the appeal.

To support the finding and judgment of the trial court in upholding the conveyances attacked, appellees invoked two familiar principles recognized by this court from the earliest times: (1) the finding of the chancellor is highly persuasive and will be sustained unless it is against the preponderance of the evidence, and (2) that, in cases where fraud is alleged as a foundation for a cause of action to entitle the party asserting it to the relief prayed, the fraud must be clearly proved.

With these fundamental rules in mind, we proceed to an examination of the evidence relating to the procurement of the deeds questioned, viewed in the light of the interest or bias of these witnesses to be inferred and the attendant circumstances established in connection with another settled principle, namely, that an attorney for an estate represents the heirs and distributees and legatees to the extent that it becomes his duty, where the value of the estate is material to those interested in dealing between themselves or others, not only to refrain from making any misrepresentation or concealment, but to also fully disclose the value of the estate and its probable assets, so that all interested may exercise an informed judgment. 23 C. J. 1170, § 387.

The dealings of the attorney with the two sisters may be treated as a single transaction in so far as the representations made by him in consummating the purpose of his visits to them is concerned. As to this the evidence is in conflict. The two sisters and Mrs. Purinton ’s attorney who was present when her deed was procured, testifying on the part of the appellants, were sharply disputed by the testimony of the Arkansas attorney and his wife who accompanied him on his journey. These five persons were the only witnesses to the transactions. The testimony of the witnesses for the appellants tended to establish these facts: that the attorney from Arkansas correctly advised them regarding the law of descent and distribution in Arkansas, but did not advise them of the items of property going to make up the corpus of the estate, stating that the value of the estate was about $12,000. He offered them $3,000 each for their respective interests, stating that there would be some expense incurred in the course of the administration, and that, after the debts had been paid, some time would elapse before the distribution was ordered, and that at the time some of the assets in the State of Mississippi were being withheld from the administrator for some reason then unknown to him.

The attorney for Mrs. Purinton advised that, perhaps it might be well to check up the statements of the visiting attorney, but Mrs. Purinton declined this advice because of her knowledge of the reputation of Mrs. Turner and relied on the statements of the attorney as to the value of the estate.

The testimony of the Forrest City attorney, in. which he was corroborated by his wife, tended to dispute that of Mrs. Francis, Mrs. Purinton and the latter’s attorney, and was to the effect that he stated that, after the widow’s allowance under the Arkansas statute had been deducted and expenses paid, the estate would approximate about $15,000 in value, and after $3,000 was paid to each of the sisters about $9,000 would be left for the widow from the one-half of the. estate which the sisters would inherit: quoting- from the attorney’s testimony, “I told her, from the figures I had then and estimating the. estate and considering* the statutory allowance of the. widow in Arkansas the- expenses of the administration and such bids as I had heard of, that the half they (the sisters) were interested in under the laws of Arkansas to be worth about $15,000 and with the $6,000 paid to them there would remain to the widow about $9,000.” His testimony was further to the effect that, disregarding the advice of her attorney, Mrs. Purinton (the deed from Mrs. Francis having already been obtained) accepted the proposition made on the ground that she never expected to go to Arkansas, and that “a bird in the hand was worth two in the bush.” In his testimony, he did not claim that he had revealed the two cash items, one of $5,107.89 then in the bank at Forrest City and one. of $30,316.68 then on deposit in the bank at Tupelo, Mississippi, these two items aggregating the sum of $35,424.57 cash on hand. He contented himself with the statement professed to have been made, to Mrs. Purinton and her attorney that “I told him (the attorney) that I considered the half the sisters were interested in under the laws of Arkansas to be worth something like $15,000.”

It was testified to by Mrs. Francis and Mrs. Purinton that. they believed in, and relied upon, the statements they testified that were made to them as to the value of the estate, and, acting- on this information, they executed the deeds; that they would not have done so had they been advised of the true value of the same.

Soon after the return of the attorney to Forrest City with the deeds of the two sisters, an inventory of the estate was filed for the first time disclosing that the value of the estate, inclusive of the store house in Iowa, amounted to the sum of $41,545.57. Of this amount $35,424.57 was .cash on hand. It was shown that the deceased owed no personal debts, and that the net value of the estate was the sum mentioned, less any inheritance tax which might be due the State and the expenses incident to the administration.

'It was, and is, the contention of the appellees that the attorney who procured the deeds from Mrs. Francis and Mrs. Purinton, was not the attorney representing the estate or the administrator thereof in his official capacity; that he at no time represented the administrator as such, but only as his personal attorney and that he was the attorney for Mrs. Turner. The record, however, discloses that he did in fact represent the estate, and that he was paid out of the estate his fees as attorney. It may be true that he considered himself in the negotiations with the two sisters as the attorney merely of Mrs. Turner and might have, and doubtless did, overlook the fact that he was also the attorney for the estate, owing to the heirs the duty of making full disclosures of the value of the estate. In law he occupied the same position to them as he did to Mrs. Turner which was a position of trust with respect to all those interested in the estate.

The witnesses who testified as to the transactions between Mrs. Francis and Mrs;. Purinton on the one hand and the attorney from Arkansas on the other by which the deeds were procured, may all be said to be interested in the result of this litigation or biased in favor of one or other of the parties. As far as their testimony is concerned, it might be. said to be evenly balanced in respect to the truth of the facts narrated by them. But, if the testimony on behalf of the appellants is accepted as true, and if indeed the attorney of Mrs. Turner did inform Mrs. Francis and Mrs. Purinton that the half of the estate to which they would be entitled was worth about $15,000, this did not correctly state the amount to which they were entitled by at least $3,500, and when the value of the Iowa property is added, by $5,500 — no insignificant sum in these times. Except for some items of small value, as we have seen, the principal value of the estate consisted of cash, stock of merchandise $750, personal property $1,000 and land in St. Francis County valued at $2,371 and a store building in Iowa Avortli $2,000, so that there Avas nothing problematical about its value. But the statements of the appellants ’ witnesses are reinforced by cogent circumstances. The fact that Mrs. Turner had, just a short time before the advent of the Arkansas attorney in Iowa and Illinois, conveyed the impression to the two sisters that she was a poor woman, and that she might not have money enough to pay the expense of a visit to them which she desired to make, and after learning of the value of the estate made no effort to undeceive them, but at once sent her attorney to buy their interest, the fact that no inventory of the estate had been filed until after the procurement of the deeds, and the true value of the estate, confirm and support the statement they made that they were not correctly advised. The evidence shows that there was- no intimate relationship or association between Mrs. Turner on the one hand and the sisters of her deceased husband on the other. They Avere comparative strangers. One of the sisters had visited Mr. and Mrs. Turner only once in a quarter of a century and the other not at all, and there Avas no reason to suppose that the sisters of Mr. Turner would feel it their duty to give to Mrs. Turner a large sum of money. It is against ordinary experience and observation to believe that they would part with an estate valued at practically $20,000 for the sum of $6,000, and it must be remembered that at no time in the testimony of the attorney did he admit or say that he ever at any time told them of the amount of actual money on hand.

It is our opinion, accepting at its face value the statements of the attorney relative to what occurred in his conferences with Mrs. Francis and Mrs. Purinton, he displayed a lack of candor and frankness, whether intentional or unintentional, which, in connection with the letters Mrs. Turner had Avritten, were, calculated to and did deceive those with whom he was dealing. Mrs. Francis and Mrs. Purinton must have relied on the statements of the attorney and the. letters they had received from Mrs. Turner, and they had the right, consideling- the position which the attorney occupied, to rely upon his statements. It is our opinion that the finding of the court below is contrary to the preponderance of the evidence. We think, also, the circumstances so persuasively support the evidence adduced by the appellants that it is sufficient to preponderate in favor of the appellants to a degree sufficient to satisfy the rule that proof of fraud must be plainly shown.

But the statement is made by the appellees that, oven though the testimony of Mrs. Francis and Mrs. Purinton be accepted as true, they were not deceived and were paid a sum equal to at least one-half of the value of the estate. They argue that, as the thirty thousand odd dollars was on deposit in the State of Mississippi, it became the absolute property of the widow by virtue of the laws of that State, and therefore was not a part of the estate of Turner to be distributed under the laws of Arkansas, but, by virtue of the Mississippi laws, was to be distributed under the laws of that State.

While the answer filed by the appellee alleged her ownership of the deposit under the laws of the State of Mississippi, there was no evidence adduced on this question except a reference by her attorney, when testifying, to the effect that, in consulting with the legal department of the bank in Tupelo, Mississippi, where the deposit was, that department regarded Mrs. Turner as being- entitled to the deposit under the laws of that State. We have carefully searched the record and find that this reference and the letter from the bank to the attorney, introduced by him as an exhibit to her testimony, were the only references made to the claim of ownership set up in appellee’s answer. On the contrary, the inventory of the estate of the intestate was introduced in evidence as an exhibit to the testimony of one of the witnesses, which shows that the deposit was listed as a part of the assets of the estate, and it was proved that Mrs. Turner consented to the withdrawal of the money from the Mississippi Bank by the administrator of the estate of her deceased husband. These proved facts made a prima facie showing- that the $30,000 deposit was a part of the Turner estate.

The question really in issue, and the one which the trial court’s “opinion and statement of facts” disclosed was presented to, and considered by it, was whether or not the. deeds involved were void because of fraud in their procurement, and, in the absence of proof that the deposit was localized under the laws of Mississippi within the meaning of her statutes as construed by'the court of that State, the deposit in so far as it affects that question, was. treated as if it was, in fact, the property of the estate as shown bjr the inventory.

It follows that the judgment of the trial court must be reversed, and the cause is remanded with directions to cancel the deeds from Mrs. Francis and Mrs. Purinton to Mrs. Turner, and for further proceedings according to the principles of equity and not inconsistent with this opinion.


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    Merritt v. M. W. Elkins Investment Company.
    4-3320
    Opinion delivered November 13, 1933.

      Ohmer C. Burnside, for appellant.

      John L. Carter, for appellee.
   Butler, J.

The question involved in this case is how and in what manner shall three school district warrants issued to the appellee be paid. One of the warrants was issued by the Lakeside Special School District in the sum of $1,025, and the other two, aggregating the sum of $1,010, were issued by the Wellford School District.

The services for the two districts were the same, and the finding of fact by the trial court regarding the issuance of the warrants is the same with respect to each of the districts except as to the amounts. The finding of fact as to the Lakeside Special School District will be sufficient for an understanding and determination of the question presented, which is as follows:

‘ ‘ This cause coming on to be heard, and both parties being represented by counsel, and it being agreed aiid stipulated that it should be heard in vacation, and the court, being well and sufficiently advised as to the law and facts, doth find that the board of directors of the Lakeside Special School District, of Lake Village, Chicot County, Arkansas, entered into a certain contract with M. W. Elkins Investment Company of Little Rock, Arkansas, for the refunding of $26,500 outstanding bonds against said district; that the said school district agreed to-pay said investment company $1,025, and in pursuance of said contract the board of directors of said district issued its warrant No. 15 to said investment company for the sum of $1,025 against the debt service fund of said district; that the said M. W. Elkins Investment Company has made, proper demand on the defendant herein, and that said defendant has refused to pay said warrant out of the debt service fund. ’ ’

In addition to the above statement, it may be further said that the expression ‘ ‘ debt service fund ’ ’ in the warrant was intended to be, and was, treated by the parties and by the court as equivalent to “building fund” mentioned in the statute which authorized the making of the contract between the appellee and the school districts. The court found that the warrants were properly drawn, and they were ordered paid out of the “debt service” or “bond and interest” fund.

It is admitted that the contract was properly entered into and the services performed; and that the warrants are valid under the provisions of act No. 169 of the Acts of 1931. That act provides that for the security of the payment of bonds issued by any school district a special fund may be created to continue until the bonds are paid, and on election the electors shall determine the amount of tax for the building fund, and, “if a majority of the votes cast are for the building fund, it shall amount to voting a building fund tax of the amount or rate shown for each succeeding year until all bonds then outstanding or issued within a year after such election are paid.”

By § 66 of the act it is provided: “All school districts in Arkansas proceeding under this act to borrow money and issue bonds, in addition to other security herein authorized, may and are hereby authorized to establish a building fund in an amount sufficient to pay the maturities of bonds, principal and interest, as they accrue, of said issue of bonds, that said building fund shall be set aside out of the first revenues of the district from whatever source derived, and shall be held by the county treasurer solely in the manner and for the purposes set out throughout this act. ’ ’

By § 67 it is provided: “No part of any building fund shall be used for any other purpose in any year than to pay the bonds and the interest thereon maturing that year, and that may be past due, until such maturities are paid in full, or until the funds are set aside to pay the full amount of such bonds, after which any surplus in the building fund that year may be used for other school purposes. * * * The county treasurer shall see to it that all warrants on the building fund of any school district are drawn only to pay maturities of principal or interest on bonds of that district, as shown by the records in his office, and he shall countersign all warrants on the building fund before they are valid.”

It will be observed by a reading of § 67 that payments out of the building fund are restricted to the payments of the bonds and the interest maturing in any given year. But it also provides that, when there is a fund set aside sufficient to pay the full amount of the bonds and interest maturing in that year, the surplus, if any, in the building fund “may be used for any other school purposes.” This surplus then may be used to pay any valid obligation of the district for which a proper warrant has been drawn, and consequently the surplus reverts to and becomes a part of the general fund.

From the allegation of the complaint noted, which was accepted as true and was in effect a statement that there were sufficient funds in the hands of the treasurer to the credit of the building' fund to pay the warrants maturing and the accrued interest during the current year, leaving a surplus sufficient to pay the warrants of the appellee, the trial court concluded that the order to pay the appellee’s warrants out of the building fund was justified 'by the language of the statute which provided: “After which any surplus in the building fund that year may be used for other school purposes.” Appellee points out that it is held in the case of Park v. Rural Special School Dist. No. 26, 173 Ark. 892, 293 S. W. 1035, and other cases cited that a brokerage fee for negotiating the sale of 'bonds may be paid out of the proceeds of the bonds sold; but in this case payment is not sought in that manner, but from a special fund created for a special purpose, in which there is no statutory provision for the inclusion of a broker’s fee, and its payment must be made in the manner provided for that of other obligations of the school districts. But the effect of the court’s order is to give warrants of the appellee preference over other outstanding warrants of the school district, whereas the surplus, if any, should be used to pay warrants issued for other school purposes which would include all other obligations of the districts as Avell as the Avarrants of the appellee.

By § 1 of act No. 24 of the Acts of 1933, it is made the duty of the treasurer to register all school warrants in the order of their presentation; and by § 3 of that act it is provided that Avhere no funds are in the treasury to pay school Avarrants, the treasurer shall indorse the warrant “Not paid for lack of funds,” giving the date and registration number and signing the same officially. He is required to keep a record of each school warrant and pay the same in the order of their registration'number.

It would appear, therefore, that such surplus, if any, should revert to general funds of the district to be devoted to the payment of any school warrants in the order of their registration, those of the oldest registration having priority. We are of the opinion that the trial court erred in its order, and the case will be reversed and remanded with directions that appellee’s warrants be ordered paid out of the general funds of the district in the order of their registration; the same to be treated as a registration on the common fund and payable in the order of their date and registration number.


text:
    National Equity Life Insurance Company v. Seamster.
    4-3195
    Opinion delivered November 13, 1933.

      Beloit Taylor and M. J. Harrison, for petitioner.

      Duty & Duty and Bernal Seamster, for respondent.
   Butler, J.

The Farmers ’ Trust Company issued debenture bonds in the sum of $750,000 and pledged with a trustee real estate mortgage bonds to guarantee the outstanding debenture bonds. The trust agreement was duly executed and recorded in Benton County, the domicile of the Farmers ’ Trust Company and the trustee named. The First Mortgage & Investment Company took over the assets of the Farmers’ Trust Company and assumed its liabilities including the aforesaid debenture bonds. '

John R. Duty is the trustee in succession of the trustee named in the trust agreement and Bernal Seamster is the receiver of said investment company. Seamster, as receiver, and Duty, as trustee, filed a complaint in the Washington Chancery Court alleging the above facts and that at the time John R. Duty was designated as trustee he received first mortgage bonds aggregating the principal sum of $81,000 and real estate mortgages securing the same; that under the terms of the trust agreement he became the owner of the bonds and mortgages for the purpose of holding the same for the guarantee of the debenture bonds with the right to dispose of the same in the event of the default in the payment of said bonds at public or private sale, a sufficient amount of the mortgages to pay the. matured debenture bonds in default with interest, or to foreclose or take such other steps as would be necessary to protect the bondholder. It was alleged that some of the officials of the investment company, without the knowledge of the trustee, abstracted the mortgages from their place of deposit and sold same to the National Equity Life Insurance Company, an insurance company organized under the laws of the State of Arkansas, with its principal place of business in the city of Little Rock; that said investment company made written assignments of said mortgages to the insurance company which appear now of record in the office of the recorder of Washington County; that of these mortgages there were two covering lands situated in Washington County; that no title, was in the investment company which it could transfer to the insurance company and that said transfer and assignment is void.’ The complaint concluded with a prayer that the court by its decree divest the insurance company from all apparent title or interest in and to said mortgages as shown by the records of Washington County, Arkansas; that it be enjoined from receiving any further payment thereon, and that the assignment be canceled and the trustee restored to all the rights and ownership of said mortgages given him by the indenture of trust.

On this complaint a summons was issued and served on the insurance company on the 20th day of April, 1933', at its office in Little Rock. Within apt time the defendant insurance company appeared specially in the Washington Chancery Court and filed its motion setting up that it was a domestic corporation with its principal place of business in Little Bock; that it had no agent for service and no branch office in Washington County; that the service, of summons was had upon it in Pulaski County by the sheriff of that county; that the suit was improperly brought in Washington County and that defendant was entitled to be sued in the county where it was domiciled, and it prayed that the service be quashed and for all other proper relief.

On the 29th day of June, the court heard said motion, overruled the same, refused the prayer thereof,- and required the defendant to answer within twenty days from that date, to all of which rulings exceptions were duly saved, and a petition filed in this court asking a writ to be directed to the Washington Chancery Court prohibiting it from proceeding further in the case.

It is the contention of the petitioner that the action brought in the Washington Chancery Court involved as the. principal question the ownership of the mortgages in controversy. It contends that in equity the mortgagor is considered the owner of the property until he is barred by his own default or by judicial decree, the mortgage being regarded merely as a security for a debt; and therefore the decree in the case where the question of the ownership of a mortgage is presented would operate only indirectly and incidentally upon the estate or title to the land. Petitioner therefore argues that the cause of action stated in the. complaint is transitory and that the venue to try the action lies in Pulaski County.

It is insisted by the respondent that the action is for a recovery of an interest in real estate, and, as the real estate is situated in Washington County, or a part of it, that the action is local, and the suit was properly instituted in Washington County by virtue of § 1164 of Crawford & Moses ’ Digest, which provides that actions shall be brought in the county in which the subject of the action, or some part thereof, is situated, where, among • other things, the action is for the recovery of real property or of an estate or interest therein.

It is the opinion of the majority, in which the writer does not agree, that the contention of the. respondent is correct that the cause of action stated is for the recovery of an interest in real estate and the venue was properly laid in Washington County and the service upon the petitioner a valid one. It is their opinion that the instant case is ruled by the case of Fidelity Mortgage Co. v. Evans, 168 Ark. 459, 270 S. W. 624, and that the allegations in the complaint and the prayer for relief in the instant case make it analogous to an action to remove a cloud upon the title which was held to be a local action in the Evans case, supra, in which the court said: ‘ ‘ Clearly one purpose of the action, as shown by the allegations of the complaint and the findings of the decree of the court, was to have surrendered and canceled the outstanding mortgages. These mortgages were clouds upon the title. Appellee Dilling, who had purchased the land from Nichols, and appellee Evans who held the purchase money notes which were secured by vendor’s lien, was entitled to have the outstanding notes and mortgages executed by Nichols and wife surrendered and canceled. The action in this respect affected the land in Logan County and gave the chancery court of that county jurisdiction of the subject-matter. * * * It is manifest that under the pleadings and prayer for general relief the action and decree of the court affected the lands in Logan County. These allegations were sufficient to give the chancery court of that county jurisdiction of the subject-matter.” See also the case of Ark. Mineral Products Co. v. Creel, 181 Ark. 722, 27 S. W. (2d) 1003.

The prayer of the writ will be denied; it is so ordered.


author: Per Curiam.

text:
    Terry v. Harris.
    4-3350
    Opinion delivered November 13, 1933.

      Walter G. Riddick and Roy D. Campbell, for
    petitioner.

      June P. Wooten and Arthur G. Frankel, for respondent.
   Per Curiam.

Petitioner Terry prays a writ of mandamus to compel the circuit court of Pulaski County, before which tribunal an election contest is now pending, to require certain testimony to be admitted; to which petition the presiding judge has responded that the testimony in question is believed to be privileged, and that he is therefore without authority to compel its production.

The question arises upon the following facts: Petitioner Terry has been certified as the Democratic nominee for the office of congressman from the Fifth Congressional District, and Hays, his opponent in the primary election, is contesting the nomination. It is conceded that the contest may be instituted only upon the affidavit of ten qualified Democratic electors of that district supporting the allegations of the complaint, charging facts sufficient to show that the contestant — and not the contestee — received a majority of the legal votes cast in the primary election which is-under review. It is conceded also that, under the rules of the party holding the primary, the affiant, in addition to possessing the qualifications of an elector, shall not have voted against any regular party nominee at any election held within two years prior to the primary election under contest. This affidavit, which is required by § 3772, Crawford & Moses’ Digest, is therefore a jurisdictional prerequisite, without which the right of contest does not exist.

The contestant filed an affidavit in proper form, signed by twenty-five persons, who averred their eligibility to make the jurisdictional affidavit; and the contestee has put in issue the eligibility of affiants by alleging that, within less than two years prior to the holding of the primary under contest, these affiants, or more than fifteen of them, had voted against a Democratic nominee, and that therefore the complaint was not supported by ten eligible affiants as required by law. If this be true, the contest must'be dismissed for that reason.

The trial court held that it was permissible to show that the affiants had voted against a Democratic nominee within the time limited by the party rules, and were therefore ineligible to make the affidavit, and that the affiants might be asked how they had voted, but could not be required to answer, for the reason that their ballots were secret, and that it was their privilege to preserve this secrecy, unless they waived the privilege. It is prayed by this proceeding to require the affiants to answer such questions as may be asked them touching their qualifications to make the jurisdictional affidavit, and to have produced the ballots alleged to have been cast in opposition to the Democratic nominee.

It was held, as respondent points out, in the case of Dixon v. Orr, 49 Ark. 242, 4 S. W. 774, that: “The testimony of voters who participated in the election upon the point for whom their ballots were cast is admissible. But the secrecy of the ballots is established by law, and a qualified elector cannot be compelled to disclose for whom he voted. It is only when he chooses to waive his privilege that his evidence can be had.” "Whether this rule now applies, we do not decide.

We are of the opinion that the affiants here called as witnesses have waived their privilege to have their ballots kept secret. They have made themselves essential parties to this litigation by doing- the thing without which there could be no contest of the election, that is, by supporting with their affidavit the allegations of the contestant’s complaint. Having thus made themselves parties to this proceeding by alleging their eligibility to make the essential affidavit, they have waived such privilege as the law conferred.

The contestee therefore has the right .to examine these affiants upon their qualification to make the jurisdictional affidavit, and to inquire of them whether, within the time specified by the party rules, they have opposed a party nominee, thereby rendering themselves ineligible to make the affidavit. The testimony of the affiants themselves is admissible, and we think this testimony may be corroborated or contradicted by the production of the ballots, the casting of which is alleged to have disqualified them, or the ballots may be offered as original evidence.

The writ of mandamus will therefore be awarded as prayed, and the trial court is directed to permit the affiants to be examined upon their eligibility, and, if necessary, to produce their ballots. Authority for this ruling is furnished by the case of Giboney v. Rogers, 32 Ark. 462, in which case the facts were as follows: Giboney was under indictment for a felony, and he wished to take depositions of witnesses residing out of the State. Upon the refusal of the trial court to make the necessary order to enable the defendant to take the depositions, he applied to this court for a writ of mandamus requiring the trial court to make the order. Having concluded that the defendant was entitled to this testimony, it was ordered in the case cited that a writ of mandamus issue to the trial judge requiring him to make the necessary order for that purpose. So, here, if it be true that the affiants are not eligible to make the supporting affidavit, that may be shown, and the writ of mandamus will be issued as prayed.

It is the opinion of Mr. Justice Smith that the questions here disposed of have been prematurely decided.

Counsel for contestant ask us to decide whether all persons who voted for the independent candidate in the July 18 election may be required to appear and testify as to how they voted and whether the production of their ballots may be required. We do not decide these questions, nor whether such a vote is a disqualification. These are questions to be decided by the trial court, which may be reviewed only by appeal to this court.


author: Johnson, C. J.

text:
    Magnolia Petroleum Company v. Turner.
    4-3197
    Opinion delivered November 20, 1933.

      Cockrill, Armistead & Rector, for appellant.

      J. H. Lookadoo and M. Rountree, for appellee.
   Johnson, C. J.

This is an action seeking' recovery for an alleged common-law tort and arose under tlie following circumstances. Appellee, Connie Turner,' is a minor and a resident of the State of Arkansas. Appellant, Magnolia Petroleum Company, is a Texas corporation, but is authorized and- doing business in this State wherein proper service of summons was had upon it. On all material issues the testimony presented is not in dispute and it may ‘be summarized as follows:

“In July, 1931, appellee was employed by appellant to perform manual labor for it in and around Kilgore, in the State of, Texas. In pursuance of the contract of employment, appellee began the discharge of his duties, and, while being transported by appellant from Kilgore to his place of work on August 4,1931, the truck on which appellee was’being transported was negligently and carelessly wrecked by the driver, and appellee was seriously and permanently injured. The contract of employment, the service to be rendered thereunder by appellee and the injury received by him, all occurred in the State of Texas.”

The principal defense offered by appellant was to the following effect:

“That, under the laws of the State of Texas, on the date of the contract of employment and on the date of the injury, there was no common-law liability for torts existing in favor of appellee and against appellant. The uncontradicted testimony shows that on the date of employment and on the date of the injury appellant was a subscriber under the Texas Employers’ Liability and Workmen’s Compensation Insurance Law, and that appellee had, served no notice upon it reserving his rights to prosecute a common-law action for tort at the time or subsequent to his employment.”

The controlling question here presented for adjudication is, whether or not the Texas Workmen’s Compensation Laws afford an exclusive remedy under the circumstances of this case. Article 8306 of Vernon’s Annotated Texas Statutes. Section 3, in part, provides: “The employees of a subscriber and the parents of minor employees shall have no right of action against their employer or against any agent, servant or employee of said employer for damages for personal injuries, and the representatives and beneficiaries of deceased employees shall have no right of action against such subscribing employer or his agent, servant or employee for damages for injuries resulting in death, but such employees and their representatives and beneficiaries shall look for compensation solely to the association, as the same is hereinafter provided for.”

Section 3a of article 8306, cited supra, reads as follows: “An employee of a subscriber shall be held to have waived his right of action at common law or under any statute of this State to recover damages for injuries sustained in the course of his employment if he shall not have given his employer at the time of his contract of hire, notice in writing that he claimed said right or if the contract of hire was made before the employer became a subscriber, if the employee shall not have given the said notice within five days of notice of such subscription. An employee who has given notice to his employer that he claimed his right of action at common law or under any statute may thereafter waive such claim by notice in writing, which shall take effect five days after its delivery to his employer or his agent. Any employee of a subscriber who has not waived his right of action at common law or under any statute to recover damages for injury sustained in the course of his employment, as above provided in this section, shall, as well as his legal beneficiaries and representatives, have his or their cause of action for such injuries as now exist by the common law and statutes of this State, which action shall be subject to all defenses under the common law and statutes of this State. (Acts 1917, p. 269).”

Section 3c of article 8306 provides: “From and after the time of the receipt by the Industrial Accident Board of notice from any employer that the latter has become a subscriber under this law, all employees of said subscriber then and thereafter employed shall be conclusively deemed to have notice of the fact that such subscriber has provided with the association for the payment of compensation under this law. If any employer ceases to be a subscriber, he shall on or before the date on which his policy expires give notice to that effect to the Industrial Accident Board, and to such subscriber’s employees by posting notices to that effect in three public places around such subscriber’s plant. (Acts 1923, p. 384).”

In the case of Castleberry v. Frost Johnson Lumber Company of Texas, (Tex. Civ. App.) 268 S. W. 771, the Texas court held that the Workmen’s Compensation Act, heretofore referred to and cited, afforded an exclusive remedy to all employees against subscribing employers and used the following language in support thereof: “If the definition quoted is the correct meaning of the term ‘damages,’ then we must hold that the Legislature used it in that sense, intending to bar all actions against the employer by his employees, unless it clearly appeals that it was used in a different sense. Under article 5246-7, as quoted supra, it appears beyond doubt that damages, both actual and exemplary, were included in the scope of the legislation, because we find in article 5246-7 the Legislature referring to exemplary damages, excepting from its provisions exemplary damages where the death of the employee is brought about by the gross negligence, of the employer. Robertson v. Magnolia Petroleum Co. (Tex. Civ. App.) 255 S. W. 223. We must conclude, then, that the word in its broadest application was being considered by the Legislature, and was so used by them, and that in excepting one class of litigants from its provisions it was the legislative intent to include all others. The maxim expressio unius est exclusio alterius has application.”

It is insisted on behalf of appellee that the Texas Workmen’s Compensation Laws are procedural in effect, and therefore should not be permitted to control procedure in this State.

This court in the case of St. Louis Iron Mountain & Southern Railway Company v. Brown, 67 Ark. 297, 54 S. W. 865, held: “In all actions ex delicto for injuries to person or property, the right to recover, and the limit of the amount of the judgment, are determined and governed by the laws of the place where the injury was done.”

In 29 Cyc. 564, subdivision 4, under the head of Negligence, the rule is stated thus: “The law of the State where the injury occurs governs the right of the injured party to redress. ”

As construed by the Texas courts, the "Workmen’s Compensation Statutes of that State, are not merely procedural, 'but on the contrary take away from all employees of subscribers under said act their common-law rights of action for torts committed in that State, and substitutes therefor a compensatory award, and this, regardless of all necessary elements which constitute a common-law tort.

It is contended on behalf of appellee that he did no affirmative act at the time of his employment waiving his right to prosecute a suit- under the common law for a tort committed in Texas. Section 3 of 8306, heretofore referred to, answers definitely and certainly this contention. This provision, in effect, provides that all such employees shall look for compensation solely to the association. Section 3a provides, in effect, that such employee shall 'be held to have waived his right of common-law action, if he shall not have given his employer, at the time of his contract of hire, notice in writing that such rigffit was preserved.

The Supreme Court of Rhode Island in the case of Pendar v. H. & B. American Machine Company, 35 R. I. 321, 1916A. L. R. A., p. 428, had this exact question under consideration, and the first headnote reads as follows: “An employee cannot maintain an action in one State to recover damages for injuries received in another State where the contract of employment was made, if, at the time he entered into his employment, he failed to comply with the requirements of the local statutes that he notify the employer, who carried an employers’ liability insurance policy, that he intended to rely on his common-law-rights, which failure the statute makes a waiver of the right to maintain a common-law action. ’ ’

It will thus be seen that not only the statutes of Texas provide an exclusive remedy for common-law torts committed in that State by a subscriber of the Workmen’s Compensation Law, but that such enactments are supported by eminent authority.

It is next insisted by appellee that, since he was a minor, under the age of 21 years, at the time he made his contract of employment, and at the time he received his injuries, he was not and is not precluded by the Workmen’s Compensation Law of Texas. In Scott v. Thompson & Ford Lumber Company, (Tex. Civ. App.) 291 S. W. 565, 568, the Texas court held: “The employees of a subscriber and the parents of minor employees shall have no right of action against their employer or against any agent, servant or employee of said employer for damages for personal injuries, and the representatives and beneficiaries of deceased employees shall have no right of action against such subscribing .employer or his agent, servant or employee for damages for injuries resulting in death, but such employees and their representatives and beneficiaries shall look for compensation solely to the association, as the same is hereinafter provided for. It thus plainly appears that the Legislature, in enacting the law, contemplated that minors would be employed, and made provisions for their protection. The court did not err in directing a verdict for appellee, and therefore the judgment is affirmed.”

It is our duty to follow the construction placed upon the statute in question by the Texas courts. Since the Texas court has specifically held that a minor does waive his common-law tort action, unless he gives written notice of his intention to preserve the same, we are, of necessity, constrained to hold likewise.

It is next said that to give effect to the Texas law in this State would be against our rule of public policy. This contention was advanced in Bradford Electric Company v. Clapper, 286 U. S. 145, 52 S. Ct. 571, wherein the court held:

“It is true that the full faith and credit clause does not require the enforcement of every right conferred by a statute of another State. There is room for some play of conflicting policies. * * * A State may, on occasion, decline to enforce a foreign cause of action. In so doing, it merely denies a remedy, leaving unimpaired the plaintiff’s substantive right, so that he is free to enforce it elsewhere. But to refuse to give effect to a substantive defense under the applicable law of another State, as under the circumstances here presented, subjects the defendant to irremediable liability.”

From what we have said, it is obvious that the right of appellee to maintain this action in the State of Arkansas is and should be determined by the fact as to whether or not he has such right in the' State of Texas. It is perfectly evident from authority herein cited that appellee has no right to maintain this action in the Texas courts. Since no such right exists in Texas, such privilege will not be afforded him by the laws of this State.

We therefore reach the conclusion that appellee is not entitled to bring and prosecute this common-law action in this State, as by his own act he has extinguished such right in the State of Texas.

The judgment is therefore reversed, and the cause of action dismissed.