author: Hart, C. J.

text:
    Street Improvement Districts Nos. 481 and 485 v. Hadfield.
    Opinion delivered November 9, 1931.

      La/wrence G. Auten, for appellant.

      Linwood Briclchouse, for appellee.
   Hart, C. J.

This is an appeal from a judgment of a circuit court denying certain street improvement districts in the city of Little Rock a writ of mandamus to compel the treasurer of the city of Little Rock to set aside to them certain road taxes collected by him on property within the limits of the city under the provisions of act 66 of the Legislature of 1931. The act was approved February 26, 1931, and is an act to grant to cities of the first class in counties having- a population of 125,000 or more, fifty per cent, of the taxes collected on property in such cities and to aid improvement districts wholly within such cities. Acts of 1931, p. 186.

Section 1 of the act reads as follows: “The tax collector and county treasurer of each county now or hereafter having 125,000 or more inhabitants, according to the most recent federal census, shall, on or before Olctober 1st in each year, pay to the city treasurer of each city of the first class in the county, 50 per cent., or the percentage now being paid if it exceeds 50 per cent., of all road taxes and delinquent road taxes collected by them respectively on property within the corporate limits of the city. The term ‘road taxes’ shall embrace all road taxes, including the three-mill road tax, the $4 per capita tax, and every other road tax levied in the county, the expenditure of which the Legislature is authorized to direct, and which have not already been allotted by law to particular street improvement districts.”

Section 2 provides that the city treasurer of each city affected by § 1 of the act, having- outstanding valid bond issues, shall at quarterly periods set aside in a special fund to be known as the “Street Improvement Bond Redemption Fund,” one-half of all road tax funds received from the county collector and county treasurer, and one-half of all funds derived from city automobile, truck, or other vehicle license taxes, to be used in paying the bonds, with interest thereon, of such improvement districts.

Section 3 provides that the city clerk shall annually ascertain the dates of issuance and of maturities of all outstanding bonds issued by each improvement district affected by the terms of the act.

Section 4 provides that on October 1st the city clerk shall certify to the board of commissioners of each improvement district the amount of the fund apportioned to the district for the ensuing year.

. Section 5 provides that improvement districts that are not wholly within city limits and those whose bonds were issued prior to February 4, 1927, shall not come under the provisions of the act.

Section 6 provides that compliance with the act may be enforced by mandamus.

The complaint of the improvement districts for the writ of mandamus was denied by the court, and the complaints were dismissed on the ground that the act was unconstitutional as being in violation of amendment No. 14 to our Constitution, initiated by the people in 1926 and adopted at the general election held in that year, •which provides that the General Assembly shall not pass any local or special act.

The general rule is that classification is properly based on population when reasonably adapted to the subject of the statute. Otherwise the classification by population is special legislation. Other circumstances than population may be made the basis of classification when reasonably germane and pertinent to the subject-matter. 36 Cyc., pp. 1004-1006, and cases cited; 25 It. C. L., § 66, p. 817, and cases cited.

The authorities generally hold that classification of cities and towns by population can not be arbitrarily adopted as a ground for granting some of them powers denied to others if, although there be a difference in population, there is no difference in situation or circumstances • of the municipalities placed in the different classes, and the difference in population has no reasonable relation to the purposes and object to be attained by the statute. L’Hote v. Village of Milford, 212 Ill. 418, 72 N. E. 399, 103 Am. St. Rep. 234. In that ease the court quoted with approval from one of its former opinions the following:

“The rule is that a classification cannot be adopted arbitrarily upon a ground which has no foundation in difference of situation or circumstances of the municipalities placed in the different classes. There must be some reasonable relation between the situation of municipalities classified and the purposes and objects to be attained. There must be something in the nature of things, which in some reasonable degree accounts for the division into classes.”

The court again held that an arbitrary classification •upon a ground which had no foundation in difference of situation or circumstances could not be adopted.

Sometimes it is difficult to make a proper application of the rule to the facts of a given case, but the rule itself is so well established in this State that we need only cite a few of our cases in support of it. Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785; Ark-Ash Lumber Co. v. Pride & Fairley, 162 Ark. 235, 258 S. W. 335; McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 407; LeMaire v. Henderson, 174 Ark. 936, 298 S. W. 327; Webb v. Adams, 180 Ark. 713, 23 S. W. (2d) 617; and Simpson v. Matthews, ante p. 213.

In the case first cited, the court had under consideration a statute allowing municipal corporations to be annexed and made part of other municipal corporations located within one mile of the municipal corporation to which the same was to be annexed upon compliance with the provisions of the act. It was contended that this was a special net and violated the provisions of the Constitution which prohibits the Legislature from' creating municipal corporations and conferring corporate powers by-special act. The court held that the classification made ■by the statute was not arbitrary and unreasonable. It was pointed out that there were at present -at leást two -different localities in the State which came within the statute, and that towns which were situated within á mile of each other might be conveniently annexed while municipalities separated by greater distances could not be conveniently consolidated or annexed to each other. Consequently, the court said that the positions of the towns and cities embraced in the act in relation to each other distinguished them from other municipalities not so situated, and that situation under the circumstances was a reasonable basis for classification. In this connection, it may be said that laws properly classifying cities and towns for organization and for tbe purposes of civil government are general in their nature. The reason is that in such cases population is a reasonable basis for classification because the density of population in cities makes it necessary to give them additional powers in the administration of the affairs of such cities. In such cases the law operates equally upon all cities wherever situated in the State which fall within the class, and the population of the county does not enter into such classification.

In Harwood v. Wentworth, 162 U. S. 547, 16 S. Ct. 890, the Supreme Court of the United States sustained a salary act for the Territory of Arizona as being general in its operation. The counties were classified for the purpose of fixing the salaries of the county officers according to population, wealth and other things which were calculated to furnish a reasonable basis for classification.

In the present case, no substantial or appropriate reason is given or is apparent to us' for the distinction in legislation of this kind between cities of the first class in counties having 125,000 inhabitants or more and those in counties of a less number of inhabitants. The subject-matter of the legislation was to give certain designated-cities fifty per cent, of all road taxes collected on property within their limits and to set aside a special fund for one-half of these road taxes received from the county collector to be used in paying improvement district bonds. There is nothing in the terms of the act to distinguish the cities included from those excluded, and making the legislation fit and appropriate to' those included and inappropriate to the conditions of those excluded so as to be of no benefit to them. By this act preferences and advantages are given to municipal corporations simply because they are in Pulaski County, which is the only county in the State with a population of 125,000 or moré. There would be no g’ood reason, in the nature of things, why cities of the first class situated in counties having a smaller population than 125,000 should not have one-half of the road fund derived from property within their limits in like manner as the cities in Pulaski County. It is therefore an arbitrary and unnatural classification of municipalities coming under the same general class and not materially differing in needs and requirements and exercising the same general powers in other respects. People v. Knopf, 183 Ill. 410, 56 N. E. 155; Scowden’s Appeal, 96 Pa. St. 422; State v. City of Trenton, 42 N. J. 486; State v. Weakley, 153 Ala. 648, 45 So. 175.

In the Illinois case just cited, the act provided that in counties having a population of over 125,000, the aggregate rate of taxation should not exceed 5 per cent, and the county school and municipal tax rate should be scaled pro rata, if necessary to bring the aggregate rate within that limit. The act was held void as special legislation because it made a class of cities, towns and school districts in such counties without any reasonable grounds therefor. In discussing the question, the court said:

“By this act restrictions are put upon cities, townships, school districts, and other municipal corporations simply because they are within Cook County, which is the only county in the State with a population of more than 125,000. There can be no reason, in the nature of things, why a city, village, school district, or other public or quasi public corporation in that county should be deprived of powers that a similar corporation situated in some other county is permitted to exercise. It is an arbitrary and unnatural classification of municipalities not different in population, needs, or requirements, and exercising the same general powers in other respects.”

In the New Jersey case cited, it was held that a statute purporting to confer upon all cities having a population of not less than twenty-five thousand inhabitants the power of issuing bonds to fund their floating debt was a special law, and in violation of the constitutional amendment which forbids the passing of special laws to regulate the internal affairs of towns. In discussing the question, the court said:

“The basis of classification is a minimum of population. The powers to be conferred by the statute concern the issue of bonds for the purpose of funding floating debts. Now, I am unaible to see any natural connection between the number of people in a city and its right to fund its floating debt. It is true that there may be some propriety in denying this authority to very small municipalities and granting it to larger ones, -but the same may be said of almost every power usually possessed by cities. And it is manifest that if the classification made by a statute is to be justified or not by considering whether it is proper to apply the peculiar provisions of the law to the particular individual or individuals designed to be affected, then laws will be upheld or overthrown, not as the court shall decide them to be ^general or special, but as they shall deem wise or unwise. No rule heretofore laid down in this State sanctions such a test of constitutionality, nor do I think that such a criterion should be adopted.”

• ■ In the Alabama case just cited, the act under consideration provided for the establishment of police commissions “in cities of 35,000 population or more, in counties of 125,000 or more population, and to define their terms of office, duties and powers.” The court said that a statute in part was applicable to but one city, and that it was unconstitutional as not being a bona fide classification of cities.

The court said:

“The act in question was in no sense a classification of counties, as its manifest object is to create a police board in cities, and pertains in no way to the regulation of counties. Nor is it a boma fide classification of cities, as it expressly excludes cities of the same class, unless located in a county of a certain size. While there are cities in Alabama other than Birmingham with the necessary population, Birmingham is the only one located in a county with a population of 125,000. The substance of the act is for the sole purpose of regulating conditions in Birmingham, although the act is disguised in the garb of a general law. While we do not wish to recede from our f ormer decisions on this subject, and do not intend by this opinion to give the backing signal, we do not think the subject and occasion appropriate for an application of judicial brakes, else § 110 of the Constitution will be absolutely emasculated. The act in question being local', although under the attempted guise of a general law, is repugnant to § 106 of the Constitution, for the reason that no notice was given of the intention to apply for the enactment of same.”

In the case before us, the question whether the act .has effect or not in -any particular city of the first class is determined by the number 'of inhabitants of the county in which it is situated and by nothing else. As said in Van Riper v. Parsons, 40 N. J. Law (11 Vroom) 1, the object of this amendment of the Constitution is to exterminate root and branch special and local legislation^ and to substitute general law in the place of it in every instance where such substitution can be effected. In this case the court also said:

“All legislation is based, of necessity, on a classification of its subjects, and when such classification is fairly made, and the legislation founded upon it is appropriate to such classification, such legislation is as legitimate now as it would have been prior to the recent amendments to the Constitution. ’ ’

It is equally well settled that the doctrine of classification is not to be extended for the purpose of evading the requirements of the Constitution. The legislative classification in the act before us is not germane to the subject-matter. The object of the statute was to benefit cities of the first class in a certain locality by giving them 50 per cent, of the road taxes collected on property within their corporate limits and one-half of the fund to be derived from city motor vehicle license taxes, and to- aid improvement districts in such cities in the payment of their bonds, where the bonds were issued since February 4, 1927. The subject-matter of the act did not relate to counties at all. The. effect, limiting or restricting the benefits provided by the act to cities of the first class in counties having 125,000 or more population, is to localize the legislation, for such classification is not founded on any real or apparent difference in the situation or condition of cities of the first class. The needs of cities of the first class for relief of this sort does not depend upon the population of the counties in which they are situated. The court will take judicial notice from the United States census reports that Pulaski County has a population of 137,727, and that it is the only county in the State having* 125,000 or more inhabitants, or which will likely have at any reasonable time in the future. It has two cities of the first class, and their situation and condition as to the subject-matter of the legislation is not different from that of other cities of the first class in the State. The fact that they are situated in Pulaski County has no reasonable pertinency as to their needs or circumstances with reference to receiving* road taxes or vehicle license taxes. It is no answer to say that such taxes are collected from property and vehicles within the city limits, for this would be the case in every city of the first class within the State.

Therefore we are of the opinion the classification does not bear any reasonable or just relation to the subject-matter of the act, and is arbitrary and unreasonable.

For these reasons, the circuit court correctly held that the act under consideration was a local act, and unconstitutional, as being prohibited by amendment No. 14 to the Constitution, and the judgment will be affirmed.

Smith and Kirby, JJ., dissent.


source: Caselaw Access Project

license: Public Domain

text:
    Williams Brothers, Inc., v. Witt.
    Opinion delivered November 9, 1931.

      Bu&bee, Pugh <& Harrison, for appellant.

      Miller Yingling, for appellee.
   Hart, C. J.

This was an action for personal injuries by a servant against his master; and from the judgment rendered, appellant, the master, prosecutes this appeal to reverse it on the ground that no negligence on its part was established.

Fred Witt, appellee, was the principal witness for himself. According to his testimony, he was forty-five years old, and had been engaged in farming and logging all of his life. In July, 1929, he was working for Williams Brothers, Inc., in Jackson County, doing general work of all kinds — “hauling, and anything they wanted him to do.” He had two teams on the job and -got $11 per day for the hire of himself and teams. He looked after his own team, but usually a driver was furnished him. He had worked for the corporation about two months before he was injured. Tbe corporation was engaged in laying gas pipes along a right-of-way in the State of Arkansas. The pipe was steel forty-four feet long, twenty-two inches in diameter, and about one-fourth inch thick. Rubber gaskets, twenty-two inches in diameter, were used to keep the joints of the pipe from leaking. The pipe was first hauled along the right-of-way and distributed; and then the gaskets, which came in sacks with about one hundred in each sack, were hauled along the right-of-way and also distributed.

On the morning the appellee was injured, the right-of-way was blocked with logs and pipes. The foreman directed the plaintiff to distribute gaskets along thé line. Appellee told the foreman that there was not any way to get through with a wagon. The foreman replied that there was a way, to go along the right-of-way and to haul the ■gaskets and distribute them. The wagon in which the gaskets were hauled had a frame about three and one-half inches deep. The gaskets were piled up fifteen or eighteen inches above the bed, and it was the duty of appellee to sit in the wagon and keep these sacks of gaskets from rolling off. Another man drove the wagon. The right-of-way had been cleared where the pipe was distributéd, but it was blocked. The driver of the wagon hit a log, and this threw appellee over against a tree, and his foot caught between the tree and the wagon frame. At the time of the injury, appellee was trying to hold the sacks of gaskets and keep them from rolling off the wagon. It was the custom of appellant to wind around through the woods and make a road. Sometimes the road would be used a week before a new one was made further along the right-of-way.

At the time of the injury appellee was sitting on the wagon with his legs dangling over the side, and the wagon hit something which threw it to one side, and this caused his leg to be caught between the frame of the wagon and a tree. Appellee could tell the wagon was slipping towards the tree, but did not know' that it was so close because he was reaching over pulling at a sack of gaskets that was about to fall off. His leg’ was broken by the accident. Other witnesses corroborated the testimony of appellee.

The evidence for appellant tended to show that it was not negligent in the premises.

Viewing the evidence for appellee in the light most favorable to him, we do not think that any negligence on the part of appellant was shown.

According- to the settled law of this State, it was the duty of the .master to exercise ordinary care to provide his servants with a reasonably safe place in which to work and reasonably safe appliances with which to work. The burden of proof was upon the injured servant to show negligence on the part of the master or of a fellow-servant which proximately caused his injury. Fletcher v. Freeman-Smith Lumber Co., 98 Ark. 202, 135 S. W. 827; Neimeyer Lumber Co. v. Watson, 134 Ark. 491, 204 S. W. 310; and Booth & Flynn Co. v. Pearsall, 182 Ark. 854, 33 S. W. (2d) 404.

The right-of-way where appellee received his injury was his accustomed place of work, and was constructed in the usual and customary way. In the very nature of things, it was necessary to distribute the pipe which was to be laid and the gaskets which were to be used in joining the pipe along the right-of-way. Except where it crossed fields and roads, the right-of-way ran through the woods, and was necessarily somewhat rough and uneven. Appellee was a man forty-five years of age, and had been engaged in farming and logging all of his life. No other practical way could have been used in laying the pipe. While the accident to appellee was unfortunate, it was not due to the negligence of his master or of fellow-servants, but was an accident for which no one was to blame. It could not have been foreseen by any reasonable prudence on the part of the master, and was an unfortunate and unexpected occurrence. The right-of-way where appellee received his injury was his accustomed place of work. Its condition was open to his observation when he took the job. Appellee had been engaged in farming and logging all of his life, and the work he was performing was no different from hauling wood on a farm or in hauling logs. An unavoidable accident is a complete defense against liability.

We are .of the opinion that there was no negligence shown on the part of appellant, and the accident resulted from a danger incident to the work which was being done.Therefore the judgment will be reversed; and, inasmuch as the cause of action has been fully developed, it will be dismissed here.


author: Smith, J.

text:
    Ross v. State Highway Commission.
    Opinion delivered November 9, 1931.

      McMillan •(& McMillan, for appellant.

      Hal L. Norwood, Attorney -General, and Claude Duty, Assistant, for appellee.
   Smith, J.

Although this appeal comes to us from a judgment sustaining’ a demurrer to appellant’s complaint, the parties differ as to the effect and purport of the allegations of the complaint. We have accepted the appellant’s interpretation of its allegations, inasmuch as he may make its allegations more specific upon the remand which must be ordered; and if the complaint does not allege what he contends it does, an amendment to the complaint will clarify the issues which he discusses in his brief on this appeal.

As thus interpreted, the complaint contains the following allegations: Without any order of court authorizing the State Highway Commission to enter upon and appropriate and damage plaintiff’s lands or assessing the damages thus occasioned, the State Highway Commission entered upon and damaged plaintiff’s lands. This was done by constructing a road bed and by digging a ditch connecting with a creek, which caused the water from the creek, in-flood periods, to flow back upon plaintiff’s lands. The road bed thus constructed was a part of the State’s highway system. The road bed and ditch caused damage to the lands and to the crop growing thereon.

Thereafter, the road bed having been found insufficient for its intended purposes, an order of condemnation was obtained in the county court condemning the necessary right-of-way. These allegations state a cause of action against both the State Highway Commission and the county, although suit was brought against the State Highway Commission only.

It may he first said that the county had power and authority to condemn and pay for the right-of-way at its own expense, even though the road to be improved was a part of the State’s highway system. It was so expressly decided in the case of England v. State Highway Commission, 177 Ark. 157, 6 S. W. (2d) 23. See also other cases there cited. In such a proceeding the county would be liable for any damage then or thereafter accruing through the exercise of this right of eminent domain. Independence County v. Lester, 173 Ark. 796, 293 S. W. 713.

But the complaint alleges an entry upon and damage to the lands by the State Highway Commission before the exercise of this right of eminent domain by the county, and for any damage thus occasioned the commission is liable.

It was pointed out in the England case, supra, that the highway commission might exercise the right of entry and condemnation on its own account and at its own cost and expense, and, where it does so, it must pay the damages thus occasioned. In other words, the highway commission or the county may condemn land for State highway purposes, and the agency which does so must pay the damages resulting from its action.

Now the complaint does not allege that the highway commission instituted any proceeding authorizing it to enter upon plaintiff’s lands, but that is immaterial. The commission cannot escape liability by proceeding without first obtaining an order and judgment of court authorizing it to proceed.

The facts in the case of Campbell v. Arkansas State Highway Commission, 183 Ark. 780, 38 S. W. (2d) 753, were that the commission, without instituting any proceeding ag’adnst the complaining property owner, had damaged his land by the construction of a bridge and the approaches thereto. Indeed, the contention was made by the commission that it had not taken or damaged the land of the complaining property owner.

We there said: “It is true that the Arkansas State Highway Commission did not institute condemnation proceedings against the property owners, but the property owners had a right to maintain this action. It was a remedy given them under the common law for a trespass or injury to their real estate. The right existed under the provision of the Constitution; and where the statutes provide no adequate remedy, it may be enforced by an action for damages. (Citing authorities.) ”

We conclude therefore that the highway commission, through its entry upon the plaintiff’s lands prior to the order of condemnation in the county court, was responsible for any and all damages resulting from its entry prior to the order of condemnation, and the demurrer to the complaint should therefore be overruled, and the judgment of the court below is reversed, and the cause remanded with directions to overrule the demurrer.


text:
    Hoxie Lumber Company v. Chidister.
    Opinion delivered November 9, 1931.

      Richardson & Richardson, for appellant.

      W. P. Smith and O. C. RlacJcford, for appellee.
   Smith, J.

Appellant, Hoxie Lumber Company, filed a complaint in which it alleged that it had sold to W. H. Chidister certain material to be used by the latter in construction work which he had contracted to perform for the Clover Bend School District of Lawrence County. Chidister made default in paying for the material, and this suit was brought to enforce payment, and. a writ of garnishment was served upon the school district.

In response to the interrogatories propounded to it, the school district filed a response and answer, in which the execution of the contract with Chidister was admitted, but it was stated that while Chidister commenced the work, he never completed it, but abandoned his contract, and that the work done was without value to the school district. The necessary effect of the answer of the school district was to deny that it was indebted to Chidister in any sum, and it did expressly deny that the work had been completed.

No response to this answer was filed, and no testimony was offered when the motion to quash the garnishment was submitted to and heard by the court.

The decree of the court recites that the cause was submitted' and heard upon the pleadings, and it was ordered that the garnishment be quashed, and this appeal is from that decree.

The decree of the court was correct. It was held in the case of Plummer v. School District No. 1 of Marianna, 90 Ark. 236, 118 S. W. 1011, 134 Am. St. Rep. 28, 17 Ann. Cas. 508, that where a school building had been completed the creditors of the contractor doing the work may sue him in equity and impound any balance due him by the school district after the building contract had been completed, but not before. In so holding the court quoted from the. case of Boone County v. Keck, 31 Ark. 387, as follows: “Public policy, indeed public necessity, requires that the means of public corporations, which are created for public purposes with powers to be exercised for the public good, which can contract alone for the public, and whose only means of payment of the debts contracted is drawn from the corporators by a special levy for that purpose, should not be diverted from the purposes for which it was collected, to satisfy the demands of others than the parties contracted with.”

Here we have an answer of the garnishee school district to the effect that the work was never completed but was abandoned by the contractor, and that the work done was without value to the school district and, consequently, nothing was due for it. •

This answer, whether true or false, was not denied as required by § 4912, Crawford & Moses’ Digest, where the creditor wishes to make an issue as to the truth of the answer to the interrogatories which the garnishee has filed.

The practice in such cases was defined by Mr. Justice Frauenthal in the case of Beasley v. Haney, 96 Ark. 568, 132 S. W. 646, where it was said: “After the garnishee has filed his answer, the plaintiff must either except to or deny the allegations thereof. The answer of the garnishee is taken as prima facie true of the allegations it contains; and if it is not contradicted, or if issue is not taken thereon, it will be presumed to be absolutely true. (Citing authorities.) ”

Here, there being no denial of the truth of the garnishee’s answer, the garnishment was properly dismissed. The decree of the court below is therefore correct, and must be affirmed.

Kirby, J., dissents.


author: Humphreys, J.

text:
    Arkansas Power & Light Company v. Adcock.
    Opinion delivered November 9, 1931.

      Robinson, House •& Moses and Frank Bird, for appellant.

      John E. Miller and G. E. Tingling, for appellee.
   Humphreys, J.

Appellee, as father and as-administrator of the estate of his deceased minor son, brought this suit against appellant in the circuit court of White County to recover damages in the sum of $7,500 for the loss of his son’s services and $15,000 on behalf of the estate for the pain and suffering endured by the deceased, who was killed by electricity received from a transmission line owned by appellant, who had negligently permitted it to sag near the ground across the cotton field of George Anders, about one and one quarter miles west of Pangburn.

Defendant filed an answer, denying the material allegations of the complaint, and also pleaded contributory negligence on the part of deceased as an affirmative defense to the alleged cause of action.

The case was submitted to the jury upon the pleadings, testimony adduced by the parties, and instructions of the court, resulting in a judgment for $2,500 in favor of appellee for the loss of his son’s services and for $7,-500 as administrator for his son’s estate on account of the pain and suffering endured by deceased, from which is this appeal.

Appellant’s first contention for a reversal of the judgment is that the testimony fails to show any negligence by appellant causing the death of appellee’s son. The proper interpretation of the testimony, viewed in its most favorable light for appellee, reflects that appellant failed to repair its transmission line within a reasonable time after being dislodged from its support by the force of an electric storm, so that it hung within four or five feet from the ground across a cotton field owned by Anders in the vicinity of Pangburn. Appellee’s son was engaged in picking cotton in the field across which the transmission line was suspended at the time he was killed by electricity escaping from the line. On Thursday night, September 23, 1930, an electric storm visited the town of Pangburn, and appellant’s transmission line running across the cotton field was struck by lightning, demolishing one post and badly splintering three others. The injury to the posts and cross-arms caused one of the lines to sag within four or five feet of the ground for a considerable distance, where it remained unrepaired and unguarded until about nine o ’clock a. m. Saturday, or for a period of about forty-eight hours. The line was carrying about 13,000 volts of electricity. At a time when deceased, who was picking cotton in the field, approached and was in near proximity to the wire, the electricity suddenly arcked to his body and produced the injury which resulted in his death. Appellant’s manager at Pangburn knew of the storm Thursday night when it occurred. The lightning that struck the line put out the lights in Pang-burn for awhile. Friday morning he sold some fuse plugs to persons to replace some which the lightning had burned out during the electrical storm. The substation near Searcy was equipped with kick-out switches and also a voltmeter for the purpose of registering disturbances along the line. When the employees came to the substation Friday morning, they discovered that the switch had been kicked out, and that the voltmeter had registered a disturbance on the line. The line had cleared, and there was nothing to indicate the character of the disturbance. All that the warning devices indicated was that there had been a disturbance of some kind on the line caused by lightning. We think this information, coupled with the manager’s knowledge that there had been a severe electrical storm, was sufficient to warrant the submission to the jury of the issue of appellant’s alléged negligence in failing to patrol and inspect the line after the storm. It is clearly the duty of an electrical company to use due diligence to discover and repair defects in its system. 9 R. C. L., sec. 25, p. 17. It follows that diligence would require an immediate patrol and inspection of lines where the warning devices had indicated. disturbances caused by lightning during a severe electrical storm.

'Appellant’s next contention for a reversal of the judgment is that the undisputed testimony reflects that deceased negligently caused his own death by walking up to the wire and starting to take hold of it for the purpose of showing his companions that there was no danger in touching a single wire, although warned not to do so. If this were the only reasonable deduction that could be drawn from the evidence, then deceased would have been guilty of contributory negligence, and appellee could not recover. There was testimony, however, tending to show that deceased turned to 'the right into another cotton row where the wire was higher than in his row, and said to one of his companions, “Look,” and as he raised either his right or left hand, some amount of electricity arcked from the wire into his body, knocking him to the ground, which injury resulted in his death. It is argued by appellant that the only purpose he could have had in raising his hand was to touch the wire, because he had remarked to his companion that there was no danger in a single wire. It may be that he raised his hand inadvertently, for he did not tell any one that he intended to touch the wire. Had it been his purpose to touch the wire, he could have done so where he was standing before he turned to the right. Two of his companions had stooped down to walk under the wire, and it may be that lie intended to follow tlieir example and had turned to the right where the wire was higher and easier for him to do so. As to why he raised his hand is entirely problematical, and the conclusive inference cannot be indulged that he intended to touch the wire because he raised his hand. The burden rested upon appellant to show by undisputed evidence that he raised his hand for the purpose of touching the wire before the court could declare as a matter of law that deceased was guilty of contributory negligence. Appellant has not met this burden, and, in view of the conflict in the evidence, it was proper for the court to submit the issue of contributory negligence to the jury for determination.

Appellant’s next contention for a reversal of the judgment is that the court erred in giving instruction No. 6 at the request of appellee, which is as follows:

“You are instructed that contributory negligence is doing of something that a person of ordinary prudence' would not do, or the failure to do something that a person of ordinary prudence would do under the circumstances; and in this case, in determining whether deceased was guilty of contributory negligence, you should consider the facts in the light of the circumstances as they existed at the time, and the age and experience and knowledge of the deceased, of the experience and knowledge that a person of the age of deceased should have had.”

We think this declaration of law clearly announces the test of contributory negligence on the part of minors. This court ruled that the standard for determining whether a minor is guilty of contributory negligence is what one of his age, intelligence, and discretion would do under the same circumstances, in the case of Kansas City Railway Company v. Teater, 124 Ark. 1, 186 S. W. 294.

Appellant next contends for a reversal of the judgment on the ground that the instructions requested by appellee and given by the court impose upon appellant the “high degree of care” standard, instead of “ordinary degree of care” standard. We have carefully read the instructions, and none of them told the jury that appellant owed appellee any other duty than that of reasonable care. The rule of law is that, in handling explosives and other very dangerous agencies, under certain circumstances in the exercise of reasonable care, the one so handling them must do so with a high degree of care. Pine Bluff Company v. Bobbitt, 168 Ark. 1019, 273 S. W. 1; Arkansas Power & Light Co. v. Cates, 180 Ark. 1003, 24 S. W. (2d) 846. This idea or principle ran through the instructions, but the effect thereof was not to tell the jury that appellant owed appellee a high degree of care as they were told in the case of Morgan v. Cockrill, 173 Ark. 910, 294 S. W. 44, cited by appellant in support of its argument that the instructions given by the court were erroneous.

Appellant’s next contention for a reversal of the judgment in favor of the estate is that the undisputed evidence shows that the deceased was instantly killed and therefore suffered no pain. There is evidence in the record, that as he was falling, he exclaimed, “Oh, me,” as many as two times, and that after falling, he tried to get up on his hands and knees. After his efforts to arise, he only moved his legs and arms, and,.to all appearances, was unconscious. He did not breathe his last until he was carried about seventy yards to the wagon for removal. After the attempt to rise, deceased was mute and did not groan or emit any sound evidencing pain or suffering. In view of the fact that he was conscious only for a few moments, the court is of the opinion that the verdict for pain and suffering was excessive, and should be, and is, reduced to $3,000.

Appellant’s next contention for a reversal of the judgment in favor of appellee on his own behalf is that it was excessive. Deceased was 17% years of age at the time of his death and resided with his father on a 51-acre-farm, and assisted his father in cultivating same. They raised about thirty acres of cotton in addition to the cereals they raised. He was very industrious and helped with all the work around the place and saved the necessity of hiring a helper. He attended school about seven months out of the year, and at such times as he was not going to school or working on the farm he obtained other employment and earned enough to pay for his clothing. Appellee testified that the services of his son were worth at least $1,000 net a year. The jury allowed $2,500 to appellee for the loss of his son’s services. We do not think that any boy can earn as much as $1,000 a year net on a farm of 51 acres, working during- crop seasons and choring around the place. We think the estimate of appellee, and it was necessarily an estimate, is an overestimate, and that the jury’s allowance for the loss of services of $2,500 was excessive and should be, and is, reduced to $2,000.

With these modifications, the judgment is affirmed.

Mr. Justice Kirby dissents.


text:
    Meyers Brothers v. First National Bank of Rector.
    Opinion delivered November 9, 1931.

      Reid, Evrard <$> Henderson, for appellant.

      Wm. F. Kirsch, for appellee.
   Humphreys, J.

Appellants sued appellee in' the chancery court of Clay County, Eastern District, for having cashed and collected from Meyers Brothers, one of the appellants, sixteen checks in the total sum of $1,520.92, alleged to have been forgeries.

Appellee denied that the checks were forged.

The issue joined was submitted to the court upon the testimony adduced, from which the chancellor speeifically found that the evidence failed to show that the cheeks were issued to fictitious payees, or that payments were made on forged indorsements and, based upon the findings, dismissed appellant’s complaint, from which is this appeal.

The facts reflected by the record are as follows:

Meyers Brothers lived at Blytheville, Arkansas, and operated a gin at Rector, Arkansas. They did little commercial ginning, their plan being to buy seed and lint cotton and gin the seed cotton' for themselves. They employed S. P. Wood to manage the gin and buy the cotton. They employed Claude S. Outlaw to keep books and issue checks-on appellee bank in payment of the cotton bought from the farmers, and took an indemnity bond from the Union Indemnity Company, the other appellant, to protect them against any loss on account of the dishonesty of Claude S. Outlaw. They carried no deposit with appellee bank, but made an arrangement whereby it would cash the checks drawn on it in payment of cotton thus purchased, and at the end of each day to draw on them for the aggregate amount with checks attached to the draft. Claude S. Outlaw was also authorized by them to sell their cotton seed and to remit the proceeds by cashier’s checks to them. On account of an irregularity on his part in connection with the sale of the cotton seed, they became suspicious of his other transactions and, upon investigation, came to the conclusion that he had drawn checks to fictitious persons to pay for purchases of cotton and had forged the indorsements of these persons on sixteen checks, aggregating $1,520.92, and collected same in person from appellee bank through its negligence, and who in turn wrongfully charged and collected same from them. They presented a claim to the Union Indemnity Company for the alleged peculations of Claude S. Outlaw in the sum of $1,520.92, which it paid without question. The cotton bought by S. P. Wood was brought into Rector by farmers who resided in the country round about.

The only witness introduced by appellants in an effort to show that the names of the payees in the sixteen checks in question were fictitious or that the indorsements thereon were forgeries was Adolph Meyers, a member of the firm of Meyers Brothers, who testified that he investigated at and near Rector and made inquiry in an effort to learn whether or not there were persons living at or near that place of the names appearing on the checks; that he was not able to find anybody at or near Rector, in the investigation, who knew any person by any of the names appearing on the checks offered in evidence; that he inquired of people who were well acquainted at Rector and who had an acquaintance among the farmers living near Rector; and that among others he inquired of the county weigher or his deputy at Rector, who stated that he did not know any of these persons.

This statement cannot be regarded as sufficient substantial evidence to show that the checks were forged. The most it shows is that the persons of whom Adolph Meyers inquired concerning the several payees of the checks were not acquainted with any of them.

No error appearing, the decree is affirmed.


author: Kirby, J.

text:
    Williams v. State.
    Opinion delivered November 9, 1931.

      Geo. Ellis and Isgrig <& Morrow, for appellant.

      Hal L. Norwood, Attorney General, and Pal Mehaffy, Assistant, for appellee.
   Kirby, J.

This appeal is from a judgment of conviction of murder in the second degree against appellant for the killing of one Pinkey Lee with a sentence of five years’ imprisonment.

It appears from the testimony that appellant, with his wife and a girl visiting them, went on the evening of the killing to the house of Sam Tappin, where they were having music, dancing and refreshments. They had first gone to Caldwell’s house, but could not get anything to drink there.

The testimony on the part of the State tends to show that appellant walked into the room, which was crowded, and, observing Pinkey Lee sitting on a divanette with two or three others, walked over in front of him, caught him by the hand or shoulder and shot him to death.

According to the proof adduced for the defense, he walked into the room after having been told on the porch that Pinkey Lee had been making' threats against him. Observing Lee getting up and attempting to draw a knife, appellant said: “Drop that knife,” and began shooting. Appellant stated he picked up the knife after he shot Lee and carried it away with him, and that the knife produced at the trial was the one deceased drew on him.

Other witnesses, the ones sitting on the divanette with Lee at the time, stated that they did not see him draw any knife or attempt to do so, that they saw no knife at all, but would have seen it, had Lee have drawn a knife.

The evidence also tended to show that Lee was shot while attempting to get np.

It is claimed that the court erred in refusing to allow the impeachment of witness, Mary Lee Owens, by showing a contradictory statement made by her relative to the description of the knife said to have been drawn by Pinkey Lee; and also by the refusal to give instructions requested by appellant.

The witness, Mary Lee Owens, was called for the defendant, and testified that the deceased had a green handle knife on the night of the killing, and that the knife had a “forkedy end.” Defendant’s attorney claimed that he was surprised at the testimony of this witness describing the knife, and that she had made previous statements leading him to believe that the knife she saw in the possession of the deceased was the same as that introduced in evidence at the trial. The court refused to permit him to impeach his oayii witness, and there was no error in the ruling.

Appellant’s attorney stated for the record that he had talked with this witness before the trial when she described the knife, which he identified from the description as the one produced at the trial. The witness stated to him, however, before she was called to the stand that she was not going to testify that she saw any knife at all, but that she had told him what kind of knife it was when he saw her at her home. The attorney could not well have been surprised, as the witness told him before she was called to the stand that she was not going to swear that she saw a knife at all on that night; much less that the knife that the deceased had on the night of the killing fitted the description of the knife produced at the trial. He could not, of course, be allowed to call a witness in order to obtain testimony for Avhich he might be impeached. “It is not in every case that one’s own witnesses may be contradicted by proof of his prior statements. * * * And it is not enough that he disappoints the expectations' of such party by failure to give beneficial testimony. * *' * In order to bring himself within the exception to the general rule against the impeachment of one’s own witness, it must appear that the party calling the witness was entrapped by his previous statements into putting him on the stand and was surprised by his testimony.” 28 R. C. L., p. 645. The witness testified to no fact prejudicial to the defendant, but only failed to testify that the knife that the deceased had in his possession on the night of the killing fitted the description of the one produced at the trial. Doran v. State, 141 Ark. 442, 217 S. W. 485.

No error was committed in the refusal to give instruction No. 1A to the effect that- the indictment was not evidence of defendant’s guilt, the court having fully charged on the subject of presumption of innocence of the defendant. Deshazo v. State, 120 Ark. 494, 179 S. W. 1012.

It is sufficient answer to the contention in the other assignments that the court erred in its refusal to give certain instructions requested by appellant to say that the law was fully and correctly declared by the court upon all points complained about, and that no error was committed in the refusal to give his correct instructions requested, since they were already fully covered by the court’s charge, and certainly none in its refusal to give others not correct declarations of the law.

The testimony is amply sufficient to support the verdict, and would have warranted the jury in finding appellant guilty of a higher degree of offense.

We find no prejudicial error in the record, and the judgment is affirmed.


author: Kirby, J.,

text:
    Mechanics’ Insurance Company v. Inter-Southern Life Insurance Company.
    Opinion delivered November 9, 1931.

      M. P. Watkins and Verne McMillen, for appellants.

      Arthur L. Adams, for appellee.
   Kirby, J.,

(after stating the facts). Appellant contends that the contract of lease between the life insurance company and Simmons constituted them partners in the production of the rice, and that, because of the alleged conduct of Simmons in mailing the proof of loss, etc., the life insurance company is barred of all right to recover its losses under the policies issued to it and Simmons jointly. This contention, however, is unwarranted, since under said lease or contract Simmons was but a share cropper, the whole of the crop produced belonging to the landlord until payment of Simmons’ debts for supplies, etc., out of the part that would otherwise have come to him; and the undisputed testimony shows that there was nothing due Simmons out of the crop at the time it was stored in the house and insured. Gardenshire v. Smith, 39 Ark. 280; Hammock v. Creekmore, 48 Ark. 264, 3 S. W. 180; Hardiman v. Arthurs, 144 Ark. 289, 222 S. W. 20; Fenton v. Price, 145 Ark. 116, 223 S. W. 364; Barnhardt v. State, 169 Ark. 567, 275 S. W. 909; Harnwell v. Rice Growers’ Assn., 169 Ark. 622, 276 S. W. 371.

Rogers, the agent issuing the policies, also knew of the relationship existing between the landlord insurance company and Simmons at the time the policies were issued, and this knowledge is imputed to the insurance companies. Nat. Life Ins. Co. v. Jackson, 161 Ark. 597, 256 S. W. 378; Nat. Union Fire Ins. Co. v. Crabtree, 151 Ark. 561, 237 S. W. 97; Same v. Wright, 163 Ark. 43, 257 S. W. 753; Firemen’s Ins. Co. v. Rye, 160 Ark. 212, 254 S. W. 465.

It is not necessary, in the absence of specific inquiry, for insured to state the exact nature of his interest, which was not nscessary to be described in the policy. Cooley’s Briefs on Insurance, 2 Ed. pgs. 2123, 2164; 14 R. C. L., p. 1051.

There may even be a shifting of interest of parties jointly insured without affecting the rights under the policy. 38 A. L. R. 325; see also 45 A. L. R. 856 and notes, p. 863; Fire Ins. Co. v. Larey, 125 Ark. 93, 188 S. W. 7, L. R. A. 1917A, 29, Ann. Cas. 1918B, 1225.

There was no attempt to show nor any showing made that appellee life insurance company was in any way connected with or had any knowledge that Simmons, the agent, had made any fraudulent or false statement in the proof of loss or that his conduct in so doing was known to such insurance company, and its right to recover would not be affected by such conduct on Simmons ’ part if it had been proved. 14 R. C. L., § 403, p. 1223 and cases cited; 26 C. J., p. 348; Beavers v. Security Mutual Ins. Co., 76 Ark. 595, 90 S. W. 13, 6 Ann. Cas. 585. Cooley’s Briefs on Ins., (2 ed.), pp. 1253, 4941.

The terms and conditions of insurance policies are always to be construed most strongly against the insurer, and this principle is recognized and fixed by our statute. Section 6148, Crawford & Moses’ Digest.

The insurer denied liability under the policies, dispensing with the necessity for making proof of loss, but such proof and supplemental proofs were afterwards demanded by the insurers and furnished by appellee, and any question on that account passes out of the case. Commercial Union Fire Ins. Co. v. King, 108 Ark. 130, 133, 156 S. W. 445; Woodmen of the World v. Hall, 104 Ark. 538, 148 S. W. 526, 41 L. R. A. (N. S.) 517; Dodge v. Thompson, 94 Ark. 21, 125 S. W. 648.

The undisputed testimony also shows that the adjusters representing all the companies met after the loss and investigated the fire with a view to settlement, there being.an extended investigation for the purpose as shown by Martin for trying to settle with the appellee insurance company, designated by him as an innocent victim.

The jury’s finding of the amount of rice destroyed by the fire is a sufficient answer to any contention about an unintentional overstatement of the loss which could work no forfeiture. 20 A. L. R. 1164; Fidelity-Phoenix Fire Ins. Co. v. Freedman, 117 Ark. 71, 174 S. W. 215.

It was also manifest, reading the clause of the policies, that the record warranty clause had no application to the property, stored in this old dwelling house, which was in no sense a warehouse. Camden Fire Ins. Assn. v. Meloy, 174 Ark. 84, 294 S. W. 378; Queen of Ark. Ins. Co. v. Dillard, 96 Ark. 378, 131 S. W. 946.

Acceptance of the payment of premiums after the loss occurred would in any event have operated as a waiver of the failure of insured to keep the record as required in the record warranty clause. National Liberty Ins. Co. v. Spharler, 172 Ark. 715, 290 S. W. 594.

We do not find it necessary to discuss any of the other assignments, and, finding no prejudicial error in the record, the judgment must be affirmed. It is so ordered.


author: McHaney, J.

text:
    St. Louis Southwestern Railway Company v. Simpson.
    Opinion delivered November 9, 1931.

      Garter, Jones <é Tv/rney and Lamb & Adams, for appellant.

      Pace <ft Davis, for appellee.
   McHaney, J.

Appellee’s intestate, A. E. Simpson, was, at the time of bis death, 56 years old, and bad been in the employ of appellant thirty years as an engineer. On August 2, 1930, be was directed by appellant to run engine 775, known as Extra 775, a freight train, from the Pine Bluff, Arkansas, shops to the Texarkana, Arkansas, yards. Before leaving Pine Bluff the conductor and engineer were each given order No. 104, the material part of which is as follows: “Eng. 775 run extra Pine Bluff shops to Texarkana yards, has right over No. 18 Eng. unknown Pine Bluff shops to cross over McNeil.” This being an extra train, it did not operate by any schedule in the time tables, but was operated under telegraphic orders addressed to the train which bore the number of the engine. Under the above order, with which the engineer, fireman, conductor and three brakemen were familiar, they proceeded to the crossover at McNeil where they passed from the main line to the side track. At McNeil the engineer and conductor were given order No. 132 reading as follows: “Train order No. 132, August 2, 1930, McNeil. To Extra 775 south. Second 18 Eng. 778 meet Extra 775 south at Stamps.” The fireman and head brakeman were on the engine with the engineer and presumably all of them read this order. Evidently they all misinterpreted it, no doubt believing it referred to train No. 18 mentioned in the order first above quoted, and that they could continue safely to Stamps, some few miles further south. Engineer Simpson did not bring his train to a stop but slowly proceeded through the station on the siding, and headed out on the main line towards Stamps. When the swing brakeman Craig, who was in the cupola of the caboose saw the train was not going to stop, he hollowed out to conductor DeMaine, “No. 18 is not here yet. If you have not got anything more on No. 18, you had better stop. DeMaine said: ‘We have a meet with Second 18 at Stamps.’ I says, ‘If you haven’t got something on No. 18, you haven’t got it, pull the air’.” Craig then testified that the conductor told him to hand him the train orders that they had received out of Pine Bluff and out on the line, and that he rushed up into the cupola, got the orders where they kept them on a clip board, and handed them to the conductor who took them and held them in his hand looking at them until they had a head-on collision with train No. 18 about a mile south of the station at McNeil. Rear brakeman Dorman on Extra 775 south testified to substantially the same facts as did Craig, and in addition said that he thought that the train was going to stop, and that he intended to cut the crossing at the public highway, but saw the station agent at McNeil, Key, standing there with an order in Ms hoop which Key took 'out and handed to him. About that time the caboose took a lunge like they were leaving. He opened the order, read it and handed it to Conductor DeMaine which is the same order above mentioned as No. 132. DeMaine told him to “high-ball the switch” which meant to go ahead, and that he looked out to see that the negro attending the switch properly threw it. He then went into the caboose and asked DeMaine where they were going for No. 18, and that DeMaine said “Let’s see what we got out of Pine Bluff on 18.” He then said to the conductor, “What did you get here on No. 18?” And the conductor replied: “All we got here was an order to meet Second No. 18 at Stamps.” Dorman then said, “Is that all you got here?” DeMaine said, “Yes.” Dorman said, “Pull the air, as you haven’t got anything on No. 18 then, stop this train.” To which the conductor replied: “I will pull the air.” He said that swing brakeman Craig was standing there, and the conductor told him to go up and get the orders, and that he told the conductor to “pull the air and then look at the orders. ’ ’ He said that he started to pull the air himself, but that the conductor told him not to, and that, while the conductor was standing looking’ at the orders, their train collided with No. 18. He further said that when he asked the conductor about the orders, told him to pull the air, started to pull it himself and was directed not to do so, they were seven to ten car lengths out on the main line. It was shown that there were three appliances on the caboose for pulling the air. Pulling the air means to open a valve which causes the air brakes to set on the wheels of the car and stop the train. It was shown that if the air was pulled gradually that the train could have been stopped in 12 to 14 car lengths.

As a result of this unfortunate collision five persons lost their lives and another seriously injured- — -the engineer, fireman and head brakeman on Extra 775 were killed, the engineer and fireman on train 18 were killed and the head brakeman thereon seriously injured,

Appellee brought this action under the Federal Employers’ Liability Act against appellant, which is engaged in interstate commerce, to recover damages for her intestate’s injuries and death. The complaint alleged three grounds of negligence, but before the trial all allegations of negligence were withdrawn except the following: “On account of the conduct of DeMaine, conductor on said train, who carelessly, negligently and recklessly, after discovering the peril of the deceased, A. E. Simpson, failed to apply the air brakes from the rear end and stop said train, thereby causing the train upon which deceased was riding to collide with another train operated by the agents and servants of the defendant upon said main line, causing the deceased to receive injuries from which he thereafter died. ’ ’ The answer- admitted that appellant was engaged in interstate commerce, denied that it was guilty of any negligence, and alleged that Simpson’s injuries and death were caused solely by his own negligence resulting “not only in his injuries and death -but in the death of several others of his co-employees and in the destruction of property of this defendant of the value of more than $100,000”; that Simpson’s negligence consisted in running and operating his train in violation of orders which he at the time well knew.

A trial to a jury resulted in a verdict and judgment in appellee’s favor for $28,000.

As we understand the respective contentions of the parties, the sole question presented for our decision is whether the evidence is sufficient to' sustain the verdict and judgment against appellant. Appellant’s request for a peremptory instruction was denied. It is true that in the brief of counsel for appellant, complaint is made of the instructions given at the request of appellee and of the refusal of the court to give certain instructions requested by appellant; but this complaint is based on the ground that appellee was not entitled to recover at all, and therefore, not entitled to any instructions, and that the instructions requested by it were, in effect, peremp-. tory, which, as is contended, was demanded by the law and the evidence.

It is conceded by both parties that liability if any is governed by the Federal Employers’ Liability Act, and only one ground of negligence was submitted to the jury as shown by instruction No. 9, given at appellee’s request, to-wit: “The court instructs the jury that the plaintiff relies alone upon the doctrine of discovered peril for a recovery in this case, and you will not consider any other allegation of negligence.” It is contended, however, by able counsel for appellant that the doctrine of discovered peril or the “last clear chance doctrine” is not applicable to this case; that it is a case of concurrent negligence only, appellee’s intestate and conductor DeMaine both being guilty of negligently operating the train in violation of express orders, and is subject to the comparative negligence rule in the Federal Employers’ Liability Act as construed in Davis v. Kennedy, 266 U. S. 147, 45 S. Ct. 33; Frese v. C. B. & Q. R. Co., 263 U. S. 1, 44 S. Ct. 1; Unadilla Valley Ry. Co. v. Caldine, 278 U. S. 139, 49 S. Ct. 91; Unadilla Valley Ry. Co. v. Dibble, 31 Fed. (2d) 239; Bradley v. N. W. Pac. R. Co., 44 Fed. (2d) 683; Yadkin R. Co. v. Sigman, 186 N. C. 519, 120 S. E. 56, reversed by memorandum opinion in 267 U. S. 577, on the authority of Davis v. Kennedy, supra, and Frese v. C. B. & Q. R. Co., supra.

Appellee contends that because the conductor, DeMaine, failed and refused to stop the train by pulling the air at a time when it was moving out from the side track on to the main line, after he had been told by two brakemen that the order he received at McNeil did'not relate to train No. 18, but to Second 18, and after he had refused to. permit one of the brakemen to pull the air and thereby prevent a collision, he discovered the perilous situation of them all, especially engineer Simpson, and was therefore guilty of negligence, independent of the negligence of Simpson in moving his train contrary to order 104. "Whereas appellant contends “that the failure of DeMaine to act does not enter into the case, and that from a legal standpoint the conduct of Simpson constitutes the sole, proximate cause of his injury and death.” Therefore appellant says that the cases as above cited'are decisive of this case against appellee and that no recovery can be had.

The discovered peril doctrine, or the doctrine of the “last clear chance,” as it is sometimes called, constitutes an exception to the rule that the contributory negligence of the plaintiff is a bar to his action. Under this doctrine, where one discovers the perilous situation of another in time, by the exercise of ordinary care, to prevent injury to' him, it is his duty to do so, and he is guilty of negligence if he fails to do so, which is regarded in law as the proximate cause of the injury, and this too regardless of the contributory negligence of the injured person. Such a person is regarded in law as having the last clear chance to prevent injury or death to another, and it is his duty to do so. It is sometimes referred, to as the doctrine of Davies v. Mann, 10 M. & W. 546, and the principle is now generally recognized by the courts of both England and America. It has been announced in numerous decisions by this court, by the Supreme Court of the United States and by text writers. It has also been held to apply in cases brought under the Federal Employers’ Liability Act. Mo. Pac. Ry. Co. v. Skipper, 174 Ark. 1083, 298 S. W. 849. Petition for certiorari to this court was denied by the Supreme Court of the United States. Mo. Pac. Ry. Co. v. Skipper, 276 U. S. 629, 18 S. Ct. 322. It is true that the facts in this case present an unusual situation in which to apply the rule of discovered peril, but we are unable to perceive why it should not apply. The usual situation for the application of the rule is for the operatives of the train to discover the perilous situation of another on its tracks in time to avoid injuring him, and generally arises under our lookout statute. (Crawford & Moses’ Dig., § 8568). As said in 20 R. C. L., p. 141, § 115 : “It is not, however, limited to any particular class of cases. It is proper to allow a recovery where the driver of a motor car sees a pedestrian in time to avoid injury by stopping and fails to reduce Ms speed or bring Ms car to a stop. And it has been held that when a bathhouse keeper is notified of a bather’s disappearance so soon thereafter as to justify a reasonable inference that an immediate search in the water would result in rescue before death, and has no one present to attempt the rescue, and fails to make an immediate search in the water for the missing bather, it is error, in an action to recover damages on account of the death, to direct the jury to return a verdict for the defendant. ’ ’ It has also been said by the Supreme Court of the United States in Grand Trunk, R. Co. v. Ives, 144 U. S. 408, 12 S. Ct. 679, that: ‘‘Although the defendant’s negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured, subject to this qualification, which has grown up in recent years, * * * that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise- of reasonable care and prudence, have avoided the consequences of the injured party’s negligence.” See also L. & N. R. Co. v. Hurt, 13 So. (Ala.) 130.

In this case we think it fair to assume that Engineer iSimpson, the fireman, the head brakeman and the conductor misunderstood or misinterpreted order 132 received at McNeil directing them to meet Second 18 at Stamps. They evidently made a mistake in tMnMng that said order referred to train No. 18 over which they were given right-of-way to McNeil, and not to Second 18, about which they had no information so far as this record discloses, and was itself an extra train going north and following closely train No. 18. Having misunderstood the order Engineer Simpson moved his train out from the side track on to the main line evidently believing that he had orders to meet train No. 18 at Stamps. "We cannot believe that he intended to commit suicide, or to endanger his own life and that of so many others. But the rear brakeman and the swing brakeman, Dorman and Craig, did not misunderstand order No. 132, and, realizing the danger to themselves and to everybody concerned, urged conductor DeMaine to stop the train and prevent possible injury and death. He prevented Dorman from stopping the train and told him he would do it himself, but, instead of stopping the train and then reading his orders, lie permitted the train to go on to destruction while reading his orders. We are therefore of the opinion that the negligence of conductor DeMaine in failing and refusing to stop the train, and of Dorman and Craig in failing to stop it, was the sole and proximate cause of the injury, because they knew and realized the perilous situation into which the negligence of engineer Simpson, in failing to understand his orders, had taken them, but did not use the means at their command to avert the tragedy. We think the rule announced in the cases above cited and relied upon by learned counsel for appellant have no application to the facts in this case. Although they were all brought and prosecuted under the Federal Employers ’ Liability Act, they were brought and prosecuted on the theory of comparative negligence as defined in the act and not under the doctrine of discovered peril or “last clear chance.” We are furthermore of the opinion that none of the said cases presents a state of facts showing a supervening act of negligence, arising subsequent to and independent of the contributory negligence of Simpson, such as is the fact in this case. The fact that DeMaine, Dorman and Craig knew the perilous situation, and, with three different instrumentalities near at hand, the operation of any one of which would have taken but an instant, failed to exercise ordinary care to use them to' avert the injury, is such a supervening act of negligence as to invoke the discovered peril doctrine and constitutes the sole and proximate cause of the injury, regardless of Simpson’s contributory negligence in failing to understand his orders.

It necessarily follows from what we have said that the judgment must be affirmed. It is so ordered.


author: MgHaney, J.

text:
    West v. Bain.
    Opinion delivered November 9, 1931.

      Murphy S Wood, for appellant.

      O. A. Featherston, for appellee.
   MgHaney, J.

In November, 1930, appellee H. H. Bain was the owner of a certain lot fronting 33.3 feet on South Border Street in the city of Hot Springs, Arkansas, with a depth of 120 feet, on which there was a five-room frame cottage. Appellee Lula Schardt, Bain’s sister, together with her husband, appellee George P. Schardt, occupied said property rent free as his tenant at will. Margaret Duren was the owner of the adjoining lot to the east of the Bain lot with a frontage of 28.4 feet on the same street, on which was a five-room cottage, which she occupied with her husband, J. A. Duren, as their home.' These houses were too close together for a driveway between to the rear of the property, which the Schardts. especially desired. The Bain house was out of plumb 7 inches and was leaning toward the Duren house. It required repairs to make it safe, and while making the repairs the Schardts thought it would be a good idea to move their cottage to the west two feet which would make room for a driveway between the two cottages by using a portion of both lots. Schardt and Duren entered into a verbal agreement to this effect by which each was to do certain things in constructing the driveway. .The Bain cottage was thereafter moved west two feet, but nothing’ was done about constructing* the driveway thereafter except Schardt dumped three loads of rock therein.

Appellant owned the lot directly east of the Duren lot and adjoining it and she desired a driveway between her lot and the Duren lot, the space between the two being insufficient, so on February 26,1933, she purchased the Duren lot without any knowledge of the contract between Schardt and Duren for that driveway and received a deed from» Margaret Duren and husband with the usual covenants of warranty. She thereafter began preparations to move the cottage which she had purchased from Duren west toward the property line so as to make room between her house and that she had purchased from Duren for a driveway. The appellees thereupon filed this suit against appellant for specific performance of the alleged contract between Schardt and Duren and to enjoin her from moving the cottage which she had recently purchased west towards the west line of her property. On March 4, 1931, the date the suit was filed and seven days after the Durens had sold and conveyed their property to appellant, the Schardts and Durens entered into a written contract embodying the agreement which had theretofore been verbal. On a trial of the case the chancery court found the issues of the case in favor of appellees and entered a decree perpetually enjoining appellant from moving the Duren cottage west toward the property line and from interfering with appellants in their prospective use of the proposed driveway. The case is here on appeal.

The undisputed evidence discloses that appellant knew nothing about the verbal agreement between the Schardts and the Durens for the establishment of the driveway between their property. She knew that the Schardts had improved their property and had moved the house two feet west, but when she wTas discussing the purchase of the property from Mrs. Duren she asked if there was a contract or any agreement regarding the driveway, and was told that there was not. There was no agreement of record, no conveyance in the form of an easement or otherwise from Mrs. Duren to Bain or the Schardts, giving them the right to the use of a portion of her lot. At the time appellant purchased, the agreement had not been reduced to writing. Since she had no notice, either actual or constructive, of the alleged agreement at the time she purchased, and, having purchased with the distinct understanding that there was no such agreement, it is difficult to perceive on what theory she may be deprived of a portion of her property for private use and against her will without any compensation. Indeed, private property may not be taken for public use without compensation. It is true that there was some testimony on behalf of appellees that appellant should have known of the agreement because it was general talk in the neighborhood, but no witness testified that she did have actual knowledge thereof. The proposed driveway was never constructed, was never used as a driveway, and, since she had no knowledge of -the agreement made by her grantors, she is not bonnd thereby, and the court erred in holding otherwise.

The decree of the chancery court will therefore be reversed, and the cause dismissed.


author: Butler, J.

text:
    Rowell v. Rowell.
    Opinion delivered November 9, 1931.

      J. F. O’Melia and Cravens S Cravens, for appellant.

      Hardin <& Barton, for appellee.
   Butler, J.

The case now here began in this way. Ernest Bowell, the appellant, and Hazel Bowell, the appellee, were married in June, 1929, and separated about the first of the year 1930. The appellant brought suit a short time after the separation to annul the marriage on the ground of fraud practiced by the appellee in its procurement. The appellee answered denying the allegations of fraud, and, cross-complaining, prayed for divorce on the ground of cruel and inhuman treatment, and for alimony. A reply was filed to the eross-complairit denying its allegations, and upon the issues thus joined evidence was taken, and upon final hearing a decree was entered dismissing the complaint for want of equity and granting the prayer of the cross-complaint decreeing divorce and adjudging alimony. On appeal from that decree, its correctness is challenged for four reasons.

It is contended that the court erred in refusing to permit appellant to take a nonsuit on the cause of action for annulment. On this question, the record discloses that the appellee was the first to offer testimony which tended to support the allegations of her cross-complaint, and at the close of this testimony the appellant moved to take a nonsuit, which motion was overruled, to which he duly excepted. Appellant contends here that he had the right to control his case until final submission by virtue of the statute ('Crawford & Moses’ Digest, § 1261) and that this right is not to be denied. Ordinarily this is true, but not always.

In equity proceedings, 'the complainant cannot as a matter of right dismiss his complaint after a cross-complaint has been filed alleging grounds for, and praying, affirmative relief. Allen v. Allen, 14 Ark. 666; Pickett v. Ferguson, 45 Ark. 177, 55 Am. Rep. 545. “Plaintiff may dismiss any claim where such dismissal will not prejudicially affect the interest of defendant, but he will not be permitted to dismiss, to discontinue, or to take a non-suit, when by so doing defendant’s rights will be prejudiced or he will be deprived of any just defense.” 18 C. J. § 31, p. 1158. “Where an answer or a plea has been filed showing defendant to be entitled to, and praying for, affirmative relief, plaintiff will be precluded from dismissing his action on his own motion. The consent of the adverse party is necessary in such case.” Id. % 32.

It will be seen in the discussion of the second assignment of error that the facts alleged as the basis for appellant’s complaint are pertinent to the issue raised by the cross-complaint and the reply thereto. Its dismissal might therefore prejudice the rights of the cross-complainant. Then, too, the original plaintiff was attempting to accomplish, though by a different proceeding, the same result as that sought by the cross-complainant, namely, the dissolution of the marriage bond. It was within the sound discretion of the chancellor at this stage of the proceedings to grant or refuse the motion, and his action will not be reviewed, unless that discretion was abused. This is not shown to be the case.

It is next insisted that upon the merits of the case the preponderance of the evidence tended to establish the allegations of appellant’s complaint, aud that the court erred in dismissing the same for want of equity. The alleged fraudulent conduct and misrepresentation of the appellee upon which the appellant grounded his cause of action and to which he testified, was that the appellee induced him to believe by statements made by her to him in May, 1929, that she was with child by him as the result of an act of sexual intercourse on January 8th preceding, when in fact she knew her condition was caused by an act of like nature with another man; that he relied on the false statements. That appellee gave birth to a normally developed child on December 6th, following, which was light in color and had red kinky hair, and that appellant’s color was “not so light.” In addition to his own testimony he offered several of his female relations who testified to statements they said the appellee made on different occasions to the effect that she had had before marriage, sexual intercourse with appellant but once, and that the date of that occurrence was January 8th. . And a physician told of a statement of appellee to him, in his professional capacity, that she had had menstrual periods as late as March 7th. It was appellant’s contention that the child born December 6th was not his. As considerably more than 40 weeks had elapsed between January 8th and December 6th, appellant could not have been the father of the child, if it is true, as he says, he did not have carnal knowledge of appellee after January 8th, until their marriage. But appellant’s testimony and that of his witnesses was contradicted by appellee.

She was a young colored school teacher, and had a school at Bentonville, and it is uncontradicted that he visited her there, driving a Ford sedan, and was in her company from time to time throughout the spring of 1929. She said, and the chancellor believed, that not only in January but on every occasion thereafter when she and her lover met they “did give to dalliance too much rein.” If her testimony is true, and the trial judge found it so, then appellant might well have been the father of the child.

We find it unnecessary to- detail the testimony relative to a specific act of incontinence said by appellee to have been enacted by her and appellant at Bentonville in March, or to discuss the circumstances which might tend to show its probability or improbability. It is sufficient to say that the chancellor, who had all the witnesses before him, was in a better position to judge of their credibility than are we, and, when all the circumstances are considered, we are unable to say that his decision was contrary to the preponderance of the testimony.

It is next insisted by the appellant that the court erred in adjudging alimony against him in the absence of any testimony on the question. We have examined the record, and fail to find any testimony to establish upon what basis the court fixed the sum of $35 per month as alimony, and-are of the opinion that the appellant is correct in this contention. “Before a decree is passed or order for alimony is made, the court should be in possession, either by the admission of the parties or by testimony, of all the facts necessary to form a just decisión. The court is not bound by the technical rule applicable to controversies' between litigants generally, but the decree or order for alimony cannot rest upon mere presumption or conjecture. All the facts upon which the decree or order is founded must be proved either by affidavits of the applicant and of other persons or by depositions taken upon notice to the other party, or by the oral testimony of the applicant unless, of course, the statute otherwise provides.” 19 C. J., § 641, ‘‘Evidence,” p. 290; Shirey v. Shirey, 87 Ark. 175, 112 S. W. 369.

Lastly, the contention is made that the court erred in ordering a writ of sequestration. This writ is warranted by § 3509 of Crawford & Moses’ Digest, as follows: “The court may enforce the performance of any decree or order for alimony and maintenance by sequestration of the defendant’s property, or that of his securities, or by such other lawful ways and means as are according to the rules and practice of the court.” However, the order for sequestration ought not to be made without a showing of the nature and amount of the property and without proof of circumstances which would tend to show the intention of the defendant to make such disposition of it as might tend to hinder or delay the enforcement of the order of allowance for alimony.

Upon the consideration of the whole case, we are ' of the opinion that that part of the decree of the chancellor dismissing appellant’s complaint for want of equity and granting appellee a divorce and allowing her alimony is warranted by the testimony, and is affirmed. But the order fixing the amount of the alimony and ordering the sequestration of the defendant’s property was arbitrary as having been made without any evidence upon which the orders might be based, and in this respect the decree ought to be reversed and the cause remanded for further proceedings in conformity with the principles of equity and not inconsistent with this opinion. But, as there might have- been some sound reason for the order of sequestration, that order is not to be considered as annulled, and shall continue in full force until the appellee may have an opportunity to offer evidence warranting the same and until it is modified or vacated on a retrial of that issue.

Reversed as to amount of alimony and sequestration, and remanded for further proceedings.


text:
    Inter-Ocean Casualty Company v. Copeland.
    Opinion delivered November 9, 1931.

      Alfred Featherston, for appellant.

      Feasel Steel, for appellee.
   Butler, J.

In April, 1930, Charles E. Holcomb made application for and received the appellant company’s insurance policy, by the terms of which he was to be indemnified for death by accidental means in the sum of $500 and against sickness in the sum of $50' per month when by reason of such sickness he was totally disabled and necessarily and continuously confined in the home receiving treatment therein from a physician at least once each seven days, and in one-half of the aforesaid sum where the sickness totally disabled but did not continuously confine him in the home but receiving regular treatments from a physician at an office at least once each seven days.

On the 21st of December, 1930, the said Charles E. Holcomb was accidentally killed, and liability was denied by the appellant. Thereupon the appellee, Mrs. Copeland, the beneficiary named in the policy, brought this suit to recover the amount of the indemnity. From a verdict and judgment in the court below in favor of the appellee, the appellant has prosecuted this appeal.

The appellant complains first that the court erred in denying its prayer for continuance. The action was filed on the 25th day of February, 1931, and the indorsements upon the complaint made by the clerk of the court are as follows: “‘Summons issued February 25, 1931.” ‘‘Summons served February 26,1931. ’ ’ “Filed March 2, 1931.” On the 16th day of March, 1931, the Hon. A. P. Steele, the regular presiding judge, announced his disqualification, and an election was held by the practicing attorneys, and the Hon. Tom Kidd was .elected special judg’e to try the case. On the 20th of March, 1931, which was the day apparently set for trial, on petition of defendant, it was given until the 23d to answer, and on that day answer was filed. On the 25th, various motions were filed including the motion for continuance, which motion alleged as grounds for the same that the defendant’s attorney had not had time to obtain the information necessary for the preparation of the defense as he had not been employed until March 12, 1931, and did not know the terms and conditions of the policy, as the same had not been filed with the complaint, and as a further ground alleged that certain named persons were material witnesses for the defendant, officers of the defendant company and all of them nonresidents of the State; that defendant had used due diligence to obtain the presence of these witnesses, but had not had time to have them in attendance or to take their depositions, and that they were not absent by consent, connivance, etc., of the defendant. The plaintiff admitted that the witnesses named if present, would testify to the statement contained in the application for continuance, and the court thereupon overruled the motion. In this action the court did not err.

The statute prescribed that the case will stand for trial at the term following’ twenty days ’ service of summons upon the defendant (Crawford & Moses’ Digest, § 1286), and it will therefore be presumed that this is sufficient time in which to prepare for trial. Clark Lbr. Co. v. Northcutt, 95 Ark. 291, 129 S. W. 88, The fact that the attorney had not seen the policy was no reason for a continuance, for the defendant itself had in its possession all the information which the policy disclosed and could have communicated this to its attorney. If, under the circumstances, the defendant was entitled to the attendance of the witnesses named, there was no error in overruling the motion on account of their absence, for § 1270 of the Digest prescribes: “if the adverse party will admit that on trial the absent witness, if present, would testify to the statement contained in the application for a continuance, then the trial shall not be postponed for that cause.” The plaintiff made this admission, and the record discloses that the said statements were read to the jury on trial, of the case as the testimony of said witnesses.

The deposition, of Dr. Henby was taken at Delight and filed with the clerk of the court on March 19th. On March 26th the cause came on for trial, and the plaintiff offered his deposition. The attorney for appellant interposed an objection, and the following colloquy took place:

“Mr. Steel: We desire to read the deposition of Dr. Henby. Mr. Featherston: We just filed a motion to quash the deposition. Mr. Steel: We move to strike it from the record. The jury is selected, the opening statements made, and the trial begun. Court: It comes too late. The court cannot continue to hear motions one after the other on the same subject. Mr. Steel: We wish the court would make a statement in the record that the trial is begun. Court: The motion was filed after the impaneling of the jury, and statements of attorneys for both plaintiff and defendant were made. Mr. Featherston: It was filed before the statements, and after the impaneling of the jury. Court: The motion will be overruled and stricken from the files.”

As grounds for the motion it was alleged that the deposition of Dr. Henby was taken without proper notice, that the defendant had no opportunity to be present, and that the deposition was prejudicial to the rights of the defendant. The exception came too late, and the court properly overruled the motion. “No exception other than to the competency of the witness or to the relevancy or competency of the testimony shall be regarded, unless filed and noted on the record before the commencement of the trial.” Section 4249, Crawford & Moses’ Digest. As will be seen, there was a difference of opinion between the judge and the attorney as to when the motion to strike was filed. The judge stated that it was filed after the impaneling of the jury and statements of attorneys for both plaintiff and defendant, while the attorney insisted that it was filed before the statements and after the impaneling of the jury. It matters not which was correct. Exceptions must be taken “before the commencement of the trial” and the trial began with tbe impaneling of tbe jury. 1 Hyatt on Trials, p. 39, § 36.

At tbe conclusion of tbe reading of tbe deposition objections to tbe competency of certain questions and answers contained in tbe deposition were interposed and overruled. Tbe questions and answers objected to are as follows:

“Q. Are you familiar with tbe policy of insurance that Carl E. Holcomb carried with tbe Inter-Ocean Casualty Company — policy No. 60605? A. I am. Q. Do you know whether or not tbe Inter-Ocean Casualty Company was due the insured anything for sick benefits prior to November, 1930? A. It was. Q. How much? A. I do not know exactly, but made reports of bis illness to tbe Inter-Ocean Casualty Company, and they have these reports. I do not find copy of reports in my file. Mr. Holcomb was ill from some time about tbe first of July until some time tbe latter part of October or tbe first of November, or, near as I can tell, be was totally disabled about thirty days of this time and partially disabled about thirty days. Tbe company paid bina seventeen dollars and fifty cents ($17.50) leaving a balance due him as near as I can tell of $57.50'. In other words, they were due him for one month disability and one month partial disability.”

When these questions and answers are compared with tbe balance of tbe deposition and so considered, we are of tbe opinion that they were relevant and competent. It is apparent from- tbe deposition that Henby was tbe physician who attended Holcomb during bis illness, which began about July 3, 1930, and after a convalescence later- recurred and continued through October and until about tbe first of November; that he was totally disabled for about thirty days; that, as attending physician, Dr. Henby made reports of Holcomb’s illness to tbe appellant company, and that said company bad these reports in its possession at tbe time be testified, and that be was unable to find copies of these reports in bis files. In making these reports it is evident that he familiarized himself with the policy, and that part of his testimony relative to the balance due by the company to Holcomb was not an expression of opinion but a statement of fact, to-wit, that Holcomb had been totally disabled for one month and partially disabled for another month, aud for this disability he had received the sum of $17.50, and that part of his answer stating that there was a balance due of $57.50 was but the result of a mathematical calculation. The terms of the policy provided that the insured should have $50 per month for total disability while confined to the home with a physician in attendance, and $25 per month where the insured is unable to perform his usual work but can go to a doctor’s office for treatment.

The appellant contends that “the most serious question for determination in this case is whether or not on December '21, 1930, the date of the death of Charles E. Holcomb, the policy which is the basis of this suit was in force.” Appellant takes the position that the policy was not in force because the premiums of $3.50 each, due November 1st and December 1st, had not been paid, and that this avoided the policy by the express terms of the same.

It appears from a letter which was offered in evidence from the general agents of the appellant, that it had received claim for sick benefit, and that there had been some previous correspondence between it and Holcomb relative to the claim. This letter was dated October 13, 1930, and was for sickness beginning July 3d, but does not disclose when the sickness for which claim was made terminated. It does indicate, however, that a controversy had been going on regarding the amounts due, but it “decided to allow disability benefit for 21 days partial, amounting to $17.50, deducting therefrom September and October premiums in the amount of $7 and inclosing claim voucher for the difference, $10.50.” This claim voucher was dated October 11, 1930, and recited that it was in full payment under the policy for the illness beginning on of about July. 3, 1930. It is argued that the acceptance of this voucher exonerated the appellant from liability because as it contends there was no proof of any further illness. We do not so understand the testimony. Mrs. Copeland, the mother, stated that Holcomb was sick and under the care of Dr. Henby in October and to November 1st, and in November was in a hospital. Dr. Henby testified positively that the periods of illness of which he made reports, amounted to thirty days’ total and thirty days’ partial disability, and that a part' of this illness was as late as about November 1,1930. The reasonable inference arises that a part of the disability of which report had been made was subsequent to that which was settled for by the voucher of October 11, 1930, and that for this illness no payment has been made. That being true, there were funds sufficient in the hands of the appellant due Holcomb to keep his policy in force for the months of November and December, and it was the duty of the appellant to apply the amounts due Holcomb to the payment of the advance monthly premiums and thus prevent a lapse of the policy. Union Central Life Ins. Co. v. Caldwell, 68 Ark. 505, 58 S. W. 355; American Nat. Ins. Co. v. Mooney, 111 Ark. 514, 164 S. W. 276; Pfeifer v. Mo. State Life Ins. Co., 174 Ark. 783, 297 S. W. 847, 54 A. L. R. 600; Continental Casualty Co. v. Bigger, 181 Ark. 156, 15 S. W. (2d) 23.

There was no question raised as to whether or not Holcomb died as a result of the automobile accident and that his death came within the provisions of the policy is not controverted, the sole defense being that the policy was void for nonpayment of premiums. As both parties asked for a directed verdict, the judgment must be upheld, as there seems to be substantial evidence to support the same.

Another position taken by the appellant, which we were about to overlook, is that a demurrer which it filed to the complaint, and which was overruled, should have been sustained for the reason that the complaint was fatally defective in that it did not allege that the plaintiff or the deceased, Charles E. Holcomb, the insured, were residents of Pike County, and failed to allege that the accident which caused his death occurred in Pike County, and thus lay the venue under § 6151, Crawford & Moses’ Digest. The question raised by the demurrer was that the complaint did not state facts to constitute a cause of action. Venue is no part of a cause of action, and it is not usual, nor does it seem necessary, to aver the facts showing it, but, if so, the defect could not be reached by general demurrer, but by special plea to the jurisdiction. Hughes v. Martin, 1 Ark. 455; Pullen v. Chase, 4 Ark. 210; Stone v. Bennett, Id. 71; Swinney v. Burnside, 17 Ark. 38.

Upon rendition of the judgment the court heard testimony of reputable attorneys relative to the amount to be assessed as attorney’s fees, and, in view of the evidence and the nature of the case, we cannot say that the fee allowed was excessive.

The record is somewhat meager, but the reasonable inference may be drawn that demand upon the company for the amount of life indemnity was made, liability denied, and payment refused. It therefore was not necessary to make formal proof of loss, and the provision of the policy providing for sixty days for filing proof of loss has no effect. The suit was not prematurely broüght, and the twelve per cent, penalty was properly affixed.

"We find no reversible error in the record, and the judgment must therefore be affirmed.