text:
    Hughes v. Strickland.
    Opinion delivered June 20, 1927.
    1. Wills — life estate. — A will devising land “for payment of legacies” held to convey only a life estate and not a fee simple, where the will construed as a whole indicated that such was the testator’s intention.
    2. Wills — “sole use of wife” — construction. — Though it was not essential that the testator recite that the property was for the sole use of his wife to give her fee simple title, the presence of this language in one paragraph and its absence in another held to be considered in ascertaining the testator’s intention. '

      3. • Wills — devise of eesiduary estate. — 'A will devising the residue of an estate to the testator ’s' wife' f or life with the remainder to their children, held not to admit of interpretation that a mere suggestion or recommendation was being made, and that the wife really took ¡fee simple estate.
    4. Wills — devise of life estate. — A provision in a will devising land to a wife held to pass only a life estate, though legacies were charged against the devise to the wife, instead of against the testator’s ■ estate.
    5. Wills — -rules of construction. — Rules of construction are to enable courts to arive at the testator’s intention, and are to he invoked only when that intention is doubtful.
    Appeal from White Chancery Court; W. P. Beard, Special Chancellor;
    reversed.

      Brundidge & Neelly, for appellant.

      John E. Miller and Gul L. Pearce, for appellee.
   Smith, J.

This appeal involves the construction of the will of W. R. Strickland, which reads as follows:

“That I, W-. R. Strickland, of West Point, in the county of White and State of Arkansas, of sound mind and disposing memory, do make and publish this my last will and testament, hereby revoking’ all former wills by me at any time heretofore made.
“1. I hereby constitute and appoint my wife, M. T. Strickland, to be the sole executrix of my last will, direct- • ing my said executrix to pay all my debts and funeral expenses and the-legacies. hereinafter given out of my estate. •
‘ ‘ 2. After the payment of my said debts.and funeral expenses I give to each of my children, namely, R. C. Strickland, one dollar; Tom Strickland, one dollar; W. A. Strickland, one dollar; Laura Maloy, one dollar; Levi Strickland, one dollar; E. Strickland, one dollar; J. R. Strickland, one dollar; and Nancy Y. Nunn, one dollar, and Clemmy Hughes, one dollar, to be paid to each one of them as soon after my decease, but within one year, as convenient may be done.
“3. And for the payment of the legacies aforesaid I give and devise to my said executrix all the personal estate, money and notes owned by me at my decease, and the southwest quarter of the southeast quarter of section 26, township 7 north, range 6 west, and the south half of the south half of the northwest quarter of the southeast quarter of section 26, township 7 north, range 6 west, containing 50 acres, more or less.
“4. I give to my said executrix all my household furniture and wearing apparel for her sole use.
“5. I devise to my said executrix all the residue of my estate as long as she shall live, with the remainder, at her decease, to go to my children, respectively, share and share alike.
“6. In testimony whereof I hereto set my hand and publish and declare this to be my last will and testament m the presence of the witnesses named below, this the sixth day of April,”1921. ”

Strickland died in 1922, and his will was duly probated, and on the 22d of May, 1925, Mrs. M. T. Strickland, his widow, deeded the land above - described to her son Levi, one of the beneficiaries named in the will. Mrs. Strickland died intestate in November, 1925.

The other children insist that Mrs. Strickland took only a life estate in the property of the testator, and they pray that the will be so construed and the property ■ordered divided accordingly. The court denied the relief prayed, and held that Mrs. Strickland took a fee simple title to the property devised, subject only to the legacies of $1 to each of the children, and this appeal is from that decree.

We do not concur in the view of the court below in the construction of this will. It is our opinion that a life estate was devised, with a remainder over to the testator’s children, share and share alike.

In the case of King v. Stevens, 146 Ark. 443, 225 S. W. 656, it was held that an estate for life might be created in personal property of a durable nature, with a remainder over, and, in such cases, the property remaining at the life tenant’s death is to be distributed to the remaindermen. The record before us does not present the question as to what personal property owned by the testator was of that durable mature that a life estate therein might he created.

To sustain the construction of the will given it by the court below, the case of Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682, 8 L. R. A. (N. S.) 1028, 11 Ann. Cas. 343, is relied upon. The will in that case provided: “All the rest, residue and remainder of my estate, real as well as personal, and wheresoever situated, I hereby devise, give and bequeath to my beloved wife, Minna Elle, to have and to hold the same in fee simple forever. But in the case of the death of my beloved wife it is my will that all the estate then remaining and not disposed of by her by a last will or other writing shall pass to my said brother, Moritz Elle, and my sister, Henrietta Bernstein, or their heirs, in equal parts.”

It was there held that the property referred to was devised to the wife of the testator in fee simple “with an absolute power of disposition, either by sale or devise, clearly and unmistakably implied,” and that the limitation over to the heirs of the testator was void. Mr. Justice Battle there quoted with approval from Underhill on Wills, vol. 2, § 869, as follows:

“ ‘It is. the rule that, where property is given in clear language sufficient to convey an absolute fee, the interest thus given shall not be taken away, cut down or diminished by any subsequent vague and general expressions. This rule is applied where a fee is given, either expressly or by words of limitation, as to a person and his heirs, or by implication by a devise in general language through the operation of the modern statutes. If it is clearly the intention of the testator that the devisee shall own the fee simple, his subsequent language, directing that what remains of the property at the death of that devisee shall devolve upon a particular person or class of persons, will not cut down the fee to a life estate. The fee, being vested by express and appropriate words, will not be diminished by subsequent words of a vague and general character which are absolutely repugnant to the estate granted.’ ”

The opinion in that case contains quotations of similar purport from Redfield on ' Wills and from Page on Wills.

Appellees also quote a syllabus from the case of Fies v. Feist, 145 Ark. 351, 224 S. W. 633, which reads as follows: “A testator, after devising an estate in fee in land, may not, in a subsequent clause, impose limitations inconsistent therewith, as by authorizing the executor to dispose of such land.”

We think, as has been said, that a fee was not devised, and we réach this conclusion from a consideration of the will in its entirety. It will be • remembered that paragraph 1 of the will directs the executrix “to pay all my debts and funeral expenses and the legacies hereinafter given out of my estate,” and the third para-, graph provides that, “for the payment of the legacies aforesaid I give and devise to my said executrix all the personal estate, money and notes owned by me at my decease, ’ ’ and the land there described.

The devise contained in paragraph 3 is.not to the wife as such, but “to my said executrix,” and if the intention of the testator had been to give to the wife the absolute title to all the property described in that paragraph, the paragraph next following is entirely meaningless. By the paragraph numbered 4 the testator gives to his executrix all his “household furniture and wearing apparel for her sole use.” The devise in paragraph 3 does not recite that it was in fee or for the sole use of the executrix. On the contrary, the recital is that it was for the payment of the legacies.

Of course, it was not essential that the testator recite that the property was for the sole use of his wife to give her a fee simple title, if the language employed indicated that purpose. But the presence of this language in one paragTaph, and its absence in the other, is a circumstance to be taken into account in arriving át the intention of the testator, and the purpose of all rules of construction is to arrive at this intent.

The second syllabus in the case of Fies v. Feist, supra, reads as follows: “In construing* a will, the various clauses should be harmonized, and each given force,, if possible, as it is only where there is irreconcilable conflict between the clauses that one must give way to the other.”

The fifth paragraph of the will reenforces the conclusion we have announced,' for by it the testator devises to his wife “all the residue of my estate as long as she shall live, with the remainder, at her decease, to go to my children respectively, share and share alike.”

In the case of Bernstein v. Bramble, supra, Mr. Justice Battle said that the rule that, where property is given in clear language sufficient to convey an absolute fee, it shall'hot he taken away, cut down or diminished by subsequent vague’ and general expressions, is to be applied when the fee is given either expressly, by words of limitation, as to a person and his heirs, or by implication by a devise in general language, through the operation of modern statutes. 'But we _ think there was no express devise of the fee by paragraph 3 of the will, and we 'are also of the opinion that the intention of the testator cannot be determined without reading paragraphs 4 and 5 in connection with paragraph 3. When all these paragraphs are read together it does not appear that paragraphs 4 and 5 cut down, take away or diminish an estate in fee given by paragraph 3, but the last paragraphs must be read in connection with paragraph 3 to arrive at the testator’s intent.

Appellees insist that, by paragraph 5 of the will, the testator merely intended to suggest that the “remainder” at .the death of the wife should go to the-children share and share alike. The language employed, however, does not admit of the interpretation that a mere suggestion or recommendation was being made. The testator expressly devised to his-executrix the “residue” of his estate as long as she shall live, with the “remainder” at her decease to his children. We think it was clearly the intention of the testator to give his children something more than the dollar each mentioned in paragraph 2, and that something was the “residue” of his estate after the same had been enjoyed by his wife until her death.

In the case of Galloway v. Sewell, 162 Ark. 627, 258 S. W. 655, it was held that, generally, the use of a thing does not mean the thing itself, hut that the user is to enjoy, hold, occupy or have in some manner the benefit thereof.

Appellees quote § 290 of the chapter on wills in 28 R. C. L., page 307, which reads as follows:

‘ ‘ The charging of a legacy on a devise may in itself be an indication as to whether the devisee was intended to receive a fee or a life estate. Where a devisee whose estate is undefined is directed to pay the testator’s debts or legacies or a specific sum in gross, such devisee presumably takes an estate in fee, and the rule that devises of land without words of limitation or description pass nothing but a life estate will not be applied. In other words, a devise which would otherwise give only a life estate may confer an estate of inheritance if the testator imposes a personal ‘charge on the devisee. A distinction has been drawn between cases where the payment of the testator’s debts is charged upon the estate, and where the charge is on the person of the devisee, in respect of the estate in his hands, and it has been held that, in the latter case alone, the devisee takes a fee.”

The insistence is that the charge of the legacies against the devise to the wife under the rule just quoted is an indication that the testator intended that the fee should pass. The origin and reason of this rule is considered by the Supreme Court of the United States in the case of McCaffrey v. Manogue, 196 U. S. 563, 25 S. Ct. 319, 49 L. ed. 600. In that case the legatees were children and a grandchild of the testator, and each was given real property in Washington City. A daughter was given several pieces of real estate and certain personal property, and the will provided that the daughter should “pay funeral expenses and any other legal debts I may owe, also to care for my lot in Mount Olivet cemetery.” -

Mr. Justice McKenna there said:

“ ‘The rule of law which, gives a fee where the devisee is charged with a sum of money is a technical dominant rule, and intended to defeat the effect’ of the artificial rule established in favor of the heir at law, that an indefinite devise of land passes nothing hut' a life estate.”

Speaking further of these conflicting rules of construction, the learned Justice said:

“It is altogether a strange tangle of technicalities. Apply either of them or both of them, and we defeat the intention of the testator. Are we reduced to this dilemma? We think not; nor need we dispute the full strength of the rule in favor of the heir at law. It cannot be applied when the' intention of the testator is made plain. It cannot be applied when the purpose of the testator, as seen in the will, cannot be carried out by a devise of a less estate than the fee. Bell County v. Alexander, 22 Tex. 350, 73 Am. Dec. 268. The policy of the law in favor of the heir yields, we repeat, to the intention of a testator, if clearly expressed or manifested. That policy, the reason for it and the elements of it, is expressed strongly by Mr. Justice Story in Wright v. Denn, 10 Wheat. 204, 227, 228, 6 L. ed. 303, 309: ‘Where there are no words of limitation to a devise, the general rule of law is that the devisee takes an estate for life only, unless, from the language there used or from other parts of the will, there is a plain intention; because, if it be doubtful or conjectural upon the terms of the will, or if full legal effect can be given to the language without such an estate, the general rule prevails. It is not sufficient that the court may entertain a private belief that the testator intended a fee; it must see that he has expressed that intention with reasonable certainty on the face of his will. For the law will not suffer the heir to be disinherited upon conjecture. He is favored by its policy; and, though the testator may disinherit him, yet the law will execute that intention only when it is put in a clear and unambiguous shape.”

The will there construed was held to devise to each legatee an estate in fee, but this was done because, as the learned Justice said, the testator had “put in a clear and unambiguous shape” that intention. The testator had devised all his property and had attempted to make an equal division thereof among his children and grandchild, and there was no residuary clause disposing of a remainder if only life estates were devised.

In volume 2 (6th ed.) Schouler on Wills, §§ 1177 and 1178, the author says that the old common-law rule of construction, that a devise of lands to A simply conferred an estate for life only, unless an intention was disclosed in the will to the ■ contrary, has, by legislation and interpretation,- been modified, and that “this modern rule treats a devise of lands, though without words of limitation, as passing the fee simple to the devisee, unless an intention appear to the contrary. The-natural scope of the will, as gathered from all its parts, .thus settles in fine the question whether or not a devise in fee or such other complete interest as the testator had power to dispose of shall pass, or instead a mere usufruct and temporary enjoyment.” .

The hazard of defeating a testator’s manifest intention by the application of rigid rules of construction is pointed out by the learned Justice in the case of McCaffrey v. Manogue, supra, where he said:

“In the construction of wills we are not required to adhere rigidly to precedents. We said, in Abbott v. Essex Co., 18 How. 202, 213, 15 L. ed. 352, 355: “If wills were always drawn by counsel learned in the law, it would be highly proper that courts should rigidly adhere to precedents, because every such instrument might justly be presumed to have been drawn with reference to them. But in a country where, from necessity or choice, every man acts as his own scrivener, his will is subject to be perverted by the application of rules of construction of which he was wholly ignorant.’ ”

In this connection we may say that the purpose of all rules of construction is to enable the courts to arrive at the intention of the testator, and are to be invoked only when that intention is in donbt. ••

In the will which we are hére called upon to construe the intention of the testator to practically disinherit his children is not stated clearly and in unambiguous language. On the contrary, the residuary elapse manifests the intention that the wife shall use and enjoy the property of the testator for her life, and that, after her death, the “residue” shall “g-o :to” the testator’s children, share and share alike.

. The decree of the court below will therefore be reversed,’and’the cause.remanded with directions to enter a decree conforming to this opinion. •" •


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Ward Furniture Manufacturing Company v. Pickle.
    Opinion delivered June 20, 1927.
    Master and servant — test Df scope op employment. — Á test as to whether an employee was acting within or without the scope of his employment or the line of his duty at the time when he was injured is to inquire whether the employer should have anticipated that he might attempt the act.
    Master and' servant — scope op employment — jury question.— In ari. action against an employer by an employee injured while unelogging a molding machine without ’stopping it, the question whether plaintiff was acting within the scope of his employment, held for the jury;
    Master and servant — assumed .. risk.. — A sixteen-year-old boy .operating a molding .machine held not to have assumed, as a matter of law, the risk of operating such machine .when told to run it, where he had received no instructions with reference to feeding and operating the machine and was inexperienced in the use of it. ,
    Master and servant — duty to instruct inexperienced employee. —Where an employee is young and inexperienced, it is a question for the jury whether the master should have instructed him in the performance of his duty, and as to the dangers connected therewith, even though the danger would be obvious to an experienced servant.

      5. Master and servant — contributory negligence. — Where a master was a domestic corporation not engaged in interstate commerce, proof of contributory negligence on the part of the employee will not entitle the master to an instructed verdict under Crawford & Moses’ Dig., § 7145.
    6. Damages — when not excessive. — In an action for personal injuries, where all the fingers except the index finger and thumb of an employee’s left hand, as well as part of the palm down to the wrist, were amputated, causing pain and suffering, both at the time and afterwards, and humiliation throughout life from disfigurement, an award of $7,500 for injuries to a 16-year-old boy held not excessive.
    7. Trial — scope op employment — instruction. — In an action by an employee for personal injuries sustained while operating a molding machine evidence held to justify the assumption in an instruction that plaintiff’s position bad been changed from that of off-bearer to feeder of the machine at the time of injury.
    8. Master and servant — duty to warn servant. — Where a 16-year-old boy employed as off-bearer of a molding machine, which position was not connected with its operation, was directed to run the machine, held that employer should instruct and warn him concerning additional attendant perils, if any, to the position of feeder.
    9. Trial — instruction as to warning servant. — In an action for personal injuries to an employee while operating a molding machine, an instruction that, if employer’s original instructions to plaintiff as off-bearer covered dangers incident to feeding the machine, then no further instructions were necessary when he became feeder, held not erroneous in assuming there were additional dangers necessarily requiring further instructions.
    10. Trial — necessity for request for further instructions. — In an action by an employee for injuries sustained while operating a molding machine, where defendant believed that the omission of the defense of assumed risk from instruction was prejudicial, specific objection on that ground should have been made, especially where it requested and secured' other instructions adequately covering such defense.
    ■ Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatwm, Judge;
    affirmed.

      G. W. Knott, for appellant.

      Warner, Hardin & Warner, for appellee.
   Humphreys, J.

This suit was brought by Ira Pickle, a minor sixteen years of age, through his father and next friend, against appellant, in the circuit court of the Fort Smith District of Sebastian County, to recover damages in the sum of $20,000 for personal injuries received to his left hand while operating a molding machine in the furniture factory of appellant, through the alleged negligence of appellant in failing to warn him of the dangers incident to the operation thereof.

Appellant filed an answer, denying that it employed the hoy, Ira, to operate a molding machine, but stated that it employed him as an off-hearer for molding machines, and interposed the defenses that he was not engaged in the line of his duty when injured, that he assumed the risk, and that the injury was due to his own negligence.

The cause was submitted to a jury upon the pleadings, testimony adduced by the respective parties, and instructions of the court, resulting in a verdict and consequent judgment for $7,500 in favor of appellee, from which is this appeal.

The following facts and disputed testimony are reflected by the record in so far as nécessary to determine the questions involved on this appeal.

At the time of his employment appellee was sixteen years of age, a country boy, inexperienced in'the use and operation of manufacturing machinery. He was first employed as an off-bearer for molding machines by the foreman, Frank Goebel, and placed under the control and supervision of the head molderman, C. F. Hoffman, who had charge. The foreman informed him of his duties as off-bearer, which consisted in taking timber off the table after it came out of the molding machine and placing it on a truck, which he assisted the molder-man in moving to another machine when it was loaded. The foreman testified that he told him not to touch the molding machine while performing the duties of off-bearer, explaining if he did that he would get his hand cut off in the knife heads, which he showed him. On the third day of his employment he was directed by the molderman, C. F. Hoffman, to off-bear from two machines. He performed these duties for about two weeks, or until Friday before lie was injured on Saturday. On Thursday before the injury occurred C. F. Hoffman was succeeded by Joe Adkins, and, not knowing whether appellee had been off-bearing- or feeding- the machine, he directed him to run the molding- machine. The machine he was directed to run had. several knife heading’s. .The last knife heading was 4 inches square and 10 inches high, carrying a blade on the front which operated beneath’ the table. There were four blades- on the head,- which cut three-fourths inch stock. The blades were four .inches long, and were clamped to the head, which was propelled by a belt on the shaft making- about 3,600 revolutions a minute. The machine would clog when a wedg-e-shaped piece of material was run through, and it was the molderman’s duty .to unclog the machine. The -molderman used his discretion in stopping the machine to unclog- it — he used his own judgment. Sometimes the molderman unclogged the machine while: it was running, and . at other times he stopped the machine to unclog it. A. molding machine is stopped by using a shift handle fastened- to the machine. The molderman had a feeder to .each machine and an off-bearer to every two .machines, who. took their orders, from him. Five molding machines were being operated on the floor under the direction of the molderman, -and it was a common thing for the feeders, instead of the- molderman,- to remove the obstructions when -the machines clogged -up, either while the machines were • running • or after they stopped them. -The method of removing-.the obstruction, either after the machines had -been- stopped or while they were running, was to unfasten some screws and to place a file on the wedge-shaped piece of material and drive it out with a hammer or wrench. It required instructions and experience -in order to operate a molding machine. The only knowledge of the-machine apoellee had, prior to operating it, was in observing the other boys operate their respective machines during the two weeks of his employment as off-bearer. Appellee testified that, when Joe Adkins told him, about 3 o ’clock Friday afternoon, to operate tlie molding- machine, he gave him no instructions, but simply said to him “to run the machine,” and walked off; that he did not warn him of the dangers incident to operating the same, and did not tell him whether feeding the machine included the duty of unstopping-it when it clogged up; that, after operating it á few minutes, the machine clogged, and the molderman unclogged it without stopping the same; that, in doing this, he unfastened some screws and used a file and hammer; that the machine ran all right the rest of the afternoon; that, Saturday morning, he was unable to étart the machine, and the molderman started it for him, and, after running awhile, the machine clogged, ahd appellee proceeded to unclog it just as the molderman had-done; that her could not start the machine after he had unclogged it, and asked the molderman to start it for him; that the molderman told him he did not have time to fool with the machine, whereupon appellee assisted other off-bearers and waited for the molderman to- start it; that, after the molderman started the machine, he told appellee not to stop' it any more; that the machine again clogged; and, thinking it his duty to unclog it, he proceeded to - do so just as the molderman had done while running it, during which time the molderman passed by and observed his effort to unclog it, and did not tell him to quit or offer to unclog it for him; that the file slipped, and the weight of the file and the blow of the hammer carried his hand into the knife, which cut and mangled his hand so badly that all of the fingers, except the index finger and thumb, as well as a part of the palm of the hand down to the wrist, had to be amputated.

Joe- Adkins testified that he complied with every request appellee made for him to unclog and start the machine; that he never directed appellee to unclog it, and never told him not to shut it down; that he never saw appellee trying to unclog it.

On account of the injury and amputation the usé of his hand was impaired one-half and the usefulness of the arm to a large extent. A part of the grip of the hand, and his ability to lift heavy articles, was lost. He returned to the farm after the injury, where he was able to do some work, but was unable to hoe and plow as he formerly had. Prior to the injury he had left the farm with the purpose of becoming a mechanic. At the time of the injury he was earning $1.53 per day, and was ambitious to advance and increase his earning capacity. He was in good health, of husky build and good weight. His expectancy was 44.9 years, and during that time he would have earned $21,433.33 if his earning capacity had not increased. '

His pain and suffering after the injury and amputation of his fingers and part of the hand was intense for about three weeks, so intense that he was unable to sleep until about 3 or 4 o’clock in the mornings. At the time of the trial he still suffered from the injury, as if pins were sticking in his hand if he received a little jar or if there was any pressure upon it.

At the conclusion of the testimony appellant requested an instructed verdict, for the alleged reason that, according to the undisputed evidence, appellee was not engaged in the line of his duty at the time of th.e injury; that he assumed the risk, and that no warning was required; that the injury was the result of his own carelessness.

(1) It is true that the record fails to show by positive testimony that it was the duty of appellee to unclog the machine as a part of his duty in running same, and that the molderman testified that it was their duty to perform this task, yet the record reflects testimony tending to show that, during the two weeks appellee was engaged in the duty of off-bearing, the feeders of the machines frequently unclogged them in the manner, he was attempting to do at the time he received his injury. When told to run the machine, appellee’s duties were not outlined to him. He had not been informed that it was the exclusive duty of the molderman to remove obstructions when the machine clogged. During the two weeks he had been employed as off-bearer, he had observed other feeders of machines, as well as the molder-men, removing obstructions •when the machine clogged. According1 to the testimony of appellee, just before he received his injury he was observed by the molderman in the act of unclogging' the machine while in motion, and was not told by the molderman to quit, but was allowed to continue.

The test as to whether an employee was acting within or without the scope of his employment when injured, or within or without the line of his duty at the time, is to inquire whether the employer should have anticipated that he might attempt the act. Ambrozia v. Austin (N. H.), 124 Atl. 551. We think, under this .test, the record presented an issue for determination by the jury as to whether appellant should have anticipated that appellee might attempt to remove the obstruction from the machine while in motion if it should clog up. The issue was submitted to the jury under proper instructions, and was determined adversely to appellant. Appellant is bound by the finding, as the testimony' relating to the issue was conflicting.

(2) It cannot be said as a matter of law, under the undisputed facts in this case, that appellee assumed the risk of operating the molding machine when told to run it. It was a complicated machine, the operation of which required knowledge, skill and experience. The danger involved in unclogging the machine was not open" and obvious, and there is nothing in the record to indicate that appellee was aware of the situation and appreciated the danger. He had received no instructions with reference to feeding and operating the machine, and was inexperienced in the use of it. He was only sixteen years of age, and such information as he had concerning the machine and the operation thereof was 'obtained by observation only while engaged in the performance of his duties as off-bearer for the short period of two weeks. The governing rule of law announced by this court is: “Where a servant is young and inexperienced it is at least a question for the jury to determine whether it was the duty of the master to instruct him in the performance of his duty and dangers connected therewith, even though the danger would be obvious to an adult and experienced servant.” St. Louis Stave & Lumber Co. v. Sawyer, 90 Ark. 473, 119 S. W. 830; St. Louis-San Francisco Ry. Co. v. Conly, 160 Ark. 592, 255 S. W. 308; Brackett v. Queen, 162 Ark. 525, 258 S. W. 635; Mo. Pac. Rd. Co. v. Kinslow, 168 Ark. 487, 270 S. W. 603; Hogue v. Bundy, 168 Ark. 879, 271 S. W. 979.

The issues of whether appellee assumed the risk and whether entitled to be warned of the dangers incident to .the operation of the machine were submitted to the jury under proper instructions, and the adverse finding to appellant is supported by sufficient evidence.

(3) Appellant is a domestic corporation, not engaged in interstate commerce, so it was not entitled to an instructed verdict, even if appellee had negligently contributed to his injury. Contributory negligence was not a bar to the action. Section 7145, Crawford & Moses ’ Digest; Athletic Mining & Smelting Co. v. Sharp, 135 Ark. 330, 205 S. W. 695.

Appellant contends that the verdict should be reduced in a substantial amount because excessive. We think the injury received justified the amount awarded to appellee. His expectancy covered a long period of time, and he was a husky young lad, able and willing to work, and the way was open for increasing his earning capacity, with every opportunity before him to do so, at the time he was injured, which injury destroyed one-half his hand power and a large part of his arm power. In addition, he must endure humiliation throughout life from the disfigurement, and has endured much pain and suffering, and with more to endure whenever he receives a jar to or a pressure upon the arm.

Appellant’s last contention,for a reversal of the-judgment is that the court submitted the issues joined upon erroneous instructions. We have examined the instructions assailed by appellant in his argument and brief and are unable to discover any inherent defects or preju-dieial error in. any of them: When all the instructions given are re.ad together they fairly and comprehensively declare the law applicable to the respective theories of the parties, based upon the testimony adduced by each.

The instruction assailed most earnestly by appellant is as follows:

“You are instructed that, when the plaintiff was changed from the position of off-hearer to the position occupied and duties he was performing when injured, then he was entitled to instruction as to the duties he was.then to perform, unless the original instructionsj if any, covered them, and the risks and dangers, if any, incident thereto, even though, you may find or -believe from the evidence he had received instructions on the first day he was employed as an off-bearer, and, if you find from the evidence that the defendant failed to so instruct the plaintiff and to so. warn, him, then defendant was guilty of negligence in this case.”

The main assault upon the instruction is that it assumes that appellee’s position was changed from that of- off-bearer to. that of feeder. This assumption was warranted by the undisputed facts in the case. All of the witnesses'testified that appellee was .first employed as an off-bearer, which position was not in anywise., connected with .the operation of the machine, and that, when •the new-foreman was appointed,,he directed him- to run the machine:' This necessarily required him to. feed the machine." We think there is' ho dispute in the record at all that appellee was changed from the position of off-béárer tó that of feeder. ‘ This change in position required that appellant instruct and warn appellee concerning additional attendant perils, if any. Michigan-Arkansas Lumber Co., v. Bullington, 106 Ark. 25, 152 S. W. 999.

Appellee further contends that' the instruction assumes that there were additional dangers and perils which necessarily required further instructions. We do not so interpret the instruction. It simply told the ■jury that, if the original instructions given -the plaintiff covered the dangers incident to feeding the machine, then no further instructions were necessary.

Appellant also contends that the instruction is fatally defective because it ignores the defense of assumed risk. Appellant requested and secured other instructions which adequately covered this phase of the case. If appellant felt that any prejudice would result to it on account of the omission, it should have specifically objected to the instruction on that ground. St. Louis, I. M. & S. R. Co. v. Blaylock, 117 Ark. 504, 175 S. W. 1170, Ann. Cas. 1917A, 563; Mo. Pac. Rd. Co. v. Barry, 172 Ark. 729, 290 S. W. 942.

No error appearing, the judgment is affirmed.


text:
    Stockton v. State.
    Opinion delivered June 20, 1927.
    1. Criminal law — reduction of instructions to writing. — The inhibition of Const. 1874, art. 7, § 23, against instructing juries orally, relates to declarations of law made by the court, applicable to the particular facts in a given .case, and instructions of that character should be reduced to writing by the court when requested.
    2. Criminal law — cautionary instructions. — Cautionary instructions are not supposed to contain declarations of law, but are warnings to the jury to lay aside pride of opinion and consult ’with each other for the purpose of harmonizing their views, if possible.
    3. Criminal law — cautionary instructions. — In giving a cautionary instruction the court may detail to the jury the ills attendant upon a disagreement, the expense, time taken, and that the case has to be decided by some jury upon the pleadings and probably upon the same testimony.
    4. Criminal law — length of cautionary instruction — reduction to writing. — In a prosecution for forgery, the length of a cautionary instruction held in itself to necessitate that it be reduced to writing to prevent possible dispute or misunderstanding as to its exact phraseology and contents. .
    5. Criminal law — cautionary instructions. — It was error in a criminal case to give a cautionary instruction, which was not only long but involved and argumentative and an entreaty to the jury . to change their minds and reach a verdict.
    6. Forgery — incompetency of testimony. — Where the issue involved in a forgery prosecution was whether defendant was specifically authorized by F. to sign his name to a note, refusal to permit defendant to prove by F. that F. had a checking account in the bank, and defendant as cashier honored F.’s checks when overdrawn, and signed his name to F.’s notes, held proper, since testimony was on collateral issue calculated to cloud real issue.
    7. Forgery — instruction as to defendant’s theory. — In a forgery prosecution where defendant was charged with forging another name to a note, he was entitled to an instruction that, he was not guilty, as he signed the other’s name to the note under the honest belief, without fault or carelessness, that he had author- ■ ity from the other to do so.
    Appeal from Franklin Circuit Court, Ozark District; J. 0. Kincannon, Judge;
    reversed.

      J. P. Clayton and Evans & Evans, for appellant.

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

Appellant was indicted, tried and convicted for the crime of forgery, in the circuit court of Franklin County, Ozark District, and adjudged to serve a term of two years in the State Penitentiary as a punishment therefor, from which is this appeal.

The assignment of error insisted upon most strenuously for a reversal of the judgment was the giving of a cautionary instruction, orally, hy the court, over the objection and exception of appellant. The instruction is as follows:

, “Gentlemen of the jury: It is not surprising to the court that twelve men, even though they have listened to the same testimony and the same argument of counsel and to the same instructions of the court, that they do not agree as to what the testimony was and do not agree as to the instructions of the court and to the argument of counsel. In fact, gentlemen, it would be strange if you should go out into your jury-room and immediately all agree upon a verdict. It rarely ever happens that twelve men are of the same opinion at first in trying to decide any case. Now, what is the duty of a jury when they disagree? It is your duty to keep frank, open minds, to he frank with your fellow jurors, and listen to what your fellow jurors say, to see if perchance, they might not be right and you might he wrong, ■ and, when you are convinced that they are right and you are wrong, why, you ought not to hesitate to admit, that you are wrong and so.in that way arrive at a verdict. Of course, if you go into the jury-box with your mind fixed and set, and you say to yourself, I am right and the others are wrong, and I will not change my opinion, why, of course there would he no use in keeping you together any-longer, and I would discharge you. But a juror ought not to get into that frame of mind, but he ought to go into the jury-room with a frank mind and listen to the argument of his fellow jurors and weigh it, and then, if their argument does not change his mind and he is still convinced that he is right, of course, I would not ask him to give up an honest conscientious opinion simply, for the purpose of arriving at a verdict. I am not asking you to do that and do not want you to do that. But if, after hearing the argument of the other members of the jury, he decides that they are right, he ought not to hesitate to change his views. Now, gentlemen, the fact that a man-changes his. mind is not evidence that he is a weakling or a wishy-washy sort of a fellow, but rather an evidence that he is a thinking human creature. All the progress in the world has been brought about by men changing their minds. It is the power of reasoning and thinking that distinguishes us from the lower animals. The lower animals do not think, and their condition is the same that it has always been. Men do think and change their minds, and so has risen himself - from- the savagery, in which he formerly lived to the high state of- civilization which we boast and enjoy today. - All-the great inventions have been brought about by men changing their minds; and so do. not get into your heads, gentlemen, that changing your mind would be an evidence of a weakling.■Some jury in the Ozark District of Franklin County must decide this case, if it is ever decided. I think you gentlemen are just as competent to decide this case as' any twelve men I could get. If I did not think so, I would immediately discharge you and get another jury. But I know you twelve men can decide this case just as well as any other jury. This litigation is expensive both to the State and to the defendant, and can only he decided by a verdict. So I want you gentlemen to go hack into your jury-room, and if, after a conscientious consideration of the arguments of your fellow jurors, you are still convinced that your opinion is better founded in truth than theirs, I do not ask you to give up that opinion. But what I do ask is to go back and make a conscientious, frank, open-minded effort to arrive at a verdict, and that is my purpose in keeping you together, is to give you plenty of time to do that and not for the-purpose of punishing you and compelling you to arrive at a verdict. So go hack, gentlemen, into your jury-room and see if you cannot arrive at a verdict. ”

• The jury had the ease under consideration from the 24th of February until the 26th of February, 1927, before returning the verdict. After deliberating some time on the 24th of February they reported that they were unable to agree, whereupon the court gave said cautionary instruction. After the noon hour on the 25th of February the jury again reported that they were unable to agree, and the court again gave them the cautionary instruction. After supper on the same day the court again gave them the cautionary instruction before they retired to consider the case. Appellant objected to the instruction each time it was given,- and also objected to it being given orally.

The-' constitutional inhibition against instructing juries orally relates to declarations of law made by the court applicable to the particular facts in a given case. Instructions of that character should be reduced to writing by the court, when requested to do so. Section 23, article 7, of the Constitution of 1874 of this State is as follows-:

“Judges sliall not charge juries with regard to matters of fact, but shall declare the law, and in jury trials shall reduce their charges or instructions to writing, on request of either party. ’ ’

Cautionary instructions are not supposed to contain declarations of law. They are simply warnings to the jury to lay aside all pride of opinion and consult with each other for the purpose of harmonizing their views, if possible, under the evidence; to apply the law as given by the court to the facts in the case and deal with each other in a spirit of candor in order to arrive at a verdict. In doing this the court may detail to the jury the ills attendant upon a disagreement, the expense, the length of time it has taken to try the case, the length of time the case has been pending, and that the case will have to be decided by some jury' upon the pleadings and in all probability upon the same testimony. Mallory v. State, 141 Ark. 496, 217 S. W. 482; Benson v. State, 149 Ark. 633, 233 S. W. 758; Evans v. State, 165 Ark. 424, 264 S. W. 933; Clarkson v. State, 168 Ark. 1122, 273 S. W. 353; Stepp v. State, 170 Ark. 1061, 282 S. W. 684.

A short cautionary instruction embodying the matter detailed above would in no way deal with the law of the case applicable to the facts, and would not therefore be within the constitutional prohibition. The length of the cautionary instruction given by the court in the instant case would of itself necessitate that it be reduced to writing so as to prevent any possible dispute or misunderstanding as to its exact phraseology and contents.

The instruction, however, was not within the rule announced in the cases cited. It was not only long but involved and argumentative. It might well be characterized as a persuasive entreaty to the jury to change their minds and reach a verdict. The court called their attention to the fact that a change in mind did not indicate that one was a weakling. In emphasizing this point he took occasion to say that all the progress and all great inventions in the world were attributable to a reversal of men’s ideas and opinions. This was a seductive appeal to the progressive element of the jury to change their minds and return a verdict. The repetition of the instruc tion a second and a third time was calculated to cause the jurors to yield their honest convictions in order to prevent a mistrial. Although ills attendant upon a disagreement of a jury are great, yet they should not be entreated and overpersuaded to reach a verdict which is not the result of their free and voluntary opinion, as was done in this trial.

Another assignment of error is that the court refused to allow appellant to prove by J. K. Ford, whose name was alleged to have been forged by appellant to a note payable to the order of T. L. Dickerson in the sum of $1,500, that witness had a checking account in the People’s Bank, and that his checks were honored by appellant, who was the cashier, when the witness was overdrawn, and that the witness authorized the appellant to sign his name to checks and notes in connection with the checking account of said witness at said bank. We think the court properly excluded this testimony, for the issue involved was whether appellant had obtained specific authority from J. K. Ford to sign his name to the $1,500 note. An admission of this testimony would have introduced collateral issues calculated to cloud the real issue in the case.

Another assignment of error was the refusal of the court to give appellant’s requested instruction number 3, which is as follows: “If defendant signed the name of J. K. Ford to the note to Dickerson under the honest belief that he had the authority from Ford to do so, although the jury may now find that defendant did not in fact have such authority, the defendant is not guilty of forgery or of uttering a forged instrument.”

The court instructed the jury on behalf of the State as follows: “If you find from the testimony, beyond a reasonable doubt, that the defendant, F. E. Stockton, signed the.name of J. K. Ford to the note in question with the fraudulent intent to obtain the possession or to deprive another of any money or property, .or cause him to be injured in his estate or lawful right, without the knowledge or consent or authority of said J. K. Ford, you will find the defendant guilty of forgery.”

The last instruction presented the State’s theory of the case, which was that appellant had signed the note in question with a fraudulent intent of depriving J. K. Ford of money or property without his knowledge, consent or authority, and that appellant was entitled to an instruction covering the converse of the State’s theory. Requested instruction number 3 was intended to cover the converse theory,'but is defective in failing to say that he would not be guilty of forgery if he signed the name of J. K. Ford to the note to Dickerson under the honest belief that he had authority from Ford to do so, if he acted without fault or carelessness. With this modification the instruction on retrial should he given as presenting appellant’s theory of the case.

' On account of the error in giving the cautionary instruction, which was inherently wrong and prejudicial, the judgment is reversed, and the cause is remanded for a new trial.


author: Mehaeet, J.

text:
    Lambert v. Wharf Improvement District No. 1 of Helena.
    Opinion delivered June 20, 1927.
    1. Municipal corporations — improvement districts to construct wharf. — Acts 1927, p.. 172, authorizing improvement districts for constructing wharves to operate, manage, construct and lease improvements and incur indebtedness thereof, held not unconstitutional as imposing a tax, in view of § 4, p. 174, providing that no taxes on real property for the district shall be levied to -.pay for acts done under the statute.
    2. Constitutional law — powers of legislature. — The Legislature is competent to do- anything not prohibited by the Constitution, ■since the Constitution is not a grant of powers.
    3. Constitutional law- — construction of statute. — All doubts, as ■ to the constitutionality of a statute must be resolved in favor of its validity.

      4. MUNICIPAL corporations — wharf improvement, district. — Acts 1927, p. 172, authorizing improvement districts organized for constructing wharves to operate, .manage, construct and lease improvements and incur indebtedness therefor held not unconstitutional delegation of power to engage in private business.
    5. Municipal corporations — wharf improvement districts. — Creation of wharf improvement district No.' 1, of Helena, held valid where the district was organized under an ordinance on petition of property owners in compliance with Const, art. 19, § 27, permitting the General Assembly to authorize assessments for local improvements on consent of a majority in value of property holders in locality affected.
    Appeal from. Phillips Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      Moore, Walker & Móore, for appellant.

      Bevens & Mnndt and J. G, Burke, for appellee.
   Mehaeet, J.

Wharf Improvement District No. 1 of the City of Helena is an improvement district created by ordinance upon the petition of property .owners-in the city of Helena, and was organized “for the purpose of constructing a wharf on the Mississippi River and the necessary approaches thereto; said wharf -to consist of adequate mooring- places composed of stone, concrete, wood or steel, located approximately at the foot of Arkansas Street, on the Mississippi River, in the city of Helena; and a loading barge of adequate size, to be moored at that point; the approaches thereto, and storage places and other necessary equipment; to construct a wharf-house containing-two floors, a railroad track on an incline from said wharf-house due east along the-south side of Arkansas Street from the said wharf-house to the .said loading barge and wharf on the Mississippi River; also a roadway to be constructed upon Arkansas Street from the west -line of Natchez Street to the east line of said wharf-house; also ■ a railroad track from Elm Street to said wharf-house; together with all necessary cars, cables, hoists and other freight-handling and loading machinery necessary to make sáid wharf and its appurtenances complete.”

The improvement district so created was held to be valid, in Solomon v. Wharf Improvement Dist. No. 1, 145 Ark. 126, 223 S. W. 385.

The Arkansas Legislature, in 1927, passed Act No. 61, which is as follows:

‘‘Section 1. That boards of improvement in municipal improvement districts now existing or hereafter organized in this State for the purpose of constructing-wharves for the transfer and interchange of river and rail freight are hereby charged with the duty to operate, manage and control the said improvements. Such boards shall also have the power to lease the improvements, in whole or in part, or otherwise contract for the operation of such improvement, upon such terms as may be deemed by them advisable, and have power to lease from others such equipment as, in the judgment of said board, may be deemed advisable. Such board shall collect moneys due such improvement districts for tolls, wharfage, storage, elevation, rentals and all moneys other than moneys received from collection of the assessment of benefits, and shall keep an accurate and separate account thereof. Such board of improvement shall have control of the disbursement of such moneys, and may therefrom pay costs of operation, maintenance, repairs, replacements, renewals, improvements, depreciation or bonded or other indebtedness, in such times and in such manner as the said board may deem to the best interests of the owners of real property in the district.
“Section 2. In addition to the powers now vested by law in boards of improvement, boards of improvement of improvement districts described in § 1 of this act shall have power to construct and to borrow money with which to construct new and additional improvements necessary, convenient or required for transfer or interchange of any and all commodities. Such board of improvement may issue the notes, bonds or other evidences of indebtedness of such district to evidence such indebtedness, which obligations shall be negotiable, although payable only from a certain fund, and may pledge net revenues arising from the operation of such hew and additional improvements, and mortgage snch new and additional improvements to secure the repayment of such borrowed money and interest thereon.
“Section 3. Boards of improvement of the class described in § 1 of this act shall have power to acquire, by lease or purchase, real estate heeded or convenient in the public service rendered by such improvement district; power to grant rights-of-way over any and all properties owned by such district, and power to grant landing rights to persons engaged in water transportation.
“ Section 4. No indebtedness, obligation or liability, or the interest thereon, created or incurred under the provisions of this act, shall at any time be secured or paid by or. from any special assessment upon or taxation against the real property of any such improvement district.
“Section 5. That all contracts heretofore made by any board of improvement of the class described in § 1 of this act, not in conflict with the terms of this act, be and the same are hereby confirmed, approved and ratified.'
“Section 6. If any clause or section of this act shall be held to be unconstitutional, it shall not invalidate the remainder thereof, but the balance of this act shall remain in full force and effect.
“Section 7. Agriculture and industry of the State will be aided and assisted by the purposes herein contained, and therefore an emergency is hereby declared to exist, and this act being necessary for the preservation of the public peace, health and safety, it shall take effect and be in force from and after its passage.”

The appellant, plaintiff below, brought this suit. attacking the validity of Act No. 61 for the following reasons:

(1) That under the Constitution of the State of Arkansas the Legislature is inhibited from delegating the powers undertaken to be delegated by said act to local improvement districts. (2) That the said act is and was unconstitutional in that it violates the fundamental and underlying principles of our form of Government. (3) That even under the provisions' of said act the defendants have no power or authority to enter into the several contracts hereinabove set out. (4) That the said contemplated improvement is not a public improvement, but is an improvement which is related solely in its operation and effect to private business and private interests. (5) That the operation of a grain elevator is not a public improvement but is, from its very nature, a private business. (6) That generally the making of said contracts is ultra vires, improper, and an invasion of public agencies into the field of private affairs.
“Plaintiff alleges that, unless enjoined by order of this honorable court, the defendants will execute the contracts aforesaid, or some of the same, whereby the rights of third persons might attach, to the injury of plaintiff’s rights.”

• We deem it unnecessary to set out the testimony taken in this case, because tlie attack made is on the validity of the act and the power of the Legislature to pass the act. And the appellant’s first contention is that this case is controlled by the decision in Lipscomb v. Lenon, 169 Ark. 610, 276 S. W. 367. That case construed the act passed by the Legislature in 1923 authorizing the formation of an improvement district for the 'building of an auditorium for public meetings, and, while the court stated that it would be a most desirable improvement, yet it 'was plainly for the benefit of the whole community, and that it could not and did not confer any peculiar or,special benefit upon the real estate assessed and taxed for its construction and maintenance.

Tliat act provided for the assessment of benefits and for the taxing of real estate, and it was held in that case that the act was void, and, among other- things,we said:

“Even if it could be said with any plausibility that the building ■ of an auditorium directly and specially benefited the real estate situated within the city of Little Bock, it would strain the wildest imagination to the breaking' point to conceive bow sncb an improvement would be of any direct or special benefit to the real estate situated in Fourche mountains or in Fourche bottoms or to any other real property lying in those country portions of the township included in the district — those beyond the limits of the city of Little Rock.”

It must be remembered that these lands were to be taxed for the purpose of securing money to build the auditorium, and taxed on the theory that these lands would be benefited. Of course it was perfectly plain that the lands mentioned by the court in that case could receive no benefit whatever from the building of an auditorium in' the city of Little Rock, and, since real estate can be taxed for local improvements only on the theory that the benefits to the land were equal to or greater than the tax required to be paid on the land, and since it was manifest that these lands could not be benefited at all, the court properly held that the lands not benefited could not be taxed for the purpose of making the improvement. It was also properly held that the improvement was a public improvement and did not benefit the lands sought to be taxed specially.

It is conceded that act No. 61 provides that no taxes shall be levied to pay for the grain elevator, but it is contended in legal principle that this is immaterial, the appellant contending that, if the Legislature has a right to create an improvement from revenues, then it also has the right to create one to be paid from taxation on real estate. The improvement district in this case was organized, and- this court has already held that it was valid.

Section 4 of act 61 provides: “No indebtedness, obligation or liability, or the interest thereon, created or incurred under the provisions of this act, shall at any time be secured or paid by or from any special assessment upon or taxation against the real property of any such improvement district.”

It will be seen that it‘is expressly provided in the act that no indebtedness, no obligation, no liability or Interest thereon, which may be created under the provisions of this act, shall be paid from assessments or taxation on the real property. The act therefore is not void because of any tax or assessment on real property, and we know of no constitutional provision that would prohibit the Legislature from passing the act in question. It has been repeatedly held by this court that the Constitution is not a grant of powers, and that the Legislature may do anything not prohibited by the Constitution. This court has also many times held that all doubts as to the constitutionality of a statute must be resolved in favor of the statute.

It has been said by this court that, in determining whether an act is constitutional, we should look to see, not whether the power is given, but whether in expressed terms or by necessary implication it is forbidden. This court has said:

‘‘ Then, when we come to pass upon the constitutionality of an act of the Legislature, we must remember that a State Constitution is not a grant of enumerated powers. Its object is to outline the departments of the Glovernment and apportion its various powers among them. Having vested the lawmaking powers in the Legislature, it possesses that power in an absolute and unlimited degree, unless the restriction is found in the Constitution itself.” State v. Martin, 60 Ark. 343, 30 S. W. 421, 28 L. R. A. 153.

Again it has been said:

‘“ft is not to be doubted that the Legislature has the power to make the written laws of the State, unless it is expressly or by necessary implication prohibited from so doing by the Constitution, and the act assailed must be plainly at variance with the Constitution before the court will so declare.” McClure v. Topf & Wright, 112 Ark. 342, 166 S. W. 174.

The appellant has not called our attention to any particular provision of the Constitution which he claims is violated by the act and to no case holding that a similar act is violative' of the Constitution. And, unless there could be found some provision of the Constitution that either expressly or by implication prohibits the passage of an act like this one, then the Legislature had the power to pass the act, because, as has been said, the Constitution of the .State is not a grant or an enumeration of the powers vested in the legislative department, but is a limitation upon the exercise of such powers, and the Legislature can exercise all powers not expressly or by fair implication forbidden by the Constitution.

The only limitation contained in the Constitution with reference to improvement districts in cities and towns is as follows:

“Nothing in this Constitution shall be so construed as to prohibit the General Assembly from authorizing assessments on real property for local improvements in towns and cities, under such regulations as may be prescribed by law, to be based upon the consent of the majority in value of the property holders owning property adjoining the locality to be affected. But such assessments shall be ad valorem and uniform.”

It was necessary to comply with this provision of the Constitution in the organization of the district. This provision was complied with, and the act was held valid. The only thing this act seeks to do is to give the district, which is already formed, additional authority, but it does not in any way seek to tax the people, and we therefore think that the Legislature had the power to pass the act.

We deem it unnecessary to discuss all the authorities presented by appellee, but we have reached the conclusion that the act does not violate any provision of the Constitution, and the case is therefore affirmed.


author: Mehaffy, J.

text:
    Rogers v. Rogers.
    Opinion delivered June 20, 1927.
    Municipal corporations — levy op occupation taxes — Crawford & Moses’ Dig., § 7618, authorizing municipal corporations to levy and collect' occupation taxes, is constitutional, as it does not discriminate between persons in like situations and pursuing the same classes of occupations.
    Licenses — occupation tax. — Under an ordinance imposing a license fee on an investment of $25,000 and less than $50,000, without imposing the tax on a business involving more than $50,000, held that the license fee on an investment of $25,000 would be held to be payable on any amount in excess thereof.
    Licenses — validity of occupation tax. — An ordinance requiring every person engaged in the businesses named to procure from the city a license, affecting all persons similarly situated, held valid against charge of discrimination.
    Municipal corporations — partial invalidity op ordinance.— A provision in a municipal tax ordinance, authorizing the council to reduce or to remit the whole of a license, would not, even if void, render the entire ordinance void, where it contained a provision that invalidity of any section should not affect the valid, provisions.
    Licenses — sufficiency op allegation of invalidity of occupation tax. — In order to challenge the validity of a provision in an occupation tax ordinance permitting the city council to remit the whole or part of the tax, the complainant must allege specifically what is being done; general conclusions being insufficient.
    Pleading — conclusion of law. — A general allegation that a city and city council were arbitrarily enforcing an invalid provision of an occupation tax ordinance, permitting the remission of the tax, and would continue so to do, if not enjoined, without stating specific facts, held a mere conclusion of law.
    Licenses' — Validity of occupation tax. — The only limitation on license taxation seems to be that it must not be so unreasonable as to1 show a purpose to prohibit a business which is not in itself injurious to public health or morals, and does not violate the constitutional requirement of equality and uniformity.
    Injunction — enforcement of tax ordinance. — The court will not enjoin the enforcement of a provision of an occupation tax ordinance permitting the council to remit all or part of the tax, in the absence of allegations of facts amounting to discrimination or an effort to enforce this section of the ordinance.

      Appeal from Benton Chancery Court; Lee Seamster, Chancellor;
    affirmed.

      W. W. Sikes and McGill & McGill, for appellant.

      Duty & Duty land Panol Anderson, for appellee.
   Mehaffy, J.

The appellants, who are citizens of Rogers, filed this suit in the chancery court, attacking the validity of an ordinance of said city imposing a tax on occupations. The ordinance is quite lengthy, and it would serve no useful purpose to copy it at length. But we will call attention to and discuss the provisions referred to by appellants and relied on by them as making the ordinance void.

The appellants did not contend that the city did not have authority to pass an ordinance taxing occupations. This - question and the validity of § 7618 of Crawford & Moses’ Digest was settled in the ease of Davies v. Hot Springs, 141 Ark. 521, 217 S. W. 769, in which case the court, speaking of the power of the legislative 'branch of the State Government to pass laws authorizing municipal corporations to provide by ordinance for the enforcement of a tax on occupations, said: ‘ ‘ This court has expressly decided that, under the Constitution now in force, that power exists.”

A nnmber of authorities are cited, and the court also said in that case: “The only restriction which the law imposes on the exercise of the power is that there shall not be a discrimination between persons in like situations and pursuing the same class of occupation.”

But the appellant states: “What we contend for in the case at bar is that there is gross inequality and unreasonable discrimination. ’ ’ And it is then contended that the ordinance does not provide for the payment of any tax where the amount of the investment exceeds $50,000. We do not think that a proper construction of the ordinance justifies this conclusion. Section 1 provides as follows:

“That it shall be unlawful for any person, firm, individual or corporation within the city limits of said city of Rogers, Arkansas, to engage in, carry on, or follow any of the trades, businesses, vocations, professions or callings without having first procured from the city collector of the said city of Rogers, Arkansas, and having paid therefor the amount of license hereinafter mentioned, and provided in this ordinance, for the privilege of engaging in, carrying on or following such trade, business, profession, vocation or calling in said city of Rogers, Arkansas.”

It is the evident intention and purpose of the .ordinance to require every person engaged in the business named to procure from the city collector a license, and the license fee is fixed at $50 where the investment represented is as much as $25,000 and less than $50,000. It would be unreasonable to construe the ordinance to mean that, where the business represented an investment of $50,000 or more, no tax would be required, and, since $50 per annum is named as the highest fee paid, and it is to be paid where the investment is $25,000 and less than $50,000, that for any amount in excess of $25,000 it is evident that the fee would be $50 per annum.

We think a proper construction of the ordinance justifies the' conclusion that the maximum tax is $50 per annum. In the case of Waters-Pierce Oil Co. v. Hot Springs, 85 Ark. 509, 109 S. W. 293, 16 L. R. A. (N. S.) 1035, the ordinance provided for a tax or license of $50 for each coal-oil wagon or wagon used for the purpose of delivering coal-oil of gasoline or other similar commodities, irrespective of size, weight or capacity. And then there was a provision in the ordinance for each wagon drawn by one or inore horses, used for hauling ice, $25 each for the first two owned by any individual, firm or corporation. The maximum amount on other vehicles was fixed at $10, and some were as low as $1.50. The court said in discussing'this ordinance :

“But, if we should treat the ordinance as one ‘to regulate the transportation of articles through the' streets,’ such as is authorized by statute, it is void on account of the unreasonable fee charged for the license. The only justification for charging a license fee at all is that a fund may be raised to defray the expenses of issuing’ the license and ‘the enforcement of such police inspection or superintendence as may be lawfully exercised oyer the business.’ * * # It is difficult to see, if a system of inspection and superintendence had been provided in either instance, how a larger amount should be required for inspecting and superintending the transportation of articles through the streets than for regular inspection of fresh meats being sold by dealers and the superintendence of that business. * * * Now, if we treat the ordinance as one to tax vehicles, there appears to be a distinct discrimination against the owners of coal-oil wagons or wagons used for the purpose of delivering coal-oil, gasoline or other similar commodities. A tax of $50 is levied on each wagon used for that purpose, $25 each for ice-wagons and $10 or less on all kinds of vehicles. Can any reason be found for this discrimination except an arbitrary use of the power? We see none.” Waters-Pierce Oil Co. v. Hot Springs, 85 Ark. 509, 109 S. W. 293, 16 L. R. A. (N. S.) 1035.

In the above case there is a thorough discussion of the power to license or tax, and also a discussion of the question of discrimination. It can readily be seen that, to tax a wagon used for certain commodities, without any regard to its size or capacity, twice as much as a wagon used for carrying other commodities through the streets, is a discrimination. But there is no such discrimination in the ordinance taxing occupations in the city of Rogers. The ordinance here seems to affect alike all persons similarly situated.

The appellant next contends that the provision authorizing the city council to reduce or remit the whole or any part of the license imposed by the ordinance makes it void. There is a provision in the ordinance, however, to the effect that, if any section or provision is held to be void or invalid,' it shall not affect any other section or provision Avbich is not in itself void or invalid. Therefore if the provision objected to is void it would not afféct any other provision in the ordinance and would, not affect any of the appellants in this case, as there is no contention that the city council had reduced or remitted any part of any license imposed by the ordinance. The complaint, however, alleges that this provision was being enforced, but the allegation is general, does not name any particular instance, and we do not think that the arbitrary or wrongful action of the council would affect the validity of the whole ordinance or the validity of any other provision of the ordinance, and that, in order to determine the question as to the validity of the provision complained of or the action of the council under' said provision, plaintiffs would have to make specific allegations as to what was being done, and that the general allegation that the defendants are enforcing the provisions of said ordinance and will continue to do so if not-enjoined, largely under the power conferred under § 6, by remitting such portions of licenses in any business or occupation, etc., is not a sufficient allegation, for the reason that it does not state any facts, but is a mere conclusion of law.

If certain persons that are within the class are exempt, and others are required to pay the tax, this would make the ordinance void, or, at least, that section of the ordinance. If a few, or any number of persons less than all, who follow a designated trade or occupation, be exempt, while others are taxed, the law imposing the tax would not be general, and would therefore be void. But it is, of course, impossible-, in the very nature of things, to devise a tax law that shall operate with perfect equality on all. And it has therefore been held that the only limitation on license taxation seems to be that it must not be so unreasonable as to show a purpose to prohibit a business which is not in itself injurious to public health- or morals, and the constitutional equality and uniformity of occupation taxes is violated by an ordinance, although it may be fair on its face, imposing a tax on all of a class, but which is collected only from those, for instance, who sell in their own shops, while there is a persistent failure to collect it from those who rent from the city.

It therefore follows that any effort to enforce a section of the ordinance by remitting- or failure to collect the license fee from some would be a discrimination and would he illegal. In other words, the ordinance and its enforcement must apply and he enforced equally to all of a particular class. It is contended that, if this section is to be eliminated entirely, it can only be compelled by an injunction, and this is probably correct. But, before a court would enjoin the officers, it would be necessary for the plaintiff to make the allegations specific, showing facts which amounted to a discrimination or an. effort to enforce this section of the ordinance.

The complaint in this case does not contain such allegations as to justify an injunction with reference to § 12 of the act. There is no fact stated tending to show that there is any attempt to arbitrarily favor or prefer any individuals.

There might be cases of charity, and cases where the public good required it, that would justify the council in acting under and in accordance with % 12 of the ordinance. However, if the authorities undertook to arbitrarily enforce this section, or undertook to enforce said section so that it would be a discrimination, they would be enjoined from so doing; but, as we have said, the allegations in the complaint in this case are insufficient, and the decree of the chancery court is affirmed.


author: Mehafpy, J.

text:
    Shaw v. Rackensack Apartment Corporation.
    Opinion delivered June 20, 1927.
    1. Appeal and error — conclusiveness op chancellor’s finding— The finding of the chancellor, based on conflicting testimony and not clearly against the preponderance of the testimony, held conclusive.
    2. Mechanics’ lien — lien for amount due. — Under a contract to furnish labor and material for a certain sum in the erection of an apartment building, where so-called profits or overhead expenses formed a part of the price for putting in the improvement as ia completed job, claimant was entitled to a lien for the amount due him.
    3. Mortgages — priority over mechanics’ lien. — Under Crawford & Moses’ Dig., § 6909, a mortgage for the purpose of raising money to erect an apartment building, which was given prior to commencement of work by a lien claimant, held superior to the lien for material and labor furnished, notwithstanding that some of the loan for which the mortgage was given was for clearing the title.
    4. Mortgages — priority of lien of contractor. — Under Crawford & Moses’ Dig., § 6911, where work was commenced by a plumbing contractor prior to the time other liens and mortgages attached to the property, his lien was entitled to priority, regardless of how little he might have done before the other liens attached.
    Appeal from. Pulaski Chancery Court; J ohm, E. Mar-tineau, Chancellor;
    reversed in part.

      John P. Streepey, for appellant.

      Walter G. Riddick and Frduenthal & Johnson, for appellee.
   Mehafpy, J.

The appellant, plaintiff below, instituted this suit, alleging that, on or about' the 20th day of July, 1924, he entered into a contract with the Back-ensack Apartment Corporation to install plumbing, heating, gas piping and refrigeration in an apartment building being erected by it at Fourth and High Streets, Little Bock, Arkansas; that said building is located on lots 7, 8 and 9, block 7, Deaf Mute Addition to the City of Little Bock, Arkansas; that plaintiff furnished the material and did the labor under the said contract to the amount of $34.522.67; that he completed said contract on February 1,1925; tliat there is a balance dne him of $4,166.20, bearing interest from February 10, 1925, at the rate of six per cent, per annum; that be duly filed his lién against said property for the amount due him on March 26, 1925. Plaintiff then described the manner of acquiring title by Rackensack Apartment Corporation and mortgage that had been executed on the property, and prays for judgment, and that he have a lien, and that it he foreclosed. •

Defendants answered, denying that the corporation owned the land at the time the contract was entered into,'find denying all the material allegations of plaintiff’s complaint, denying that it was indebted to him in any sum, and alleging that, if it was indebted, he had no lien, but, if it was found that he had a lien, it was inferior to other liens described.

Defendant, Rackensack Apartment Corporation, filed a cross-complaint against the plaintiff, alleging that he had been overpaid, and asking judgment against plaintiff in the sum of $2,175.15.

The chancellor found in favor of the plaintiff on his claim of $4,166.20 and found against the defendant on its cross-complaint, hut found that plaintiff was not entitled to a lien.

The testimony was somewhat conflicting, and we think it unnecessary to set it out in detail. The chancellor found in favor of. the plaintiff in the sum of $4,166.20, and this court has many times held that, where the finding of the chancellor was based on conflicting testimony, his finding would not he reversed or set aside, unless it was clearly against the preponderance of the testimony. In this case we do not think that the finding as to the indebtedness due from defendant to plaintiff was against the preponderance of the testimony, and the chancellor’s finding as to this issue and the finding against appellee on its cross-complaint will be affirmed.

The appellee contends that the appellant is not entitled to a lien prior to the deed of trust for $200,000 to the Bankers’ Trust Company, and we agree with the appellee that the claim for $200,000, secured by mortgage to the 'Bankers’ Trust Company, constitutes a prior lien to the appellant’s claim. This deed of trust or mortgage is a first lien on the property.

It is next contended by the appellee that appellant did not have any lien for the'balance because, if there was any balance, it was for profits or for the payment of overhead expenses, and is not for any portion of any labor done or for materials furnished.

This court has held, as contended by appellee, that a contractor is not entitled to a lien, under the mechanics ’ lien law, for profits, but only entitled to a lien for labor that was actually performed by him or for material furnished by him.

In the first case relied .on by appellee, the court said:

“The contract for the construction of the building was introduced in evidence, and it provided that the sum to be paid to the contractor for the work and materials should be $12,000. * * * The proof in the case shows that a certain sum of money is due appellee as contractor, but it does not show that this is a debt due him for services performed by him or for materials furnished by him. In other words, so far as the record discloses, the amount due appellee may represent all or a part of the profits made by him in erecting the building, and has no reference to materials furnished by him or labor or services performed by him. If so, appellee has no lien under the statute. The right to the lien is found in the statute, and no one can .obtain a lien unless he brings himself within the provisions of the statute.” Royal Theater Co. v. Collins, 102 Ark. 539, 144 S. W. 919.

.The appellee also relies on the case of Cook v. Moore, 152 Ark. 590, 239 S. W. 750. In that case the court said:

“According to his own testimony, he made a contract to repair Gilliam’s house on a basis , of 8 per cent, commission on the entire cost of the labor performed and the material furnished;, so far as the record discloses, nearly all of the amount claimed by Moore represents the profits.made by him in repairing the house and the amounts paid by him to laborers and mechanics for working on it.” '

Neither of these cases are like the case at bar. If one makes a contract to furnish material and perform labor for a certain amount, and the contract provides that above that amount he is to have ia certain per cent, or a certain amount of money for his profit, of course he could have no lien for a sum due him as profit. But the contract in this case is not like that. This is a contract to furnish the labor and materials for a certain sum of money, and it would be wholly immaterial whether the contractor made a profit.or suffered a loss. He has a lien for the material furnished and the labor performed in making the improvement for the amount contracted to be paid. When one furnished material to go into'a building at a certain price, it is wholly ‘immaterial whether the material furnished by him cost him more or less, or whether it cost him anything at all. He might own the material already, or he might have acquired it without cost, but, when he agrees or contracts to furnish this material and labor for a certain price, he then has a lien for the unpaid part of the contract price on the improvement made.

It is said:

“Profits and commissions are not lienable items unless included in the contract price, as where the contract provides for the payment of cost of or reimbursement for the amount actually paid out for labor and material, plus a certain percentage as commissions, profit or compensations, or unless included in the reasonable worth of the labor or materials furnished, as where the actual cost is less than the reasonable worth.” 40 C. J. 77, and cases cited.

In this case there was a contract for a sum of money for the completed job, and therefore the items of labor, as well as the cost of the material, together formed the aggregate amount of the completed job.

This court has said:

‘ ‘ The account taken from the books of appellees contained items for labor, but the labor formed a part of the price of putting in the iron work as a completed job. And the appellees were entitled to a lien, not as for labor, but as for the price of material furnished in the place to be used.” Terry v. Klein, 133 Ark. 366, 201 S. W. 801.

Here, what appellee calls profits or overhead expenses formed a part of the price of putting in the improvement as a completed job, and the appellant was entitled to a lien for the amount due him.

Section 6909 of Crawford & Moses ’ Digest provides:

“The lien for the things.aforesaid, or work, shall attach to the buildings, erections or other improvements for which they were furnished or work was done, in preference to any prior lien or incumbrance or mortgage existing upon said land before said buildings, erections, improvements, or machinery were erected or put thereon, and any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter; provided, however, that, in all cases where said prior lien or incumbrance or mortgage was given or executed for the purpose of raising money or funds with which to make such erections, improvements or buildings, then said lien shall be prior to the lien given by this act. ’ ’

It will be seen from this section that the $200,000 mortgage which was given prior to the commencement of work by appellant was for the purpose of raising money with which to erect the building. It is said that a portion of it went to clearing the title, but we think the $200,000 Avas, under the above quoted statute, a prior lien for the full amount. The other mortgages or liens mentioned are controlled by § 6911 of Crawford & Moses ’ Digest, which reads as follows:

“The lien for work and materials as aforesaid shall be preferred to all other incumbrances which may be attached to or upon such building, bridges, boats or ves-seis or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements.”

It will be seen from this section that, if the appellant had commenced the improvement that he contracted to put in, it would make no difference how little he might have done prior to any of these other liens, his lien would be prior to any lien or mortgage which was attached subsequent to the commencement of his work. And there does not seem to be any dispute in the testimony or in the record as to these other liens and mortgages. They attached subsequent to the commencement of the Avork by the appellant.

In the view' that we take it becomes unnecessary to discuss the question of appropriation of payments. The finding of the chancellor in favor of the appellant for $4,166.20 will be affirmed, and the finding of the chancellor that the appellant does not have a lien is reversed, and remanded with directions to the chancery court to enter a decree giving the appellant a lien for the amount found to be due prior to all liens and incumbrances, except the $200,000 above referred to.