author: Mehaeey, J.

text:
    St. Louis-San Francisco Railway Company v. Bishop.
    Opinion delivered November 24, 1930.

      E. T. Miller, E. L. Westbrooke, Jr., and E. L. Westbrooke, for appellant.

      G. L. Grant and Pace & Davis, for appellee.
   Mehaeey, J.

This suit was instituted in the Lawrence County Circuit Court by the appellee, Mrs. Orel Bishop, as administratrix of the estate of B. Bishop, deceased, under the Federal Employers’ Liability Act to recover damages for the death of appellee’s husband, who was injured and killed about one mile north of Seligman, Missouri, about 12:32 in the morning of July 4,1928, while in the service of appellant as a brakeman and while in the performance of his duty as such brakeman on one of appellant’s freight trains engaged in interstate commerce. The suit was for the loss of contributions and maintenance and for pain and ’suffering endured by deceased from the time of the accident until his death.

The following facts are undisputed: Deceased, B. Bishop, was 31 years old, physically strong, weighed about 160 pounds, was a careful, good brakeman and a good man. After leaving Butterfield, Bishop, who was riding in the caboose with the conductor and another brakeman, left the caboose when the train got near Seligman, which was the next stop, and started to the head end of the train to help set out some cars. This was in the line of his duty, and he was seen on the third car ahead of the caboose, and when the train got to Seligman Bishop was not seen and the train went on to Rogers, Arkansas, where some cars were to be set out, and it was then discovered that Bishop was not on the train. A search was made for him, a report made to the dispatcher at Rogers and the mangled body was afterwards found about a mile from Seligman. The body was on the outside of the east rail, and there were finger prints as if he had been crawling, and there was blood found on the wheel and front part of the fourth car of chat, the fourth car from the caboose. In going from the caboose to the front end of the train, where he had to go in the performance of his duties, he would go over the cars which were filled with chat and go from one car to another. The cars had ladders and grab irons. He was killed by the operation of the train while in the performance of his duty.

There is a conflict in the evidence as to the negligence of the appellant and as to whether the grab iron was defective or bent. Witnesses for appellee testified that the grab iron on the front of the fourth car from the caboose was defective and bent, it was bent towards the car so that there was very little space between the grab iron and the body of the car. Witnesses for appellant testified that the grab iron was not bent or defective. All the witnesses, however, agree that it was at this place where the appellee’s witnesses say there was a defective grab iron that Bishop fell from the train and was run over and killed. There is no dispute about the blood being on the wheel just behind this grab iron.

Appellant introduced a blue print and a witness testified that the tracks of Bishop could be seen in the chat going the length of the car, and these tracks are shown on the diagram to start at the corner of the car, getting into the middle and walking in the direction the train was going to the far end of the car, and 'then the deceased would go over from this car to the next and the tracks were shown on the first, second, third and fourth cars loaded with chat.

The negligence alleged and relied on is that the bottom side grab iron on the east side of the car at the end of the car was defective and bent and that this defect in the grab iron was the cause of the fall, injury and death of deceased. The evidence as to whether there was a bent and defective grab iron is conflicting. A number of witnesses testified that the grab iron was bent in towards the car, bent in the middle, some of them testifying that it was so bent that it did not stand out more than an inch from the body of the car, and others testifying that it was bent in towards the car an inch and a half. Appellant’s witness who examined the grab iron testified that the grab iron was not bent and was not defective in any way. As to whether the g’rab iron was bent and defective was a question for the jury. This court does not pass on the credibility of the witnesses nor the weight to be given to their testimony. This is the province of the jury. The finding of fact on conflicting evidence by a jury will not be disturbed by this court if there is substantial evidence to support the finding. St. L.-S. W. Ry. Co. v. Burford, 180 Ark. 562, 22 S. W. (2d) 378 ; Consolidated School Dist. No. 1 v. Fitzgerald, 180 Ark. 840, 23 S. W. (2d) 263 ; Walloch v. Heiden, 180 Ark. 844, 22 S. W. (2d) 1020 ; Boddy v. Thompson, 179 Ark. 71, 14 S. W. (2d) 240 ; Gurdin v. Fisher, 179 Ark. 742, 18 S. W. (2d) 245. In returning a verdict in favor of appellee, the jury necessarily found that the grab iron was defective. Appellant earnestly insists that the evidence is insufficient to show that the alleged defective grab iron contributed to Bishop’s death so as to permit a recovery under the Federal Employers ’ Liability Act. This is the important question in the case, and one that has given us much concern. The deceased was a young man, 31 years old, in perfect health, was careful and understood his duties, and how to perform them. The presumption is that he was performing his duties in a careful manner, that he was not guilty of neglig’ence. He was swing brakeman and was in the caboose. There was some switching to be done at Seligman and it was the duty of Bishop to go to the front end of the train before the train reached Seligman. He was performing this duty when he was killed. There was no way he could go from the caboose to the front end of the train while the train was moving, except to go over the cars that were loaded with chat. He would necessarily have to pass from one car to.the other. The presumption, in the absence of evidence, would be that he did this in the proper manner. There is conflicting evidence as to the proper way to cross from one car to the other and as to how he probably crossed. A blue print is in evidence showing footprints in the chat. It is claimed that these footprints were made by the deceased.

A witness named Erbright, a brakeman who was in the caboose with Bishop, and who saw Bishop when he started to the front end of the train, saw him on the car of chat, testified that after they had done their work at Seligman and had gone on to Bogers, Arkansas, and had looked for Bishop and failed to find him, he, witness, went back to the extreme north end next to the caboose, walked from the rear of the car, crossing from car to car toward the engine, and noticed that there were his tracks going across this chat, this loose gravel. No one except witness Erbright saw Bishop after he left the caboose, and he testifies that Bishop got out of the caboose as they were nearing Seligman, and said he was going to the head end to help set out two cars. Witness saw him on the third car of chat ahead of the caboose. This is the last time he was seen alive. This suit, as contended by appellant, is brought under the Federal Employers ’ Liability Act, and the questions of negligence and the evidence necessary to establish negligence must be solved according to the rules laid down by the Federal courts. We said in a case recently decided by this court: “This suit is brought under the Federal Employers’ Liability Act, and, since this act does not define negligence, the question whether the acts complained of amounted to negligence is to be determined according to the common law and according to the rules prevailing in the Federal courts as to what constitutes negligence under the common law. However, there is no difference between the decisions of the Federal court and of this court as to what constitutes negligence.” Mo. Pac. Rd. Co. v. Skipper, 174 Ark. 1083, 298 S. W. 849.

Not only -has the Federal court and this court adopted the samé rule as to what constitutes negligence, but each court’has held that verdicts of juries must have a more substantial basis than mere conjecture or speculation on which to rest. “It is a well-established doctrine, often recognized by this court, that juries will not be permitted to rest a verdict purely on speculation; that there must be testimony which warrants a finding of the essential facts or which would warrant a reasonable inference of the existence of those facts upon which liability is predicated before a verdict will be permitted to stand.” Texas Co. v. Jones, 174 Ark. 905, 298 S. W. 342 ; St. L. I. M. & S. R. Co. v. Belcher, 117 Ark. 638, 175 S. W. 418 ; St. L. I. M. & S. R. Co. v. Enlow, 115 Ark. 584, 171 S. W. 912 ; Midland Valley Ry. Co. v. Ennis, 109 Ark. 206, 159 S. W. 214. We also said in the Texas Co. v. Jones case, supra: “The mere fact that plaintiff was injured while working for the defendant and while in the exercise of due care himself is not sufficient to justify a verdict against the defendant. There must be some evidence of the negligence of the defendant and that that negligence caused the injury.” Under the decisions of this court and under the decision of the Federal court, it is necessary for the plaintiff to prove, not only that the defendant was guilty of negligence, but the evidence must also show that defendant’s negligence caused the injury. It is not necessary, however, that plaintiff show by direct evidence that defendant was negligent, nor is it necessary to show by direct evidence that defendant’s negligence caused the injury. It is necessary that the plaintiff prove both the propositions by substantial evidence. This is the rule both in this court and the Federal court.

The evidence is that Bishop, the swing brakeman, just before the train got into Seligman, left the caboose for the purpose of going to the head end of the train and assisting in switching some cars. This was his duty, and he, of course, went over the tops of the cars which were filled with chat and reached the far end of the fourth car from the caboose. There is some conflict in the testimony as to the manner in which he went over, but the undisputed proof shows that he was killed at the place where appellee’s witnesses testified there was a defective grab iron. Witnesses found blood on the wheel just behind the grab iron, found blood on the journals and bottom part of the car, and all this blood was on the same side of the car where the witnesses testified there was a defective or bent grab iron. Deceased’s body was found on the same side of the track where the blood was found, and where the bent grab iron was. Appellant’s witnesses testify about looking for deceased after it was discovered he was not on the train, and examining the car, and other of appellant’s witnesses testified as to inspecting the car, but none of them testify about the blood nor whether they looked for blood or not, except Erbright. He testified that he got under the car in the middle of the track and found three spots of blood on the bottom rod and on the side of the wheel. He does not say, however, which wheel nor where the rod was that had the blood on it, except he says he was in the middle of the track. The fact that Bishop was a careful man, strong and vigorous, and presumed to be in the exercise of care, went safely over the cars until he reached the place where the defective grab iron wgs said to be, and fell there on that side of the car, the fact that blood was found on the wheel and journal on that side, the fact that his body was found on that side and that there was no blood found on the other side, are sufficient to justify the jury in reaching the conclusion that the defective grab iron was the cause of his fall and injury.

“A well connected train of circumstances isras cogent of the existence of a fact as any array of direct evidence, and frequently outweighs opposing direct testimony.” 23 C. J., p. 48.
“There must be legal evidence of every material fact necessary to support the verdict or finding, and such verdict or finding must be founded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence and not a mere guess, or on possibilities. Proof of a fact need not, however, be made by any particular kind or class of evidence, but the tryers of fact may seek the truth within the field of the evidence to the utmost boundaries of reason which rational men of common sense might set without passing beyond the line of the field of possibilities and the field of conjecture.” 23 C. J., pp. 52-53.

In cases of circumstantial evidence, the facts and circumstances proved must be such that it may be reasonably inferred from such facts and circumstances that the fact sought to be established exists.

This court has said: ‘ ‘ IIempfiing was an experienced brakeman, in good health, strong and active. As one of the witnesses expressed it, he was a good, steady man, industrious, and kept at his work. It is not at all probable that such a man, pursuing his work in the usual way, would have fallen between the cars and lost his life if there had been the usual and customary safeguards provided by the appellant, and which were necessary to be provided for the protection of brakemen while crossing from one car to the other.

While there was no eyewitness to the manner of Hempfling’s death, it is certain that he came to his death by falling between the cars, and it is reasonably certain that he would not have fallen if the customary hand-hold for his protection had been provided. * * # The jury were not invited to guess, without any proof, as to the probable cause of Hempfling’s death. The law is well settled that where there are no eyewitnesses to the injury, and the causeHhereof is not established by affirmative or direct proof, then all the facts established by the circumstances must be such as to justify an inference on the part of the jury that the negligent conditions alleged produced the injury complained of. Where such is the case, the jury are not left in the domain of speculation, but they have circumstances upon which, as reasonable minds, they may ground their conclusions. Negligence that is the proximate cause may be shown by circumstantial evidencé as well as direct proof. * * * It will be sufficient if the facts proved are of such a nature and are so connected and related to each other that the conclusion therefrom may be fairly inferred.” St. L. I. M. & S. R. Co. v. Hempfling, 107 Ark. 476, 156 S. W. 171.

The same rule was announced and approved in Midland Valley Rd. Co. v. Ennis, 109 Ark. 206, 159 S. W. 214.

This court, in discussing the scintilla rule, said:

“While this rule is not to be ignored, it is equally well settled that any issue of fact in controversy may be established by circumstantial evidence where the circumstances adduced in evidence are such that reasonable minds might draw different conclusions therefrom.” St. L. I. M. & S. R. Co. v. Fuqua, 114 Ark. 112, 169 S. W. 786 ; Paragould & M. R. Co. v. Smith, 93 Ark. 224, 124 S. W. 776 ; St. L. I. M. & S. R. Co. v. Owens, 103 Ark. 61, 145 S. W. 879.

The appellant insists that the court erred in giving the following instructions:

No. 1. “The court instructs the jury that in this case, if you find from a preponderance of the evidence that the deceased, B. Bishop, was injured, and as a result of said injuries thereafter died while in the employ of the defendant, St. Louis-San Francisco Railway Company, and while in the performance of his duty as a brakeman on one of its freight trains operating between Monett, Missouri, and Fort Smith, Arkansas, by falling from car No. 82302 near Seligman, Missouri, and that deceased was caused to fall by reason of a defective grab iron on said car, and that the condition of said grab iron was known to the defendant, or could have been known to the defendant, before the accident, by its making reasonable, careful inspection of the same before the injury, and that the condition of said grab iron was unknown to the deceased, B. Bishop, and that the said defendant, St. Louis-San Francisco Railway Company, thereby was guilty of carelessness and negligence that caused the injury to’ the deceased, and that the defective condition of said grab iron (if you find the same was defective) was the proximate cause of the injury, and that the deceased was, at the time, exercising due care for his own safety and had not assumed the risk, you will be authorized to find for the plaintiff, and assess such damages as will compensate the widow and minor child of the deceased for said injuries to the deceased that resulted in his death, as set forth in other instructions given you in this case. And, unless you so find and believe, you will find for the defendant.”
No. 2. “Negligence on'the part of either the railroad company or the deceased might be defined to be the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what reasonable and prudent persons under the existing circumstances would not have done. You fix the standard for reasonable, prudent and cautious men under the circumstances of the case as you find them according to your judgment and experience of what that class of men do under these circumstances, and then test the conduct involved and try it by that standard. ’ ’
No. 3. “-Contributory negligence consists in doing something' that an ordinarily prudent person would not dó under the circumstances, or the failure to do something that an ordinarily prudent person would do under the circumstances by the party injured that directly contributed to the injury and without which the injury would not have occurred. ’ ’
No. 6. “The burden of proof is upon the plaintiff to establish her case by a preponderance of the evidence, and the burden of proof is upon the defendant in this case to establish contributory negligence on the part of the deceased, B. Bishop, resulting in his injury, unless such negligence sufficiently appears from the proof introduced by the plaintiff. ”
No. 7. “If the jury find for the plaintiff, they will assess damages for the widow, Orel Bishop, and the minor son, B. Bishop, Jr., at snch sum of money as will fairly and reasonably compensate them for the loss of pecuniary benefits they might reasonably have received and of which they were deprived by the death of B. Bishop, as is shown from the evidence in the case, reducing said sum to its present cash value; also if you find for the plaintiff yon will be authorized to assess further damages for the widow, Orel Bishop, and the minor son, B. Bishop, Jr., at such a sum as will reasonably compensate for the physical pain and mental anguish suffered and endured by the deceased as a result of said accident, if any, from the time of the alleged injury until his death, as may be shown by a preponderance of the evidence in the case.”
No. 10. “Under the law of the State, it is provided that juries in civil cases may return a verdict when nine of the jury agree to that verdict, and in this case, if twelve of you agree upon a verdict, it is only necessary that the verdict be signed by one of you as foreman, but in the event the verdict is reached by nine of you, then it is necessary for each one of the jurors agreeing to that verdict to sign the verdict.”

The objection urged to instructions is that there is no evidence upon which to base the instructions, and that it permits the jury to speculate and conjecture. We have already said that the jury was authorized to find that Bishop was killed by falling from the train at the place where appellee’s witnesses testified there was a defective grab iron, and, if this is true, this disposes of appellant’s objection to instruction No. 1.

Appellant’s objections to instruction No. 2 and No. 3 and No. 6 are that No. 2 is not a proper definition of negligence under the Federal Employers ’ Liability Act, and that No. 3 and No. 6 improperly submitted to the jury the question of contributory negligence for the reason that the Federal Employers’ Liability Act does not make contributory negligence a defense. Of course, this being true, tbe submission of this question could not in any way prejudice the appellant. It simply tells the jury that appellant was entitled to a defense that it says it did not have. The specific objection to instruction No. 7 is that there is no evidence on which to base it, and that it permits the jury to speculate upon the cause of the accident and death. What we have said above disposes of this objection. Instruction No. 10 was a correct statement of the law, and appellant does not argue its objection. Appellant insists that the case should be reversed because witnesses were permitted to testify how far the grab iron was bent. The witnesses had not taken any measurements but testified that they saw the grab iron and as to how much they thought it was bent. Appellant says: “'Guesses by witnesses who neither made measurements nor touched the alleged defective grab iron were erroneously-permitted by the court to go to the jury.” This evidence was -competent. “Any person cognizant of the facts upon which he bases his judgment may give his opinion on questions of identification, size, weight, distance and time. Such questions are open to all men of ordinary information. The evidence is competent. Its weight is for the jury.” Railway Co. v. Thomason, 59 Ark. 140, 26 S. W. 598.

Finally, it is insisted that the ease should be reversed because the court erred in permitting certain questions in the cross-examination of witness Stanley. Attorney for appellee asked witness where he came from, and if he didn’t know he didn’t have to come, and a good many questions on this line, all of which were objected to by appellant. A witness on cross-examination may be asked any question which would tend to show his bias. This was evidently the purpose of the cross-examination of Stanley. The extent to which a cross-examination of this kind may be carried is largely within the discretion of the trial court. Unless it can be said that the trial court abused its discretion, this court will not reverse. We find no reversible error, and tbe judgment is therefore affirmed.

Mr. Justice 'Smith dissents.


source: Caselaw Access Project

license: Public Domain

text:
    Madison County v. Nance.
    Opinion delivered November 24, 1930.

      G. D. Atkinson and John Mays, for appellant.

      George A. Hurst, J. B. Harris and Lon Garrett, for appellees.
   Mehaeey, J.

On March 20,1928, J. A. Stewart filed the following claim in the county court of Madison County:

“March 20, 1928.
“'County of Madison to J. A. Stewart, Dr., to right-of-way through J. A. Stewart’s farm $200.”

Affidavit to claim was made by H. J. Brashears. On the 15th of October, 1929, the court allowed the claim in the sum of $'25. The order allowing- the claim in the sum of $25 recited that J. A. Stewart had died, that no administration on his estate was pending, and that Mrs. E. J. Glass, Mrs. Mollie Goodwin, Mrs. Mattie Brashears and J. C. Stewart are his children and only heirs at law, and that Mrs. Catherine Stewart is his widow; that the widow is entitled to one-third of the amount allowed, and that each of said heirs is entitled to one-fourth of the balance, and ordered warrants drawn to pay them. An appeal was taken to the circuit court by the widow and heirs on February 17, 1930. Kelly Brashears on March 20,19'2i3, filed claim in the county court for $125 for right-of-way and $60 for posts, making- a total of his claim $185. The court allowed Brashears ’ claim in the sum of $25. Brashears on March 3,1930, filed affidavit for appeal to circuit court. In circuit court on March 3, 1930, Brashears filed an amended account claiming $500 instead of $185. On the same day the county filed a motion to strike the amended claim, which motion was by the court overruled, and the county excepted. On March 3, 1930, the heirs and widow of J. A. Stewart, deceased, filed an amended claim for $1,000 instead of $200. Motion to ‘strike amended claim was made, overruled and exceptions noted. After a motion by the .county for continuance and motion to make the contractor a party had been filed and overruled, the cases were consolidated, and Frank Nance was appointed special administrator of the estate of J. A. Stewart, deceased. The parties announced ready for trial, a jury was selected, and, after hearing the evidence, returned a verdict in favor of Kelly Brashears for $125 and in favor of Frank Nance, special administrator, in the sum of $500. Judgments were entered for the amounts, and the case is here on appeal.

The undisputed evidence shows that the property of appellees was taken for public use, and the court was therefore correct in instructing the jury to find for the plaintiff in some amount. The 'Constitution provides: “The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without compensation therefor.” Article '2, § 22, Constitution.

The fact that the county did not have the money to pay for property was immaterial. If it could not pay for appellees’ property, it could not take it. Independence County v. Lester, 173 Ark. 796, 293 S. W. 743.

Appellants contend that the heirs of J. A. Stewart could not prosecute the appeal. J. A. Stewart had been dead more than a year when the appeal was taken, and there was no administration.

“When all the heirs of any deceased intestate and all persons interested as distributees in the estate of such intestate are of full age, it shall be lawful for them to sue for, recover and collect all demands and property left by the intestate, and to manage, control and dispose of such estate without any administration being had thereon in all cases where the creditors of such estate consent or agree for them to do so, or where they have paid or satisfied all valid debts and demands against such intestate, or where such intestate was, at the time of his death, under no legal liability, either matured or incipient to any person; and in every such case after they have taken such control and management of the estate no letter of administration shall be granted thereon, or, if granted, the same shall, on their application, be revoked.” Section 1, C. & M. Digest.

The heirs had the right to sue, and it was unnecessary to appoint a special administrator. It was lawful however for the court to make the appointment. C. & M. Digest, § 1050. It is insisted that the court erred in overruling appellant’s motion to strike the amendments to claims. The Constitution provides (article 7, § 28):

“The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. The county court shall he held by one judge, except in cases otherwise herein provided.”

'Section 51 of article 7 of the Constitution provides for appeals from the county court to the circuit court, and provides that the case shall be tried in the circuit court de novo.

Since under the Constitution the county court had exclusive original jurisdiction, the circuit court could only try the same cause that was tried in the county court. “The county court has exclusive original jurisdiction. The circuit court can try a case of this kind; has jurisdiction to do so only when it is appealed from the county court. To permit an amendment substituting a party in the circuit court in this case would be permitting the circuit court to exercise original jurisdiction, and that it cannot do.” McLain v. Miller County, 180 Ark. 828, 23 S. W. (2d) 264 ; Flynn v. Driscoll, 38 Idaho 545, 34 A. L. R. 352 ; Ex parte Morales, (Tex. Civ. App.) 53 S. W. 107.

The 'Constitution provides that appeals may be taken from the county court to the circuit court, and that cases so appealed shall be tried in the circuit court de novo. “The statute says that upon an appeal the case shall be tried de novo in the appellate court. That is, as I understand it, in the same -manner, with the same effect, and upon the issues tried in the court below. It would seem that the correct doctrine is stated by the Texas Court of Appeals in Ex parte Morales, 53 S. W. 107, wherein the court held that a trial “de novo” on appeal requires that appeals be tried upon the original papers and upon the same issues had below. It is axiomatic that a cause or an issue cannot be tried de novo that has never been tried. * * # The very expression “appellate jurisdiction” refutes and contradicts any idea of filing new pleadings and framing and settling issues in a court of such jurisdiction. The amendments of pleadings and filing new pleadings and joining issues suggest at once to the practitioner a court of “original jurisdiction” as the forum in which such practice and procedure is taking place.” In re McVay’s Estate, 14 Idaho 56, 93 P. 28 ; Parker v. Lewis, 45 Okla. 807, 147 P. 310 ; Kline v. Shoup, 38 Idaho 45, 220 P. 452. The court erred in refusing to strike the amendments.

Appellant contends that the court erred in permitting Kelly Brashears to testify for his wife. Our statute provides that husband and wife shall be incompetent to testify for or against each other except either may testify for the other in regard to any business transacted by one for the other in the capacity of agent. C. & M. Digest, § 4146.

There are other questions discussed by the parties, but they will probably not arise in another trial, and we deem it unnecessary to discuss them here. As stated by appellees, the only issue is as to the amount the parties were damaged by the taking of their property. For the errors mentioned, the judgment will be reversed, and the cause remanded for a new trial. It is so ordered.


author: McHaney, J.

text:
    Harris v. United Service Company.
    Opinion delivered November 24, 1930.

      Chas. Jacobson, for appellant.

      Robinson, House & Moses and Harry E. Meek, for appellee.
   McHaney, J.

Sometime prior to April 1, 1928, James Levy, who desired to go into the cleaning and pressing business for himself, approached appellant to interest him in such business. An agreement was reached, whereby- each was to put up one-half the necessary capital, appellant was to erect a building at Prospect and Palm, city of Little Rock, with two store rooms, the inside room to be occupied by the proposed business. The room was to be specially arranged for the business, with fireproof walls, and a portion of the expense thereof was to be borne by the business. They agreed upon a lease for five years from the time the building should be ready for occupancy at a monthly rental of $125 for the first two years and $140 monthly for the remainder of the term. Thereafter the building was completed, -the proposed business incorporated under the name of Bon Ton Cleaners, with Levy, his mother and appellant as stockholders, directors and officers, Mrs. Levy being a nominal stockholder in order to form a corporation. The lease agreement was then prepared, in accordance with the former understanding, and executed, running for five years from April 1, 1928. The Bon Ton entered into possession on that date and operated the business, paying the rent regularly each month until the summer of 1929, when it was merged or consolidated with a number of other cleaning establishments under the name of United Service Company, appellee. It (the United) thereafter paid the monthly rental to appellant until April 1, 1930, when the increased rental reserved in the lease became effective. It refused to pay the rent for April, moved out and surrendered possession on April 13, 1930. This suit followed to collect the rent. Appellee defended on the grounds that the rent was exorbitant and that the lease was invalid because of appellant’s relation to the Bon Ton and appellee, lie being secretary and treasurer of the former and was elected president of the latter. The court agreed with appellee, canceled the lease and gave judgment for a reasonable rental for April and May in the sum of $'200.

It is true, as a general proposition and as suggested by counsel for appellee, that “No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other,” Matt. 6, 24; but we are of the opinion that that principle has no application here. We know of no rule of law in this State that prohibits a person who may be an officer or director in a corporation from dealing with the- corporation, such as leasing his property to it, upon such terms as may be agreed, upon, in the absence of fraud, either actual or constructive, and in good faith and without prejudice or unfairness to the corporation. This court has never adopted the extreme rule that contracts between a corporation and its directors are void, but only voidable, if not made in good faith and are unfair to the corporation. In Ward v. McPherson, 87 Ark. 521, 113 S. W. 42, it was said: ‘ ‘ Some authorities hold such contracts to be absolutely void, but the weight of American authority is that the contracts between corporations and their directors, dealing with the corporate assets, are not void but voidable. Where they are held voidable, however, all agree that they are more closely scrutinized than ordinary contracts; and the burden is upon those claiming under them to prove that they are made in good faith and fair to the corporation.” This is the correct rule and has never been departed from in this State.

Here the facts are that the contract of lease was agreed upon, that is, the terms of it, before the house was ever built and before the corporation known as Bon Ton Cleaners was organized. James Levy ivas under no disability, was néither an infant nor an incompetent. If there had been no merger, no doubt no question would ever have been raised about the validity of the lease or the amount of the rental. But, when the merger took place, there is no evidence in this record that appellant concealed or attempted to conceal any fact relating to the status of the Bon Ton from any of the others whose properties were being merged into the new corporation. A recent audit of its business made by a reputable firm of public accountants was before all the interested parties. This audit called particular attention to the terms of the lease and they either knew its terms, or could have known them 'by the slightest diligence. In acquiring the property of the Bon Ton appellee acquired this lease. It operated under it for a period of eight months regularly paying the rents to appellant without question to April 1,1930. It must be held to have known the facts regarding the lease and acquired it, together with all the other property of the Bon Ton with whatever benefits and burdens it carried. We can see no reason why this lease, valid between the original parties to it, operated under as valid for two years, eight months of which time by appellee, should be canceled when the time has come for the small increase in the monthly rental.

The decree will therefore be reversed and the cause remanded with directions to enter a decree in accordance with-this opinion.


text:
    Rose v. Loughborough.
    Opinion delivered November 24, 1930.

      Danaher & Danaher, for appellant.

      A. J. Johnson, for appellee.
   McHaney, J.

This is a suit by appellee against R. R. Rice, Mary Margaret Rice, his wife, Medora S. Rice, and appellant to secure a judgment against R. R. Rice and to foreclose a mortgage on eighteen acres of land in Lincoln County, same ’being a deed absolute in form, given by the Rices as security for R. R. Rice’s note. The case was-tried upon an agreed statement of facts as follows:

. “On November 1, 1926, defendant, R. R. Rice, was indebted to the People’s Savings Bank in the sum of three thousand one hundred forty-four dollars and thirty-five cents ($3,144.35) for borrowed money, and evidenced said indebtedness by his promissory note in that amount, due-one year after date, with interest from date until maturity at the rate of eight per cent, per annum, and after maturity until paid at ten per cent, per annum, and indorsed by plaintiff, a copy of said note being attached to the complaint, and marked “Exhibit A,” and made a part hereof. And on February 10, 1927, as security for said note, defendants, R. R. Rice, Mary Margaret Rice, his wife, and Medora S. Rice, executed and delivered to said People’s Savings Bank a deed absolute in form conveying the following described land situated in Lincoln County, Arkansas, to-wit:

“All that part of northeast quarter of section six (6), township eight (8) south, range five (5) west, lying east of the center of the old railroad dump; a copy of said deed being attached to the complaint, marked “Exhibit B” and made a part hereof.
“The said note not having been paid when due on November 9, 19:27, plaintiff paid the amount owing thereon to the People’s Savings Bank, in consideration of an assignment to him by People’s Savings Bank of said note and land, said conveyance being in form absolute, a copy thereof being’ attached to the complaint, marked “Exhibit C” and made a part hereof. The said deed to the People’s 'Savings Bank was duly recorded in the office of the recorder for Lincoln County on February 15, 1927, and the said deed from the People’s Savings Bank to plaintiff was recorded in the same records on March 27, 1928.
“On the 3d day of August, 1926, defendant, Mrs. Kirby Rose, instituted in this court a foreclosure suit on a mortgage held by her executed by defendant, R. R. Rice, and covering '224- acres of land in Lincoln County other than the lands hereinbefore described. On the 18th day of October, 1926, a foreclosure decree was duly entered therein, ordering a sale of said land under said mortgage, in which judgment was rendered in favor of plaintiff for $11,800. At said foreclosure sale defendant, Mrs. Kirby Rose, bought in said land described in her mortgage for the sum of $2,750, and retained a deficiency judgment against R. R. Rice in the sum of $9,050.
“On February 15, 1927, after the said deed to People’s Savings Bank was recorded, defendant, Mrs. Kirby Rose, caused to be issued an execution on her said judgment, and caused said execution to be levied on the said 18-acre tract conveyed to plaintiff, hereinbefore described; and on April 16,1927, the said 18-acre tract was sold under said execution, and defendant Mrs. Kirby Rose became the purchaser at said execution sale, bidding therefor the sum of one hundred dollars ($100).
“On March '27,1928, defendant R. R. Rice and plaintiff redeemed from said execution sale,-plaintiff paying for such redemption the sum of one hundred dollars ($100) with interest and costs, amounting in all to one hundred thirty-three dollars and forty cents ($133.40). Such redemption was effected without question by either the officers or the defendant Mrs. Kirby Rose, and entry of redemption was made on the margin of the execution as required by law, and certificate thereof was duly issued by the clerk of this court, copy of said certificate being attached to the complaint as “Exhibit D” and made a part hereof.
“Mrs. Kirby Rose did not agree to the redemption, and had no knowledge of it until it had been made, and she had received the amount paid to redeem the land, which she received in March, 1927, and still retains.
“Mrs. Kirby Rose had another execution issued on her said judgment on April 2, 1928, and levied on* said land, and the officer in charge of said execution caused the said land to be sold thereunder on July 24, 1928, and at such sale the said Mrs. Kirby Rose became the purchaser, bidding therefor the sum of $400, by crediting that amount on her said judgment against R. R. Rice, and proposes to obtain a deed under said execution, and asserts that her rights are superior to the rights of the plaintiff therein as herein described.”

The court found for appellee against R. R. Rice in the sum sued for, about which there is no dispute, and that appellee “as the vendee or mortgagee of the said R. R. Rice had a right to redeem the land in the manner in which it was redeemed; that upon said redemption he took title thereto free from any incumbrance or lien of the judgment of said Mrs. Kirby Rose, and the execution and sale by said defendant Mrs. Kirby Rose on July 24, 19'28, is void, and same should be canceled and set aside. Decree was entered accordingly.

On behalf of appellant it is argued that appellee had no right to redeem; that he was only a mortgagee; and that under the'statute, § 4329, C. & M. Digest, only the debtor could redeem, the right of redemption being purely statutory. It is further argued that if appellant can be said to have permitted appellee to redeem, “he would be considered as having redeemed for Mr. Rice, and the land would again become Mr. Rice’s property, subject to the balance of Mrs. Rose’s judgment, which she had a right to enforce by another execution.” We cannot agree with appellant in these contentions. The statute reads: “When any real estate, or any interest therein, is sold under execution, the same may be redeemed by the debtor from tbe purchaser, or his vendees, or the personal representatives of either, within twelve months -thereafter.” This court has several times held that others than'the “debtor” might redeem from execution sales. In Dalton v. Brown, 130 Ark. 200, 197 S. W. 32, it was held that a purchaser at an execution sale under the junior lien might redeem the land from a purchaser at an execution sale under the senior lien. In Turner v. Watkins, 31 Ark. 429, it was held that the “purchaser at execution sale of the equity of redemption in real estate succeeds to all the rights of the mortgagor, among which is the equitable right of redemption by paying the mortgage debt.” This case was cited in Dalton v. Brown, supra. In Tate v. Dinsmore, 117 Ark. 412, 175 S. W. 528, it was held that the mortgagor and Ms successors in interest have the right to redeem within one year from a sale under the power contained in the mortgage, although the statute (§ 7404, C. & M. Digest) provides only that the real property “may be redeemed by the mortgagor.” In the recent case of Arkansas National Bank v. Price, 179 Ark. 259, 15 S. W. (2d) 396, a case directly in point, it was held, quoting the third syllabus, that: “Judgment debtors and their grantees, purchasing property subject to a judgment lien, were entitled to redeem it from a subsequent execution sale, under C. & M. Digest, §§ 4329, 4330.”

So it will be seen that this court has already decided this question, that is, the right of the grantee of a judgment debtor to redeem from a subsequent' execution sale on a prior judgment lien, adversely to appellant. We do not feel called upon to overrule these cases. They have become rules of property. The redemption statute now under consideration is a remedial statute, and should be liberally construed to accomplish its beneficent purpose. The judgment creditor always has it in his power to make the land sold under execution of his judgment bring its real value, so that if a redemption is effected he cannot be hurt. Here appellee was a grantee of Mr. Rice, the judgment debtor, whether his deed be considered a mortgage or a deed absolute, which it was in form, and had the right to redeem from the execution sale under appellant’s judgment.

As to the contention that appellee should be considered as having redeemed the land for Mr. Rice, and that the land then again belonged to him subject to the lien of appellant’s judgment which she could enforce by another execution, we are of the opinion that the holding in Ark. Natl. Bank v. Rice, supra, is conclusive against appellant. It was there held, to quote the 5th syllabus, that “Purchasers of land subject to a judgment lien were entitled to redeem such lands from execution sale thereunder free from the judgment lien, which, so far as the lands were concerned, was satisfied by the execution sale.” This seems to be decisive of the point and would require no other citation, but see also the opinion of this court, by Mr. Justice Riddick, in Fields v. Danenhower, 65 Ark. 392, 46 S. W. 938, 43 L. R. A. 519. We do not think the case of Allen v. McGaughey, 31 Ark. 260, relied on by appellant, is decisive of the questions here considered.

Affirmed.


author: Butler, J.

text:
    Finch v. Russell.
    Opinion delivered November 24, 1930.

      Caraway, Baker d? Oautney, for appellant.

      Dudley & Dudley and C. T. Carpenter, for appellee.
   Butler, J.

The appellant, C. B. Finch, was the owner of 220 acres of woodland on which there were no improvements except a dwelling house. He was desirous of putting' this land in cultivation, and on the first day of January, 1928, entered into an agreement with the appellee, J. I. Russell, by which the latter was to move into the dwelling- house upon the land and clear twenty acres of land in the early part of 1928 before the time for planting a crop. In 1929 he was to clear forty acres of land, more or less, and so on each year until the entire tract had been placed in cultivation. For clearing- the land he was to receive $8 per acre and the use of the land cleared for one year, after which time he was to pay $8 per acre for such land as had been used by him one year and $10' an acre thereafter. Finch was to build from time to time such tenant houses as were needed and as the land was cleared ready for cultivation. In 1928 Russell cleared and made ready for the plow thirty-five acres of land, but cultivated in that year eighteen acres only olf the land cleared. In 1929 he cleared forty-three acres of land and cultivated the entire thirty-five acres cleared in 1928, and eleven or twelve acres of the land cleared in 1929. Finch did not erect any tenant houses in the spring of 1928 or at any time in 1929, although Russell testified that he would repeatedly ask him to build tenant houses so that Russell might secure tenants to cultivate the land cleared as he was able only to cultivate a limited acreage himself.

There was a settlement between the parties in November, 1929, in which a disagreement arose as to the amount of rent Russell o-wed, Finch claiming that in 1929 he was due $8 per acre for the entire thirty-five acres cleared in 1928, while Russell claimed that under the contract he was to pay rent only on such land as he had cultivated one year and as he had only cultivated eighteen acres of the land cleared in 1928 he owed rent only ou that number of acres for its use in the year 1929 at $8 an acre; and that his failure to cultivate all of the land cleared in 1928 was occasioned by the neglect of Finch to build a tenant house. This disagreement resulted in Finch giving Bussell notice to quit and surrender the property and in the filing of a complaint in unlawful detainer on January 13,1930, for the possession of the land and to recover $50 rent money alleged to he due, followed by the eviction of Bussell from the land (by the sheriff. On February 3, 1930, Bussell answered denying the allegations of the complaint and that he had breached any of the terms of the contract, and alleging that he was ready and willing to continue in the performance of the same, and by way of cross-complaint claimed damages in the sum of $2,600 for the breach of the contract by Finch and for damages sustained on account of his eviction from the premises. There was a trial of the issues joined and on the 6th day of February, 1930, the jury returned a verdict in favor of the appellee Bussell on his cross-complaint in the sum of $309.08 upon which judgment was accordingly rendered. From that judgment Finch has duly appealed to this court. The appellee Bussell has also taken a cross-appeal in which he seeks for a modification of the judgment by directing that the possession olf the land foe restored to the appellee.

The appellant contends here that the verdict is contrary to the evidence,, that the court erred in its instructions to the jury on the measure of damages, and lastly that the verdict is excessive. There was a purported written contract introduced in evidence signed by the appellant, which contract was not signed by the appellee. That part of the contract about which there is a difference of opinion as to* its meaning’ is as follows: “Party of the first part (Finch) agrees to pay J. I. Bussell, party of the second part, $8 per acre for clearing 220 acres of land in section 12, township 13, range 5, beginning on the southwest 401 acres. Party of the second part agrees to clear 20 acres or more by crop time in 1928 and 40 acres each year more or less thereafter and is to have all the crop free of rent. Party of second part agrees to pay party olf first part eight dollars ($8) per acre cash rent for all cleared land for the second year and ten dollars ($10) per acre thereafter if conditions warrant, or party of the second part can turn the said cleared land hack to party of the first part and continue on with his contract.”

The appellee testified that he understood the contract to he that fey the expression “and is to have all the crop free of rent” and by the further expression “party of the second part agrees to pay party of the first part $8 per acre cash rent for all cleared land for the second year” that he was to receive $8 per acre if or clearing the land and the first crop grown thereon free of rent, and that the second year thereafter he was to pay $8 per acre. It was the contention of the appellant that by these expressions in the contract he meant that appellee should receive $8 per acre for clearing the land, with the privilege of cultivating it in the same year in which it was cleared free of rent, and that, regardless of whether the cleared land was thus cultivated or not, he was to receive $8 per acre rent for it the year following the one in which it was cleared. We are of the opinion that the contract is ambiguous in these particulars, and the court properly submitted it to the jury for determination under the testimony and surrounding circumstances as to what was really intended.

There was evidence to the effect that the appellee lost the use of seventeen acres of land cleared in 1928 and thirty-two acres cleared in 1929 because of the failure of the appellant to provide tenant houses as had been agreed; that on similar land which he had been able to cultivate himself and which was cleared by him in the years mentioned he had produced a bale of cotton per acre. It was also' in evidence that the appellee without fault on his part was wrongfully evicted from his home in severe weather to which his family and stock were exposed, and that the moving of his household furnishings, implements and feed for his stock, etc., was done at some expense; that he was forced to expend $5 up to the time of the trial for a temporary shelter for himself and family, and that his stock during all of the time from his eviction were exposed to the weather without shelter. There is no testimony as to the amount of damages in dollars and cents to the farm animals, by reason of such exposure or of the cost incurred in moving after the eviction, but for all of this and for the loss of the use of the land which appellee had cleared the jury allowed only the sum of $309.08. "While we do not wish to be under-' stood as approving the form and verbiage of the instructions given by the court to the jury on the measure of damages, we do not think the jury was misled by them or that the appellant was prejudiced thereby. On the whole case we are of the opinion that the evidence sustained the verdict.

As the appellee was awarded damages for loss of the use of the land, in accordance with the prayer of his complaint, the court properly overruled his motion for modification of the judgment restoring him the possession, for that contention is inconsistent with the relief prayed and awarded.

Affirmed.


author: Hart, C. J.

text:
    Souter v. Fly.
    Opinion delivered December 1, 1930.

      Hogue & Burney and O. D. Longstreth, for appellant.

      Osborne W. Garvin, for appellee.
   Hart, C. J.

This appeal is prosecuted to reverse a judgment overruling exceptions to the final account of the administrator with the will annexed of the estate of O. M. Ross, deceased.

It appears from the record that C. I. Farmer, a man with no known relatives, lived at Houston, Texas, where, from light work and soliciting alms, he accumulated about $4,500, which he left on deposit in various banks in that city under different names. Mrs. T. N. Souter, of that city, who was active in welfare work, befriended him. in the belief that he was a pauper. In gratitude for the favors conferred, on the first day of June, 1925, O. I. Farmer executed a will in which he left her his- entire estate. In 1927, he came to Arkansas and thereafter lived under the name of O. M. Ross. He drew about $2,500 of his money from the Houston banks and invested it in a small homestead of about ten acres about five miles south of the city of Little Rock. He was taken ill and died on the 22d day of April, 1928, at a hospital in the city of Little Rock:

Dr. T. M. Fly was called to attend him in his last illness, and had him removed to the hospital, where he later died. After the death of Ross, Dr. Fly became the administrator of his estate. It was subsequently ascertained that he had made a will in favor of Mrs. Souter; and, by agreement with her attorneys, the will was probated, and Dr. Fly became administrator with the will annexed of the estate of C. M. Eoss. During the course of the administration, E. E. 'Smith and Syble Smith filed a suit in the chancery court of Pulaski County against the administrator and Mrs. T. N. Souter to recover the estate on the ground that C. M. Eoss had made a contract with them to will them his entire estate in consideration of their care and support of him during his lifetime; that they had performed the contract on their part, and that Eoss died without making the will in their favor. The administrator, through his attorney, defended the suit; and, after it had been pending for some time, it was dismissed for failure of prosecution. Other facts will be stated under appropriate headings in passing on the exceptions to the account current of the administrator.

The first three exceptions relate to the claims of two trained nurses and of the hospital fees during the last illness of C. M. Eoss. We do not think these exceptions are well taken. Mrs. C. A. Eouth and Mrs. Beula Justice presented claims for respectively six and eig’hteen dollars. The claim of each was duly verified by her affidavit in which she stated that nothing had been paid or delivered towards the satisfaction of her demand, and that there was due her the amount claimed. It is contended that these claims should not be allowed because the account does not appear attached to the affidavit’. Under the testimony of the administrator, these parties performed, as trained nurses, services which, at the regular charges, amounted to their respective claims; that the administrator examined and allowed each of the claims, and that the account presented to him had somehow become detached from the affidavit. This amounted to a substantial compliance with the statute, and we think the court properly allowed the claims. Breckenridge v. Weber Dry Goods Co., 167 Ark. 429, 268 S. W. 593 ; and Rinehart v. Wheeler, 168 Ark. 251, 270 S. W. 537.

What we have said applies with respect to the hospital claim. The hospital claim was verified by the superintendent of the hospital, and the items charged were reasonable and according to the usual fees charged for similar services in the hospital. There is nothing whatever to indicate that any overcharges were made. Hence the court properly overruled the exceptions to this item of the account.

The next exception relates to the extra compensation claimed by the administrator in his account current. It appears that, after consultation with the judge of the probate court, Dr. Fly went to Houston, Texas, during the meeting of the Democratic National Convention for the purpose of attending that convention, and also ascertaining whether or not there was any additional money belonging to the estate of C. M. Boss in any of the banks in Houston which had not yet been ascertained. The account shows that the sum of $31.40 for traveling expenses and an additional amount of $37.43 for expenses. We think the court should not have allowed both of these sums. It does not make any difference that the administrator elected to go at the time the Democratic National Convention was in session if it was necessary for him to make the trip in the interest of the estate. He evidently made the trip in good faith because he did not do so until after obtaining the sanction of the probate court to do so. The court was justified in allowing him the expenses of the trip, but we are of the opinion that the amount allowed is too much. His railroad fare for the round trip amounted to $31.40, and he could have ascertained whether or not Boss had any money in any of the banks there in one day’s time. Therefore we are of the opinion that his claim of $37.43 was sufficient to cover the expenses of the trip. The item was to cover necessary expenses incurred by the administrator in endeavoring to locate additional assets of the estate and was made under the sanction of the probate court. Therefore it was not error for the court to allow it. Holland v. Doke, 135 Ark. 372, 205 S. W. 648.

The court, however, erred in allowing additional compensation to the administrator. Under our statute, the probate court may, in the exercise of a sound discretion, fix the compensation or the rate of commission allowed an administrator as provided by statute, but it cannot exceed the rates prescribed. Ex parte Bell, 14 Ark. 76; Reynolds v. Canal & Banking Co., 30 Ark. 520 ; Triplett v. Chipman, 153 Ark. 12, 240 S. W. 23 ; and Scroggins v. Osborn Co., 181 Ark. 424, 26 S. W. (2d) 95. The duties performed by tbe administrator in his trip to Houston were duties ordinarily incident to the administration of an estate, and, under no principle of law, could he be entitled to additional compensation as for unusual or extraordinary services performed by him. Therefore we are of the opinion that the court erred in allowing the additional compensation to the administrator.

The next exception relates to the attorney’s fees allowed. The account shows that the attorney for the administrator was first allowed $36.85" for services performed in administering the estate, and no complaint is made as to this item. It is insisted, however, that the court erred in making an additional allowance of $150 to the attorney for defending the suit brought by E. E. and Syble Smith against the administrator to obtain possession of the estate on the ground that C. M. Boss had made an agreement with them to make a will in their favor for their care and support of him during his lifetime, and that he had failed to do so. On this account, $150 was allowed to the attorney. We think under the evidence that this amount was excessive. There was a conflict in the testimony as to the amount which should be allowed, running from $50 to $150. We have examined the record as to the services performed by the attorney, and we think that a compensation of $100 was entirely ample. He took no active part in the prosecution of the case except to' argue a demurrer to the complaint which was overruled; and the case was finally dismissed for want of prosecution. The administrator with the will annexed had the authority to employ an attorney to defend the will, and he is entitled to have an allowance made to his attorney to be paid out of the estate for services in upholding* the will. There is nothing* whatever in the record to show that he did not in good faith employ the attorney to defend the suit, and we hold that a reasonable fee is a proper charge against the estate. McIntire v. McIntire, 192 U. S. 116, 21 S. Ct. 196, and numerous other cases cited in the note to 10 A. L. R. at page 784.

The next exception relates to still another allowance to the attorney of the administrator for the sum of $100 to defend the exceptions to the account current. We have examined the record relating to this matter; and, as we have already seen, there was no reasonable excuse for any litigation of an extended character relating to exceptions to the account current. It is well settled in this State that when the account of an administrator is wrongfully assailed in the courts, it is just to allow attorney’s fees necessarily incurred in defense thereof, but not for fees paid attorneys in resisting proper charges against himself and one 'brought to compel him to perform his legal duty when he is in fault. Jacoway v. Hall, 67 Ark. 340, 55 S. W. 12 ; and Triplett v. Chipman, 153 Ark. 12, 240 S. W. 23. We are of the opinion that, in addition to the sum of $36.85, attorney’s fees for $100 additional would be ample compensation for all the legal services rendered in the case. We mean this to include the Smith suit as well as the defense to the exceptions to the account current.

Finally, it is insisted that the exceptions to the account current cannot be sustained because the administrator obtained an order of the probate court in advance allowing him additional compensation and attorney’s fees. This he could not do. The object of the account current was to settle the account of the administrator, and the probate court could then disallow credits for illegal expenditures, although the administrator had obtained an order of the court in advance for them. Burke v. Coolidge, 35 Ark. 180, and Boyd v. Duncan, 178 Ark. 772, 12 S. W. (2d) 395.

Therefore the judgment -will be reversed, and the cause will be remanded to the circuit court with directions to sustain the exceptions to the account of the administrator as indicated in this opinion, and to certify the judgment of the circuit court down to the probate court for its guidance, and for further proceedings according to law. It is so ordered.


author: Hart, C. J.,

text:
    Shackleford v. Thomas.
    Opinion delivered December 1, 1930.

      John D. Shackleford, for appellant.

      Ernest Briner and W. A. Utley, for appellee.
   Hart, C. J.,

Rafter stating the facts). The circuit court was right to refuse to award the writ of mandamus. The record shows that the contract made by appellant with the school district was not executed in the manner prescribed by law. The adoption of the prescribed mode of contract under the statute is a jurisdictional prerequisite to the power to contract at all. The reason is that the authority is conferred by statute, and the directions of the statute must be substantially followed. It is the policy of the law that a contract shall not be executed until there is an opportunity for all the directors to present their views to each other. In the case at bar, only two of the directors signed the contract, and it was not made either at a regular or call meeting of the board. The want of authority in the directors cannot be supplied by any attempted ratification on the part of the director who did not sign the contract. Indeed, in the present case, the director who did not sign the contract only states that he had no objection to it. It does not appear that he knew whether the contract was or was not for the interest of the district. Arkansas National Bank v. School District No. 99, 152 Ark. 507, 238 S. W. 630 ; and Hatfield v. School District No. 58, 178 Ark. 260, 10 S. W. (2d) 374.

If the contract was illegal or of no effect because not signed in the manner prescribed by law, it necessarily follows that the writ of mandamus could not be had to compel the execution of such a contract. Mandamus only lies to compel a person to do that which it is his duty to do without it and cannot be used to compel the performance of that which is not lawful. Hill v. American Book Co., 171 Ark. 427, 285 S. W. 20 ; School District No. 3 v. Bodenhamer, 43 Ark. 140 ; and Huie v. Barkman, 179 Ark. 772, 18 S. W. (2d) 334. Hence the court did not err in refusing’ to grant the writ of mandamus.

It is next insisted that the court erred in awarding judgment against appellant for the $100 paid him for services rendered before the Legislature in opposing a bill which affected the school district. The circuit court based the right to the district to recover $100 paid under that contract in reliance upon the principles of law decided in Buchanan v. Farmer, 122 Ark. 562, 184 S. W. 33 ; and Miller County Highway & Bridge Dist. v. Cook, 134 Ark. 328, 204 S. W. 420.

We do not think the principles of law decided in those cases control here. They were cases where the contract contemplated personal solicitation and similar means between the attorney and the individual members of the Legislature. Such contracts were properly held to be void as against public policy. Here, according to the undisputed evidence, appellant was employed simply to make an argument before a committee of the Legislature to enable it to more intelligently act upon a bill affecting the interests of the school district. He did not contract to use his personal influence with members of the Legislature to induce them to vote against the bill, and no such effort was practiced by him. The judicial condemnation of so-called lobbying contracts are not applicable to contracts looking to the preparation of facts and arguments before either the administrative or legislative departments of the government. The differences between such contracts is clearly pointed out in State of Washington v. Okanogan County, 153 Wash. 399, 280 Pac. 31, 67 A. L. R. 688.

The same line of demarcation has been recognized by this court. Gould v. Sanford, 155 Ark. 304, 244 S. W. 433 ; and Martin v. Street Improvement District, 178 Ark. 588, 11 S. W. (2d) 469.

We next come to the question of the recovery of the $50 paid to appellant under the contract involved in that part of the case in which application is made for a writ of mandamus. The record shows that, in carrying out the contract, a warrant for $50 was issued to appellant, and by him presented to the county treasurer of Saline County, who paid it. This constituted an execution of the contract that far, and it is now too late for the district to recover the money. The contract was for a purpose which was valid and would have been binding on the district if it had been executed in the mode prescribed by law. The district having issued the warrant which was paid by the county treasurer, it is now estopped from recovering this amount from appellant. The contract having been executed to this extent and the money having been paid to appellant, we are of the opinion that no recovery can be had and that the principles of law above announced applying to the unexecuted part of the contract should not apply.

Therefore the judgment of the circuit court refusing the application of appellant for a writ of mandamus will be affirmed, and the judgment against him for $150 on the cross-complaint in favor of the district will be reversed and the cause of action in that behalf, dismissed. It is so ordered.


author: Smith, J.

text:
    Missouri Pacific Railway Company v. Price.
    Opinion delivered December 1, 1930.

      Thomas B. Pryor, Vincent M. Miles and Thos. B. Pryor, Jr., for appellant.

      Daily d Woods, G. W. Knott and W. A. Bates, for appellee.
   Smith, J.

The plaintiffs, Price, Bird and Irwin— appellees here—sustained injuries as a result of a collision of an automobile in which they were riding as guests with one of defendant’s coal trains at a highway grade crossing on State Highway No. 71 in Sebastian County, which is the principal north and south highway in the county and carries a large amount of traffic.

The collision occurred about 7:35 p. m. on October 8, 1929, and the facts in relation thereto, stated in the light most favorable to appellees, are as follows: An engine had switched a train of thirty coal cars at Jenny Lind, a village on appellant’s railroad. The cars were being pushed across the highway on a spur or industrial track owned by the Western Coal & Mining Company and leading to its mines. The conductor and two brakemen, all with lighted lanterns, were riding in the front or lead car. The train was moving west, and as it came into the highway it was discovered that the switch was lined for track No. 3, the switch being about twenty feet west of the highway. The conductor saw the switch lined for track No. 3, and, as he did not wish to enter.upon that track, he gave a stop signal, but before the signal was executed the train had moved about a half car length on track No. 3. A back-up signal was given, and the train began moving to the east, and when it had moved about ten or fifteen feet the automobile in which appellees were riding and which was approaching the train from the south ran into the last, or the next to the last, car in the train.

It was alleged that the railroad company was negligent in three respects: First, that there was no signboard at the crossing as required by § 8488, C. & M. Digest; second, that the train was unlighted; and, third, that there was a failure to keep an efficient lookout.

There was no signboard at the crossing as required by § 8488, 'C. & M. Digest. This section provides that every railroad shall cause boards to be placed, well supported by posts or otherwise, and constantly maintained, across each public road or street, where the same is crossed by the railroad, on the same level, and that said boards shall be elevated so as not to obstruct travel and to be easily seen by travelers, “and on each side of the said boards shall be printed, in capital letters of at least the size of nine inches each, the words, ‘Railroad Crossing—look out for the cars while, the bell rings or the whistle sounds’.” After the collision occurred out of which this litigation arose, the railroad company erected a signboard conforming to the statute, but placed it on the north side of the track.

The statute does not require signboards to be placed upon both sides of the track, nor does it provide upon which side one shall be placed. Presumptively, it would be placed where its visibility would be greatest. The purpose of the statute was to give notice to the traveler of the presence of a railroad track. The silent letters of the sign could not advise that a train was already on the crossing or that one was approaching. It could only remind the traveler that there was present a railroad track, along which trains ran, and to look out for them “while the bell rings or the whistle sounds,” so that no attempt would be made to cross the track after the bell had rung or the whistle had sounded until the approaching train had passed.

It was said in the case of St. Louis & S. F. R. R. Co. v. Ferrell, 84 Ark. 270, 105 S. W. 263, that: “The object of signals is to notify people of the coming of the train. Where they have that knowledge otherwise, signals cease to be factors.” Here the train had the crossing blocked when the automobile ran into it, and while it is insisted that the signboard would have had greater visibility than the moving train of thirty cars, we think that does not make the absence of the signboard the proximate cause of the collision. The signboard erected after the collision complied with the statute, although it was on the north side of the track, so that, if it had been where it now is, the train would have been between it and appellees as they approached the track. There was testimony that the signboard could be seen further than a coal car could be standing on the crossing, but it is mere conjecture that one driving from the south who did not see the train of cars would have seen the signboard, which, had it been there, would have been on the opposite side of the train from appellees. We conclude therefore that the absence of the signboard was not the proximate cause of the injury.

Many cases have defined the duty of railroads to maintain efficient lookouts in the operation of trains, but that duty was discharged by the conductor and the two brakemen who- rode in the front or lead car with their lanterns as the train slowly ran over the crossing. The wrong switch had been lined, and to prevent the train going in on the wrong track it was necessary to back the train to a point where the lead car would be east of the switch so that the switch could be thrown. While this movement of the train was being executed, the conductor and the two brakemen got off the train on the north side, and before the movement was completed the automobile ran into the train.

The testimony is to the effect that the movements of the train which have been detailed blocked the crossing for a period of from three to five minutes. This was, of course, an approximation as to the elapsed time, but there is no testimony whatever that there was any delay in the movement of the train, or that the crossing was blocked unreasonably or for an unnecessary length of time.

What kind of a lookout could the railroad company have kept which would have prevented the driver of the automobile from running into the train? The answer given is that the brakeman should have been stationed on the south side of the crossing to give warning to approaching travelers, and that this was done after the collision until the automobile was extricated from the train.

No doubt the jury was warranted in finding that if one of the brakemen had been posted on the south side of the track with his lantern, he could have given signals which would have averted the collision. But was the court warranted in imposing this degree of care on the railroad? If watchmen are required to prevent travelers from running into moving trains, two will be necessary, one will not suffice. Here the conductor and the brakempn were standing, at the time of the collision, in the center of the crossing, but on the north side. The moving train was between them and the approaching automobile. Complete protection could have been afforded only by having a brakeman on the south side of the track as well as on the north. The railroad track was straight, and so was the highway for a distance of a quarter of a mile before crossing the railroad track at a right angle, and there was nothing within two hundred feet of the crossing to obstruct the traveler’s view of the railroad.

Under the facts stated, we think there was no showing of negligence on the part of the railroad company. In the case of Perdue v. St. Louis S. W. Ry. Co., 82 Ark. 172, 100 S. W. 901, Mr. Justice Biddick said that, while railroads are responsible for injuries to travelers caused by their negligence, they are not insurers of the safety of travelers, and are not bound to provide against everything that may happen on the highway, but only for such things as ordinarily exist, or such as may reasonably be expected to occur. See also St. L. I. M. & S. Ry. Co. v. Aven, 61 Ark. 141, 32 S. W. 500 ; St. L. & S. F. R. R. Co. v. Ferrell, 84 Ark. 270, 105 S. W. 263. So here, while it now appears that the railroad company might, by the use of watchmen on both sides of the train at the crossing, have averted the collision, yet the practical operation of trains did not require that degree of care to forestall the injury, and a verdict should therefore have been directed in favor of the railroad company.

The judgments of the court below must therefore be reversed, and, as the cases appear to have been fully developed, they will be dismissed.

Humphreys and Mehaeey, JJ., dissent.


text:
    Cavett v. Pettigrew.
    Opinion delivered December 1, 1930.

      C. D. Atldnson and Karl Greenhaw, for appellant.
    ■ Jolm Mayes, for appellees.
   Smith, J.

Appellee, Mrs. Mollie Pettigrew, who was the plaintiff below, brought this suit against appellant, J. M. Cavett, who is her father, on December 21, 1928, and, for her cause of action, alleged the following facts: That her father executed and delivered to her a deed on November 27, 1916, for the recited consideration of love and affection and $1 cash in hand paid. She accepted the deed and kept it at her home in a satchel in a trunk, where it remained until about 1925, when she discovered that the deed had been abstracted from the trunk.

It was further alleged that in 1922 her father had mortgaged the land to secure a loan of $3,000. She prayed that the court make the finding that the lost deed be restored, and that she have judgment against her father for the amount of the mortgage which he had placed upon the land.

The answer admitted the execution of the deed, but denied there had been a delivery for the purpose of making the deed effective as a conveyance of title.

In addition to his daughter, Mrs. Pettigrew, Mr. Cavett had two other children, both sons, and an estrangement had grown up between Mrs. Pettigrew and one of these sons, and there was a coolness between her and the other, a fact of which Mr. Cavett was advised. Mrs. Pettigrew testified that in 1916, the year in which the deed was made, her father took a trip, and just before leaving he executed the deed and delivered it to her, and she kept it in her possession until someone stole it from her. On her cross-examination Mrs. Pettigrew admitted that her father said to her, when he delivered the deed to her, that he was going away and if anythiiig happened to him he wanted her to have her share of his estate, a matter about which he was apprehensive on account of her trouble with her brothers.

Mr. Cavett’s version of the delivery of the deed was as follows: “She was to take it home and keep it. If I came back, she was to give it back. I objected to her having the deed recorded, and told her, if anything happened to me, she had the privilege of recording' it later on.” Mr. Cavett returned safely from his trip, and did not take up the deed, and he later told some of his neighbors that he had made the deed, and he frequently referred to the land thus described as Mrs. Pettigrew’s farm.

The testimony is conflicting as to how Mrs. Pettigrew came to part with the possession of the deed. She admits that it was never recorded, but testified that she kept it until about 1925, when it was stolen from her. Mr. Cavett testified that, when he delivered the deed to his daughter, she was instructed not to place it of record unless something happened to him, and it is an admitted fact that it was never recorded. When asked what kind of a deed it was he had executed, Mr. Cavett answered: “A deed of insurance. If I didn’t get back (from the trip), the land was hers,” but if nothing happened it was to remain his.

■ Mr. Cavett testified that the deed was delivered to him, and that it was thereafter destroyed. Mrs. Pettigrew denied this, and testified that she never voluntarily parted with the possession of the deed, and that it had been stolen from her trunk. She admitted that, although the deed was in ordinary form, her father had stipulated that he should have the rents and profits of the farm during the remainder of his life; while Mr. Cavett denied that he retained possession of the land under an agreement of that character.

It appears from the testimony that Mr. Cavett assessed the property for taxes in his own name, and paid the taxes in his own name; that the insurance policies were in his name; and that he paid the premiums and, when a loss occurred, he collected the insurance and repaired the buildings at his own expense. Mr. Cavett rented the farm to various persons, including plaintiff’s husband, his son-in-law, and in 1922 he placed a mortgage on the farm for the sum of $3,000. Mrs. Pettigrew testified that she knew nothing about the mortgage for several years; while Mr. Cavett testified that it was given to secure money to pay an indebtedness due by Mrs. Pettigrew and her husband, and that this lawsuit to restore the deed was precipitated when he sued Mr. Pettigrew and recovered judgment against him for the money advanced.

It is elementary law that delivery is essential to the validity of a deed, bnt it is frequently a mixed question of law and fact as to whether there has been a delivery, and the law on the subject has been declared in a number 'of our cases. Russell v. May, 77 Ark. 89, 90 S. W. 617 ; Maxwell v. Maxwell, 98 Ark. 466, 136 S. W. 172 ; Battle v. Anders, 100 Ark. 427, 140 S. W. 593 ; Stephens v. Stephens, 108 Ark. 53, 156 S. W. 837 ; Faulkner v. Feazel, 113 Ark. 289, 168 S. W. 568 ; Watson v. Hill, 123 Ark. 601, 186 S. W. 68 ; Fine v. Lasater, 110 Ark. 425, 161 S. W. 1147 ; Bray v. Bray, 132 Ark. 438, 201 S. W. 281 ; Davis v. Davis, 142 Ark. 311, 218 S. W. 827 ; Hardin v. Russell, 175 Ark. 30, 298 S. W. 481.

In the case of Battle v. Anders, supra, it was said: “The important question in determining whether there has been a delivery is the intent of the grantor that the instrument should pass out of his control and operate as a conveyance. The intent of the grantor is to be inferred from all the facts and circumstances adduced in the evidence. His acts and conduct are to be regarded in ascertaining his intent.”

When this test is applied to the facts in the instant case, we conclude there was no delivery of the deed. It is true there was a manual delivery of that instrument, which, between parties dealing at arms’ length, would be highly persuasive and ordinarily conclusive. 'But here was a conveyance the consideration for which was love and affection, and there was the trusting confidence of the father, the grantor, in his daughter, the grantee, that she would respect his commands and would not record the deed at all, and would not regard it as anything more than an “insurance deed,” to be effective in the event only that something happened to the grantor. There was lacking that surrender of dominion and that right to possess and control which is essential to delivery.

A right to the possession and control of the deed was reserved, and there was, therefore, no delivery within the meaning of the term as completing a conveyance of real estate- Mr. Cavett testified that his daughter surrendered the deed upon demand. If true, this testimony would be fairly conclusive of the conditional character of the original delivery, but Mrs. Pettigrew denies that she surrendered the deed. But, with all the suspicion and distrust existing 'between Mrs. Pettigrew and her brothers, she did not record the deed, and her father continued down to the time of the institution of this suit to exercise all the acts of ownership as fully and completely as if the deed had never been executed.

We conclude, therefore, that the deed had never been delivered within the meaning of the law, and the decree of the court below restoring the deed will be reversed, and the cause dismissed.


author: Humphreys, J.

text:
    Williams v. Anthony.
    Opinion delivered December 1, 1930.

      McElhavmon & Callaway, for appellant.

      B. W. Huie and J. II. Lookadoo, for appellee.
   Humphreys, J.

On the 30th day of November, 1927, Anna Jackson conveyed an undivided one-fifth interest in the south half of the northwest quarter of section 35, township 17 south, range 18 west, in Clark County, Arkansas, to appellants and delivered possession of the entire tract to them.

Prior to that time she had executed a mortgage on her undivided interest in said real estate to them. At the time she conveyed her interest in said land to them she was a co-tenant of appellees who owned the other fonr-fifths interest.

Thereafter appellants acquired outstanding tax titles to said tract of land under tax forfeiture, and sales antedating their deed from Anna Jackson to her one-fifth interest therein.

On December 6, 19;29, appellees herein, the owners by inheritance of the other four-fifths interest in said real estate brought suit in the chancery court of Clark County against appellants to redeem their several interests in said real estate from the tax forfeitures and sales and for an accounting of rents and profits.

Appellants filed an answer denying that appellees had a right to redeem the lands from the tax forfeitures and sales or to an accounting for rents and profits. They alleged that they became the owners in fee of the real estate under and by virtue of their purchases of the outstanding tax titles.

The cause was submitted to the court upon the pleadings and testimony resulting in a finding and decree against appellants, from which is this appeal.

Appellants contend for a reversal of the decree upon the theory that a -co-tenant who acquires title to his share after a tax forfeiture and sale may acquire title to the entire estate by buying such outstanding tax titles. In the instant case appellants knew that the lands had been forfeited for taxes at the time they purchased their undivided one-fifth interest from Anna Jackson. The rule in our -State is that a tenant in common of land can acquire no title to the interest of his co-tenant or co-tenants by purchase at the sale of the whole for delinquent taxes. Hi's purchase means no more than the payment of the taxes and gives him no right except to demand contribution from his co-tenants. Cocks v. Simmons, 55 Ark. 104, 17 S. W. 594 ; Inman v. Quirey, 128 Ark. 605, 194 S. W. 858. Appellants argue that this rule only applies to co-tenants at the time of the forfeiture and sale of the lands. Our court has never made any such distinction, and we think it applies as well as to the successor of a co-tenant with knowledge of all facts. The general rule laid down in 38 Cyc. p. 48 is as follows:

“The purchase of the outstanding tax title for the entire property by a tenant in common operates as a payment of the tax and an extinguishment of the tax title, and a deed given to one of the tenants in common simply operates as a discharge of the taxes assessed on the land.”

No error appearing, the decree is affirmed.


author: Mehaefy, J.

text:
    Van Vleet-Ellis Corporation v. Higginbotham.
    Opinion delivered December 1, 1930.

      Ward & Ward, for appellant.

      Appellee pro se.

   Mehaefy, J.

Appellant began this suit in the Clay Circuit Court against J. N. Higginbotham, alleging that it was a corporation engaged in the wholesale drug business, and that it is the successor of Hessig-Ellis Drug Company, by reason of a merger and consolidation of Van Vleet-Mansfield Drug Company with Hessig-Ellis Drug Company; that the appellee, J. N. Higginbotham, and his son, Jewell N. Higginbotham, on March 16, 1927, up to and including April 6,19'28, were operating Higginbotham Drug .Store at Bernie, Missouri. It was alleged that Higginbotham and his son were partners, and operating the business at Bernie under the firm name, and that, while they were operating said business, they purchased a large bill of merchandise from appellant; that on April 6,1928, there was due appellant the sum of $1,537.82. An itemized statement, sworn to, was filed and made part of complaint; that on March 17, 1927, appellee executed and delivered to appellant his promissory note for $986.63 on which there had been a payment reducing the amount due on note to $604.51; that both the note and account are past due, and appellant prays judgment for $2,280.73. Appellee filed answer denying all the material allegations in the complaint. This action is against J. N. Higginbotham who it is claimed was in partnership with his son, Jewell N. Higginbotham, in the drug business. If he was a partner, he is liable. The important question in the case is whether there was a partnership. There is no dispute about the amount of the claim, and it is unnecessary to set out the evidence except that portion of it on the question of partnership.

Mr. S. E. Griffin, who was secretary and treasurer of the Hessig-Ellis Drug Company of Memphis, testified that he was in charge of the credit department. That his company never received any notice from Higginbotham and son that their partnership had been dissolved. That there was a consolidation and merger of the drug companies as above set out, and that the appellant became the owner of all accounts, notes and evidence of indebtedness due each and all the former named com-panies. Witness company had sold the Pollard Company for years, and they had always discounted their bills.

W. K. Love, vice president, testified that J. N. Higginbotham, Sr., came to the office in Memphis in the fall of 1924, and stated that he and his son owned the Pollard Drug Company at Pollard, Arkansas, and that they were going to open a branch drug store at Bernie, Missouri, which his son would operate, and stated that they needed fixtures, merchandise, stock, etc. “J. N. Higginbotham stated that he would go back to Pollard, talk the matter over with his son and let us know. We requested that they send us a statement. Received statement signed Pollard Drug Company, J. N. Higginbotham, showing that they were partners. Stock and fixtures were to be at Bernie, Missouri, and J. N. Higginbotham, Sr., and J. N. Higginbotham Son, were to be the owners. Both stores were to be owned by the partnership. We knew nothing of the partnership being dissolved.” Witness introduced a number of letters and statement signed by J. N. Higginbotham.

J. N. Higginbotham testified his son Jewell N. Higginbotham was never a partner in the Pollard Drug Store, that he never owned any interest in it, and the witness never made a statement to any one or held out that he was a partner; that he did not say when in Memphis that he and his son were partners; did not state that he and his son were opening a store at Bernie, Missouri, as partners. Never said anything that would lead them to believe that they were partners. He told them that he was helping his son; that the business was his son’s. He helped his son to start in business by giving him $1,000 in cash and became responsible for $1,500, which was paid. Did not make the statement introduced and signed J. N. Higginbotham. Did not sign it. Witness never knew the statement had been made until yesterday. Did not sign the note introduced in evidence. Did not buy any of the goods mentioned in the account and did not authorize anyone to buy them. ‘ ‘ They never required me to make a financial statement. ’ ’ Witness pays cash all the time. Does not owe appellant a cent. “Don’t know why my son would say we were partners when we were not.”

A. F. Grider, cashier of the bank at Pollard, testified that he was well acquainted with J. N. Higginbotham. Has known him for ten or fifteen years. He does business with witness’ bank. Handles a great many checks and knows Higginbotham’s signature. The $986 note is not signed by him. It is not his signature on the financial statement either. Understands J. N. Higginbotham, Sr., owns Pollard Store. Knew Jewell established a store at .Bernie. Understood he owned it. Doesn’t know if the father has any interest in it.

J. B. Blakemore was cashier of Bank of Pollard up to February, 1925. As cashier of the bank was familiar with Mr. Higginbotham’s signature. It is not his signature on the note.

Jewell N. Higginbotham testified that he operated the store at Bernie, and his father had no interest in it. Witness executed the note sued on, and his father had nothing to do with it. He made the credit report. His father never authorized him to do it; didn’t think he had any knowledge of it. The note sued on was not made for opening stock. “That note was paid and I have it. It was no partnership stock, the stock was sold through bankruptcy, and Hessig-Ellis bought it in some way.” Witness wrote all the letters mentioned in the suit. His father knew nothing about them. “The store was being put up at Bernie and they asked for a credit statement of the Pollard Company and asked in their letter to give in that statement my name and my father’s name. I did but failed to scratch off the partnership in the blank. I did not mean to say we were partners.”

Robert E. iSimpson testified that he was a brother-in-law of Jewell and learned that Jewell owned the store at Bernie.

F. L. Slaughter testified that he was a salesman for Paragould Wholesale Grocery Company and knew both Higginbothams, had never heard that the store at Bernie belonged to any one except Jewell.

Appellant insists that the cause should be reversed because one of the jurors, Mr. Aussa Aud, stated after he got into the jury room that he was a salesman for another drug company and knew all about the facts in the case being tried, and that the defendant should win, and that by reason thereof other jurors voted for the verdict for the defendant. That said juror was prejudiced in said cause and not a qualified juror, and his statements influenced the jury wrongfully. While appellant stated in its motion for new trial that the juror was asked questions for the purpose of ascertaining his qualifications, and that he answered that he kneiy nothing about the facts, there was no evidence on this question submitted to'the court, and the record does not show anywhere that these questions were asked.

In the case of Fones Bros. Hardware Co. v. Mears, arde p. 533, we said: “It is true that the bill of exceptions does not show any questions asked, either by the court or appellant’s counsel, of the jurors to ascertain whether they were related to either of the parties, and does not in fact show that Charley Slocum was a member of the jury returning the verdict, and also the bill of exceptions does not contain the so-called motion in arrest of judgment with the affidavit disclosing the relationship of the juror to the appellee, the motion and affidavit being brought up by certiorari. The majority is of the opinion that in the state of the record there was no such showing of due diligence made by the objecting party, (the objection being made to the juror after the return of the verdict for the first time) as would require the granting of the motion .to refuse to enter judgment on the verdict and refusing to grant the motion for a new trial on the ground of the alleged relationship of the juror to appellee. As heretofore held, it is a matter of discretion of the trial court as to whether the verdict should be set aside when objection is made to a juror after the verdict for the first time, and the majority of the court from the state of the record is not able to say that the court abused its discretion in overruling the motion and refusing to grant a new trial because of the-alleged relationship.”

It may also be said in the instant case that the juror, Aud, did not become a member of the jury with' the knowledge that he was disqualified. According to the affidavit filed with the motion for new trial, the juror discovered that he was disqualified or that he knew about the facts after the trial began and after evidence was introduced. The evidence introduced at the trial brought to his mind the facts that he already knew 'but which did not occur to him until after the trial began. Lawyers might and sometimes do accept a jury to try a case without asking them any questions at all as to their qualifications, and, when they do this, they cannot then, after the verdict, avail themselves of a fact that the juror did not possess the necessary qualifications. Persons, if they wish, may submit their controversy to any persons, whether qualified or not, and be bound by the verdict. The only way we could know whether the jurors were qualified as to their qualifications, would be from an examination of the record, and the record in this case does not show any examination of the jurors at all as to their qualifications. If a disqualified juror sat on a jury and the necessary questions as to his qualifications had been asked, we would have a different question, or, if the statement in the motion for new trial, when submitted to the court, had been supported by evidence of witnesses that the questions were asked and answered as alleged, the court might be authorized to set aside the verdict, but, with no showing in the record and no evidence supporting the motion for new trial, the mere statement in the motion for new trial is insufficient. The appellant does not abstract his motion for new trial and does not abstract the instructions.

It is next insisted by appellant that the case should be reversed because the court erred in permitting R. E. Simpson and others to testify as to what they had heard the Higginbothams say. After the evidence was introduced, the appellant’s attorney then said: “What does t-he court say?”, and the court said: “If that was before all this transaction came up, that is the only way he could have to get it in here”; and the appellant then said: “Exceptions noted.” There was no request to exclude this evidence from the consideration of the jury, and the court evidently intended to hold that the evidence of holding out as a partnership was competent, and that declarations of persons as to what they understood about it was competent, but, as we have said, even if this were error, appellant to avail himself of it should have requested that it be excluded from the consideration of the jury.

• It is next insisted by appellant that the court erred in giving instructions to the jury, but the instructions are not set out, and only a part of the instruction objected to is set out. Crosby v. Lucas, 180 Ark. 277, 20 S. W. (2d) 861 ; Bailey v. Florsheim Bros. Dry Goods Co., 180 Ark. 293, 21 S. W. (2d) 171 ; Meyers Stores Inc. v. Wursburg, 180 Ark. 532, 21 S. W. (2d) 969. The objection however, is unavailing for another reason. There was no specific objection to the instruction, and the instruction was not subject to a general objection. We think that the great preponderance of the evidence, even if the evidence objected to is excluded, is in favor of the appellee.

The judgment is affirmed.