author: Mehaffy, J.

text:
    Walldren v. Walldren.
    4-3171
    Opinion delivered October 23, 1933.

      Martin, Wootton & Martin, for appellant.
    Appellee, pro se.

   Mehaffy, J.

The appellee, Gage B. Walldren, was in business in Chicago, and on March 1, 1926, he and the appellant were married in Chicago. On August 4, 1932, appellee went to Hot Springs, Arkansas, and established his residence, and on October 4, 1932, he filed an action for divorce in the Garland Chancery Court, alleging a residence in Garland County for more than sixty days. A warning order was issued, and C. D. Harmon, an attorney, was appointed to notify appellant of said action.

On November 1, 1932, appellant, by her attorney, C. D. Harmon, filed answer and cross-complaint, in which she denied the material allegations of the complaint, and alleged that there were property rights to be adjudicated and that appellee was the owner of an interest in warehouses in Chicago, having a value of at least $75,000, and a yearly income for the years 1931 and 1932 and prior thereto, exceeding the sum of $6,400: She alleged that the appellee wilfully abandoned and left her on March 15, 1931, without reasonable cause, and that since that time he had utterly failed to adequately maintain and provide for her. She prayed that appellee’s complaint be dismissed; that she be awarded a reasonable sum for her maintenance and support, and for a continuing and permanent alimony.

Evidence was taken, and a decree was rendered by the chancery court on January 25,1933, granting divorce to appellee, and awarding judgment in favor of appellant in the sum of $300 as attorney’s fees, and the sum of $50 as expense money, and $80 per month alimony during their joint lives, unless the appellant shall sooner remarry, in which event payment of alimony shall cease. This appeal is prosecuted to reverse the decree of the chancery court, granting a divorce to appellee.

The evidence introduced on the part of the appellant showed that he was born in Chicago, and lived there continuously until he went to Hot Springs, August 4, 1932. He was interested in business in Chicago, one of the stockholders in a corporation, and that he has no business elsewhere, and no income except from his business in Chicago; that his income from this business the previous year was $6,400.

Mrs. Joseph Sullivan testified for the appellee that she is 37 years old, a sister of appellee, and has known the parties during their married life; visited them several times at their several addresses in Chicago; that during their married life she had opportunity to observe both of them; that her brother was a good husband, and was kind and affectionate, and did everything to make his wife’s life pleasant; he was a good provider and a dutiful husband; she observed appellant’s conduct towards her husband on numerous occasions, and, regardless of what her brother did, his wife was unappreciative of kindnesses bestowed upon her; continually nagged, fussed, and treated him indifferently in the presence of her friends without cause; on one occasion of their anniversary appellee, mailed her an anniversary card with $50, which did not meet with her approval, and she carried on a general war lasting several days, by heaping continuous insults upon him. One instance, the witness and her husband were invited to appellee’s home for dinner, and witness and her husband were late, and upon arrival at appellee’s home appellant was in a considerable temper and throughout the meal, in the presence of guests, continually nagged her husband about their lateness, made insulting remarks, to the embarrassment of appellee and their guests, causing the party to be concluded at an early hour. Appellant continuously and openly insulted appellee, and was guilty of rudeness, contempt, and continuously nagged at him, making his life intolerable; appellee did all he could to provide for appellant, of which she was unappreciative.

Edward E. Walldren, who is 75 years old and the father of the appellee, has known the appellant about eight years in Chicago; during the time his son and wife lived together, his son did everything in his power to make her happy. Appellant was rude, openly insulting, and nagged the appellee, and did other things to make his life miserable, and heaped so many indignities upon him that it was impossible to detail them unless asked to give a lengthy testimony; is convinced that his son’s wife had determined to 'make him unhappy and miserable, and kept him upset and did other things to interfere with his business, without cause.' June, 1930, at witness’ home in Long Lake, Illinois, his son and wife were invited to dinner with others, and without provocation appellant excepted to the arrival of certain other guests and insisted that appellee leave with her before dinner. After much embarrassment and provocation, they remained for dinner, during which time she sat with her back to the guests she objected to, and refused to enter into any conversation except to make sarcastic and impudent remarks to her husband. Her attitude toward appellee was at all times one of contempt and ridicule.

Gage B. Walldren, the appellee, testified that he was formerly engaged in the storage' business in Chicago; had been a resident of Hot Springs since August 4, 1932; married March 1, 1926, in Chicago, and he and appellant lived there together as husband and wife until March 15, 1931; shortly after their marriage appellant began a course of rudeness and contempt, continuously nagged and fussed, with the result that he could never please her; that he bestowed luxuries upon her in keeping with his financial condition, and she continuously demanded and expected more; openly insulted him in the presence of friends which humiliated him, and made his life miserable and intolerable; kept him upset to where he could not devote the time and thought his business demanded; he did things that any man. would do to make a woman happy, but it seemed that she was not satisfied.

Thomas Mays testified in substance that appellee came to his place in Hot Springs, Arkansas, on August 4, 1932, and had resided there since.

Edward E. Walldren was recalled. He testified that he was president of the Walldren Storage Warehouse, a closed corporation since November 15, 1929; that the stock book record was in possession of appellee, who was the secretary and treasurer of the company; the stockholders are witness, appellee, and James McGrath, an employee of the corporation; testified about one instance where he said the conduct of appellant broke up a party. She seemed to take delight in doing everything she could to make her husband’s life unhappy. He knew they were not getting along well; learned this from his son. The Walldren Storage Warehouse is a corporation capitalized at $100,000, and a mortgage on it for $65,000; it is a five-story, fireproof brick building. The stock book would show the interest of his son in the company, but he refuses to produce'the book, as it is in the possession of his son phis son is now in employ of the company, drawing, a salary, but has not been in the office for the last three months; the company maintains a record of the" salaries, but Im refuses to produce it. Witness testified at some length,'but generally that appellant nagged at'appellee, and insulted him, and in one instance witness was accused of carrying away wine glasses from the home of the mother of appellant, but diet not know who accused him.

Several witnesses testified-in behalf of appellant, each .of them contradicting the evidence given on the part of the appellee.

The evidence shows they separated on March 15, 1931, and on March 24, 1931, appellee wrote to appellant the following letter:

“March 24, 1931.
“Dear Elsie: I have not changed my mind, therefore I am using this means to inform you what I intend to do. As long as you reside at Maplewood Avenue you will receive $200 per month. In the event you want to put your furniture in storage and move, I will send you $150 per month. You will not have to work. The reason for the différence in the money is not to force you to live at your present address, hut I realize it cost more on account of the rent. If you decide to move or store your furniture, I will pay this expense. My advice would he to get a small apartment for yourself or go to the Lake for a month or two. I do not blame you in any way for my actions. You are not to blame.
“If you decide to store your furniture, I will send a packer and barrels to the house and get the dishes ready before you move, you can advise me.
‘ ‘ Sincerely,
“Gage B. Walldren.
“ (over)
“I am inclosing two checks, each for $100, that are postdated, they will be OK after the 27th, Friday. Gage.”

Appellant testified that she received several other letters from appellee after he left, and he did not, at any time, state that he left because he was nagged, but he stated to her that she was not to blame for anything that she was doing; that he could not get a divorce because he had no grounds; after receiving the letters she talked to appellee on the ’phone ; the last time he talked to her about letting him have a divorce was in September or October, 1932, at which time he was supposed to be in Hot Springs. From September, 1932, she continuously received letters from him with inclosures of money, in envelopes postmarked August 5, 12, 19, 26, September 9, 1G, 23, 30, October 7, 21 and 28th, all addressed in her husband’s handwriting, and posted and dated in Chicago.

The cause of divorce is alleged in appellee’s complaint as follows: “That, during the time they lived together as such husband and wife, the defendant pursued a course of rudeness, contempt and other disregard for the plaintiff; that she constantly nagged and fussed, without any cause whatever, all of which conduct was continuous and rendered the condition of the plaintiff miserable, unbearable and intolerable. ’ ’

It will be observed that no facts are alleged constituting the rudeness, contempt and other disregard for appellee. In other words, it is a mere conclusion of law based on the statute, without any attempt to set out what the facts are, or when they occurred, other than stating that it was at the time when they lived together.

“The indignities of which she complained should have been specifically set out, that it might have been seen whether they were such as to render her condition intolerable as alleged, or a sufficient cause for the divorce she sought.” Brown v. Brown, 38 Ark 324.

An allegation such as the one in appellee’s complaint would be sufficient to support a decree where no motion to make more specific was filed, if the evidence had been as to specific facts or specific acts of appellant, instead of mere conclusions.

Where one brings suit for divorce alleging indignities and misconduct, as the appellee did in this case, the defendant, of course, would be entitled to know what the plaintiff claimed were the facts constituting the indignities, and, if a motion was made to make more specific, the court would require the plaintiff to set out the facts. The evidence, however, in this case amounted to nothing more than the conclusions of the witnesses, with the exception of one or two instances.

The statute provides that one may be entitled to a divorce where the other party shall offer such indignities to the person of the other as shall render his or her condition intolerable, but the court decides the question of whether the acts complained of are such indignities as to render one’s condition intolerable. It is not the province of the witness to say that one party mistreated the other, and offered such indignities as to render his condition intolerable, bnt the witness must state facts, and the court determines whether the facts testified to are such as to justify a decree on the grounds that the facts shown were such as to render the condition of the party intolerable.

In the case of Bell v. Bell, 105 Ark. 195, 150 S. W. 1031, this court said: “The witnesses upon the part of the plaintiff testified in general terms that about a year prior to the institution of this suit the defendant seemed to lose her love and affection for the plaintiff; that she was rude and contemptuous towards him, and that during the winter prior to the bringing of this suit the plaintiff was sick, and the defendant did not wait on him, and finally, in May, 1911, that she left him. But none of these witnesses testified to any specific act of rudeness on the part of the wife, or to any specific contemptuous language spoken by her to him. This entire testimony consists of generalities, constituting at most mere opinions or beliefs of the witnesses. It is for the court to determine whether or not the alleged offending spouse had been guilty of acts or conduct amounting to rudeness, contempt, studied neglect or open insult, and whether such conduct and acts have been pursued so habitually and to such an extent as to render the condition of the complaining party so intolerable as to justify the annulment of the marriage bonds. This determination must be based upon facts testified to by witnesses, and not upon beliefs or conclusions of the witnesses.” The case of Bell v. Bell, supra, was followed in the case of Dunn v. Dunn, 114 Ark. 516, 170 S. W. 234; Meffert v. Meffert, 118 Ark. 582, 177 S. W. 1; and Cain v. Cain, 145 Ark. 224, 224 S. W. 481.

‘ ‘ On the other hand, testimony which amounts to no more than mere inferences or conclusions of the witnesses should be rejected.” Jones on Evidence, (2) vol. 3, page 1968.

The evidence of appellee as. to the misconduct of aupellant is also contradicted by letters written by himself after the separation. We think, therefore, that the evidence is wholly insufficient to justify a decree in favor of appellee.

In order to get a decree on the grounds alleged, he must prove specific acts and conduct of the appellant, and not mere conclusions of witnesses.

The decree is therefore reversed, and the cause remanded.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    W. L. Douglas Shoe Company v. Rollwage.
    4-3162
    Opinion delivered October 23, 1933.

      Knott & Spencer, for appellant.

      Mann & Mann, for appellee.
   McHaney, J.

Appellant sued appellee, a member of the bar in Forrest City, Arkansas, to recover judgment against him for $763.63, the amount of a claim sent him for collection against B. M. Yoffie, doing business in Forrest City under the name of Yoffie Department Store, alleging negligence in the handling of said claim which resulted in the loss thereof to appellant. The undisputed evidence in this case shows that Yoffie was indebted to appellant in the amount above stated; that on December 15, 1930, his department store, including his stock of merchandise, was totally destroyed by fire; that he carried $4,500 of insurance on the stock which was adjusted after the fire for $3,600: that he owed outstanding bills for merchandise in the sum of about $4,000; that after the fire a number of creditors sued him, causing writs of garnishment to be served on the insurance companies carrying the loss, all of which Avere paid in full, leaving $175 of the insurance money unexpended in the payment of debts; that appellee was a member or subscriber to the American Lawyers ’ Quarterly and was its exclusive representative in Forrest City; that under date of December 23, 1930, appellant’s claim was forwarded to appellee for collection by C. S. Dudley & Company, of Dallas, Texas. The letter of transmittal to appellee quotes a telegram from appellant advising that the insurance money owing Yoffie be attached. This letter in part reads as follows: “We are attaching an itemized statement of the account with affidavit. Of course, if you can get the insurance assigned to you, it will be preferable to garnishment, but, if you are unable to do so, proceed to collect for our client, drawing on us for the necessary court costs, you will also have your local bonding company make bond for garnishment proceedings and send us the bill. This party wanted to return some to our client, and they agreed to accept certain shoes. We inclose copy of our letter under date of December 18th, which sets out the facts. We are of the opinion that they did not ship the shoes before the fire, but, in the event the shoes were shipped, you will reduce the amount of the garnishment in accordance with the amount of the shoes returned.

“Please acknowledge the papers promptly, and you will do us a great favor to give this matter yoúr personal attention. ’ ’

To this letter appellee replied under date of December 29, 1930, as follows: “Replying to your letter of the 23d inst,. will say this debtor has given me assurance of his intention to pay this claim immediately upon receiving check covering his insurance; this debtor bears a good reputation; the circuit court alone has jurisdiction in this case; its next session will be in March, 1931, wherefore, do judgment can be obtained and garnishment levied at present; adjustment has not as yet been made, but adjusters are expected daily.

“I shall keen in close touch with debtor with a view of making this collection as stated.”

Under date of January 15,1931, C. S. Dudley & Company wrote appellee in reply to his letter as follows: “Your report of December '29th was received, and we believe that garnishment suit should be instituted against the insurance companies or debtor forced to give you an order on the insurance companies. We feel that debtor should be perfectly agreeable to giving you an order on the insurance company for payment of this account, and, if he is not disposed to do so, it may be that we will save ourselves considerable criticism from our client by proceeding with garnishment.

“Practically every time that we have granted the courtesy and privilege of handling.insurance direct with creditors, it was regretted in the final outcome, because creditors did not get what they anticipated. If you will advise what papers you need in connection with the further handling of this matter, we will be pleased to call on.clients for same. Even though judgment cannot be obtained until the March term of court, if we go ahead with action and garnishment proceedings, we will be pretty sure of getting the money then. Awaiting your further advice, we are,’”

To this letter appellee again replied under date of January 22, 1931, advising that the fire insurance had not yet been adjusted, but that the adjuster was expected daily, and that judgment could not be obtained until the March term of the circuit court and that garnishment could not be issued until after judgment. In this letter he asked for a check for $10 to- cover court costs, to be used if necessary. Dudley & Company replied to this letter under date of February 3, 1931, as follows: “We have your letter of January 22d, in regard to the above matter. We do not understand what you mean that no garnishment can be run against the insurance until after judgment is obtained. When did that become a lav/? If your laws are the same as they are in Texas, my good friend, you can run a garnishment at the time of filing suit. All you have to do is to place bond at the time of issuing garnishment for twice the amount of judgment and proceed in the matter. In the meantime, we are. handing you herewith complete statement, invoices, affidavit and client’s cost deposit check No. 220275 in the sum of $15, to be used as advanced court costs. Please give us your acknowledgment in regard to the above matter; perhaps we don’t understand your letter, and get us straight about running that garnishment suit, please; we are worried about that.”

Appellee replied under date of February 16th, acknowledging receipt of the check for $15 and advising that no adjustment had been made of the loss, and that “no garnishment can be executed until adjustment has been made; however, an adjuster is expected daily, and I have the assurance of Mr. Max Yoffie, the proprietor, that he will give a check to me covering the amount of this claim immediately upon the adjustment being made. I shall keep in touch with him with a view of making this collection as stated. This debtor carried an insurance on his stock and fixtures of $4,500 and loss was total. I shall advise you immediately upon any change in present conditions.”

Appellee did not file any suit or cause any garnishment to issue, and admits that he relied completely and absolutely on Yoffie’s statement that he would pay this account when the insurance was paid; that he did not know when the insurance was paid, but afterwards Yoffie told him he could not pay appellant’s account because he got nothing. It appears that there was some question about the legitimacy of the fire, and that the insurance companies held up settlement pending investigation of the origin of the fire, and that appellee thought a suit would have aggravated this situation. Two lawyers testified that they thought appellee used fair judgment in the course pursued.

At the conclusion of the testimony, the court instructed the jury, at the request of appellant, as follows: “Where a claim is placed with attorney for collection with instructions to attach certain property, and the attorney fails to bring suit or attach the property as directed, and in consequence of his delay a loss ensues, the attorney is liable, though he acted under an honest belief that delay would best serve the client’s interest, or that a suit would be unavailing.” Thereupon the court instructed the jury on its own motion that the burden was on appellant to show by the preponderance of the evidence that appellee failed to use such care that an attorney should use in the collection of such claim, and that, if they found that he did not use such care, it would be their duty to find for appellant in the amount sued for. But, if they found that appellee “used such care as he should use in such cases, it would be your, duty to find for the defendant.” The court gaye another instruction which in effect combined both of the above instructions. The jury found for appellee,- upon which judgment was entered, and this appeal is from that judgment.

The above instructions were in conflict. The undisputed facts show that appellant, through its agent, instructed appellee to institute suit and causé garnishment to be issued for which he was sent $15 to cover the costs, $5 more than he had requested, and instructed him to have a surety company make a bond drawing on the agent for the cost thereof. Appellee had no discretion in the matter. His instructions were positive and direct. The fact that he labored under a misapprehension of the law relating to garnishment before judgment did not excuse him, as a mere glance at the statute would have been sufficient to convince him of his error. In the early case of Pennington’s Ex’rs v. Yell, 11 Ark. 212, the duty of an attorney to his client is laid down in, the following language: “Reasonable diligence and skill constitute the measure of an attorney’s engagement with his client. He is liable only for gross negligence or gross ignorance in the performance of his professional duties; and this is a question of fact to be determined by the jury, and is sometimes to be ascertained by the evidence of those who are conversant with and skilled in the same kind of business.” See also Hampel-Lawson Merc. Co. v. Poe, 169 Ark. 840, 277 S. W. 29.

This case related to the duty of an attorney to continue in his client’s behalf after judgment to use diligence in securing a satisfaction thereof. The rule as to the duty of an attorney to follow the instructions given him regarding the handling of his client’s claim is stated in 6 C. J., p. 704, as follows: “An attorney’s duty, where he is specially instructed, is to follow the instructions of his client, except as to matters of detail connected with the conduct of the suit, and he is' liable for all losses resulting from his failure to follow such instructions with reasonable promptness and care. Thus, if an attorney is instructed by his client to bring suit upon a note placed in his hands, it is not discretionary with him to bring suit or not to bring it, but he will be liable for any loss due to his neglect, although he acted in good faith and did what he honestly supposed to be for the interest of his client. Conversely, where an attorney is instructed to pursue a particular course of action, and he does so, he cannot be held liable for negligence in not pursuing another course which might have proved more beneficial to his client.” Here the undisputed evidence shows that appellee failed to follow the positive instructions given him by appellant’s agents in failing to bring suit and sue out writ of garnishment before judgment. The fact that he talked with Yoffie, who promised to pay this claim on receipt of the insurance money and that he trusted implicitly in Yoffie, is no defense. 'By failure to follow the client’s instructions, appellee became liable for whatever loss appellant sustained, and this, as we view the evidence, is the only question for the determination of the jury. If appellee had pursued the course directed by his client promptly upon receipt of the claim, he undoubtedly would have received something from the insurance companies in satisfaction of his client’s debt, but just how much is a question for the jury. It is shown that others who garnished the insurance companies collected their debts in full, and that Yoffie still had $175 remaining of insurance funds. The judgment will be reversed, and the cause-remanded for a new trial. - -


author: Butler, J.

text:
    Simms Oil Company v. Seago.
    4-3149
    Opinion delivered October 23, 1933.

      McKay & McKay, for appellant.

      McNalley & Sellers and Jones & Jones, for appellee.
   Butler, J.

This appeal is from a verdict and judgment in favor of the appellee for the sum of $10,000 for personal injuries sustained by him while in the employ of the appellant company. The sole ground on which the contention of the appellant for reversal is based is that the appellee, on account of the nature of the work in which he was engaged and the character of injury received, assumed as a matter of law the risk at the time and place that the injury occurred.

On the 13th day of June, 1929, the date the appellee received the injury, he was in the employ of the appellant company as a pumper. The oil wells were operated by means of a pumping unit, the motive power being furnished by a gasoline engine. There were eight wells under the care of the appellee, whose duty it was to visit each one during the time he was on duty and to keep the machinery in operation, and for this purpose could start and stop the machinery, keep it oiled, keep the bolts tight and the floor around the machinery clean. At Murphy well No. 4, the one at which the accident occurred, the appellee had noticed that for several days the oil had been escaping from some part of the machinery and flowing out on the platform around the unit. He called this to the attention of his superiors from day to day but repair was not made until the forenoon of the 23d. Passing this well at some time of the day, he discovered that the oil had ceased to flow over the platform, that the machinery had been repaired, and that the platform was covered with a layer of sand which had been placed there.to absorb the oil that was on the platform. In the regular course of inspection on that afternoon he reached Murphy well No. 4, bringing with him his tools to remove the sand he had before discovered upon it. He laid these tools down nearby, and, going around the unit for the purpose of inspection, he discovered that it was in good operation, needed no oil, and the only defect he observed was a loose bolt on the platform, but he had no wrench with him to tighten the same. He stepped upon the platform in order to pass over to get his tools, and stepped upon a bolt hidden under the sand which turned and slipped, causing him to fall under a part of the machinery, resulting in his injury.

It was in evidence that this bolt had been thrown upon the platform and covered with sand by an employee of the company, one of a gang of four employees who were called roustabouts, who were sent from place to place to do such particular work as they might be directed to do without having any regular job or character of work to perform. This employee testified that he had been told by his superior about 11 o’clock to go to Murphy well No. 4 and clean up the rig; that it was his duty, if he found anything in a broken condition needing only a minor repair, to make such. When he. reached the well, he found that a bolt was broken in a part of the machinery called the pitman. He removed this broken bolt and replaced it with a new one, throwing the broken bolt upon the platform. This was covered with oil, and he scattered sand over it to absorb the oil. No one had given him any particular directions to do this, but that was a part of his duty, and he was supposed to do it. It was his intention to scrape the floor before he left. He first began under the derrick and cleaned that, and it would have taken him about five minutes to finish the job by scraping the floor around the pumping unit when the whistle blew for dinner, and he quit, intending to return after dinner and complete the job. After dinner, however, he was sent to another job and did not return.

The appellant insists that, since it was one of appellee’s duties to clean the floor around the pumping unit for his own protection as well as others whose duties might require their presence on the floor, he must be held to have assumed the. risk of his injury, as he was there for the purpose of performing the duty that he had contracted to do; that therefore, for any risk or injury resulting, the master would not be liable, under the rule announced in the case of Moline Timber Co. v. McClure, 166 Ark. 364, 266 S. W. 301, and numerous cases following. In the case of Timber Co. v. McClure, supra, this court said: “Learned counsel for defendant invoke the rule, established by decisions of this court and by other authorities, that, where the conditions under which a servant is put to work are constantly changing so as to increase or diminish his safety, it is the servant’s duty to make the working place safe and that no duty in that regard rests upon the master. That rule is well established by decisions of this court. Grayson-McLeod Lbr. Co. v. Carter, 76 Ark. 69, 88 S. W. 597; Murch Bros. Const. Co. v. Hays, 88 Ark. 292, 114 S. W. 697; Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 124 S. W. 1048; Fordyce Lbr. Co. v. Lynn, 108 Ark. 377, 158 S. W. 501; Sheldon Handle Co. v. Williams, 122 Ark. 552, 184 S. W. 43. That doctrine is an exception to the general rule that the master owes his servant the duty to exercise ordinary care to make the working place and appliances with which to work reasonably safe. Of course, where the duty is delegated to the servant himself to make his own working place and appliances safe, or to. determine the sufficiency of the appliances, there is no duty on the part of the master, and the servant assumes the risk of any danger arising from the use of the working place and the appliances and material. ’ ’

We are of the opinion that the facts of this case do not bring it within the rule of the case just cited. The dangers ordinarily incident to the use of the platform would be occasioned by the oil that might get upon it causing it to be slinperv, and the purpose of cleaning it would be to obviate this danger. There is evidence that. this duty was only one of several he had to perform, and that there were other employees whose duty it was also on occasion to clean up around the wells. The rule is so well settled as to make the citation of authorities unnecessary, that the servant assumes only those risks which are ordinarily incident to his employment, and he does not ordinarily assume risks created by the negligent acts of the master, acting through a fellow-servant. There is testimony that a fellow-servant, acting within the line of his duty, negligently left the broken bolt upon the platform and covered it with sand so as not to make it discoverable by the appellee from an ordinary inspection, and thus created a risk which would not ordinarily exist, and which would not usually be incident to the nature of the employment in which the appellee was engaged.

This is not a case where it can be said as a matter of law that the risk was assumed by the servant, and, as the instructions are not copied into the record, but are conceded to be correct, we must assume that the jury, upon proper declarations of law, passed on this question.

It is argued that appellee’s present plight was not caused by the injury resulting from the fall when he stepped on the bolt, but that it is the result of a disease originating from some other and independent cause, and a suggestion is made that it might have been from a different injury than that complained of. The testimony of appellant’s witnesses, especially the physicians, supports appellant’s contention; these testified that there was a diseased condition of a part of the backbone, which caused his disability, but that this was not occasioned bv any antecedent injury but by die attack of some kind of germ on that part of his organism. However, there was other testimony that, before the date of the alleged injury, appellee was a healthy man, able to and did work regularly. and that after that he was unable to work for several days, complained of great pain and was treated by several physicians. He went back to work, but there is evidence he was never able to work with the same degree of efficiency as before, and complained of pain during this time, and when he strained his back he never was able to sro back to work again. The injury claimed to have been received and appellee’s previous physical condition was related to physicians who were familiar with his then condition, and these testified that in their opinion the injury detailed to them was the cause of his present disability. This raised a question of fact, upon which the jury’s verdict is conclusive.

It is insisted, however, that in any view of the evidence, the damage awarded by the jury is excessive. We have seen that his present condition, in view of the verdict of the jury, must be attributed to the injury arising on June 23d. Regarding that condition, there is but little dispute. He suffers much pain and will continue to do so. He has been rendered totally unfit to perform any work requiring physical exertion, and this condition is permanent. Just before the injury he was a healthy, industrious man, thirty-nine years old, a common laborer, working seven days in the week at a daily wage of $5.50. In view of his age, loss of earning power and pain endured and reasonably to be expected in the future, we are unable to say that the verdict of the jury assessing the damage was the result of passion or prejudice, but rather that it had substantial evidence to support it.

Let the judgment be affirmed.


author: Johnson, C. J.,

text:
    Jackson v. Elder.
    4-3180
    Opinion delivered October 30, 1933.

      C. T. Cotham and John H. Freeman, for appellant.

      Houston Emory, C. H. Herndon and Harold Watkins, for appellee.
   Johnson, C. J.,

(after stating the facts). Appellant insists that the Montgomery County Chancery Court had jurisdiction of the parties and subject-matter set forth in his complaint, and cites as authority therefor, first, Big Gum Drainage District v. Crews, 158 Ark. 566, 250 S. W. 865. In this case the drainage district instituted suit against Crews, as collector of Mississippi County, in which it was alleged that Crews, as collector of Mississippi County, had collected certain drainage taxes upon property situated in the district and had failed to account for the same in his settlement with the treasurer of the county, and had failed to account to the district therefor. This court held that the chancery court of Mississippi County had jurisdiction of the subject-matter and parties. This case is no authority for the position here assumed by appellant. The collector in the Crews ease had collected the funds from the property owner and had either failed or refused to account to the district or to the treasurer of Mississippi County therefor, and this court held, in effect, that the district was entitled to judgment against Crews for the sum withheld. ¥e fail to see any similarity between the case at bar and the Crews case. It is insisted that the case of Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579, is decisive of this case. This was a taxpayer’s suit against a collector to require an accounting, and is in no respect similar to the suit here discussed. We are also cited to the case of German National Bank v. Moore, 116 Ark. 490, 173 S. W. 401. This was a suit by a depositor in the bank upon a lost certificate of deposit. Just how this case is thought to be in point is not pointed out in briefs. Our conclusion is that it is no authority for the position here taken.

It will be noted from the allegations of the complaint that this suit was instituted on February 18, 1933, and charged generally that the county court of Montgomery County through mistake wrongfully, erroneously and illegally transferred a credit from plaintiff’s account to that of another. These allegations do not constitute a charge of fraud. On the other hand, they come squarely within the purview of § 10,165 of Crawford & Moses’ Digest as amended by act 339 of 1927, which said amendatory act reads as follows:

“When any error shall be discovered in the settlement of any county officer made with the county court, it shall be the duty of the court, at any time within one year from the date of such settlement, to reconsider and adjust the same.”

Had appellant filed his claim in the county court of'Montgomery County on February 18, 193'3, instead of in the chancery court, he could and would have received adequate relief under his July, 1932, settlement. If relief had been denied him in the county court, an appeal could have been perfected to the circuit court.

This court had many times held that the county court has original exclusive jurisdiction to audit, settle and direct the payment of all demands against the county. Chicot County v. Crews, 47 Ark. 80, 14 S. W. 469; Shaver v. Lawrence County, 44 Ark. 224.

It suffices to say that appellant had a plain, adequate and complete remedy under § 10,165 of Crawford & Moses’ Digest, as amended by act 339 of 1927, which afforded him an exclusive remedy for all the things complained about in his complaint.

For the reasons aforesaid, the decree is affirmed.


author: Humphreys, J.

text:
    Fidelity & Guaranty Fire Corporation v. Goforth.
    4-3169.
    Opinion delivered October 30, 1933.

      Cravens, Cravens Friedman, for appellant.

      Williams & Williams, for appellee.
   Humphreys, J.

Appellees brought suit against appellant in the circuit court of Benton County to recover $1,200 on a fire insurance policy for the loss by fire of their household goods and furnishings which were covered by the policy and for the statutory penalty, attorney’s fee and costs.

Appellant filed an answer denying liability under the policy on the ground that appellees burned said property.

The cause was submitted to the jury upon the pleadings, testimony and instructions of the court, which resulted in a judgment against appellant for $1,524, including penalty and attorney’s fee, from which is this appeal.

Testimony was introduced by appellant tending to show that the fire was of incendiary origin, and that at the time of the fire the appellees were not residing in their home, but with Mrs. Goforth’s father-in-law, who lived about a mile from their home. It also introduced the testimony of Ed Buckmaster to the effect that, between eight and nine o’clock on the night of the fire he met a man coming from appellee’s home, who spoke to him, then struck at him, and then ran away; that he chased the man for forty or fifty yards; that the man was about the same size of appellee, W. P. Goforth; that he had known W. P. Goforth all of his life. At this juncture, appellant’s attorney asked the witness to state, in his judgment, who the person was he encountered. Over the objection and exception of appellant, tbe court excluded tbe question and answer on the ground that tbe witness bad theretofore stated be did not know who tbe person was. Appellant’s attorney then stated that, if tbe witness were permitted to answer, be would state that, in bis judgment, tbe person be saw was appellee, W. P. Go-forth, and offered to make such proof by tbe witness. Appellees objected to tbe offer, which tbe court sustained over tbe objection of appellant.

In view of tbe fact that tbe witness bad known W. P. Goforth all of his life, was close to him and chased him forty or fifty yards, it was competent for him to give bis opinion as to whether it was Goforth. Tbe weight to be attached to bis opinion was for tbe jury. Tbe court committed reversible error in excluding the evidence.

On account of tbe error indicated, tbe judgment is reversed, and tbe cause is remanded for a new trial.


author: Kirby, J.,

text:
    First National Bank of Ft. Smith v. Hudson.
    4-3278
    Opinion delivered October 30, 1933.

      S. W. Woods and Daily & Woods, for appellant.
   Kirby, J.,

(after stating the facts). Under a proper construction of § 2 of said act 24 of 1933, its provisions only require that warrants “properly drawn after the passage of the act shall be presented to the treasurer of the proper county within 30 days after it was drawn by the board of directors, etc.”

Section 4 of the act reads as follows: ‘ ‘ School warrants legally drawn prior to the passage of this act shall be registered and paid in the order of their issuance — date of warrant shall determine the order of issuance — before warrants drawn after the passage of this act are paid, provided, that, if outstanding warrants are not presented for registration within thirty days from the passáge of this act, they shall not.be given priority over other warrants.”

Between the dates of March 25, 1931, and February 9, 1933, there was no provision of the statute requiring the registration of school warrants. Said § 4 above quoted requires school warrants legally drawn prior to the passage of the act to be registered and paid in the order of their issuance before warrants drawn after the passage of the act, and if -such warrants are not presented for registration under the act, they shall not be given priority over other warrants, and that warrants drawn after the passage of the act are required to be presented within 30 days after their issuance, and other warrants outstanding may also be presented within 30 days from the passage of the act and be given priority the same as warrants issued subsequent to the act and registered in accordance with its provisions.

It is obvious that the act does not contemplate requiring the re-registration of any warrants already registered under a valid law; and that such warrants as are issued after the passage of the act are given priority in accordance with the date of their issuance or registration, and that unregistered warrants drawn prior to its passage and presented within 30 days from its passage for registration are also given priority in accordance with its provisions. In other words, it is clear from a proper construction of the statute that its terms were only applicable to unregistered warrants, evidently warrants issued during the time no registration was required, and warrants issued after the passage of tbe law.

The chancellor erred in holding otherwise, and, in overruling the demurrer, and the decree is reversed, and the cause remanded with directions to sustain the demurrer and grant the relief prayed.


text:
    Allison v. Martindale.
    4-3081
    Opinion delivered October 30, 1933.

      P. T. Staggs and O. A. Graves, for appellant.
   Mehaffy, J.

On August 13, 1925, the probate court of Hempstead County, Arkansas, appointed G. H. Martindale as guardian of George W. Killion, an insane person.

A short time prior to May 5,1930, George W. Killion died in the State Hospital. On June 16, 1930, appellant, W. G. Allison, was appointed administrator of 'the estate of George W. Killion, deceased, by the probate court of Hempstead County.

After appellee’s appointment as guardian, he took charge of his insane ward’s property, and filed the following inventory:

Cash ..........................................................................................$6,655.50
Ford coupe ........................................................................ 500.00
Judgment ...............................:.............................................. 600.00
Real estate — Home in Hope, Arkansas... 1,200.00
Total ..............................................................................$8,955.50

The guardian filed several settlements, and on May 5, 1930, filed his fifth and final settlement, which was as follows:

“In the Hempstead County Probate Court.
“Now comes Dr. G. H. Martindale, as the guardian of the person and estate of George W. Killion, and represents to the court that the said George W. Killion has died. And on this the 5th day of May, 1930, the said guardian files his final settlement for said guardianship, charging himself as follows:
“Amount charged to the guardian as of date of January 7, 1930...........................$4,443.64
“And said guardian takes credit for the following expenditures for and on behalf of the estate of George W. Killion:
“Attorney’s fee ............................................................$ 50.00
“Guardian’s commission .................................... 684.25
“Recording mortgage ............................................. 2.00
“Auto license .................................................................. 2.50
“Probate court costs................................................ 10.50
“Balance charged to guardian........................ 3,694.39
“The guardian further represents to the court that of said sum $274 has been invested in a loan to E. A. Allen, secured by a real property mortgage. $300 has been invested in a loan to Mr. and Mrs. J. W. Fowler, represented by a promissory note. $300 has been invested in a loan to R. H. Martindale, represented by a promissory note secured by a lien on a Buick automobile. $600 has been invested-in a loan to T. C. Jobe, represented by a promissory note and secured by a real property mortgage on certain lots in the city of Hope, Arkansas, and $2,220.37 in cash.
“The above final settlement is respectfully submitted to the probate court for confirmation or rejection in due course of law. And I, G. H. Martindale, as the guardian aforesaid, do solemnly swear that the above account is true and correct to the best of my knowledge and belief.
“Signed this the 5th day of May, 1930.
“ Gr. H. Martindale. ’ ’

This settlement was approved by the court on May 13, 1930.

The appellant, the administrator, filed exceptions to the guardian’s report, and the guardian filed demurrer to the exceptions. An appeal to the circuit court by the administrator was taken. In the circuit court, evidence was taken, and on June 3, 1932, the court took the case under advisement, and on October 18, 1932, rendered an opinion, holding that the guardian should be charged with $458.85 interest collected and unreported in the guardian’s settlement, and that he should also be charged with the sum of $26 collected on the E. A. Allen note, and the sum of $50 collected on the Fowler note; and further found that the guardian’s final settlement was correct in all other respects, and judgment was entered accordingly.

The court made certain findings of fact and declarations of law, and refused to find the facts and declare the law as requested by appellant. After the judgment of the court, the appellant filed motion for a new trial, which was overruled, and this appeal is prosecuted to reverse said judgment.

Several witnesses testified, and the settlements made by the guardian were introduced in evidence. We deem it unnecessary to set out the evidence of the witnesses or the documents introduced. There is practically no conflict in the evidence.

The appellee, in his final settlement, took credit for recording a mortgage, $2, when the evidence shows that there was no mortgage recorded; appellee should he charged with this item. He also takes credit in said settlement for $2.50 for automobile license. This item was erroneous and should be charged to him. He also credited himself with $274, a loan to E. A. Allen, and $300 to R. H. Martindale and $300 to Mr. and Mrs. J. W. Fowler. He was not entitled to credit for either of these notes, and the trial court should have so held. These loans were made without any order of court, and without any security.

Section 5059 of Crawford & Moses’ Digest provides that the guardian, under the direction of the court, may lend money of his ward; and § 5061 of Crawford & Moses ’ Digest provides that the guardian shall loan the money of his ward at the highest rate of interest prevailing that can be obtained on unincumbered real estate security, and then not more than to the extent of half the value thereof.

It appears that the loans above mentioned were made without any direction of the court, and without taking security as required by the law. The guardian therefore should not have been credited with these amounts, which aggregated $874.

Section 5065 of Crawford & Moses’ Digest makes it the duty of the court to require the guardian to make report at every annual settlement of the disposition made by him of the money belonging to the ward, and, if it appear that such money is loaned out, then the report must show the person to whom it was loaned, the description of the real estate security, and where situated, and its value, and this report must be sworn to by the guardian and filed in the court.

“It is not the policy of the law to permit a guardian to loan the money of his ward without security. There is a mandatory statute to the contrary. By § 5059, Crawford & Moses’ Digest, it is provided that: ‘Such guardian shall, under the direction of the court, loan the same to such, person as will give good security therefor, and such money shall be loaned on such time as the court shall direct.’ ” McCown v. Edwards, 185 Ark. 620, 48 S. W. (2d) 558; Lee v. Beauchamp, 175 Ark. 216, 300 S. W. 401.

The court allowed the guardian $684.25 as commissions, holding that that amount was reasonable. It may be a reasonable compensation, but in fixing compensation the court should take into consideration all the settlements and the amounts received by the guardian in the first, second, third and fourth settlements to determine whether he would be entitled to any additional compensation, and, if so, the amount of such compensation.

In the guardian’s first settlement, he takes credit for $'203.20 for storage and difference in price of cars. He not only had no authority from the court to trade cars or pay the difference, but certainly the ward in the insane asylum would not need a car, and this $203.20 which the appellee received should have been charged to him in said settlement; also $40 extras on car should have been charged to him; so also should $17.50 for state and city licenses. He also took credit for $50 for amount paid service station for -tires and tubes, and also $12 amount paid garage in Little Bock. In another settlement before the 5th he took credit for $15 for automobile license and $53.64 for repairs on car; $24.32 for tires and battery. In his fourth settlement he takes credit for license on car, $15, and city license, $5; repairs on car, $5.65; $21.30 for materials for repairs on car. These items for which the guardian should not have been given credit amount to $362.61.

The guardian did not get the authority of the court to expend any of this money, and the expenditures for the cars, repairs and licenses were all improper for the additional reason that the ward was not using the car at all, and could not use it, being confined in the asylum.

There are numerous other small items in each settlement that were improper charges against the ward’s estate, but, no appeal having been taken from the order approving the settlements, and no exceptions filed to said settlements, and the time for appeal having expired, these items are considered for the purpose of determining whether or not he should be. allowed commissions.

The items referred to and the other items mentioned for which he was given credit erroneously, amount to more than the compensation allowed him. Since he has received these amounts, to -which he was not entitled, he should not be allowed the item of $684.25 commissions. He should be charged with the amounts the circuit court charged him with, and, in addition to these items, the notes above mentioned and the $2 for recording mortgage and $2.50 auto license.

It is the contention of the-appellant that the order appointing appellee guardian is void. However, the abstract does not show what the order was, and the appellant filed exceptions, prayed an appeal, and tried the case as if he were lawfully appointed guardian. We do not deem it necessary to decide this question.

Most of the items for which appellee has taken credit, except the items above mentioned as improper, would be proper claims against the ward’s estate, and would have to be paid by some one, such as taxes, treatment of the ward, and necessary expenditures for the ward in the way of medical treatment and other necessities.

For the errors indicated, the judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment in accordance with this opinion, and certify the same to the probate court.


text:
    Layes v. Harris.
    4-3175
    Opinion delivered October 30, 1933.

      Robert J. White, for appellant.

      Rhyne & Shaw and Hays & Smallwood, for appellee.
   Mehaffy, J.

The appellee brought suit in the Logan Circuit Court for damages for personal injuries to Dana Harris, a minor. Dana Harris was 15 years of age. She, with her mother and others, were riding home from church in a wagon on highway No. 22, about one mile east of Paris, when an automobile, driven by John Layes, Jr., ran into said wagon. Dana Harris was in the back part of the wagon lying down. The wagon was demolished, and Dana Harris was severely injured. It was about 11:30 o ’clock at night.

There was a jury trial, verdict and judgment against both appellants, and the case is here on appeal.

The evidence on behalf of appellee shows that the wagon was on the right side of the road. There were no lights on the wag’on, and the lights on the automobile were dim. The wagon was near the edge of the pavement on the right side when the car struck it. The car was coming at a fast rate, and hit the center of the wagon bed. The driver made no attempt to pull out, and did not stop.

There is no dispute about the injury to appellee, and there was but little conflict in the evidence as to the manner in which the collision occurred. The instructions are not set out, and it is not contended that the court erred in its instructions to the jury.

The appellant, John Layes, Jr., who was driving the car, said that, when he first saw the wagon, he was within a few feet of it; that it did not have any lights; that he had two headlights, one was bright, and the other a little weaker. He testified that, when he saw the wagon, he turned to the left, but his right front fender and side hit the wagon; that he was about six inches to the right of the black line, going east; that he was going about 35 miles an hour; that, after he hit the wagon, he got seared and kept on going.

As to whether the appellant was guilty of negligence was a question for the jury, and it was also a question for the jury as to whether appellee was guilty of contributory negligence. The jury found against the appellant, and there was substantial evidence to support the verdict as to John Layes, Jr.

The appellee alleged in her complaint that John Layes, Sr., was negligent by permitting a youth under twenty years of age to drive an automobile belonging to him; by sending a youth on a mission for himself, and by permitting John Layes, Jr., to drive an automobile in an unsafe condition when he knew, or had reason to know, that John Layes, Jr., was a careless and reckless driver.

There is some conflict in the evidence as to whether the car belonged to John Layes, Sr., or John Layes, Jr., but this is immaterial, because, in order for the father to be liable for the negligence of his son in driving his father’s automobile, the relation of principal and agent or master and servant must exist, or the father must have permitted his son to drive the car, knowing that he was a careless and reckless driver. There is no substantial evidence that John Layes, Jr., was the agent or servant of his father, or that he was a careless and reckless driver. We deem it unnecessary to set out the evidence on these questions, because it is practically undisputed, and shows clearly that John Layes, Jr., was not the agent or servant of his father, and there is no substantial evidence that he was a reckless driver. Featherston v. Jackson, 183 Ark. 373, 36 S. W. (2d) 405; Norton v. Hall, 149 Ark. 428, 232 S. W. 934; Volentine v. Wyatt, 164 Ark. 172, 261 S. W. 308.

There was no substantial évidence upon which to base a verdict and judgment against John Layes, Sr. It therefore follows that the judgment must be affirmed as to John Layes, Jr., and reversed, and the cause dismissed as to John Layes, Sr. It is so ordered.


text:
    Walker v. Earnheart.
    4-3084
    Opinion delivered October 30, 1933.

      E. W. Moorhead, for appellant.

      Sam T. Poe and Tom Poe, for appellee.
   McHaney, J.

Appellee sued appellant for personal injuries sustained by Mm on the night of December 3, 1931, when he was struck by an automobile driven by appellant. He recovered a judgment against appellant for $10,000. Only two assignments of error are urged for a reversal of the judgment: (1) That the appellee was guilty of contributory negligence as a matter of law and that the court should so have instructed the jury at his request, and (’2) that the verdict is excessive.

The question of the contributory negligence of appellee was submitted to the jury under instructions requested by both parties, and, by its verdict, the jury has found that appellee was not guilty of contributory negligence. The facts are that, on the night of December 3, 1931, about 7:30 p. m., on a dark and rainy night, appellee was walking north on Main Street in North Little Rock and, at the time of the accident, was crossing 16th on the east side of Main Street. Appellant was driving west' on 16th Street at the rate of 10 or 15 miles an hour and drove his car upon appellee, striking him with his left fender and left headlight, without seeing him until he felt the impact of the car against him. Appellee was struck witk suck force as to knock Mm eight or ten feet distant. Aippellee saw the car approaching from the east, but assumed the car would stop, because at that corner on the east side of Main Street and in the center of 16th Street there is a stop button or sign which required all vehicles to come to.-a stop before entering Main, but appellant freely admitted that he failed to obey this stop button or sign and failed to see appellee until after he had struck him. Appellee testified that the car had only one light on it and that he thought that it was a motorcycle, but that when he discovered that it was a car, it was right on him, and he tried to jump back, but was struck. Appellant was familiar with the street crossing, and knew that there was a stop sign or button there. Under this state of facts, we think the court correctly refused to instruct a verdict for appellant on the ground that appellee was guilty of contributory negligence as a matter of law. The general rule is that a pedestrian has the same right .to the use of a public street as the driver of a motor vehicle, and that each is obliged to act with due. regard to the movements of the other, and neither is required to anticipate the negligence of the other. The rule is thus stated in Murphy v. Clayton, 179 Ark. 225, 15 S. W. (2d) 391: “Drivers of automobiles and pedestrians both have a right to the street, but the former must anticipate the presence of the latter, and exercise reasonable care to avoid injuring them. Care must be exercised commensurate with the danger reasonably to be anticipated. What is ordinary care is a relative term dependent upon the facts and circumstances of each particular case. The question of contributory negligence is one for the jury whether the pedestrian, in crossing the street at an established crossing, has exercised such care as a person of ordinary prudence would exercise for his own safety under the circumstances.” Citing cases. Whether the rule would be different where the pedestrian was crossing the street other than at the established crossing, as contended by appellant in this ease, it is not necessary to inquire, as the appellee and the other witnesses to the accident, including appellant, testified that he was struck at an established crossing. The fact that appellee was picked up after the accident by appellant and another witness some distance east of the concrete on Main Street is not conclusive that he was not on-the established crossing when he was hit. The court correctly, therefore, submitted the question of appellee’s contributory negligence to the jury.

As to the excessiveness of the-verdict, the evidence is in conflict as to whether appellee has been permanently injured. All the witnesses agree that appellee was a large able-bodied man, very strong and active before the injury. He was confined to his bed and home for three weeks, during which time he was attended almost daily by his physician, and thereafter appellee called at the physician’s office for treatment until sometime in March, 1932, during all of which time appellee complained of suffering considerable pain. He is a railroad man, and at the time of the injury was a brakeman for the Missouri Pacific Railroad Company, but was working only occasionally, being on what is called the emergency board. One of appellee’s physicians testified that his right shoulder was severely injured, the ligaments torn, and that he is suffering some ankylosis therein, as that shoulder is stiff, and that he will suffer therefrom the rest of his life. Also that he received an injury in the lower part of his back, resulting in a fracture of the articular process of the fifth- lumbar vertebra, which was also a permanent injury. Also that he found red blood cells in his urine on several examinations which indicated an injury to the kidneys, causing a hemorrhage. Appellee testified that, since the injury, he had suffered pain practically all the time in his back and shoulder; that he had frequent urinations, and that he was unable to perform the duties of a railroad brakeman as he formerly had. Under this state of the record, we are unwilling to substitute our judgment for that of the jury. By this verdict the jury has said that it believed the testimony of appellee’s witnesses as to the nature and extent as well as the severity and permanency of his injuries. "While their testimony is contradicted by that of other eminent physicians, we cannot say their testimony is not of a substantial nature. We are therefore required to take their testimony as reflecting the truth on this phase of the case. Texas Pipe Line Co. v. Johnson, 169 Ark. 235, 275 S. W. 329.

No error appearing, the judgment is affirmed.


text:
    Board of Conference Claimants v. Phillips.
    4-3159.
    Opinion delivered October 30, 1933.

      Abe Collins, for appellant.

      Lake, Lake & Carlton and E. K. Edwards, for appellee.
   Butler, J.

This proceeding had its inception in an action brought by the State, under the provisions of act No. 296 of the Acts of 1929, to quiet its title to lands previously forfeited to the State for the nonpayment of taxes. Included in these lands were 230 acres in Sevier County which in 1929 had forfeited to the State for the delinquent tax of 1928. This suit resulted in a decree rendered October 26, 1931. After the institution of the suit, but before the rendition of the decree, the State, acting through the Commissioner of State Lands, and in conformity to law, conveyed to Floyd Phillips all the State’s title acquired by reason of the sale to it for the delinquent taxes and which it might acquire by virtue of the confirmation proceedings then pending. On the 14th of January, after the decree was rendered, appellant intervened, setting up a claim of ownership and, without asking that the decree be set aside, prayed that the State’s complaint be dismissed, that appellant be made party defendant, and the forfeiture to the State set aside and its deed to appellee canceled.

Appellee filed answer, proof was taken, and the case submitted. Thereafter, at the regular October term, 1932, of the court, appellant filed an amendment to its answer and motion to reopen the case and prayed for relief as in its original complaint. The case was continued to December 13, 1932, on which date appellant filed a second amendment, alleging that there was no> levy of the eighteen-mill school tax, which tax was included in the amount for which the lands were assessed, returned delinquent and sold to the State, concluding with the original prayer and an additional prayer that the decree of October 26, 1932, be set aside. To this amendment a motion to strike was filed, and was by the court sustained.

On the pleadings and proof adduced, the court rendered a decree dismissing the intervention of appellant, from which is this appeal.

Act No. 296, supra, under which the suit was brought to quiet the State’s title, authorized such a proceeding to quiet title to forfeited lands where the right of redemption had expired and providing for notice to persons having any interest therein and permitting such to defend for any informality or irregularity connected with the sale, or for any other cause which rendered the sale void upon which the State’s claim of title was based. It provided that, if'no defense was interposed and successfully maintained, a decree should go quieting the claimant’s, title and curing all irregularities or informalities connected with the proceeding; but, if the claimant intervening should successfully set up any reason why the sale was void, the decree should go quieting his title free from the claim of the State upon payment of total tax, penalty and costs, tender of the same having been previously made. The act provided that, where no successful defense had been interposed, the decree of the court confirming the sale to the State should operate as a complete bar against any and all persons who might thereafter claim any of said lands in consequence of any informality or irregularity in the proceedings, and title to the land should be considered as confirmed and complete in the State forever. The act gave, however, to those laboring under certain disabilities, the right to appear and contest the State’s title to the land within one year after removal of disability, and also gave to the owner of any lands embraced within the decree one year from its rendition to have the same. set aside as to him in cases where he had no knowledge of the pendency of the suit and where he was able to set up a meritorious defense to the complaint on which the decree was rendered.

The defenses set up in appellant’s intervention and claimed as meritorious were three in number. First, that the clerk and collector failed to comply with the terms of an act approved May 8, 1899, now § 10,017 and § 10,043 of Crawford & Moses’ Digest. This act required that the clerk should furnish the collector, thirty days before he began to collect taxes, a complete list of all delinquent lands in the county showing the names of the owners at the time same were forfeited and describing the lands accurately, and making it the duty of the collector to post in three conspicuous places at each collecting precinct a printed copy of said delinquent list of lands, and requiring him to notify each taxpayer who desired to pay taxes on lands before forfeited to the State, through mistake or otherwise, of said forfeiture. The second defense assigned was that the clerk failed to post and keep posted in or about his office for one year a copy of the notice of sale and of a list of the delinquent lands, as provided by § 10,084 of Crawford & Moses’ Digest. The third defense alleged was that the school tax included in the total taxes for which the land was returned delinquent and forfeited to the State was not properly levied.

These questions will be discussed in the inverse order, for the last two, if sustained, will present such defense as if established would entitle the appellant to the relief prayed if we assume they were presented within the time allowed by the act.

It is insisted, on the third ground for reversal, that the records in the office of the county clerk failed to show that the result of the school election was certified to the county board of education and that that board certified such results to the county court as provided by § 8878, Crawford & Moses’ Digest, and therefore the sale in 1929 for the tax delinquent for 1928 including the school tax for the district in which the lands were situated, was void, as held in Thomas v. Spires, 180 Ark. 671, 22 S. W. (2d) 553.

The only record offered in evidence to sustain this contention was that of the proceeding of the county levying court which made the levy for the year 1928 in which was included a levy of the eighteen-mill school tax for the district in which the lands involved lay. Because of this, it is contended it will appear that neither was there a certificate made to, or by, the county board of education of the result of the school election, and that the said record shows that the tax was attempted to be levied by the justices as “a committee of the whole,” and not as “a quorum court.”

The record denominates the proceedings “a term of the quorum court begun and held in the courthouse of the city of De Queen, Sevier County, Arkansas, on November 12, 1928, at ten o ’clock a. m., the same being the second Monday in November and the time and place prescribed by law for holding the quorum court for the purpose of levying taxes and making appropriations for the ensuing year beginning on the first Monday in November, 1928.” Then follows the opening order naming the presiding judge, clerk and sheriff and the justices present, the same being a majority of all the justices of the peace in the county. Then follows, among other things, the report of “the committee on canvas in the tax levy of all the school districts” in which it appears that the county superintendent of schools reported the tax voted at the school election of the several districts in varying amounts in all of the districts, save in one in which no election was held on the day fixed by law, and that a special election was held therein on a subsequent day which was by the county board of education declared void. Following the list of districts appears the following: “And, upon motion of the court as a committee of the whole, all voting in the affirmative, the said amount of tax set opposite each list be, and the same is, hereby in all things levied.” This record was signed by the county judge and the justices of the peace.

By the terms of § 8878, providing for the canvas and certification of school elections, there is no requirement that the certificate of the result of the election be incorporated in the record of the proceedings of the quorum court. The provision is that, after the county board of education shall have canvassed the returns, it shall certify the result to the county court for proper record. This action of the board is. made through the county superintendent who is the agent of the board for that purpose and clothed with the duty of keeping the record of the county board of education and of filing with the county clerk a copy of the proceedings relating, among other things, to the apportionment of the State school funds made to the county, the school district tax voted, etc., and the county clerk shall make official record of such proceedings of the county board of education in a separate or special record book provided for such purpose, etc. Section 4, act 503,1921.

The county board of education and the county superintendent of schools are public officers, and it is to be presumed that they have performed the duties imposed by law. Since the proceedings of the county board of education, included in which is the certificate of the result of the school election, are required to be by the county clerk recorded in a special record book, the record of the proceedings of the quorum court would not be the proper place where such record might be found, as it is not “the special record book” prescribed. If, in fact, there had been no such certificate made or filed by the county board of education, that might have been proved in the same manner as was done in the case of Thomas v. Spires, supra.

The record affirmatively shows that all the proceedings of the county judge and justices were the acts of the quorum court, and it would be immaterial that they were designated as “acting as a committee of the whole,” as this would in no way alter the legal effect of the proceedings.

On the second point raised, the question whether the delinquent list was posted “in or about the office of the clerk before the day of sale and for one year thereafter, ’ ’ was one which was determined by the court adversely to the contention of the appellant on evidence which we think justified the conclusion reached. Several witnesses testified that they did not observe any such notice posted on the walls of the office previous to the sale in 1929 for the delinquent taxes of 1928, or at any time during the year following. But none of these witnesses stated that there was not in fact any such notice posted, and none gave any reason why their attention should have been directed to this matter. The clerk, on the other hand, gave positive testimony that he had in fact posted the list and notice of sale and kept same posted in a proper place and for the required period.

Adverting to the first reason assigned for reversal, we are of the opinion that the duties imposed upon the clerk and collector by the act of May 8, 1899, now §§ 10,017 and 10,043 of Crawford & Moses’ Digest, do not relate to or affect the validity of the sale, or serve to alter the law governing the right of redemption. When lands have been forfeited to the State for delinquent taxes, it is no longer subject to taxation, and, where taxes are erroneously paid thereon, the remedy for their recovery provided by §§ 10,180 and 10,181 of the Digest was such that the trouble and expense did not justify its invocation where small sums were involved, and, as a consequence, the tax erroneously paid would be lost by the individual. The act of 1899 is composed of four sections. The first two sections make it the duty of the clerk to furnish the collector with a list of delinquent lands, and of the latter to post the same at the places in the county which he attends for the purpose of collecting taxes. Section 4 provides that the act “shall not repeal any law on this subject,” and in.§ 3 the reason and purpose of the act may be discovered. That section is as follows: “It is hereby made the duty of said collector to notify each taxpayer who desires to pay taxes on lands heretofore forfeited to the State, through mistake or otherwise, of said forfeiture.” The reason for the act appears to have been the difficulty in recovering taxes erroneously paid and its purpose was to obviate the necessity for the expense and delay incident to their recovery, by advising the taxpayer of the forfeiture to the State.

Appellant calls attention to statutes of other States providing for notice after the sale of that fact and the time in which redemption therefrom is allowable; and the effect given to these statutes by the court, which is, that failure to comply with their terms holds the title derived from the sale in abeyance, or renders it, as some courts hold, void, and by others, as postponing the right of redemption beyond the time when notice as required by the statute was given. These authorities have no application to the statute here under consideration for the reason, as we have seen, that its purpose was otherwise than that of the statutes and adjudications to which we have been referred.

The result of our views is that the sale of 1929 is not subject to the attack made in the case at bar, and was effectual to convey complete title to the State. For this reason, it becomes unnecessary to determine the effect of the confirmation decree or to decide whether or not it would inure to the benefit of the appellee for, if there were no irregularities or informalities in the conduct of the sale, or in the proceedings relating to the levy of the tax, the title to the lands would vest in the State, and there would be no necessity for a decree confirming the same.

It follows from the views expressed that the decree of the trial court is correct, and it is therefore affirmed.

Johnson, C. J., disqualified and not participating.


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    Gray v. McDermott.
    4-3116
    Opinion delivered October 9, 1933.

      John Sherrill, for appellant.

      E. B. Dillon and Sam Robinson, for appellee.
   Johnson, C. J.,

(after stating the facts). At the conclusion of the testimony on behalf of appellees in the circuit court, appellant requested the cdurt to direct the jury to return a verdict in her behalf. This peremptory instruction was refused by the trial judge, and we think reversible error was committed in so doing.

The law in this State in reference to the liability of a physician or surgeon in the prosecution of his professional services is well settled by this court and may be restated as follows:

A physician is required to possess and exercise the degree of skill and learning ordinarily possessed and exercised by members of his profession in good standing in the same neighborhood, and must use reasonable care in the exercise of his skill and act on his best judgment. Dunman v. Raney, 118 Ark. 337, 176 S. W. 339.

In the instant case there are only two alleged grounds of negligence, namely, first, that appellant was negligent in failing to ascertain that the vein was severed by the bullet on August 24, 1930; second, that appellant was negligent in failing to ligate both ends of the vein in the operation on September 3. The first allegation of negligence is bottomed upon the fact that the doctors were negligent in failing’ to open up the wound to determine whether a vein or an artery had been severed by the bullet.

Appellee introduced no testimony on this point. Appellant introduced five or six physicians and surgeons who testified in the most positive terms that in their opinion it would be bad practice to go into a wound for the purpose of ascertaining whether a severance of a vein had taken place. All the physicians and surgeons who testified in the case agreed that this bullet wound was in a vital spot in the body, and any probing into the wound might cause a puncture of the axillary artery, axillary vein or the nerve controlling the arm, and that the severance of any or either of these would greatly endanger the life and chances of recovery of the patient. All the physicians further testified that the only purpose of entering the wound on August 24 would have been to stop the hemorrhage, and, since the hemorrhage had stopped prior to the visit of the doctors, it would have been an unreasonable procedure to have entered the wound. Furthermore, that the entrance to the wound at that time might carry therein an infection, and, since gunshot wounds frequently sterilize themselves, it was much better to await developments after giving antitoxin.

Furthermore, should a hemorrhage thereafter occur, it could later be discovered, either by the flow of blood or by a clot forming at or near the site of the injury and also from an examination of the pulse or his ability to manipulate his arm. Dr. Hoge, the only expert witness introduced on behalf of appellees, does not controvert this testimony. We conclude therefore that there was no testimony in support of appellee’s allegation that appell ant was negligent in failing to enter the wound on August 24, 1930, or subsequently.

On the second issue of negligence, namely, that appellant was negligent in failing to ligate both ends of the vein on September 3, the testimony is likewise uncontradicted. As we understand the record, all the expert witnesses testified and agreed that, where a vein is recently severed] both ends should be ligated, but there is no testimony in this record showing or tending to show that this procedure should be followed where a hole had sloughed off in the vein some days after the original injury, and which was not discovered until after sufficient internal bleeding' had taken place to form two blood clots the size of a lemon. As we ascertain from the record, all the physicians agree that it would be the duty of the operating surgeon, under such circumstances, to tie off the bleeding end of the vein, and that -it would not be his duty to tie off the end which was not bleeding. According to the physicians’ testimony, this is so because after some length of time blood clots would necessarily form in the vein on the proximal end, and that to manipulate this end of the vein would very likely disturb the clot.

It is true Dr. Hoge testified that if a section of the axillary vein was taken out, both ends of the vein should be ligated, but this testimony in no wise conflicts with the testimony on behalf of appellant. No part of this vein was being removed. It was either severed by the bullet on August 24, 1930, or else sloughed off at some later date, thereby producing a hole in the vein and the hemorrhages which produced the blood clots. Therefore, since the uncontradicted testimony shows that this vein was severed at some date prior to September 3', 1930, and the operation on that date was made necessary by reason of such severance, it necessarily follows that the testimony of Dr. Hoge does not conflict with that of appellant’s witnesses and made no issue for the jury to pass upon.

The question as to whether or not it was proper or improper for the physicians in charge to open up the wound or probe into it on August 24 or some subsequent time thereto to determine whether or not a vein had been severed by the bullet; and also the question as to whether the physicians were negligent in failing to ligate both ends of the vein on September 3, when the operation was performed, were questions requiring scientific knowledge to determine. It cannot and should not be left to a jury to speculate whether or not the experts in the practice of their profession have pursued the proper course of procedure. Davis v. Rodman, 147 Ark. 385, 227 S. W. 612.

The uncontradicted testimony in this case shows that the deceased received from his attending physicians, including Dr. Gray, the degree of skill and learning ordinarily possessed and exercised by members of their profession in good standing in this neighborhood, and that they used reasonable care in the exercise of their skill while attending him after he was shot, and that they exercised their best judgment in administering their services. This is all that is required of physicians and surgeons in this State. It may be that some outstanding surgeon could have or would have done something for Mr. McDermott that was not done by these physicians, but this is purely speculative in so far as this record is concerned. Moreover, this is not the test to be applied in cases of this kind. Reasonable care, skill and learning is all that is required.

For the reasons aforesaid, there is no liability shown by the testimony, and the trial court erred in refusing to so direct the jury.

Since there is no testimony showing liability against the appellant and the cause of action seemingly having been fully developed, the cause of action is here dismissed.


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    Porter v. State.
    Crim. 3845
    Opinion delivered September 25, 1933.

      Mark E. Woolsey, J. P. Clayton and Evans & Evans, for appellant.

      Hal L. Norwood, Attorney General, and John H. Caldwell, Assistant, for appellee.
   Johnson, C. J.,

(after stating the facts). There are three questions presented for determination by this court, namely; first, did the trial court err in refusing to arrest the judgment of conviction; second, did the trial court err in refusing to give to the jury appellant’s requested instructions number 4 and 6; third, did the trial court err in propounding- to the witness, T. A. Watson, the questions set forth in the statement of facts?

Considering the first question presented for determination, § 2009 of Crawford & Moses’ Digest reads as follows:

“Fraudulent Warrants. If, upon adjudication of any warrant by the county court, it shall be found to have been fraudulently or wrongfully issued without due authority from said court, the court shall indorse such fact thereon and cause it to be deposited, without renewal, in the office of the clerk of said court. Any clerk who shall fraudulently or wrongfully, without authority of law, issue any such warrant shall be deemed guilty of a felony, and upon conviction thereof shall be imprisoned in the penitentiary for not less than one year and not more than three years.”

The insistence is that the indictment does not allege that the county court of Franklin County made an adjudication that the warrant was fraudulently or wrongfully issued, and that it does not charge that such finding was indorsed upon the warrant, and that it does not charge that the warrant was thereafter deposited with the clerk, and indorsed “without renewal.” It is conceded that the indictment follows the latter half of this section. The insistence is that the use of the words “any such warrant” as they appear in the latter half of the section has reference to “shall indorse such fact thereon and cause it to be deposited,” as the phrase appears in the first half of the section. We cannot agree with this contention. We think that the words “any such warrant” has reference to the words “fraudulently or wrongfully issued,” and with this construction the indictment charges a crime substantially in the language of the statute. It is our conclusion that a criminal violation is charged in the indictment and that the trial court committed no error in refusing to arrest the judgment of conviction.

The next insistence for reversal is that the trial court erred in refusing to give to the jury appellant’s requested instructions numbered 4 and 6. This insistence has been carefully considered, but we find that these instructions are fully covered by other instructions given by the trial court. Conceding, without deciding, that the requested instructions numbered 4 and 6 are correct declarations of law, there was no error in refusing to give them, because they are fully covered hy instructions which were given.

It is finally insisted that the trial court erred in interrogating- the witness, Watson, while on the witness stand, and the cases of Sharp v. State, 51 Ark. 147, 10 S. W. 228, 14 Am. St. Rep. 27, and Arkansas Central Railroad Company v. Craig, 76 Ark. 258, 88 S. W. 878, 6 Ann. Cas. 476, are called to our attention in support thereof.

In the Craig case, cited supra, this court said:

“A trial judge has the right to propound such questions to witnesses as may be necessary to elicit pertinent facts; but this must be done in a reasonable and impartial way, so as not to indicate his opinion of the facts.”

We think that the questions propounded by the trial court in the instant case are both reasonable- and impartial, and that they could not and did not influence the jury in any improper way. There is nothing in the questions propounded to indicate that the trial court had any opinion as to the guilt or innocence of the accused.

No error appearing, the judgment is affirmed.