text:
    Keith v. Drainage District No. 7 of Poinsett County.
    Opinion delivered April 4, 1932.

      G. T. Carpenter, for appellant.

      Chas. D. Frierson, for appellee.

      Archer Wheatley, amicus curiae.

   Humphreys, J.

This is an appeal from a judgment of the circuit court of Poinsett County dismissing appellants’ petition for a writ of mandamus to compel the commissioners of Drainage District No. 7 of Poinsett County to pay appellants’ judgment against it out of the revenues of said district.

The only two questions of importance involved on the appeal under the pleadings and testimony are: First, whether appellants’ right to have their judgment satisfied out of the revenues of said district is superior and paramount to liens created on said revenues for money with which to construct levees and other improvements incident to said district; second, whether mandamus is an available remedy.

Appellants’ judgment was obtained for the value of lands taken by the district under the power of eminent domain vested in it. For a full statement of the facts under which said judgment was based and the judgment itself, reference is made to the case of Keith v. Drainage District No. 7 of Poinsett County, reported in 183 Ark. 384, 36 S. W. (2d) 59. Compensation for lands thus appropriated is guaranteed by the Constitution of 1874, art. 2, § 22, which is as follbws:

“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 .just compensatibn • therefor. ’ ’

This provision of the Constitution is impliedly written into and becomes a part of every mortgage, bond, or conveyance of real estate thus acquired for the purpose of obtaining money to make improvements incident *to any district. • The property and revenues arising therefrom by taxation or otherwise carries the burden of paying the owners for real estate thus appropriated. This rule or principle of law was announced in the case of Organ v. Memphis & Little Rock Railway Co., 51 Ark. 235, 11 S. W. 96, which principle finds support in the great weight of authority.

The trial court found in the instant case that the commissioners had revenues sufficient to pay the judgment of appellants, but that they had been pledged to the payment of bonds issued and sold to procure money with which to build levies and make other necessary improvements, and declared as a matter of law that the bondholders were preferred on account of such pledge over the judgment obtained by appellants. The finding of fact that there are sufficient revenues to pay the judgment of appellants is supported by the weight of the testimony. The finding of fact that the commissioners of the district pledged the revenues to the payment of the bonded indebtedness is also supported by the weight of the evidence. The declaration of law by the court to the effect that the bondholders’ lien on the revenues of the district were superior to appellants’ judgment claim was erroneous. In so declaring, the court disregarded the constitutional guaranty, as well as the rule announced in the Organ case, supra. Appellants ’ judgment was a lien on the revenues of the district paramount to the lien of the bondholders,

It clearly appears from this record that the remedy now invoked is the only adequate remedy available to appellants. According to the record before us, the remedy by execution proved fruitless and will continue to do so. The only lands owned by the district are tax title lands that no one seems willing to buy. It is argued, however, that mandamus will not lie against the commissioners because it is discretionary with them as to which claimants they will prefer and pay out of the revenues. They have no such discretion. It was their duty to pay for lands taken for the purposes of the district out of the revenues derived by taxation in the district, under the constitutional provision quoted above, to the exclusion of all claimants thereto not in their class.

On account of the error indicated, the judgment dismissing appellants’ petition is reversed, and the cause is remanded with direction to the circuit court to issue a writ of mandamus compelling the commissioners to pay appellants ’ judgment out of the revenues of the district.

Smith and McHaney, JJ., dissent.


source: Caselaw Access Project

author: Kirby, J.,

license: Public Domain

text:
    Missouri State Life Insurance Company v. Ross.
    Opinion delivered April 4, 1932.

      Allen May, J. R. Burcham, Chas. Frierson, Jr., and Chas. D. Frierson, for appellant.

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

(after stating the facts). Appellant insists that the insurance company, under the policy and application therefor, upon default in the payment of premiums without any further written request for “automatic premium loan” had the right to charge the delinquent premiums against the insured as such “automatic premium loans,” and, having done so, even if it had no such right without the written request, its action having been acquiesced in by the insured, the beneficiary was thereafter precluded from recovering anything under the lapsed policy upon the theory that, if it had issued extended insurance instead of payment of premiums under the. “automatic premium loan” provision, the policy would have been continued in force until after the death of the insured.

The parties both evidently understood and construed the contract alike in the application of the “automatic premium loans” to the payment of premiums, the insured being regularly notified thereof and making no objections whatever to such procedure; and their construction of the contract is entitled to great weight in the correct interpretation. Craig v. Golden Rule Life Ins. Co., 184 Ark. 48, 41 S. W. (2d) 769.

The insured paid very few premiums except with the benefit of the “automatic premium loan,” and was repeatedly notified of the failure to pay such premiums and finally of the lapse of the policy almost two years before his death. He evidently recognized the correctness of the claims of his failure to pay the insurance premiums when due and the application by the appellant company of the “automatic premium loans” to their payment, and made no objection whatever at any time to such procedure nor any protest or objection to the correctness of the company’s notification of the lapse of the policy on September 24, 1928.

■Certainly this was acquiescence in the application of the “automatic premium loans” by the company to keep the insurance in force as well as in the correctness of its notification of the forfeiture of the policy because of the failure to pay the premiums, and was binding on the beneficiary who- must stand in the shoes of the insured and be bound under the terms of the policy issued.

She could not, therefore, upon learning after insured’s death that the application of the cash surrender value of the policy at a particular time during its life to the purchase of extended insurance, instead of its being used for the payment of premiums under the “automatic premium loan” provision, as was done with acquiescence of the insured, change the application of the cash surrender value to the purchase of extended insurance in order to keep the policy in force beyond the date of the insured’s death, entitling her to recover thereon. Mass. Mut. Life Ins. Co. v. Jones, 44 Fed. (2d) 540.

It follows that the court erred in holding otherwise, and must be reversed on that account, and, the cause appearing to have been fully developed, it will be dismissed'. It is so ordered.


author: Mehaeey, J.

text:
    Altman-Rodgers Company v. Rogers.
    Opinion delivered April 4, 1932.

      Miller <& Tingling and Busbee, Pugh $ Harrison, for appellant.

      Tom W. Campbell, for appellee.
   Mehaeey, J.

The appellee brought suit in the White Circuit Court against the appellants to recover damages for an injury received on October 23, 1930.

Appellee was employed by appellant as nightwatchman at appellant’s mixing plant in White County. He went on duty on October 23d about six p. m. His working hours were from 6 p. m. to 6 a. m. Appellee kindled a small fire about 50 yards from the crane where he was injured, and then went down to the detour where A. O. Lyles was on duty, detouring traffic.

In perfoiuning his duties, appellee would make trips about the premises at intervals, and, in connection with the performance' of his duties, he carried a lighted lantern. Appellant’s equipment included a crane, which was mounted on caterpillar tracks and operated by means of a gasoline motor. Underneath, the rear part of the crane was a gasoline tank of about 50 gallons capacity. This tank had to be filled from the inside of the crane.

Under the tank was a place from which gasoline could be drained out of the tank by unscrewing a three-eighths inch plug from a drain cock. The gasoline tank was filled from ten-gallon cans, which were kept in the oil house of appellant, about 50 yards from the crane. Appellant also had a five-gallon water bucket which was used to fill the radiator of the crane.

While the appellee was with Lyles at the barricade, appellee’s seventeen-year-old son, Herbert Rogers, and Robert Akin drove up in a Ford car. Appellee got in the car with them and drove down to the mixing plant. At about 7:30 or 8:00 appellee took his lantern and went to the crane, and a quantity of gasoline was either spilled or poured on him, and was ignited, and appellee was severely burned. He was carried to the doctor’s office and then taken to the hospital at Beebe, where he remained until December 24, 1930.

It is appellee’s contention that a can partly filled with gasoline was negligently left at the crane, and that this fell on him, pouring gasoline over him, which was ignited by the lantern that he was carrying.

It is the contention of the appellant that appellee got burned while getting gasoline out of the tank under the crane, for the purpose of supplying his son’s car; that the employee, who it is alleged put the gasoline on the crane, was not engaged in labor on October 23 for the appellant, and that the witness who moved the gasoline can was not at the time working for the appellant, and that appellant was guilty of no negligence in connection with the accident and injury,'and is not liable to the appellee.

There was a verdict and judgment for the appellee, and the case is here on appeal.

Appellant’s first contention is that there is no substantial evidence to show that appellee’s injuries were caused by any negligence on the part of the appellant.

. W. H. Rogers, who is not a relative of the appellee, testified that he lived at Jacksonville, and worked for the Altman-Rodgers Company in October, 1930, and was working for appellant on the 23d -day of October, 1930, the day appellee was injured; that he was batching up the material, and that between five and six o’clock that evening he went to get his raincoat, which was lying on the crane; that there was a 10-gallon can sitting on the crane about half full of gasoline. He had to pick up the can and move it over to get his raincoat. It was a 10-gallon can, and open at that time; the sides of the. can were straight. This witness then, on cross-examination, described the openings in the crane, the situation and the place where the gasoline can was sitting, and he was cross-examined at length about the bucket or can that was on the crane, and whether the one exhibited was the same or a different one.

E. L. Walker, one of the appellants, testified • that he was working for appellant company at the time of the injury; that appellant company owned a filling station near the cranes, and that he attended to the filling station; was their gasoline man, and that it was his duty to furnish gas and oil for all the trucks and machines, and to check up when they needed it; that he usually filled the tank about 5:30, or around quitting time; that he was at the Altman-Rodgers place on the afternoon of October 23; that the mixer did not run that day, but that he was there and filled up the tank and filled up some trucks; that on the evening of October 23 he filled the gasoline tank on the crane; that he carried the gasoline from the filling station to the crane in a 10-gallon can. About the time he got through filling the tank, he had some left; the can was about half full; that it was his custom to carry any gasoline that he had left in the can to the filling station, but on that day he left the can sitting on the crane, where Rogers said he moved it to get his raincoat; that about the time he got through filling the tank some one called him, and he stepped off and carelessly forgot the gasoline can; that he did not intend leaving it there; that was the same evening that appellee got burned.

W. H. Rogers also testified that after the appellee was injured he became nightwatchman on November 6 after the accident; that in February he moved into the office and found some time.sheets under Stallcup’s desk rolled up in a bundle; he had heard the talk that Walker was not working on October 23, and that he and Pitts Morris, who was there with him, got to talking about it and looked at these time sheets, and saw that Walker had four hours on October 23d.

It appears therefore that there was substantial evidence to submit to the jury the question as to whether Walker, at the time he left the gasoline, was in the employ of the company in the performance of his duties. It is true that this evidence was contradicted by appellant’s witnesses, who testified that Walker was not working that day. Wherever the evidence is in conflict, it is the province of the jury to determine the weight of the evidence and the credibility of the witnesses, and this question was submitted to the jury under proper instructions.

This court does not pass on either the credibility of the witnesses or the weight to be given to their testimony. If there is substantial evidence to support the verdict of the jury, this court cannot set aside the verdiet, although it might appear that it was against the preponderance of the evidence.

Appellant contends that appellee got burned while getting gasoline out of the gasoline tank underneath- appellant’s crane for the purpose of supplying the Ford car in which his son, Herbert, had driven up from Beebe. There is no evidence to support this theory. In fact, the evidence introduced by appellant contradicted this theory.

The evidence of young Rogers and Akin was introduced by appellant, and their evidence contradicts this idea, and also contradicts the idea that some one else was stealing gasoline, and, when appellee went to the crane, gasoline was thrown on him. Both these witnesses testify that there was nobody present at the crane, and Alexander testified that he was where he could see the crane and saw no one about the crane. It is contended, however, that there were persons there, because witnesses testify as to statements made by appellee immediately after the accident.

The undisputed proof shows that appellee was severely burned, and witnesses, including the nurse at the hospital, testified that it was the most severe burn they had ever seen. The jury had a right to believe the appellee when he said he did not make these statements.

However, if he had made the statements and admitted it, this fact would simply have gone to his credibility as a witness, and the jury might still believe that he told the truth when he testified on the witness stand.

Appellant introduced an article in the Arkansas Democrat in which it was stated that somebody was at the crane stealing gasoline, and that they threw the gasoline over appellee.

Appellee testified that he never wrote the article, that he never authorized any one to write it, and that he knew nothing about it and did not make the statement.

It does not appear from the evidence why the doctor and nurse wanted to get a statement from appellee at the'time, when they knew he could not sign it, and his condition was such that the nurse admits that he had to lie down before he could complete his statement. She said he was sitting up in bed when he started the statement. The notary public says that he'not only did not sign the statement, but that he did not swear to it, and that he could not raise his hand, and it does not appear why the doctor and- nurse brought in a notary public for the purpose of taking his statement when he was in this condition, but, if he had made and signed the statement, and had admitted that he did, yet the jury had a right to believe his evidence, in which he described his condition, and told how the accident occurred.

The nurse, although she testified about discussing with appellee the statement published in the Democrat, finally admitted that she did not read it to him, that he did hot at any time state that he authorized the article, nor that he had any knowledge of it; that she did not read it to him, and did not tell him anything about it.

Dr. Sloan, whose statement was introduced by appellant, testified about appellee’s condition when he was at the hospital; that he came there between 7:30 and 9 o’clock on the evening of October 23, and remained in a semi-conscious condition about 48 hours, and he had considerable delirium after that. His mind was clear after he got over the shock, but he had considerable delirium all the way through, and that delirium periods kept up until some three or four weeks before he left the hospital. The burns were not healed when he left the hospital.

Appellant introduced evidence as to finding pliers, supposed to be used to take the plug out pf the gasoline tank, and introduced a can and bucket, and also evidence that the gasoline had burned right under the tank where the gasoline could be drained out, and that there was no sign of fire on the side of the crane.

It is contended by appellant that appellee was stealing gasoline, and that it kvas ignited from his lantern, and that this caused the injury to appellee. They also contend that some one else was stealing gasoline and threw the gasoline on appellee, and that this was the way it occurred.

The jury might have believed that appellee could not, under the evidence in the case, have been getting gasoline from the tank, and after getting the gasoline screwed the plug in tight. They certainly would not have believed that he put the plug in tight, as appellant’s witnesses say, after the burn, and they might have believed that, if other persons had got the gasoline and screwed the plug in tight before appellee got there, they would not have waited and thrown the gasoline on him, but would have gone on away with it.

All these are questions, however, of fact, and it was the province of the jury to determine where the truth lay.

It is next contended by the appellant that the court erred in refusing to submit to the jury the special interrogatories. They were as follows:

1. Was the plaintiff injured by a can of gasoline turning over on him, which had been left in doorway of the crane?

2. Was the plaintiff injured by gasoline thrown on him by some unknown person or persons?

3. Was the plaintiff injured as a result of removing g'asoline from the gasoline tank of the crane?

Bach one of the requests were covered by the court’s instructions to the jury, to which no objection was made by appellant.

"■ It was within the discretion of the trial court to submit to the jury the special requests or not, and the court did not abuse its discretion in refusing to require the special findings. L. R. & Ft. Smith Ry. Co. v. Pankhurst, 36 Ark. 371, 378; Surridge v. Ellis, 117 Ark. 223, 174 S. W. 537; Southern Life Ins. Co. v. Roberts, 173 Ark. 903, 294 S. W. 14; Stanley v. Smith, 135 Ark. 502, 205 S. W. 889.

The appellant does not complain about the instructions of the court nor the amount of the verdict.

We find no error, and the judgment is affirmed.


author: Butler, J.

text:
    Shaver v. Litchfield Clothing Company.
    Opinion delivered April 4, 1932.

      C. O. Raley and Walter L. Pope, for appellant.

      Ward <é Ward, for appellee.
   Butler, J.

The Litchfield Clothing Company, appellee, brought suit against John B. Shaver, appellant, under his trade name of Shaver Mercantile Company, for the amount due on a bill of merchandise, and from a judgment in favor of appellee Shaver has appealed.

The facts, as stipulated in the court below, are as follows: “That the defendant being justly indebted to the said plaintiff in the sum of $239.19 for goods sold and delivered to him by the plaintiff issued and delivered to the plaintiff his check in payment of said debt drawn on the Bandolph State Bank of Pocahontas, Arkansas, for said sum and forwarded said check to the plaintiff at Litchfield, Kentucky; that said check was postdated for September 1, 1930, and was sent to the plaintiff; that the plaintiff immediately delivered said check to its attorneys, Forgey & Verdier, of St. Louis, Missouri, who. had this claim for collection at the time, and that on the 30th day of August, 1930, said attorneys, Forgey & Verdier, sent said check by United States mail to the Randolph State Bank for payment by proper exchange if said bank had funds to pay the same, and if not payable that said check be returned to them immediately. That said check was received by the said Randolph State Bank, but the bank did not cash it and did not return it as directed; that on September 23, 1930, plaintiff’s attorneys wired the defendant herein that he would have to take up said check as the bank had not remitted. That on the 23rd day of September, 1930, plaintiff’s attorney wrote the Randolph State Bank asking for returns on said check and followed soon after with a wire threatening to take the matter up with the State Bank Examiner if it was not paid or returned to them; that, in answer to this, the Randolph State 'Bank replied that they did not have said check and knew nothing of it; that said attorneys for the plaintiff thereupon wrote the defendant advising him that the bank could not locate the check.

“A copy of the letter forwarding said cheek to the Randolph State Bank, and a copy of the letter of the Deputy Bank Commissioner notifying Forgey & Verdier that said check was in the files of the Randolph State Bank are attached herewith as Exhibits A and B. It is further stipulated that at all times from August 30, 1930, to November 5, 1930, the date the Randolph State Bank closed, Shaver Mercantile Company, the drawer of said check, had sufficient funds in the Randolph State Bank to pay the same; that neither the payee of said check nor its agents, Forgey & Verdier, ever requested that said check be protested for nonpayment and took no action against said bank to compel the payment of said check.

“That the Randolph State Bank became insolvent and was taken over by the State Bank Commissioner on the 5th day of November, 1930, and has been liquidated by said commissioner. That the check of the defendant was found in the files of said bank after it was taken over by said commissioner and now appears therein, but was not paid, and still remains unpaid. That the plaintiff has-not received payment for said debt in any other way than by said check above mentioned, and it is further agreed that said check has not been honored by said Randolph State 'Bank and remains unpaid in so far as this plaintiff’s account is concerned against the defendant herein.”

In 5 R. O. L. at page 514 is the following declaration: “According to the prevailing view, it is negligence in the holder of a check to send it direct to the drawee residing in a distant place for payment; and the holder is responsible for any loss occasioned by adopting such a course.”

In the case of Anderson v. Rodgers, 53 Kan. 542, 27 L. R. A. 248, where a check was mailed directly to the drawee bank on the 12th day of December and which remained open for business on the 13th and closed on the 14th, and where on the 13th the bank returned the check to the sender with a notation of “no funds,” but where it was admitted that the drawer hád more than enough funds in the bank to his credit to pay the check, the court, in reversing the judgment of the lower court against the drawer, said:

“The Hamilton County Bank, therefore, selected the drawee of the cheek as its agent for collection. That this was negligence is well settled by the authorities. It is said in Daniel on Negotiable Instruments (Yol. 1, § 328a) : ‘For the purposes of collection, the collecting bank must employ a suitable subagent. It must not transmit its checks or bills directly to the bank or party by whom payment is to be made, with the request that remittances be made therefor. It is considered that no firm, bank, corporation, or individual can be deemed a suitable agent, in contemplation of law, to enforce in behalf of another a claim against itself.’ This proposition is sustained by abundant authorities. Drovers’ Nat. Bank v. Anglo-American Packing & Provision Co., 117 Ill. 100, 7 N. E. 601, 57 Am. Rep. 855; German Nat. Bank of Denver v. Burns, 12 Colo. 539, 21 Pac. 714; Merchants’ Nat. Bank of Philadelphia v. Goodman, 109 Pa. 422, 2 Atl. 687, 58 Am. Rep. 728; First Nat. Bank of Evansville v. Fourth Nat. Bank of Louisville, 6 C. C. A. 183, 56 Fed. Rep. 967; Farwell v. Curtis, 7 Biss. 160, Fed. Cas. No. 4, 690.

“It is insisted that inasmuch as the check was forwarded in due time, and came into the hands of the drawee, which refused payment, and returned the check with the statement: “ ‘No funds in bank,’ the defendant was not injured by the mode of presentment; that an answer of ‘No funds’ sent by mail is as effectual as refusal to pay as though made across the counter at the bank. Where due presentment is not made, the burden of proof is upon the holder of the check to show that the drawer has not suffered injury. Little v. Phoenix Bank, 2 Hill 425; Ford v. McClung, 5 W. Va. 166; 2 Parsons, Bills & Notes, 71; 2 Dan. Neg. Inst. § 1588; Daniels v. Kyle, 1 Ga. 304.”

In closing the opinion, the court in that case said:

‘ ‘ The request in this case by letter was not an ordinary demand of payment, calling for current funds, but was a request for Kansas City Exchange, which the drawee would of course be at perfect liberty to refuse. In cases of this kind a hardship necessarily results to one party or another. Courts, in their decisions, must be guided by fixed rules. The plaintiff, having trusted in the good faith of the Ritchfield Bank by sending the check to it, must bear the burden of the loss occasioned by its failure occurring after the day on which regular presentment should have been made.”

It is the opinion of the majority that an application of these principles to the facts exonerates the appellant from the payment of the debt, and that the trial court erred in holding otherwise. The judgment will therefore be reversed, and the cause remanded with directions to enter judgment for the appellant.

The writer and Mr. Justice Smith do not agree with the opinion reached by the majority..


text:
    Leonard v. Luther.
    Opinion delivered April 4, 1932.

      Hal L. Norwood, Attorney General, Robt. F. Smith, Assistant, John G. Ashley, J. Raul Ward and Ben B. Williamson, for appellant.

      Hugh U. Williamson and Coleman $ Reeder, for appellees.
   Butler, J.

This action is a proceeding for a writ of mandamus to compel the appellees to deliver to appellant’s deputy the tax hooks and other records belonging to the collector’s office in and for Stone County. From a denial of the prayer of appellant’s petition is this appeal.

We pass over the motion to dismiss the appeal for alleged failure to comply with rule 9 of this court, preferring to dispose of the case upon its merits.

The facts as stipulated in the court below are:

“That Sam Johnson is the legally elected and qualified sheriff of Stone County, Arkansas, having been elected at the November general election, 1930, for the term to expire December 31, 1932.

“That on the 19th day of November, 1931, the court made an order suspending the said Sam Johnson from office as sheriff and collector by the circuit court of Stone County, after five indictments had been returned against him by the grand .jury of said county. A copy of which order is attached hereto and made a part hereof.

“That the said Sam Johnson has never been tried on any of said indictments, but that the same are pending for trial at the May term, 1932, of said circuit court.

“That on the 25th day of November, 1931, after the suspension of the said Sam Johnson on the 19th day of said month, the Governor (of the State appointed and commissioned W. M. Brewer as sheriff and collector of ■Stone County, Arkansas, to serve as such during the suspension of the said Sam Johnson from the said office pending his trials on said indictments.

“That the said W. M. Brewer made his bond as sheriff and also made bond as collector, said bonds having been filed and approved on the 15th day of December, 1931. A copy of said bond being hereto attached and made a part hereof.

“That the said Sam Johnson, the duly elected collector, failed to file his bond as collector before or by the first Monday in January, 1932, as provided by § 19,031 of Crawford & Moses’ Digest, and has never filed any bond up to this time.

“That the plaintiff, Roy Y. Leonard, is the duly elected, qualified and acting Treasurer of State for the State of Arkansas.

“That the plaintiff, John B. Gower, was appointed by State Treasurer, Roy V. Leonard, in writing on the 21st day of January, 1932, as special deputy State Treasurer to collect the taxes of Stone County, Arkansas, for the current year, pursuant to § 10,034 of Crawford & Moses ’ Digest.

“That on the 22d day of January, 1932, the said Roy V. Leonard, as Treasurer of the State of Arkansas, made demand on the said T. E. Luther, the duly elected and qualified, acting county clerk of Stone County, Arkansas, and also the said W. M. Brewer, for all taxbooks, records, papers, receipts and moneys belonging to the collector’s office of Stone County, Arkansas, for the year 1932, upon which the taxes for the year 1931 had been extended, and from which the taxes for the year 1931 were to be collected, and that the said T. E. Luther and the said W. M. Brewer, each and both, refused said demand, and refused to turn over said records, books, papers and'moneys and still refuse to do so.”

In addition to this stipulation appellee Brewer testified as follows: “I was appointed sheriff and collector in November, 1931, and made a sheriff’s bond at that time. I didn’t make a collector’s bond until December 15th. That is the only bond I filed as collector. I was not reappointed collector after the first Monday in January. I have never filed another bond. I have never been reappointed collector.”

The validity of the appointment of the appellee Brewer by the Governor depends upon whether or not there was a vacancy in the office of collector of revenues for Stone County on the date of his appointment. The authority for the circuit court to suspend Sam Johnson from the performance of his duties as collector of revenues must be found in § 27 of art. '7 of the Constitution and in the enabling act to that section, now § 10,035 of Crawford & Moses’ Digest.

Section 27, art. 7, Constitution: ‘ ‘ The circuit court shall have jurisdiction upon information, presentment or indictment to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance or nonfeasance in office. ”

Section 10,335, Crawford & Moses’ Digest: “Whenever any presentment or indictment shall be filed in any circuit court of this State against any county or township officer for incompetency, corruption, gross immorality, criminal conduct amounting to a felony, malfeasance, misfeasance or nonfeasance in office, such circuit court shall immediately order that such officer shall be suspended from his office until such presentment or indictment shall be tried. Provided, such suspension shall not extend beyond the next term after the same shall be filed in such circuit court, unless the cause is continued on the application of the defendant.”

It was decided in the case of Patton v. Vaughan, 39 Ark. 211, that “article 7, § 27, of the Constitution of 1874, empowering circuit courts to remove county and township officers upon indictment, etc., and the act of March 9, 1877, to regulate filling of vacancies in office', relate to the elective township and county officers provided for by the Constitution. * * * The only constitutional or statutory provisions to which we have been referred as bearing on this subject are § 27 of art. 7, of the Constitution of 1874, vesting jurisdiction in the circuit court to remove county and township officers upon indictment or information and the act of March 9, 1877, to resalíate the filling of vacancies in office. But these obviously relate to the elective county and township officers created by the Constitution itself.”

In Falconer v. Shores, 37 Ark. 386, it was said: “Before the adoption of the present Constitution the office of collector of taxes was statutory. The statute in force when the Constitution was adopted provided that the sheriff of each county should be ex-officio collector, and before entering upon his duties as collector should give bond before the first Monday of January of each year, etc. Gantt’s Digest, §§ 5157-9:

“Section 46, article 7, of the Constitution provides that the qualified electors of each county shall elect one sheriff, who shall be ex-officio collector of taxes, unless otherwise provided by law, for the term of two years, thereby leaving the office of collector under legislative control.

“A person who is sheriff and collector, under existing laws, holds two distinct offices, and is required to give bond as sheriff and also to give bond as collector. Ex parte McCabe, 33 Ark. 396.”

“It is well settled that where the Constitution creates or recognizes an office, and declares that the incumbent may be removed in a specified manner or for specified reasons, the Legislature cannot constitutionally provide by statute for his removal for any other reason or in any other manner. ’ ’ Throop on Public Officers, p. 343-, quoted in Speer v. Wood, 128 Ark. 186, 193 S. W. 785.

In the case of Remley v. Matthews, 84 Ark. 598, 106 S. W. 482, the facts were that Strong, the regular acting-sheriff and ex-officio collector of Chicot County, was suspended from office on the 20th day of October, 1906, pending his trial on eighteen indictments which had been returned and filed against him charging him with malfeasance in office. The Governor appointed E. P. Remley as sheriff to act during the vacancy caused by the suspension of Strong. Remley filed his bond and oath of office and entered upon the duties thereof. He failed to make a collector’s bond prior to the first Monday in December, 1906. Strong also failed to give a collector’s bond within the time prescribed by law, and on March 8 following resigned his office as sheriff while still under indictment. On 'March 9, 1907, Remley was again appointed sheriff by the Governor and filed his bond as collector on the 13th of March, 1907. A special election was called for the election of sheriff to be held on April 15,1907, at which C. M. Matthews was elected sheriff and duly commissioned, and, having duly qualified on the 29th day of April, demanded of Remley the office of collector of Chicot County and the books and papers belonging thereto. This was refused, and the question before the court was, who was entitled to the office of collector— whether Matthews by virtue of his election at the special election, or Remley by virtue of his appointment on the 13th day of March, 1907 ?

In holding that Remley was entitled to the office, and not Matthews, this court said: “Strong failed to give the bond of collector within the time prescribed by law, and upon a certificate by the clerk to that effect the Governor appointed Remley to that office, pursuant to § 7042 of Kirby’s Digest. This was a valid appointment, for § 46, art. 7, of the Constitution leaves the office of collector under legislative control. Falconer v. Shores, 37 Ark. 386. In that case the court said: ‘Upon the failure of a sheriff to give bond as collector of revenue within the time prescribed by law, the Governor is required, upon notice of such failure from the county clerk, to declare the office vacant and fill it by appointment.’

“We are now brought to consider the length of his term. As we have seen, appellant was appointed pursuant to § 7042 of Kirby’s Digest. Section 7044 provides that he shall hold the office until the next general election, and until his successor is elected and qualified. In the case of Alston v. Falconer, 42 Ark. 114, it is held that where a person is appointed collector pursuant to the statutes, swpra, he is by law entitled to hold it until-the next general election and until his successor is elected and qualified.”

On the authority of these cases, it appears to be the contention of counsel for the appellant that the office of collector of revenues is not ari elective county office within the meaning of § 27, art. 7, and therefore a sheriff, acting ex-officio as collector, although suspended pending the hearing of indictments returned against him, may continue to perform the duties of collector of revenues during the time of his suspension as sheriff; that is to’ say, the order of the court temporarily removing him as sheriff does not remove him as collector, and consequently an appointment by the Governor of one to serve as sheriff does not carry with it the right to qualify and act as collector.

The cases heretofore cited are relied on to support this contention and especially that of Lemley v. Matthews, supra. In none of these cases was the point here involved before the court, and they do not justify the contention made. The language in Lemley v. Matthews thought to warrant the interpretation suggested by counsel is:

“Section 7993 provides for the removal of such officer upon conviction. It will be observed that Strong was not removed from the office of sheriff, but was only suspended pending the indictments against him. Remley was appointed sheriff on the 20th day of October, 1906, under § 7995 of Kirby’s Digest, authorizing the Governor to temporarily appoint an officer in the place of the suspended officer.

“This presents for our consideration the question, who was entitled to qualify as collector of the revenue of Chicot 'County in 1906, Strong or Remley"?

“In the case of Crowell v. Barham, 57 Ark. 197, 21 S. W. 33, Cockrill, C. J., said: ‘The offices of sheriff and collector, though usually exercised by the same person, are as separate and distinct as though held by different incumbents. Ex parte McCabe, 33 Ark. 396; Falconer v. Shores, 37 Ark. 306. If the sheriff became collector by reason of qualifying as sheriff, there would be strong ground for contending that his general deputy was also deputy collector, as was held in the case of People v. Otto, 77 Cal. 45, 18 Pac. 869. But under our statute the sheriff becomes collector only when he qualifies as collector. He has the right by virtue of his office to become collector, but he may forfeit the right without forfeiting the office of sheriff. In that event the law authorizes the substitution of another in the office.’

“It seems clear then that Strong, and not Bemley, had the right to qualify as collector; for the reason that Strong was still sheriff. He did not cease to be sheriff because of his suspension pending the indictments against him.

“Strong’s suspension from the office of sheriff only disabled him from discharging the duties of the office, and did not take away the office itself. Only a removal from office could do that. He was still the sheriff, and by virtue of holding that office had the right to qualify as the collector of revenue.”

It is true the order of suspension did not remove the sheriff from office or divest him of any of its incidents among which was the right to act as collector of revenue (Vaughan v. Kendall, 79 Ark. 584, 96 S. W. 140), but it did serve to render the incumbent incapable of functioning for a time and until the disability was removed. As the giving of a bond is a prerequisite to the performance of the duties of collector (§ 10,028, Crawford & Moses’ Digest), and the failure to file it in the time prescribed works a forfeiture of the office (% 10,031, Crawford & Moses’ Digest), it was necessary, in order to preserve his right to resume his duties after the disability of suspension is removed, to make and file the collector’s bond. This he still had the right to do, although incapable of acting for a time, and this was all the court meant to say in the language quoted from Remley v. Matthews, supra, when interpreted in the light of the point decided. It did not intend to say that upon the filing of such bond he was entitled to perform the duties of collector, notwithstanding his suspension as sheriff, or that Remley, had he qualified as collector, could not.

The case at bar does not present the question of the power of the circuit court to remove a collector of revenue as such, but its power to suspend a sheriff under indictment. As the right to collect the revenues is an appanage of the office of sheriff, his suspension carries with it a vacancy for the time in the office of collector which he fills virtióte officii. Therefore, the order of suspension of the sheriff made by the court created a vacancy in the office of collector, because there remained no one authorized by law to perform its duties during the disability of the sheriff. In this situation § 10, 338, Crawford & Moses’ Digest, becomes effectual: “Whenever any officer shall be suspended from office on account of any presentment or indictment pending against him, the Governor may temporarily appoint an officer in his place, who shall hold until the disability of1 the officer so suspended is removed, or an election to fill the vacancy occurs, in case there is a judgment of removal.”

Johnson failed to make and file his collector’s bond, although he was entitled to do so after the order of suspension to preserve his rights as collector, in the event of the removal of his disability. The failure on his part ■ was not certified by the clerk to the Governor, and, no appointment being made to fill the vacancy occasioned by such failure, the Treasurer of State deemed the situation that contemplated in the second sentence of § 10,034 of Crawford & Moses’ Digest, which is as follows: “And if from any cause there shall be no collector of taxes in any county of this State, after the expiration of fifteen days from the time fixed by law for such collection to commence in any year, any taxpayer of such county, resident or nonresident, may, at any time before the time fixed by law for the regular collections to close, pay the amount of the State taxes, and of the general county taxes, poll taxes, district school taxes, taxes levied to pay interest on bonds issued, or to be issued, by a county, city or town in compromise of indebtedness existing at the adoption of the Constitution of 1874, road taxes, levee taxes and municipal taxes directly into the State Treasury, and the receipt of the Treasurer of the State therefor shall be as effective for all purposes as if made by a county collector. ’ ’

Appellant, State Treasurer, on this assumption, by special deputy, appellee Gower, demanded of the county clerk and W. M. Brewer, the taxbooks on the 22 day of January, 1932.

The appointment of appellee Brewer as sheriff during the disability of Johnson carried with it all the incidents appertaining to that office among which were the duties of collector and entitled him to perform the same upon the giving and filing of a collector’s bond, which he did. The failure of Johnson to file the collector’s bond, while working a forfeiture of the office as to him, did not vacate the appointment of Brewer, this appointment remaining effective during the disability of John- • son and until the vacancy was filled in the manner provided by law: §§ 10,031 and 10,038, Crawford & Moses’ Digest. There was, therefore, a collector of taxes on ' the 22d day of January, 1932, the date of appellant’s demand for the tax books, and there was no necessity for the evocation of § 10,034, supra,.

This case does not involve the question of removal or suspension of one holding the office of collector of county revenues by virtue of appointment when a vacancy occurs by the failure of the sheriff to make a collector’s bond, or where the office is created by the Legislature separate from the office of sheriff, and we are not required to say what authority would exist for the suspension or removal of the officer under that state of case.

It is suggested that we take judicial notice that the aggregate amount of the taxes to be collected in Stone County is greater than $15,000, and it is argued that since the collector’s bond filed by the appellee Brewer is for that amount only, it is therefore void on its face. This question appears not to have been raised in the court below, either on the trial or in the motion for a new trial, and therefore cannot be considered here. It may be observed, however, that if the bond was defective for any reason, the method is clear for its remedy. Section 10,028, Crawford & Moses’ Digest.

It is our opinion that the trial court correctly denied the appellants’ petition, and the judgment is affirmed.


author: Hart, C. J.,

text:
    McLean v. Fort Smith.
    Opinion delivered April 11, 1932.

      Cravens $ Cravens, for appellant.

      George W. Dodd, for appellee.
   Hart, C. J.,

(after stating the facts). To sustain the judgment, counsel for appellees invoke the power given by the Legislature to municipalities to destroy buildings which have become nuisances. Special reliance is placed upon our former decisions to the effect that the rights of property, like other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the Legislatures, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient. McKibbin v. Ft. Smith, 35 Ark. 352. In that case it was claimed that an old building was being repaired. The undisputed facts, however, showed that the only integral portion of it remaining was part of the wall left standing which was used in the new building. The court said that, as under the facts the building was completely destroyed and another building had been erected on the lot, there was no liability against the officers of the city for razing the old building. This rule was under the well-established principle that, under the police power of the State given to municipalities, they might establish fire zones, and prohibit the construction of wooden buildings within such districts. It would naturally follow that new buildings of the prescribed character could not be constructed under the guise of repairing old ones.

The court reaffirmed the doctrine of Harvey v. Dewoody, 18 Ark. 252. In that case the officers of the town were sued for tearing down the plaintiff’s house. They justified under an ordinance declaring-the house to be a nuisance. They set up facts which tended to justify their plea. Among other things, it was alleged that the house had not been occupied by tenants for a long time, and that it was being used by the public as a privy; that its use, condition, and situation were such as to endanger the health and property of the citizens of the town. These facts were admitted to be true by a demurrer filed to the answer by the plaintiff. Proper notice was given the plaintiff under the ordinance to abate the nuisance. Therefore the court held that the matters set up in the answer demurred to were sufficient to bar' the action of the plaintiff. Consequently, it was held that the demurrer was properly overruled by the court below, and the judgment of the circuit court was affirmed.

In the case of McKibbin v. Ft. Smith, supra, the court recognized the law to be that, where a building has been removed by a police officer under an ordinance when, in fact, the owner had not in its erection violated any ordinance of the town inhibiting it, he may recover damages against the town for the removal, or have an injunction, "against the threatened removal, as the case may be.

In both the eases above cited, the facts were undisputed that the erection and use of the buildings constituted a nuisance, and the question was therefore one of law for the court.

Here the facts of the case as to whether the building constituted a nuisance are in dispute, and call for application of the well-established doctrine that no man can be summarily deprived of his property or the use thereof. The right to abate public nuisances is a common-law right, and is derived from the necessity of the case. It is akin to the right of destroying property for the public safety in ease of a devastating’ fire. Where the facts are in dispute, the authorities cannot justify on the ground of present necessity. Hutton v. Camden, 39 N. J. L. 122, 23 Am. Rep. 203; People ex rel., Copcutt, v. Board of Health of the City of Yonkers, 140 N. Y. 1, 35 N. E. 1, 23 L. R. A. 481, 37 Am. St. Rep. 522.

In the latter case, after reviewing the authorities on the question, the court said: “The result of these authorities is that whoever abates an alleged nuisance, and thus destroys or injures private property, or interferes with private rights, whether he be a public officer or private person, unless he acts under the judgment or order of a court having jurisdiction, does it at his peril; and, when Ms act is challenged in the regular judicial tribunals, it must appear that the thing abated was in fact a nuisance. This rule has the sanction of public policy, and is founded upon fundamental constitutional principles.”

This principle of law has been expressly approved by this court in Ward v. Little Rock, 41 Ark. 526, and Lonoke v. C. R. I. & P. Ry. Co., 92 Ark. 546,123 S. W. 395, 135 Am. St. Rep. 200. In both of these cases the court quoted with approval from the opinion of Mr. Justice Miller in Yates v. Milwaukee, 10 Wallace (U. S.) 497. After saying that the mere declaration by the city council that a certain structure was a nuisance did not make it so unless it in fact had that .character. The learned justice said further: “It is a doctrine not to be tolerated in this country that a municipal corporation, without any general laws, either of the city or of the State, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property of the city, at the uncontrolled will of the temporary local authorities.”

In the present case the facts relative to whether the building was a nuisance or not were in sharp dispute, and the court should have submitted that question to the jury.

Inasmuch as the case must be remanded for a new trial, we call attention to the state of the record on the question of notice. No notice was ever served on the plaintiff, and no copy of the ordinance was posted on the premises. Giving- therefore to the ordinance its utmost legal effect, still the proceedings under it must be regarded as entirely void because it does not appear that jurisdiction was acquired over the plaintiff by giving the notice prescribed by the ordinance.

It follows that the court erred in directing a verdict for the defendants, and for that error the judgment must be reversed, and the cause remanded for a new trial.


author: Smith, J.

text:
    Phoenix Utility Company v. Smith.
    Opinion delivered April 11, 1932.

      Buzbee, Pugh $ Harrison, for appellant.

      Arthur Cobb and Murphy Wood, for appellee.
   Smith, J.

Appellee sustained a serious injury on May 28, 1930, by being thrown from an engine and being dragged by the engine along the track upon which the engine was being run. He recovered a judgment against appellant to compensate his injury, from which is this appeal.

No question is raised here as to appellant’s liability, it being- insisted only for the reversal of the judgment appealed from that appellee’s cause of action had been compromised and settled before the case was tried in the court below.

After his injury, appellee was treated at his home by a physician furnished by appellant, his employer, until June 2, when he was carried to a hospital, where, on June 4, he was operated on for double hernia. On June 13, which was nine days after the operation, appellant’s adjuster visited appellee at the hospital for the purpose of settling his claim for damages.

Appellee stated that he was not ready to settle and would not be until he had consulted his doctor. The adjuster said: “You see the doctor, and I will return next Friday,” which was June 20. On the 20th Dr. Tribble, who had performed the operation under employment by appellant, called on appellee at the hospital, and appellee said to him: “Doctor, the insurance adjuster was over Friday, and I would like to know how long it will be before I will be able to go back to work. ’ ’ According to appellee, the doctor answered: “You will be able to go back to work in three months. You will be just as good as you ever were, or may be stronger. ’ ’ Later in the day the adjuster called on appellee and asked: “Are you ready to settle?” and appellee answered: “I guess I am; I saw the doctor. ’ ’ The adjuster asked: ‘ ‘ Are you ready to leave the hospital?” and appellee answered: “I don’t know; I never asked about leaving the hospital.” The adjuster said he would see Dr. Tribble, and he left the hospital, but soon returned and reported to appellee that lie had seen Dr. Tribble and that the doctor had said that appellee would be all right in three months, and that appellee could leave the hospital, and he did leave the hospital on that day, having been in the hospital about sixteen days after his operation.

Dr. Tribble testified that the operation was a proper and perfect one, and admitted that he had told appellee that he would be all right in three months and able to do his work as well as ever, unless there was some complication, and that recovery from such an operation was usually complete in three months.

Appellee testified that he and the adjuster figured what his wages would be for three months, if he were working, and, as the amount was slightly less than $400, they agreed upon a settlement for that amount.

It was the insistence of appellee in the court below that he relied upon and was misled by the statement of appellant’s physician that he would be well and able to resume work within three months, whereas at the time of the trial from which this appeal comes in November, 1931, he was still suffering pain and was unable to work.

The jury returned a verdict for appellee in the sum of $3,000, less the $400 previously paid, and judgment was rendered accordingly.

The issue of fact in the case was submitted in an instruction given at the request of appellant, which reads as follows: “You are instructed that, before the plaintiff is entitled to recover in this ease, he must first avoid the release executed by him, and that to avoid that release the burden is on the plaintiff to show by a preponderance of the evidence that Dr. Tribble told him, as his unqualified opinion, that he would be fully recovered from his injuries in three months, and that at the end of three months he would be able to .go back to work, and that he had not so recovered at the end of that time; and, unless he discharges that burden, the release he executed is a valid release and your verdict must be for the defendant.”

This instruction was as favorable as appellant could ask, as this court has frequently held that a release is not binding on the releasor where the physician of the party responsible for an injury represents to the injured person that his injuries are temporary, when, in fact, they are permanent, and the injured person executes the release relying upon such statement of the physician of the party responsible for the injury. St. Louis, I. M. & S. Ry. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803; Francis v. St. Louis, I. M. & S. Ry. Co., 102 Ark. 621, 145 S. W. 534; Kansas City Southern Ry. Co. v. Armstrong, 115 Ark. 128, 171 S. W. 123; St. L., I. M. & S. Ry. Co. v. Morgan, 115 Ark. 529, 171 S. W. 1187; C., R. I. & P. Ry. Co. v. Smith, 128 Ark. 223, 193 S. W. 791; F. Kiech Mfg. Co. v. James, 164 Ark. 137, 261 S. W. 124; St. L.-S. F. Ry. Co. v. Cox, 171 Ark. 103, 283 S. W. 81; Sun Oil Co. v. Hedge, 173 Ark. 729, 293 S. W. 9; M. P. Rd. Co. v. Elvins, 176 Ark. 737, 4 S. W. (2d) 528; K. C. S. Ry. Co. v. Sanford, 182 Ark. 484, 31 S. W. (2d) 963.

There is no contention that Dr. Tribble intentionally deceived appellee or practiced any fraud upon him., but the testimony supports appellee’s contention that he relied upon the doctor’s opinion as to his recovery, and that the doctor was mistaken in his prognosis.

The judgment of the court below must therefore be affirmed, and it is so ordered.


author:
Humphreys, J.
      Butler, J., Smith, J., Hart, C. J.,

text:
    Baer v. Arkansas State Highway Commission.
    Opinion delivered April 11, 1932.

      G. L. Grant, G. T. Fitzhugh, L. T. Fitzhugh and B. W. Wilson, for appellants.

      Hal L. Norwood, Attorney General, Claude Duty, Assistant, and Sam Borex, for appellee.
   Humphreys, J.

These are eases consolidated for the purposes of trial, brought separately in the second division of the Pulaski Circuit Court by appellants against the Arkansas State Highway Commission to recover from it for damages on account of personal injuries received by the several appellants on account of the alleged negligence of the employees of appellee while engaged in repairing certain State highways. The action sounded in tort.

Demurrers were filed to the several complaints on the ground that appellee was and is not liable in damages for the negligence of its employees.

The court sustained the demurrers to the several complaints and dismissed same, from which is this appeal.

This court ruled in the case of Highway Commission v. Dodge, 181 Ark. 540, 26 S. W. (2d) 879, that highway contractors might maintain actions against the State Highway Commission for the amount due under their highway construction contracts. The ruling was based upon the construction of the statute creating the commission. The majority of the court interpreted the statute as authorizing the institution and maintenance of that class or character of suits. It was not ruled in that case that suits sounding in tort might be instituted and maintained against the Arkansas State Highway Commission, as that act created no such authority. After a careful examination. of the statute creating the commission, a majority of the court find no authority therein for the institution and maintenance of suits for torts against said commission. It is the opinion of a majority of the court that the Arkansas State Highway Commission cannot be sued for damages resulting from the negligence of its employees when engaged in the construction or repair of State highways. The writer and Mr. Justice Mehaeey do not concur in this view, but agree with the Chief Justice on this point in his dissenting opinion.

The judgment is therefore affirmed.

Butler, J.,

(concurring). In Arkansas State Highway Commission v. Dodge, 181 Ark. 539, 26 S. W. (2d) 879, Justices Kirby, McHaney and the writer registered our dissent. In that case we did not express the reasons for the dissent, but it was on the ground that in our opinion the Arkansas State Highway Commission was an agency of the State, and therefore the Legislature was without power to authorize it to be made defendant in the courts of the State.

As the General Assembly is the representative of the sovereign, it would unquestionably have the power to permif citizens to sue the State in its' courts, unless its authority was limited in this respect by express prohibition of the Constitution. I think this is what the Constitution has done. Article 5, § 20, provides: “The State of Arkansas shall never be made defendant in any of her courts.” As the State can only act through its agents, it necessarily follows that a suit against any agency of the State would be a suit against the State itself, which the General Assembly is not authorized to permit by reason of the section of the Constitution, supra.

I therefore concur for the reason stated.

I am authorized to say that Mr. Justices Kirby and McHaney agree with the views above expressed.

Smith, J.,

(concurring). In the case of Arkansas State Highway Commission v. Dodge, 181 Ark. 539, 26 S. W. (2d) 879, we considered the right of one who had contracted with the State Highway Commission to maintain suit on his contract. Three members of the court were of opinion that the suit was- against the State and could not be maintained for that reason. Two of the judges were of opinion that, while the suit was against the State, the State might be sued with her consent, and that this consent had been given, and therefore the suit could be maintained. Justice Mehaeey concurred with me in the view that the Constitution contained a prohibition against the State being made, a party defendant to any suit, and that the Legislature had no power to waive this exemption, but we were also of the opinion that the particular suit was not one against the State. This opinion expressed the view that the suit was a proceeding wherein permission had been given to one who had contracted with the State Highway Commission to maintain an action thereon in the courts of Pulaski County to have his rights thereunder adjudged, and to receive satisfaction of any judgment there recovered out of a special appropriation with reference to which the commission had authority to contract. In other words, a juristic entity had been created, with a limited power of making contracts relating to roads forming a part of the State highway system, and the courts of Pulaski County were constituted as an agency to determine differences arising out of these contracts between the contractors, on the one hand, and the State Highway Commission on the other. There would have been no authority to maintain these proceedings, had the Legislature not conferred it. •

It was said in the opinion which I there wrote that: “The Highway Commission was given no authority in the acts to which we have referred to make contracts in the name of the State. Its authority was limited to the making of contracts relating to the specific appropriations which had been made to discharge the contracts which the commission was authorized to make.” It was there also said that: “A judgment rendered pursuant to this act would not be a ‘ judgment against the State. ’ It would be only an adjudication that the sum adjudged was due on the contract out of which the litigation had arisen, to be paid out of the appropriation made for this and other purposes.”

The substance of the views expressed in my opinion was that suits mig-ht be maintained only so far as they were authorized by the legislation on the subject.

It was recognized by the Legislature in subsequent legislation that rights might accrue to others, as well as to the contractors engaged in the work of construction, etc., as to which persons there would be at least a moral obligation to make compensation. In recognition thereof, the 1929 session of the General Assembly passed act No. 232, entitled, “An act for the protection of the employees of the State Highway Commission.” Acts 1929, page 107’2. This is a comprehensive act making provision for compensation “for accidental injuries or death suffered in the course of employment of said commission within' this State.”

But there is no legislation of which I am advised authorizing suits like those here involved. These plaintiffs allege no contract with the Highway Commission nor that they were injured while engaged as employees thereof. They allege only that they were injured through the negligence of persons who were employees, and I find no provision in the law whereby they may be compensated.

No one would have the right to sue the Commission, either upon contract or for tort, and to demand compensation out of these special appropriations unless the act making the appropriations had so provided. There may be as much right morally for the travelers on the State’s highways, as were the plaintiffs in the instant case, to be compensated for the tort as there is for the contractor to be compensated upon his contract, but the answer to that contention is that the Legislature has not so provided. Neither would have any right to sue unless that right was expressly given, and only such' recoveries, payable out of these special appropriations, may be had, as are authorized by the Legislature.

We recently had before us a case in which an employee of the city of Little Bock sought to recover compensation against the city for an injury sustained through the negligent failure of his superior to inspect a defective light pole owned and used by the city upon which he was employed. Briefs were there filed which contained a most exhaustive review of the authorities, in which it was insisted that our decisions upon the subject of the liability of governmental agencies for the negligence of their employees was contrary to the overwhelming weight of authority. That was a suit, not against the State, but against a city of the State, and, without attempting to decide whether our previous decisions were contrary to the weight of authority or not, we adhered to them. We there said: “From the foregoing cases (our own there cited) we may deduce the following principles as being well settled: 1. That a municipality is not liable for the nonfeasance of its officers and agents. 2. That a municipality is not liable for the negligence of its officers and agents in the performance of a governmental function.” Little Rock v. Holland, 184 Ark. 381, 41 S. W. (2d) 383. Certainly the sovereign State has as much immunity from suit as has one of its cities, and, no provision having been made for the maintenance of suits like the instant one, or for the recovery of compensation thereon, the demurrer was properly sustained.

Hart, C. J.,

(dissenting). Mr. Justice Humphreys and myself think that the State Highway Commission is an agency of the State, and not a separate body corporate.

We do not, however, construe our constitutional provision that the State of Arkansas shall never be made defendant in any of her courts to mean that she shall never be defendant. If so, the word “made” might just as well not have been used.

We construe the provision to mean that a State which consents to be sued may prescribe the court, the terms, and conditions. The extent of the recovery and manner of proceedings are to be governed by the statutes giving the right to sue the State.

Our views are expressed in a more extended way in our concurring opinion in Arkansas State Highway Commission v. Lodge, 181 Ark. 539, 26 S. W. (2d) 879. It is no answer to say that this view would be but declaratory of the well-settled principle of constitutional law that a sovereign State is incapable of being sued without some legislative provision authorizing such a proceeding. Auditor v. Davies, 2 Ark. 494.

Other constitutional provisions are but declaratory of existing rights. To illustrate, the provision that private property shall not be taken for public use without just compensation is implied from the ifature and structure of our government, and is generally regarded as founded in the fundamental principles of natural rights and justice, and as lying at the basis of all wise and just government, independent of all written constitutions or positive law. Cairo & Fulton R. Co. v. Turner, 31 Ark. 494, 25 Am. Rep. 564.

It seems anomalous to us to say that the framers of the Constitution meant to say that the State, through its Legislature, could not provide the particular court or courts in which claims might be established, but could provide for their establishment before the Highway Commission or other board or court of claims. Such course would be unnecessarily cumbersome and expensive, and less in keeping with the dignity of the State than to allow itself to be sued in its own constitutional courts upon such terms and conditions as its legislative body may prescribe.

“When a State does abdicate this attribute of sovereignty and permits itself to be sued, the citizen who benefits by such an act of grace acquires no vested right thereby, but simply a privilege voluntarily granted by the State, which may be hedged about with terms and-conditions, and may be withdrawn as freely as it was given.” Re Hooper, 179 N. Y. 308, 72 N. E. 229.

We do not think that the act limits claims to those founded on contract. If the Highway Commission negligently injures a person in the construction of the State highways, there would be the same liability under the act as where.it took or injured property, or committed a breach of contract relating to road construction.

Mr. Justice Mehaeey agrees to this construction of the act.


author: Kirby, J.

text:
    Mills v. Surratt.
    Opinion delivered April 11, 1932.

      George W. Clark, for appellant.

      George F. Hartje, for appellee.
   Kirby, J.

Appellants brought this suit for the balance claimed to be due under a lease-with-option-to-purchase contract and asked for a receiver to take charge of a crop of corn raised on the premises and sell same, and out of the proceeds pay the debt to plaintiff with costs, etc.

The lease or rent contract was filed as an exhibit to the complaint, and the testimony shows that the lessees had not attempted to carry out the option contract, and it was undisputed that $185 was due under the rent contract. Defense was made on the ground that the lessors had agreed to accept in payment of the rent com at $1 per bushel, and a written memorandum, signed by the lessor, was introduced in evidence, which reads as follows:

“I will pay J. H. Surratt $1 per bushel for good, sound corn delivered to my barn in Conway on this land payment contract to 1933. 4-12-28. W. B. Mills.”

The appellees contended that they had the right to pay the rent in corn, and offered the memorandum in support of it. Appellants denied having given him any such right, and insisted that the memorandum was only an agreement to accept corn at $1 per bushel “on this land payment contract to 1933”; that no corn had been tendered upon the contract for payment of the land, nor had any payments thereon ever been made. There was some other testimony introduced about the meaning of the contract, which was objected to as an attempt to change or vary the terms of a written contract by parol testimony.

The memorandum does not appear to be ambiguous, nor uncertain in meaning, and the court should have construed it in accordance with its obvious meaning, an agreement to accept the corn on the land payment contract. The uncontradicted testimony shows that no payments were made on “the option-to-purchase contract,” nor was any tender made of the corn under said option contract; and the court erred therefore in holding that the memorandum signed by the lessor bound him to the acceptance of corn at $1 per bushel in payment of the rent for the land, and in effect requiring a specific performance of it by him.

The burden of proof was upon appellees, and the court’s finding was contrary to the weight of the testimony.

There is no merit in appellees’ contention that the record does not contain all the testimony heard in the trial. According to the decree and the chancellor’s certificate, it contains the evidence taken in open court in the hearing of the cause, and “the same is by the chancellor found correct” and signed and approved as constituting the bill of exceptions and transcript in the case. It makes no difference that this certificate of the chancellor appears below his signature to the decree and order granting the appeal, since it is in the transcript before the clerk’s certificate of authentication thereof.

The decree is accordingly reversed, and the cause remanded with directions to enter a decree in accordance with this opinion for the amount of the rent due, less the proceeds of the sale of the corn attached. It is so ordered.


author: Mehaffy, J.

text:
    Missouri Pacific Railroad Company v. Remel.
    Opinion delivered April 11, 1932.

      Thomas B. Pryor and Baggett é Baggett, for appellant.

      Pace d Davis, for appellee.
   Mehaffy, J.

The appellee on June 3, 1930, was in the employ of the appellant as a brakeman on a freight train running from North Little Rock, Arkansas, to Poplar Bluff, Missouri. While in the service of appellant as such brakeman, he was engaged in switching a part of the train at Newport, Arkansas, and was thrown from one of the cars and injured.

The appellee was at the time of the injury engaged in interstate commerce and was assisting in operating a train which was carrying interstate commerce, and the suit was therefore brought under the Federal Employers’ Liability Act, and a recovery for his injury sought under the provisions of that act.

Appellee alleged that he was injured by the carelessness and negligence of the appellant; that there were about 60 cars in the train when it reached Newport, Arkansas ; the train headed in on a side track, cut off about 35 cars, went through a switch at the north end of the passing track out on the main track.

It was discovered that the main line was occupied, and it became necessary to back the 35 cars again into the passing track.

The appellee, in the performance of his duty, was riding on the last car to protect the train as it backed into- the passing track. It was alleged that, on account of the carelessness and negligence of the engineer, E. J. Zimmerman, in stopping the train in an unusual and violent manner, appellee was thrown from said car to the ground, and injured in such a way that he will never be able to do or perform manual labor.

He was thrown with such violence and force that it resulted in an injury to his spine, spinal column, and spinal cord, crushing and breaking, among other injuries to the spine, the first lumbar vertebra, thereby obliterating the space between the first and second lumbar vertebrae, also narrowing the space between the first lumbar and the vertebra above it, causing said spinal column to become displaced and out of line at and below the place of injury, also injuring and producing a malformation of the second lumbar vertebra, also otherwise fracturing and injuring the second, third, and fourth lumbar vertebrae, fracturing the ninth and eleventh ribs on the left side, resulting in a paralysis of the bladder and bowels and other organs of the body, including his lower limbs. His nervous system was shattered, his injuries making a permanent physical wreck of him.

At the time he received the injury, he suffered great and excruciating pain of body and anguish of mind, and will continue to so suffer throughout the remainder of his life. At the time he was injured he was 39 years of age, was strong and able to perform, and was performing, hard manual labor for a livelihood, and was earning $250 per month; that, on account of said injury, he will not be able to do or perform labor of any kind in the future; that he had been damaged in the sum of $75,000, for which he prayed judgment.

The appellant answered, denying all the material allegations in the complaint as to negligence, and as to his injuries, and interposing the defenses of contributory negligence and assumption of risk.

At the trial it was admitted that the appellant is a corporation; that it was engaged in interstate commerce at the time of the alleged injuries, and that the appellee was engaged in interstate commerce at the time of the accident:

There was a verdict and judgment for $60,000, and this appeal is prosecuted to reverse said judgment.

The appellant’s first contention is that the evidence is insufficient to sustain the verdict in favor of appellee, and that the court erred in refusing to give appellant’s instruction No. 1, which instruction directed a verdict for the appellant. Appellant states that, under the Federal Employers’ Liability Act, Congress took possession of the field of' employer’s liability to employees engaged in interstate commerce by rail; that all State laws on the subject are superseded, and that the rights and obligations of every plaintiff invoking the provisions of the act are dependent upon it and applicable principles of common law as interpreted by Federal courts, and that therefore the character and sufficiency of evidence to establish negligence is not subject to control of the State.

It is argued that the injury complained of must have resulted in whole or in part from the negligence of one or more of the employees, and that proof of such negligence is essential to recovery. This statement of the law by appellant is correct.

This court, in a recent case, said: “This suit is brought under the Federal Employers ’ Liability Act, and, since this act does not define negligence, the question of whether the acts complained of amount 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; St. L.-San Francisco Ry. Co v. Smith, 179 Ark. 1015, 19 S. W. (2d) 1102.

In the case of St. L.-S. F. Ry. Co. v. Smith, supra, relied on by appelant, it is stated that the rule governing the State courts is well stated in the case of C. M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472, 46 S. Ct. 564. The Supreme Court of the United States in that case said: “It follows that, unless the evidence is sufficient to warrant a finding that the death resulted from the catching of deceased’s left foot under the bent part of the pipe line, the judgment cannot be sustained. As there is no direct evidence, it is necessary to determine whether the circumstances are sufficient to warrant a finding of that fact. Whenever circumstantial evidence is relied on to prove a fact, the circumstances must be proved, and not themselves presumed. * * * The fact that deceased was run over and killed at the time and place disclosed has no tendency to show that Ms foot was caught. * * * The record leaves the matter in the realm of speculation and conjecture. That is not enough.”

Neither this court nor the Supreme Court of the United States will sustain a verdict based on speculation and conjecture.

The evidence in this case shows that the appellee was about forty years of age at the time of the trial, had been in the service of the appellant since 1910, and had been in the service altogether about 23 years, 21 of which he was a brakeman. At the time of his injury, he was swing brakeman on a train of about sixty cars, and rode the engine from Bald Knob to Newport. "When the train went into the passing track at Newport, according to his testimony, he got off the engine and caught back at the last car. The train pulled up in the passing track and stopped, clearing the crossing. After cutting off the cars, the train pulled up at the north end of the yard. Appellee was on the rear car with his right foot in the stirrup. The train could not get out far enough to get the rear car of the cut by the switch, so they could shove them into track 3. When the engineer stopped, appellee got off the car on the ground and walked around the end of the car. The engineer blew three short blasts of the whistle, meaning that he was going to back up, and then appellee looked around and could not see any one. Appellee got on the rear car to keep any one from being injured by backing up. He does not know exactly how far he backed, but he says that all at once a jar and a noise and all came together, and he was thrown doubled up in a knot, and fell on the rail ahead of the cars. He was riding on the last car from the engine with his right foot in the stirrup and left foot on the end of the grab-iron, and when the jar came, it all came at once. He tried to stay on, but was jerked off on the ground.

He was at the time where his duty required him to be. The train did not make an ordinary stop, but á very violent one, and he testified that he knew the engineer did not use the right brake on that cut of cars. Trains like that are equipped with two brakes, an independent and an automatic brake. The independent brake affects the engine and tender only; the automatic brake affects the whole train. The automatic brake should be used in operating a train with 35 cars. If used, it sets the brakes on all the cars at the same time. All the brakes take hold at the same time. The purpose of using the automatic brakes is to avoid jerking and hard stopping. If the independent brake is used, it will make a hard stop and jerk. It glues the engine to the rail, and the cars go along by themselves, and, of course, when they get to the last car, they will surely jerk like a whip.

A'ppellee could tell from the way the cars were stopped that the stop had been made by the use of the independent brake. If the automatic brake had been used, it would have applied the brake on the entire cut of cars.

When the independent brake was applied, the cars ran out as long as there was slack, and then jerked back. That was what threw him off. Appellee said at the time the cars were moving when he got on more rapidly than he was walking. They were moving at about the rate of five miles an hour. There is a difference in the action of the train when the independent brake is used from its action when the automatic brake is used.

Appellee testified that he had a right to believe that the engineer would handle the train so as not to jar him off, and that the engineer should have done so; that it was his duty to do so, but he did not do it; that appellee had no reason to suspect that he would stop- as he did.

Appellee also testified that it was not the custom and not usual and proper to stop the train violently like it was stopped when he was injured.

H. L. Walker testified that he worked for the appellant from 1919 to 1928 as switchman and brakeman; that he was familiar with the character of trains and engines that appellee worked on. The engine was the heaviest type of freight engine running into Little Rock. He testified at length about the rules with reference to stopping trains, and said that the rules required that, when stopping a long train, while backing at a moderate or low speed, to use a light reduction; keep the engine brakes from applying, and continue to use steam. The object is to prevent the slack from running out harshly. He testified the easiest way to control a train is with the automatic brake. The engine brake applies only on the engine and tender; that the use of the independent brake in backing a train of 35 cars would make a severe stop, and the further it goes back, the more severe it is, and the last car gets the hardest jolt; it is a violent stop, and that is not the ordinary way to stop a train.

This witness testified at length about the use of the automatic brake and independent brake, and when asked if he would not expect the use of the independent brake ordinarily in that kind of movements, he answered that he would not when they had the air lined up, because it is a very severe jolt. He was then asked: “But ordinarily he would?” and he answered, “No, sir; ordinarily he would not.”

M. Dumas, a witness, also testified that he had been in the service of the Missouri Pacific for 12 years, but that be was not employed now. He is familiar with the character of engines and trains used on through freights. He testified as to the effect of the use of the independent brake, and said it would be awful severe; that it would be hard to stay on; would be dangerous, it would come with such a jerk. He testified that he would not expect the engineer to stop the train, such a train as appellee was injured on, with an independent brake; that they were not supposed to use the independent brake except in emergency cases.

J. W. Bernard, employed by the Missouri Pacific from 1899 to 1929, testified that he was familiar with the kind of service being performed at the time of the accident, and that the proper brake for the engineer to use was the automatic; that stopping with the independent was very severe. He was asked: “When you have your train, and the air is coupled up through the train, the instructions are to use the automatic brake?” and he answered, “Yes, sir.” He stated that the way to use an independent brake to stop a train was to apply it very gradually, and give it time to let the slack run out easily. If you jam on the independent brake, the slack will run out suddenly and jerk the rear end.

P. G-. Steed, another witness, formerly employed by appellant as locomotive fireman and engineer, testified that in a back-up movement involving 35 cars, the engineer should use the automatic brake. In such movement it was the duty of the brakeman to be on the last car, and the engineer should know he was there. He testified on cross-examination that, when the air is coupled up, the automatic must be used; that you would use the independent brake handling a light engine or a very light bunch of cars.

E. J. Zimmerman testified for the appellant that he was the engineer at the time of the accident, and used the independent brake in making the stop; that he made a light application and then made a further application and stopped. He and a number of witnesses testified that the stop made at the timé of appellee’s injury was the ordinary stop, and, in effect, that it was not negligence.

Appellant says that the case of Ft. Smith S. & R. I. Rd. Co. v. Moore, 172 Ark. 353, 289 S. W. 6, was reversed by the Supreme Court of the United States on the authority of C. M. $ St. P. v. Coogan. The Supreme Court of the United 'States, in reversing the case, stated that it was reversed on authority of Gulf, Mobile & No. Rd. Co. v. Wells, 275 U. S. 455, 48 S. Ct. 151, and C. M. & St. P. Rd. Co. v. Coogan. We have already called attention to the Coogan case.

In the other case given as authority for reversal of the Moore case, the Supreme Court of the United States expressly stated that there was no evidence that the engineer knew or should have known that Wells was not on the train, but was attempting to get on after it had started, and was in a situation in which a jerk of the train would be dangerous to him.

In the instant case, the engineer knew where appellee was, and knew he was in a situation in which a jerk of the train might be dangerous.

The court also said, in the Wells case, that the statement that there was a jerk was mere conjecture, and the court, continuing, said: “In short, we find that, on the evidence and all the inferences which the jury might reasonably draw therefrom, taken most strongly against the railroad company, the contention that the injury was caused by the negligence of the engineer is without any substantial support. In no respect does the record do more than leave the matter in the realm of speculation and conjecture.”

In the instant case there is evidence to the effect that the automatic brake should have been used, and that appellee was where his duty required him to be, on the last car, and that the engineer knew he was there. There is therefore substantial evidence of the negligence of the engineer causing the injury to appellee. A verdict will not be sustained either by the Supreme Court of the United States or this court on speculation or conjecture, nor where there is only a scintilla of evidence, but the rule in both courts is that there must be substantial evidence upon which to base the verdict. It is also the rule, not only in this court, but in the Supreme Court of the United States, that, if there is substantial evidence, it is then a question for the jury, and the rule in both courts also is that the burden is,upon the plaintiff to prove negligence, and also that the negligence was the cause of the injury.

Appellant calls attention to many authorities to the effect that proof of negligence proximately causing the injury is a prerequisite to recovery. This court has always held that the burden is on the plaintiff, not only to prove negligence, but that the negligence caused the injury.

We have not set out the evidence in detail, but have referred to it sufficiently to show that there was substantial evidence upon which to base the verdict.

In this case, as we have already said, there, is evidence tending to show that the engineer was guilty of negligence, which caused the injury, and nothing need therefore be said about the doctrine of res ipsa loquitur.

It is next contended that the appellee cannot recover because he assumed the risk. If the evidence of the witnesses that’ it was improper to use the independent brake instead of the automatic, and that this independent brake was applied suddenly, so as to cause a violent jerk, when the stop could have been made in the ordinary way, then of course the appellee did not assume the risk. An employee does not assume the risk of the negligence of the master or its servant, the engineer. In fact, the act under which this suit is brought authorizes a recovery if the injury is caused in whole or in part by the negligence of the master or its servants. The employee would not assume the risk of the negligence of the master unless he knew of its existence.

According to the evidence of the appellee, he was in a perilous position, and the engineer knew it. Of course, the evidence on the part of the appellant is in conflict with this, but, wherever the evidence is in conflict, its weight and the credibility of the witnesses are questions for the jury.

The question of a continuance or a postponement of the case was within the sound discretion of the trial court, and it does not appear in this case that the court abused its discretion. The appellant knew about the evidence that it wanted in ample time to have been prepared with its evidence, and it was during the progress of the trial that appellant asked for the postponement, and asked that plaintiff be directed to send a telegram to the Mayo Clinic.

This court has often held that the granting or refusing a postponement is within the sound discretion of the trial court, and the manner of procedure and the rules regulating the conduct of a lawsuit must necessarily be largely within the discretion of the trial court.

It is finally contended by the appellant that the verdict of the jury is excessive. Appellee was 39 years of age, was healthy and strong, and able to work all the time, and was earning $250 per month. He had been working for the company for a number of years; was in the hospital for a long while; the injury was very painful; appellee cannot sleep the whole night through, or do any work, and has been confined to his house for a long while; he has no control over his bowels or urine, and no feeling in that part of his body; he never had any trouble with his bladder or urine before, or his bowels, and it appears from the evidence that he will not only be unable to perform any work and earn anything in the future, but that he will necessarily suffer pain and inconvenience for the rest of his life.

He has a fractured spine, the first lumbar vertebra is badly crushed, and his spinal cord pinched. Some of his ribs were broken, and as a result of the injury he has no feeling in the lower part of his body, and no control over his kidneys or bowels.

The evidence of the physician was to the effect that he would never be any better, but gradually grow worse, without hope of recovery, and that he will continue to suffer pain.

The amount of recovery in a case of this sort should be such, as nearly as can be, to compensate the injured party for his injury. The suit is for compensation, and compensation means that which constitutes or is regarded as an equivalent or recompense; that which compensates for loss or privation remuneration.

It appears from the evidence that the injuries received are very severe. However, the undisputed evidence shows that in 1914 or 1915 the appellee was severely injured in an accident and was at that time in the hospital several months, receiving treatment for his injuries.

There is evidence tending to show that his injuries at that time were severe, and resulted in the loss of control of bowels and bladder, and partial paralysis from the waist down. He afterwards gained control of the bowels and partial control of the bladder. There was some evidence tending to show that the injury received in 1914 or 1915 affected his spine.

We have considered carefully all the evidence with reference to his injuries, and have reached the conclusion that a judgment for $60,000 is excessive, and that it should be reduced to $40,000.

The judgment is therefore reduced to $40,000, and affirmed for that amount.


author: McHaney, J.

text:
    State use Southern Finance Corporation, v. Warner.
    Opinion delivered April 11, 1932.

      George M. Booth, W. J. Schoonover and Walter L. Pope, for appellant.

      W. P. Smith and H. L. Ponder, for appellees.
   McHaney, J.

Appellant, a judgment creditor of one Davis and his bondsmen on a forthcoming bond, sued appellee Warner who is the sheriff of Lawrence County, and the other appellees who are the bondsmen on his official bond, to recover the sum of $428.85, the amount for which an execution was issued against said Davis and his bondsmen, on the ground that the execution was not returned within sixty days, as provided by § 4360, Crawford & Moses ’ Digest. There were three executions issued on said judgment, the first on November 7, 1929, upon which the officer made the following return: ‘ ‘ This writ of execution came to my hand oh. the 7th day of November, 1929, at ten o’clock a. m., and is hereby returned unsatisfied, there being nothing pointed out to levy on.” This return did not show the date on which the indorsement was made nor when it was filed, but the clerk’s execution docket shows that he noted the return as of the 17th day of January, 1930, a period of more than sixty days after its issuance. The second execution was issued January 17, 1930, and the indorsement of the return made hy the officer is as follows: ‘ ‘ This writ came to my hands on the 17th day of January, 1930, at two o’clock p. m. On the 16th day of March, 1930, I hereby return the said execution unsatisfied, there being nothing pointed out to levy on. ’ ’ This return showed on its face that it was returned within the sixty days, but the clerk’s execution docket noted its return as of April 1, 1930, a period of more than sixty days according to the clerk’s docket. The third execution was issued on April 2, 1930, and upon this execution a levy was made on certain real property owned by one of the bondsmen on Davis’ forthcoming bond. The property was advertised and sold to one of the attorneys for appellant for a nominal sum. The following return was then made on the proof of publication which was attached to the execution: “There being no one present to bid'on this property, it was knocked off to George M. Booth, for costs plus $1, he being attorney for Southern Finance Corporation. Signed W. E. Archer.” Mr. Archer was the deputy sheriff who handled all the executions and made the sale. The case was submitted to the court sitting as a jury, and a finding was made “that the different executions issued for the collection of the judgment sued on herein were properly returned by B. B. Warner, sheriff of Lawrence County to the clerk of the circuit court of Lawrence County within the time and for the manner as provided by law.” The court further found that as to the last execution certain lands were levied upon, properly advertised and sold to George Booth, for which a certificate of purchase was made out and delivered to and retained by him, and that appellant was not entitled to recover in the action. Judgment was entered accordingly.

The sheriff and his deputy, Mr. Archer, were permitted to testify over objections that they had made return of the executions in apt time; that it was their practice to do so, and that they were careful not to let them go by;-that the clerk kept a box in his office in which papers of this kind were deposited by the sheriff and his deputies to be .filed by the clerk; that they were sure these executions were deposited, in the box in the clerk’s office within the sixty days from the date of their issuance; and that the clerk’s execution docket erroneously stated the date later than the actual return. We fail to see why this evidence is not competent, .even though it tends to contradict the entry made by the clerk in his execution docket, especially so since the clerk himself did not testify that he entered the return date in his docket the day the writs were actually deposited in his office. It might be that the clerk did not enter them into his docket until some time later and noted the return as of the day he made the entry. At any rate we do not think the entry made by the clerk is conclusive of the fact as to when the return was made and not subject to contradiction by the sheriff. The first execution did not show the date of the return in the indorsement by the sheriff, but the second one did and it is reasonable to suppose the sheriff would return the writ to the clerk’s office on the date of the indorsement made. As to the third execution, the return shows it was executed by making a levy and sale of the property, and in all probability could not have been returned within the sixty days because the sale had to be advertised and made according to law. This court has many times held that the statute under which this action is brought is highly penal, and that it should not be applied except in eases coming clearly in its purview. Mayfield Woolen Mills v. Lewis, 89 Ark. 488, 117 S. W. 558, 16; same case, 97 Ark. 149, 133 S. W. 590; McIlroy Banking Co. v. Mills, 178 Ark. 741, 11 S. W. (2d) 481.

Since the case was tried before the court as a jury, its finding’ and judgment will not be disturbed by this court, unless there is no substantial evidence to support it. The testimony of the sheriff and his deputy, being competent, constitutes substantial evidence that the returns made on the different executions were made in apt time. Of course, the clerk’s docket was evidence of the facts shown, but it was not conclusive evidence on the sheriff.

Affirmed.