text:
    Daniels v. State.
    Crim. 3816
    Opinion delivered October 10, 1932.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Butler, J.

The appellant was indicted, tried and convicted of the crime of rape committed on a thirteen-year-old girl. He was represented by counsel as eminent as any in the State who conducted his defense in a courageous and able manner. During the trial timely objections were made and proper exceptions saved to the action of the court, and these were preserved in a motion for a new trial in which a number of assignments of error were made. "We have carefully reviewed the evidence in the case, and find that it is ample to sustain the verdict and judgment of the trial court.

The prosecuting witness, a child of about thirteen years of age, gave a circumstantial account of how she was ravished, stating that her assailant was a stranger to her, hut that she observed certain peculiarities about him which she described immediately after she reached her home. She said that he was a young negro man; that he had two scars on the side of his neck, one tooth missing and a deformity of one eye. A negro answering this description had been seen a few hours preceding the commission of the crime in that vicinity, and appellant was taken in charge on the following day because he answered that description. An examination of the tracks at the scene of the crime showed that they were made by a shoe having a- rubber heel with a hole in it and when these were compared with the shoes of appellant it was ascertained that they matched. After appellant was taken into custody he was delivered to the deputy sheriff and was allowed to talk with a negro minister. After some conversation the appellant admitted the crime, and when placed on the witness stand in Ms own behalf be did not deny baying made tbe assault and stated that be bad admitted it because bis preacher told him it would be best to plead guilty; that be was frightened, and that was tbe reason be bad made tbe confession. When testifying as a witness however, be stated that be did not remember where be was or what he did on tbe afternoon of tbe assault because be bad found a quart jar of whiskey in tbe woods and bad drunk about a pint of it and became so drunk that be did not remember whether be met tbe little girl or not and only remembered when be awoke in tbe woods late in tbe evening.

Tbe witnesses who bad seen appellant in tbe vicinity of tbe crime testified that he bad no appearance of being under tbe influence of liquor, and one witness stated that appellant drew water from witness ’ well and made some inquiries as to where Bill Perry lived and told the witness bis name.

Tbe testimony, without tbe admission of tbe appellant, was ample to establish bis identity, and it was also ample to establish tbe fact that tbe child bad been ravished, and that tbe appellant bad committed tbe crime. This, together with tbe admissions of tbe appellant and bis testimony on tbe witness stand, was enough to lead to tbe conclusion of bis guilt beyond a reasonable doubt.

Tbe appellant was indicted in tbe name of Freeling Daniels. He and bis father testified that bis name was Frelorn Daniels, but a witness upon whose place appellant and bis father bad lived, and who was well acquainted with tbe appellant, testified that appellant’s name was Freeling Daniels. One of tbe assignments'of error was that tbe court erred “in refusing to bold that tbe name of tbe defendant was not Freeling Daniels and that bis name was not idem, sonans with tbe name of the defendant mentioned in tbe indictment.” Tbe court did not err in this regard because there was a conflict in tbe testimony as to whether appellant’s name was Fre-lom or Freeling Daniels, and for tbe further reason that there was no question as to tbe identity of tbe appellant. The mere fact that his name was incorrectly spelled in the indictment is not ground for reversal, as all the proof shows that he was the person intended to be charged with the crime. Joiner v. State, 113 Ark. 112, 167 S. W. 492; Bridger v. State, 122 Ark. 395, 183 S. W. 962; § 3017, Crawford & Moses ’ Digest.

Complaint is made of the court’s action in refusing' certain instructions asked by the appellant and to those given by the court at the request of the State. Some of the instructions requested by the appellant were covered by instructions given, and therefore were not improperly refused. In one of the instructions requested the court struck from it the sentence: “If any reasonable view of the evidence is or can be adopted which admits of a reasonable doubt of the guilt of the defendant, then it is your duty to adopt such view and acquit.”

Another instruction was refused which told the jury they could not convict unless the offense had been established to the exclusion of every other reasonable hypothesis of the defendant’s innocence. The court gave at the request of the appellant correct instructions on the presumption of innocence and reasonable doubt, and, as the State did not rely entirely upon circumstantial evidence, it was not error to modify the instruction in the particular mentioned above or to refuse to grant the other. Osburn v. State, 181 Ark. 661, 27 S. W. (2d) 783, and cases therein cited.

Complaint is made of the action of the court in refusing to give an instruction which in effect told the jury that it was prosecuting witness’ duty to make outcry at the time she alleged the appellant assaulted her, and that failure to do so might be considered in determining whether appellant did in fact commit rape upon her. This instruction was properly refused; first, because there was no evidence at all tending to show that rape had not in fact been committed, and, second, because the evidence showed she feared, because of appellant’s threats, to cry out or resist, and because any outcry would have been unavailing since the scene of the crime was remote from human habitation. Jackson v. State, 92 Ark. 71, 122 S. W. 101; Meisenheimer v. State, 73 Ark. 407, 84 S. W. 494.

One of the defenses interposed was that of insanity, and the court correctly instructed the jury on that defense. The court refused request for instruction No. 10 which would have told the jury that in considering the degree of punishment in the event the defendant should be found guilty that they might take into consideration whether or not the defendant’s mind was undeveloped and not the mind of a normal person. A number of witnesses testified regarding the mentality of the defendant, including a number of physicians. All of them testified that defendant was sane, and some of them testified that he was an uneducated young negro with the mind of about a fifteen-year-old person. The court gave the proper test by which the accountability of the defendant might be measured, and told the jury that, if they found the defendant innocent under the rule given, they should acquit him. The court’s instruction on this question was a correct declaration of law, but it might properly have refused to so instruct, as all of the testimony showed that the defendant was sane. All courts agree that mere mental weakness does not exempt from responsibility, nor can one with a mind below normal be exempted from punishment, any more than a person with normal mind.

There are other instructions complained of, but which we find it unnecessary to comment upon because from a comparison of all of the instructions given we find no error.

In assignments of error Nos. 26, 27, 28 and 29 in the motion for a new trial it was alleged that the verdict of the jury was influenced by a large assembly of enraged persons present at the trial; that a lynching had been anticipated before the trial, and, in order to prevent the same, the sheriff had caused to be present in and about the court room a number of soldiers armed and in uniform, and these remained throughout the trial and until the jury had returned their verdict; that the presence of the soldiers and the great crowd of people coerced the jury.

The evidence taken at the hearing on the motion for a new trial disclosed that, while there was a large crowd in and about the court room, it was orderly; that no threats were made by any of its members, nor was there any demonstration indicating any rage or resentment upon its part toward the appellant. The soldiers were in attendance at the request of the court as a precautionary measure, and it was shown that counsel for the defendant acquiesced in the presence of the soldiers, and that these performed only such duties as were assigned to them in a respectful manner. The trial was orderly throughout its entire course, and the verdict of the jury is not shown to have been influenced by anything except the evidence, which, as we have said, was ample to sustain it.

Finding no prejudicial errors in the admission or rejection of testimony or in the instructions given by the court, the judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    York v. State.
    Cr. 3820
    Opinion delivered October 10, 1932.

      J. S. McConnell and Geo. R. Steel, for appellant.

      Hal L. Norwood, Attorney General, for appellee.
   Per Curiam.

The bill of exceptions in the instant case is identical with the one held insufficient in the case of Ward v. State, 135 Ark. 259, 204 S. W. 971. In this case, as in that the hill of exceptions was signed by the prosecuting attorney and counsel for appellant, but had not been submitted to nor approved by the trial judge. The appellant in each case had been convicted of a felony. It was there held that it is necessary that a bill of exceptions in a case where defendant has been convicted of a felony be signed by the trial judge, and that the bill of exceptions did not become a part of the record until it was so signed.

The errors complained of in the instant case, like those in the Ward case, supra, are such as must be brought into the record by a proper bill of exceptions, and, as no error appears in the absence of a bill of exceptions, the judgment must be affirmed, and it is so ordered.


author: Smith, J.

text:
    Wilson v. Cardwell.
    4-2835
    Opinion delivered October 17, 1932.

      Proctor F. Johnson .aná Duty & Duty, for appellant.

      John W. Nance, for appellee.
   Smith, J.

Appellant and appellee were the opposing and only candidates for the Democratic nomination for State Senator from the Fifth Senatorial District, composed of Washington County, in the State-wide primary election held August ‘9, 1932. The returns, as certified by the county democratic central committee, showed that appellant was defeated by a majority of 249 votes, and within ten days thereafter a complaint was filed by appellant contesting this certification.

A demurrer was interposed to numerous paragraphs of the complaint, which was sustained, and these paragraphs were dismissed, but permission ivas given to amend. Later, and more than ten' days after appellee had been certified as the nominee, an amendment was filed to the complaint. A motion was filed and sustained to strike the amended complaint from the record for the following reasons: (1) That the amended complaint alleged new and different grounds for contest, and was not filed within ten days of the date of the certification of the nomination; (2) that the amendment was not supported by the affidavit of ten reputable citizens of Washington County; and (3) that the amendment seeks to change and enlarge the grounds of contest set forth in the original complaint.

When the motion to strike the amended complaint was sustained, the court offered to permit the plaintiff to further amend his complaint, but he declined the offer, and has appealed from the action of the court in sustaining the demurrer to portions of his complaint and in striking his amendment to the paragraphs of the complaint which had been dismissed when the demurrer thereto was sustained.

A motion has been filed here to dismiss the appeal upon the grounds that no final judgment has been rendered, and that the appeal is premature.

A headnote in the case of Security Mortgage Co. v. Bell, 175 Ark. 128, 298 S. W. 865, reads as follows: “An appeal from an order dismissing a complaint as to certain paragraphs, but leaving the paragraph which presented a triable issue, held prematurely taken, since the issue should have been tried and objection to the demurrer urged on final appeal from the whole action.”

It is insisted, upon the authority of the case from which we have just quoted, that the motion to dismiss the appeal should be sustained. We do not, however, concur in this view, for the reason that, in our opinion, no triable issue was left after the demurrer had been sustained to certain of its paragraphs. The portion of the complaint, left after the demurrer to certain of its paragraphs had been sustained, was itself demurrable, as failing to sufficiently state a cause of contest. The vital parts of the complaint were deleted when the demurrer was sustained, and, in our opinion, the demurrer, if sustained at all, should have been sustained to the complaint in its entirety, and that there was not left thereafter a triable cause of action. Hill v. Williams, 165 Ark. 421, 264 S. W. 964.

The allegations of the original complaint are somewhat general in their nature, and, if the demurrer had been treated as a motion to make more specific, it should have been sustained on that ground.

We think, however, that the original complaint stated a cause of action, as its allegations, if supported by the testimony, show that appellant received a majority of the votes of the qualified electors of Washington County, which county composed the Fifth Senatorial District.

These allegations are lengthy, and will not be set out in extenso, but they are to the effect that appellee and certain of his political supporters conspired with a candidate for tlie nomination for sheriff and certain of his adherents to illegally assess two thousand poll-tax payers, and to provide poll-tax receipts for them for the purpose and in consideration of having the persons to whom the poll-tax receipts were issued support appellee and the candidate for sheriff aforesaid. And, further, that persons had voted in the election who had no poll-tax receipts, as had others who were not otherwise qualified, although they held poll-tax receipts, among the latter class being many Republicans. That illegal absentee ballots had been received and counted for appellee, as had also the ballots of certain other persons who had not voted at all, and that certain ballots had been changed from appellant to appellee, and “that, by reason of the illegal and unlawful acts claimed, as aforesaid, the plaintiff had been cheated out of more than fifteen hundred votes in said county, and if the legal votes cast for him had been counted and the illegal votes that had been cast for the defendant were thrown out, this plaintiff would have received the nomination for the office of State Senator by a large majority.”

These allegations were made more definite and certain by the amendment to the complaint.

It was held in the case of Logan v. Russell, 136 Ark. 217, 206 S. W. 131, which was the first case construing the primary election law, appearing as §§ 3757 et seq., Crawford & Moses’ Digest, that the complaint in a proceeding to contest the certification of a primary nomination shall be supported by the affidavits of at least ten reputable citizens, and shall be filed within ten days of the certification complained of, and that the complaint and the affidavits are jurisdictional, and must be filed within the time specified. It has, however, been also, held that, where a contest has been instituted within the time and in the manner required by law, the complaint may be amended to make the allegations thereof more definite and certain and more specific; but the complaint may not be amended to allege new and additional grounds of contest. The statute does not require supporting affidavits of the citizens to these permissible amendments. These amendments may be made without the supporting affidavits, and after the expiration of the original ten days, when unreasonable delay in the trial of the cause will not result therefrom. Robinson v. Knowlton, 183 Ark. 1127, 40 S. W. (2d) 450; Cain v. McGregor, 182 Ark. 633, 32 S. W. (2d) 319; Gower v. Johnson, 173 Ark. 120, 292 S. W. 382; Bland v. Benton, 171 Ark. 805, 286 S. W. 976.

It was not ground therefore to strike the amended complaint from the record because it was not verified by the affidavit of ten reputable citizens, and was not filed within ten days after the certification of appellee as the nominee. Nor was it ground to strike the entire amended complaint making more definite the allegations of the original complaint because a ground of contest was alleged which the original complaint did not contain. Only that additional ground of contest, if such there was,' should have been stricken out.

As we interpret the pleadings, a cause of action to contest appellee’s nomination was stated in the original complaint, and the court erred in striking out certain paragraphs thereof upon sustaining the demurrer thereto; but, with these paragraphs deleted, a triable cause of action did not remain, and an appeal was proper from that order.

We are also of the opinion that the court was in error in striking out the amendment to the complaint, and, upon the remand of the cause, this motion will be sustained only as to such grounds of contest as were not alleged in the original complaint.

The judgment of the court below is therefore reversed, and the cause will be remanded for further proceedings in accordance with the directions as above contained,


author: HumphRbys, J.

text:
    City National Bank v. Fite.
    4-2671
    Opinion delivered October 17, 1932.

      Evans &0 Evans and James B. McDonough, for appellant.

      Cochran & Arnett, for appellee.
   HumphRbys, J.

On October 27, 1931, the City National Bank of Ft. Smith, one of the appellants herein, brought suit against the Smith Trading Company of Paris in the chancery court of Logan County, Northern District, to foreclose its pledges and mortgages in the sum of $25,000, deposited with it as collateral by said Smith Trading Company, and to obtain the appointment of a receiver to take charge of the property described in said pledges and mortgages which was not already in the possession of appellant. A part of the property consisted of 105 bales of cotton raised in 1931 on a farm of 320 acres, owned by the estate of Mrs. Ella Stroupe, deceased, wife of Henry Stroupe.

Her administrator, H. T. Fite, intervened in said suit, claiming a landlord’s lien for rent in the amount of $2,000 on said cotton. Issue was joined in this suit as to the amount of rent due the administrator for the year 1931.

On October 14, 1931, the Smith Trading Company brought suit against Henry Stroupe in the circuit court of Logan County, Northern District, on a promissory note for $574, including interest, which was executed to it for supplies on March 9, 1926, by Stroupe. The defense of payment was interposed to this suit, and, by agreement, it was transferred to the chancery court and consolidated with the foreclosure suit.

The cause was submitted upon the issues joined and the testimony adduced by the parties responsive thereto, which resulted in a finding that the amount of rent due was $'2,000, and that the Stroupe note had been paid, and a decree in accordance therewith, from which is this appeal.

Four witnesses were introduced who testified as to the amount of rent due for the year 1931.

Rufus Smith, who was a stockholder in the Smith Trading Company, testified, in substance, that the trading company leased the 320-acre tract from the Stroup es in September or October, 1928, for five years, at a rental of $1,500 for 1929, $1,750 for 1930, and $1,800 a year for the next three years, and that it entered into possession thereof and made extensive and valuable improvements thereon with the understanding that a written contract would be drawn up and executed in keeping with the oral agreement; that, in the spring of 1929, he drafted a contract providing for the payment of $1,800 per- year for the rents’ of the last three years and handed it to Stroupe; that this agreement was not signed by either party; that later Stroupe handed him a written lease and copy signed by himself and wife, which he retained, but never signed, which provided for a rental of $2,000 per year for the last three years; that he gave the original to his attorney when this suit was instituted, and prior to that time had given the copy to the manager of the farm; that it paid $1,500 for 1929 and $1,750 for 1930, and owed only $1,800 for 1931. He also denied that he admitted to Tom Fite and Almond Stroupe that it owed $2,000 rent for the year 1931.

Henry Stroupe testified, in substance, that, when Rufus Smith handed him a written contract which he had prepared, he told him it was not in accordance with their oral contract; that thereafter he had Mr. John Arbuclde draw up a contract and copy providing for the payment of $1,500 for 1929, $1,750 for 1930, and $2,000 per year for the next three years, which he and his wife executed; that he delivered same to Rufus Smith, who accepted it and complied with its terms until its refusal to pay the 1931 rent. When interrogated concerning the whereabouts of the contract prepared and delivered to him by Rufus Smith, he said it was somewhere in his papers.

H. T. Fite testified that he demanded $2,000 for the rent of 1931 from Smith, who did not deny or dispute the amount due, hut who stated that, on account of conditions prevailing, he should not he required to pay that much.

Almond Stroupe testified that he assisted the administrator in collecting the rents and the management of his mother’s estate, and that in conversation with Rufus Smith he admitted that it owed $2,000 for the rent of the 320-acre tract for the year 1931, hut stated that, on account of the price of cotton, they ought to reduce it to $1,500.

Three witnesses testified relative to the payment of the Stroupe note.

Henry Stroupe testified, in substance, that Rufus Smith owed him rent on his upper place, amounting’ to some more than the note he owed Rufus Smith, and that in the month of February, 1930, they had an agreement in the store of the Smith Trading Company that they would offset one against the other, and that Rufus Smith told him he would hand him the note later as he was in a hurry to go to the bottom farm; that nothing more was said about it until some three years later, when this suit was brought; that no request or demand was ever made upon him for the payment of the note after the settlement.

Tom Fite testified, in substance, that he was doing some collecting for Henry Stroupe in 1930, and that he attempted to ¡collect the rents Rufus Smith owed Stroupe oil the upper place; that Smith said to him he would like to talk the matter over with Stroupe, and that they subsequently met at the store, and that, after conversing about the matter, it was agreed between them that they would offset the note against the rent; that the proposal to do so was made by Stroupe and accepted by Smith, and that Smith said he would look up the note and hand it to him later, as he was then in a hurry to go to the bottom farm.

Rufus Smith testified, in substance, that no such settlement was made as detailed by Stroupe and Fite; that he owed Stroupe nothing in 1930 for rents on his upper place; that he never asked Stroupe to pay the note because Austin Smith had charge of the store and notes; that it was his business to look after the farms, and Austin’s business to look after the store and notes.

(1) Upon the rent issue, there is no dispute as to the term of the lease nor the amount of rents to be paid the first and second years, nor that Rufus Smith entered into the possession of the land and made improvements thereon contemplated by the parties, nor that the oral contract of lease should be reduced to writing and executed at a later date, nor that Rufus Smith paid the rent for the first two years and continued to operate and cultivate the farm, nor that during the third year he planted, cultivated and picked 105 bales of cotton, part of which was in the possession of appellant bank and part in the possession of Smith Trading Company. The only dispute in the testimony is as to the amount of rent to be paid by the Smith Trading Company for the use of the farm for the year 1931.

Stroupe testified that the trading company was to pay $2,000, and Smith that it was to pay $1,800 rent for that year, and Stroupe is corroborated by his son and Fite. The finding of the chancellor that $2,000 was due for rent for the year 1931 is supported by the weight of the evidence.

The contention of appellant that the oral contract was void under the statute of frauds is not tenable, if for no other reason, because the lease contract was partially performed. The lessee entered into possession of the farm, made valuable improvements thereon, and had planted, cultivated and gathered the cotton crop the third year at the time this suit was instituted, and, under these circumstances, the lessee was hound to pay the amount of rent agreed upon. Having concluded that the oral contract is binding, it is unnecessary to determine whether the oral contract was supplanted by the written, lease executed by Stroupe and delivered to the lessee.

Relative to the issue of payment of the Stroupe note, we cannot say that the finding of the chancellor is contrary to the weight of the evidence. The settlement is supported by two witnesses as against one, and the fact that three years elapsed between the settlement and the institution of the suit without- any demand being made upon Stroupe for payment is a potent circumstance in corroboration of the evidence of the two.

No error appearing, the decree is affirmed.


author: Humphreys, J.

text:
    Missouri Pacific Railroad Company v. Hall.
    4-2679
    Opinion delivered October 17, 1932.

      Thos. B. Pryor and Daggett & Daggett, for appellant.

      Giles D earing, for appellee.
   Humphreys, J.

Appellees, husband and wife, recovered judgment for damages in the total sum of $905 in the circuit court of Cross County against appellant on account of an injury received by the wife, causing her to miscarry, through the alleged negligence of appellant, from which is this appeal.

A reversal of the judgment is sought upon the alleged ground that there is no substantial evidence in the record to support it. The argument is made that the evidence wholly fails to show that the injury received was the proximate cause of the miscarriage.

Appellees purchased tickets at Fairoaks, Arkansas, for transportation to Wynne, Arkansas. According to the testimony introduced by them, they boarded appellant’s train at eleven o'clock a. m., and about the time the wife reached a seat, and before she had time to sit down, the train started with a jerk, which caused her to fall and strike her side against the arm of the seat; that she was pregnant and had been for three months; that the lick in her side produced great pain in her stomach, causing nausea and a hemorrhage from the genital organs; that, upon arrival at Wynne, she repaired to Stewart’s Drug Store, where she had additional hemorrhages, causing her to suffer great physical and .mental pain, and to become faint; that, after receiving medical attention, she was carried in a taxi to the home of a friend, where she remained for four hours in bed and in a semi-conscious condition, and then was carried to the home of her sister, where she continued to have hemorrhages and suffer until about five o’clock the next morning, at which time she miscarried; that, after being delivered of the fetus, she continued to suffer and was confined to her bed for ten days or more.

Dr. Stewart testified, in response to a hypothetical question, that, in his opinion, the miscarriage might have resulted from the injury.

Dr. Wilson testified on behalf of' appellant, in response to a hypothetical question, that in his opinion the miscarriage did not result from the injury, because the injury was not inflicted on the uterus, and because sufficient time had not elapsed between the time of the injury and the delivery of the fetus for the injury to have been the proximate cause of the miscarriage.

The testimony detailed above justified the court in submitting to the jury the issue of whether the injury was the proximate cause of the miscarriage. Courts are not required to accept opinions of expert witnesses as absolutely true, and peremptorily instruct verdicts based upon their opinion regardless of all other facts and circumstances in the case tending to conflict with such opinion. Expert witnesses themselves frequently differ in conclusions and opinions in response to identical hypothetical questions; hence their opinions do not rise to the level of physical facts.

In the instant case, the testimony of the lay-witnesses tends to show that the injury was the direct cause of the miscarriage, and is supported to some extent by the testimony of Dr. Stewart.

The testimony of Dr. Wilson, appellant’s expert witness, tends to show that the injury was not the proximate cause of the miscarriage.

This produced a conflict in the testimony for determination by the jury and not the court. The peremptory instruction therefore requested by appellant was properly refused.

Appellant also urges that the amount of recovery is excessive and the result of passion and prejudice. We cannot agree with learned counsel in this contention. The wife was entitled to recover for mental anguish as well as physical pain and suffering. According to the evidence adduced by appellees, she began to suffer acute and severe pain coincident with the injury, which continued in its intensity until four or five o’clock the following morning, at which time she miscarried. Her suffering was so great that she had fainting spells, and at times became unconscious. She continued to suffer physically thereafter for ten days or more. When these facts are' considered in connection with the mental anguish a woman must necessarily suffer in having a miscarriage instead of a child born alive, we cannot say that a verdict for $905 is the result of passion and prejudice.

No error appearing, the judgment is affirmed.


author: Kieby, J.,

text:
    McCown v. Taylor.
    4-2672
    Opinion delivered October 17, 1932.

      Lake, Lake & Carlton, for appellant.

      E. K. Edwards, for appellee.
   Kieby, J.,

(after stating the facts). The legal principles governing transactions between husband and wife where the interest of third parties intervene are well settled by numerous decisions of this court. While such transactions are closely scrutinized, they are, when made in good faith and for a fair consideration, upheld by our court to the same extent as transactions between strangers. In Mente v. Westbrook, 181 Ark. 96, 24 S. W. (2d) 976, the court, discussing an alleged fraudulent conveyance between a husband and wife, said:

“It is also well settled that, if the evidence shows that the grantor had abundant means other than his property to satisfy all his creditors, the conveyance will not be declared fraudulent. It is also well settled that, to entitle a creditor to set aside a conveyance as fraudulent, it is necessary, not only that there be fraud on the part of the vendor participated in by the vendee, but also that there be an injury to the person complaining. The creditor who seeks to set aside a conveyance as fraudulent must show that his debtor has disposed of property that might otherwise have been subjected to the satisfaction of his debt. And not only that, but he must show that the debtor did not have other property sufficient to pay the creditor. * * * If the evidence shows that one had ample means to pay all his debts, the conveyance to his wife of property of small value, as compared with his whole property, together with other facts tending to show good faith, would be sufficient to justify the conclusion that the transfer was not fraudulent.” The opinion quotes extensively from 12 R. C. L. 513-514.

It has likewise been held that an insolvent husband may, without fraud, when justly indebted to his wife, prefer her claim to those of other creditors and make a valid appropriation of his property to pay it, notwithstanding the result be to deprive other creditors of means of satisfying all their claims. Stallings v. Galloway-Kennedy Co., 171 Ark. 24, 283 S. W. 41. See also Davis v. Yonge, 74 Ark. 161, 85 S. W. 90; Godfrey v. Herring, 74 Ark. 186, 85 S. W. 232; Driggs v. Norwood, 50 Ark. 42, 6 S. W. 323, 7 Am. St. Rep. 78; Taylor Com. Co. v. Bell, 62 Ark. 26, 34 S. W. 80.

At the time of the agreement of conveyance of the lands in controversy to Mrs. McCown, in consideration of her execution of the mortgage on the home place and in satisfaction of the notes executed by McCown for the purchase money thereof and given to her by her mother, the testimony tends strongly to show, if there is no decided preponderance thereof, that McCown was worth much more than his indebtedness; and the virtually undisputed testimony shows that he was indebted to his wife in a sum aggregating about $4,000, the amount due on the notes that he executed to his mother-in-law, which were later given to his wife when he purchased the homestead. It is true that the value of his holdings was greatly diminished at the time of this conveyance because of the failure of many of the banks in which he held stock and the general existing financial depression, but it is virtually undisputed that he owed the amount of the notes given to his mother-in-law, and by her to appellant, at the time of the execution of the mortgage to the Bank of Dierks, when he agreed with his wife to conveythe land in controversy to her in consideration of her joining in the execution of a mortgage of the home and in satisfaction of the notes held by her. The husband could not have incumbered or disposed of the homestead without the consent of Ms wife, who could compel any reasonable terms as a condition for her joining in the execution of the mortgage, and the relinquishment of her dower and homestead rights in the conveyance would have been a sufficient consideration for his conveying the lands herein to his wife, as was agreed to be done. Section 5542, Crawford & Moses’ Digest; Davis v. Yonge, supra; Baucum v. Cole, 56 Ark. 259, 19 S. W. 671; Hershey v. Lathem, 46 Ark. 542.

She not only joined in the execution of the mortgage, but surrendered the notes, valid claims against her husband for more than $4,000, and the value of the lands which he was to convey to her under the agreement at the time, the lands involved herein, was only three or four thousand dollars. McCown owned only an undivided two-thirds interest in the lands, which was subject to the dower rights of his mother and wife, and which would be restored to them upon cancellation of the conveyance herein; this without regard to whether she had participated in any fraudulent intent in the execution of the conveyance. Elliott v. Locklar, 185 Ark. 269, 46 S. W. (2d) 1105.

This was not a fraudulent conveyance as sho'wn by a great preponderance of the testimony, nor was the agreement to make it, at the time of the wife’s joining in the execution of the mortgage to the Bank of Dierks and her surrender of the valid notes against her husband in consideration thereof, made with any fraudulent intent to cheat, hinder or delay existing or subsequent creditors, and, in fact, no complaint of the transaction was made by any creditor existing at the time of such agreement to convey the lands, and the testimony does not warrant the finding that there was a fraudulent intent on the part of the wife to cheat, hinder or delay such subsequent creditors in the collection of their debts; the burden being upon them to show the existence of such intent. Townes v. Krumpen, 184 Ark. 910, 43 S. W. (2d) 1083; Williams-Echols D. G. Co. v. Bloyd, 169 Ark. 529, 276 S. W. 1; Buchanan v. Williams, 110 Ark. 335, 160 S. W. 190; Mente & Co. v. Westbrook, supra; Miles v. Monroe, 96 Ark. 531, 132 S. W. 643.

The testimony is not sufficient to warrant the belief that McCown was influenced by fraudulent intent in making the conveyance of these lands, which should have been conveyed at the time of the agreement therefor, and the chancellor made no finding that Alta V. McCown, appellant, knew of, or participated in, any fraudulent design of her husband in making such conveyance, if he harboured any such intention. She had the right to expect the immediate conveyance of these lands upon execution of the mortgage with her husband to the Bank of Dierks and the surrender of the notes of her husband in accordance with the agreement, and delay in its execution was not through any fault of hers. She, in fact, thought the conveyance had been made, and, although she could have compelled its being done by a suit for specific performance, she was not at fault in not doing so, so long as she thought the conveyance had been made, as the husband indicated an intention to perform the agreement and make the conveyance, which should be regarded, so far as any intention on her part is concerned, to have been made and related hack to the time of the agreement for the making of it. Loftin v. King, 185 Ark. 421, 47 S. W. (2d) 578; Block v. Smith, 61 Ark. 266, 32 S. W. 1070.

Under the circumstances of the whole transaction, the finding that appellant, Mrs. McCown, should he estopped from holding the property agreed to be transferred to her at the time of her joining in the execution of the mortgage to the Dierks bailk because the conveyance was not sooner made is not warranted, and the chancellor erred in holding otherwise.

The decree is accordingly reversed, and the cause remanded with directions to enter a decree dismissing the complaint for want of equity.


author: McCulloch, C. J.

text:
    Williamson v. Lesser-Goldman Cotton Co.
    Opinion delivered November 30, 1925.

      M. E. Sanderson, for appellant.

      Shaver, Shaver .& Williams, for appellee.
   McCulloch, C. J.

Appellants sold a farm in Miller County, Arkansas, to W. L. Perkins, and received from Perkins a mortgage on the land and all crops produced on the land by Perkins in which he was interested in the year 1923, to secure the purchase price of the land and also for money, loaned to Perkins to enable him to operate the farm. Perkins cultivated the farm for that year through tenants, or croppers, and was to receive a share of the crop. Appellees, Lesser-Goldman Cotton Company and Friedman & Hasson, were engaged in the cotton business, and each maintained a place of business in Texarkana.

During the autumn of 1923 Perkins marketed the cotton crop gathered from the farm, and the appellees purchased some of the crop from Perkins and settled with him. The Lesser-Goldman Cotton Company bought forty-one bales, and Friedman & Hasson bought two 'bales. The cotton was brought to market by Perkins, ■usually accompanied by the tenants or croppers, who produced the cotton, and .it was sold in the usual and regular way on the streets of Texarkana.

Appellants filed this action in the chancery court of Miller County to foreclose the mortgage on the land and the crops, and Lesser-Goldman Cotton Company and Friedman & Hasson were made defendants, and a decree was asked against them, respectively, for the valne of the cotton which they had purchased from Perkins. Appel-lees answered, admitting- that they had purchased the cotton from Perkins and settled with him for the price, and alleged that appellants had consented for Perkins to sell the cotton and thereby waived their lien, if they had any. They also denied that Perkins had any such title to the crops which he could mortgage, and alleged that he was merely the landlord of the croppers who produced' the cotton. On final hearing the chancery court found in favor of appellees, and dismissed the complaint of appellants for want of equity.

We pass over the disputed questions of law and fact as to whether or not Perkins had such an interest in the cotton crop as he could mortgage to appellants, for we are of the opinion that the decree should be affirmed on the ground that appellants, through their agent, N. H. Williamson, waived their lien by consenting for Perkins to sell the cotton.

Mr. Turquette, who was the resident agent of Lesser-Goldman Cotton Company, and who purchased the cotton in controversy from Perkins, testified that at the beginning of the cotton season in September, and before he had purchased any cotton from Perkins, he had a conversation with N. H. Williamson, the authorized agent of appellants, and that the latter told him that he could buy the cotton raised on the farm directly from Perkins. The witness stated that the conversation first arose with reference to the sale by a Mr. Warmack of cotton in which appellants were interested, and that Williamson instructed the witness not to.settle with Warmack for cottón purchased, but to call him (Williamson) over the telephone, so that he could come in and make a settlement, but that the witness could go ahead and buy cotton from Perkins. He testified that, pursuant to this conversation and knowing that Perkins was from time to time marketing’ cotton within the knowledge of Williamson, lie bought the cotton in controversy, as well as other cotton, from Perkins. The last purchase was sis hales, and before settlement was made for the purchase, Perkins left the community, and settlement was made with Williamson for appellants.

Mr. Willis, the resident agent for Friedman & Has-son, testified that he bought the two bales of cotton from m Perkins, knowing that he had been marketing cotton throughout the season, and that Williamson was frequently on the street and cotton yard and was bound to have known that Perkins was marketing the cotton.

Other witnesses, who apparently have no interest in this controversy, testified that they saw Williamson on the street when Perkins was marketing cotton. One witness testified that he saw Williamson standing on the street near the wagon when Perkins sold a lot of cotton to Turquette.

The testimony is undisputed that N. H. Williamson was the authorized agent of the appellants, one of whom is his wife and the other his sister. Williamson testified as a witness and denied that he had a conversation with Turquette related by the latter on the witness-stand. He testified that he did not authorize Perkins to sell the cotton, and denied that he knew that Perkins had sold the cotton until after the sales were made.

The evidence clearly preponderates in favor of ap-pellees in their contention that Williamson was present on the streets when Perkins was selling cotton and made no objections to the sales; and, as to the question whether or not Williamson expressly agreed with Turquette that the latter could buy cotton from Perkins, there is a sharp conflict between Turquette and Williamson, and it cannot be said that the finding’ of the chancery court is against the preponderance of the evidence.

It is a mere statement of elemental principles of law that where a mortgagee of chattels authorizes the mortgagor to sell the property, he is bound by a sale made to a purchaser from the mortgagor, and cannot complain, even though the purchaser knew of the existence of the mortgage. Fincher v. Bennett, 94 Ark. 165, 126 S. W. 392.

The finding of the trial court not being against the preponderance of the evidence, it becomes our duty to leave the decree undisturbed.

Affirmed.


author: Mehafey, J.

text:
    Buckeye Cotton Oil Company v. Taylor.
    4-2673
    Opinion delivered October 17, 1932.
    . Gochrill & Armistead, for appellant.

      Bridges, McGaughey & Bridges, for appellee.
   Mehafey, J.

This action was begun by appellee in the Lincoln Chancery Court, in which judgment was asked against the appellant for $2,450 and interest..

In 1929 the appellant made a loan in the sum of $10,000 to the Merchants ’ & Farmers ’ Grin Company, and, as security therefor, took a mortgage on the gin and land on which it was located.

The Merchants’ & Farmers’ Gin Company, in addition to the mortgage, executed a written contract by which it agreed to sell and ship to the Buckeye Cotton Oil Company all cotton seed ginned at its gin during the year 1930, and until said loan was repaid.

The complaint alleged that on February 22‘, 1930, the Merchants’ & Farmers’ Gin Company executed and delivered to the Merchants ’ & Planters ’ Bank & Trust Company its promissory note in the sum of $5,000, due November 1, 1930, bearing interest from date until paid at the rate of 10 per cent, per annum; that on April 25, 1930, the Merchants’ & Farmers’ Gin Company executed and delivered to the Merchants’ & Planters’ Bank & Trust Company its promissory note in the sum of $7,000, due on or before November 1,1930, bearing interest from date at the rate of 10 per cent, per annum, this note being indorsed and the payment guaranteed by W. E. Massey.

It further alleged in the complaint that, in order to secure the payment of said $5,000 note and all other sums which might be advanced by the bank to the gin company during the year 1930, the said gin company, on February 22, 1930, executed a deed of trust conveying all crops of cotton, cotton seed, corn, hay and all other agricultural crops grown or caused to be grown by the parties of the first part, or either of them, or grown by their tenants or share-croppers, or in which the mortgagor might have any interest, to the Merchants’ & Planters’ Bank & Trust Company. The deed of trust also covered other property, but it is not involved in this suit.

It was further alleged that the appellant, during the months of October and November, 1930, obtained and took possession of cotton seed which was mortgaged to the bank to secure its indebtedness, being cotton seed grown by or for W. E. Massey, and the Merchants’ & Farmers’ Gin Company, on lands owned and cultivated by Massey and the gin company, in Lincoln and Desha counties.

The complaint then described the seed, the date on which it alleged the appellant got possession of them, and the number of pounds, and alleged that the value of.the mortgaged property received by the appellant was $2,450, and that said seed was in the possession of the appellant, or had been appropriated, used, and converted for its use and benefit.

It was further alleged that Massey and the gin company were insolvent, and that the value of the mortgaged property was entirely inadequate to. discharge the mortgage debt.

The appellant filed answer denying all the allegations of the complaint.

There was a decree in favor of the appellee against the appellant for the sum of $1,474.97. The case is here on appeal.

It appears that the gin company not . only ginned cotton for Massey and the gin company, but for the public, and on the seed from the cotton ginned for the public the appellee had no mortgage.

The court found that on October 17, November 18, and November 25, shipments of seed were made to the appellant aggregating 175,000 pounds (108,660 pounds, of the market value of $1,391.97), were seed mortgaged to the plaintiff, and found that the appellant was liable to the appellee in this sum, together with interest at the rate of 6 per cent, per annum, making a total sum of $1,474.97.

The seed from the cotton ginned for the public is called free seed. When the cotton was ginned, the seed from the cotton on which there was no mortgage, and the seed from the mortgaged cotton, were all put in the same seed house, and thereby became mixed, so that it was impossible to segregate the mortgaged seed from the free seed.

It is appellant’s first contention that appellee assented to the intermixture of the seed and thereby lost its right to the seed.

There is no evidence in' the record showing that appellee assented to the intermixture, but it may be reasonably inferred, we think, from the evidence that both appellant and appellee knew of the intermixture of the seed, and that neither made any objection.

The appellant knew of the mortgage to appellee, and it concedes that it was not entitled to any of the mortgaged seed, unless it was so entitled by the intermixture of the seed.

The evidence does not show that the appellee, in the instant case, permitted or assented to the confusion of the goods. The seeds were confused or put tog-ether by the mortgagor, and not by either the appellee or the appellant, but where there is a confusion of goods of the same kind and quality, such as the cotton seed in this case, there is no difficulty at all, where the quantity of each kind is known. The cotton seed were of the same kind, and the evidence showed how many pounds of mortgaged seed and how many pounds of free seed were put into the seed house.

The intermixture in this case was without the fault of either the appellant or the appellee, and therefore neither party forfeited any rights by such intermixture. 12 C. J. 492; 5 R. C. L. 1053.

The appellant contends that it is an innocent third party, that is, an innocent purchaser.

The evidence in this case tends to show that the ap-pellee furnished the money to purchase the free seed, and that the appellant did not pay anything for the free seed, but only credited the account against the gin company with the purchase price of the seed. It was therefore not an innocent purchaser. Hamilton v. Rankin, 108 Ark. 552, 158 S. W. 496; S. E. Lux, Jr., Merc. Co. v. Jones, 177 Ark. 342, 6 S. W. (2d) 302; 32 C. J. 574.

Appellant calls attention to the rule stated in 12 C. J. 497, but we think this authority has no application here. We have already said that both parties probably knew that the mortgaged seed were intermixed, but the appellant had no lien on the free seed, and no more claim to the free seed than the appellee had. It knew that a portion of the seed was mortgaged to appellee. It was, in fact, no more entitled to the free seed than appellee was.

It is contended that appellee waived its lien, and appellant cites and relies on Williamson v. Lesser, ante p. 281.

In that case the mortgagee expressly authorized the mortgagor to sell the cotton. At least, the court held that the evidence clearly preponderates in favor of the appel-lee in their contention that Williamson, who represented the mortgagee, was present on the streets when Perkins, the mortgagor, was selling cotton, and made no objections to the sale. The lower court also found that the mortgagee expressly agreed with the purchaser that he could buy from the mortgagor, and this court said that it could not say that the finding of the chancery court was against the preponderance of the evidence.

It was stated in the opinion in that case:

“It is a mere statement of elemental principles of law that where a mortgagee of chattels authorizes the mortgagor to sell the property, he is bound by a sale made to a purchaser from the mortgagor, and cannot complain, even though the purchaser knew of the existence of the mortgage.”

Appellant calls attention to several authorities or cases of replevin. They have no application here; this was not a suit in replevin, and, as we have already said, the mortgaged seed and the free seed were of the same kind and quality.

It was stated in one of the cases cited by appellant, Rust Land & Lbr. Co. v. Isom, 70 Ark. 99, 66 S. W. 434: “The plaintiff owns a certain number of staves, which, without its fault, have been mixed by defendant with other staves of his own. Conceding that this was innocently done, yet, if the staves are of the same kind, quality and value, a majority of us are of the opinion that plaintiff can in this action recover his staves, or an equal number to be taken from the common mass., if the separation can be made without injury.”

The mixture of the seed in the instant case was innocently done. They were of the same kind, quality and value. The appellant had no lien on any of the seed, and, as neither the appellant nor the appellee were the cause of the confusion of the goods, no rights were lost by the intermixture of the seed.

The court found that on October 11, 1930, the seed house was empty, and that the seed obtained from the ginning of cotton prior to that time had been disposed of, and that such seed did not enter into the calculation necessary to the determination of this cause. The chancellor also found from the evidence that the seed sold to the appellant after October 11 aggregated 175,000 pounds; that of this amount sold to the Buckeye Company after said date, 10.8,660 pounds, of the value of $1,391.97, were seed mortgaged to the appellee, and that the appellant was liable to the appellee for the value of this quantity of mortgaged seed.

There is very little conflict in the evidence. It would serve no useful purpose to set forth the evidence.

We have carefully examined the same, and have reached the conclusion that the finding of the chancellor was not against the preponderance of the evidence, and the decree is therefore affirmed.


text:
    Valley State Bank of Harlingen, Texas, v. Taylor.
    4-2653
    Opinion delivered October 17, 1932.

      H. L. Faulk (Brownsville, Tex.), J. A. Comer and J. A. Watkins, for appellant.

      Sam Rorex, Nat Hughes and Harry Meek, for appellee.
   Smith, J.

A citizen of Texas, who bad both a savings and a «becking account with the American Exchange Trust Company in Little Rock, drew checks, payable to the Valley State Bank of Harlingen, Texas, against these deposits for the total amount thereof, and delivered these checks for collection to the Valley State Bank. The checks were sent by the Texas bank direct to the American Exchange Trust Company, accompanied by a notation: “Por collection and return.” ' The drawee bank (American Exchange Trust Company) accepted the checks and remitted to the Texas bank in payment thereof its drafts on a Dallas, Texas, bank, with which it had deposits in excess of the drafts. Upon receipt of these drafts on the Dallas bank, the Valley State Bank paid the amount of one of the drafts to the original drawer — the Texas citizen — and gave her credit upon its books for the amount of the other draft upon the assumption that the exchange on the Dallas bank would be paid. But, upon presenting to the Dallas bank the drafts drawn upon it by the American Exchange Trust Company, payment was refused by the Dallas bank for the reason that the Dallas bank had information that the American Exchange Trust Company had closed its doors.

• The checks drawn by the Texas citizen on the American Exchange Trust Company were dated November 10 and 12, 1930, and were received by the American Exchange Trust Company through the mail at its- banking house in Little Rock on November 14, 1930, and on that day the exchange on Dallas was remitted to the Valley State Bank, and received by the latter on November 17, 1930, and disposed of as above stated. The American Exchange Trust Company became insolvent and closed its doors on November 17, 1930, of which fact the Dallas bank was advised, and for that reason it refused payment of the drafts drawn on it by the American Exchange Trust Company,, although it had on hand funds belonging to the American Exchange Trust Company in excess of the drafts.

The assets of the American Exchange Trust Company have been taken over and are being wound up by the State Bank Commissioner, with whom the Yalley State Bank filed its claim for allowance as a prior or preferred one. The court below disallowed the claim as a prior or preferred one, but did allow it as a common claim, and this appeal is from that decree. The question for decision is therefore whether, under the facts stated, the Yalley State Bank, as the holder and owner of the remittance drafts, is a preferred creditor of the American Exchange Trust Company?

The answer to this question, and the one which accords with the previous holdings of this court, appears in the 1931 edition of Michie on Banks and Banking, vol. 3, page 321, where it is said: “Although probably contrary to the weight of authority, the modern trend of decisions seems to support the rule that, where paper is sent for collection and remittance, the collecting bank, as agent of the sender, holds the amount collected in trust so as to give a right of preference therefor upon its insolvency; and this is true, even though the collecting bank collects the paper by charging it against the account of the individual drawer and issues its draft on another bank in favor of the sender for the amount.”

In the case of Rainwater v. Federal Reserve Bank of St. Louis, 172 Ark. 631, 290 S. W. 69, it was held (to quote a headnote) that “The claim of the Federal Reserve Bank against the Bank Commissioner in charge of a bank which made collections for claimant and had funds sufficient to honor drafts sent as remittance of collections, which were not paid, owing to the bank being closed, held a preferred claim, since the collecting bank was the claimant’s agent and held the money collected in trust.”

In reaching this conclusion, we recognized and stated in the Rainwater case, supra, that the authorities were not harmonious, but we there followed our own earlier case of Darragh Co. v. Goodman, 124 Ark. 532, 187 S. W. 673, which had announced the controlling principles.

The annotated eases of Bank of Poplar Bluff v. Millspaugh, 313 Mo. 412, 281 S. W. 733, 47 A. L. R. 754, and Shull v. Beasley, 49 Okla. 106, 209 Pac. 149, 77 A. L. R. 465, collect the leading cases on the subject and reflect the conflicting views of the courts.

Counsel for appellee Bank Commissioner endeavors to distinguish the Rainwater case, supra, from the instant case by pointing out that in the Rainwater case the remittance check transmitted the collection pursuant to a permanent arrangement existing between the banks. But this distinction is not of controlling importance. The remittance in the instant case was made pursuant to a custom, so uniform and well-established among banks, as to be as binding as a permanent arrangement; in fact, the banking custom, pursuant to which remittance was made, was, in effect, a permanent arrangement, because it conformed to a custom among banks so general and well known and so long established that parties will be presumed to have contracted with reference thereto.

We find nothing in the provisions of act 107 of the Acts of 1927, page 297, leading to a different conclusion. This act deals with and makes classification of the creditors of insolvent banks which have been taken over by the State Bank Commissioner.

In the recent case of Taylor v. Union Trust Company, 185 Ark. 128, 46 S. W. (2d) 18, the facts were as follows: On Saturday, November 15, 1930, the Union Trust Company delivered to the American Exchange Trust Company certain drafts with bills of lading attached, of which it was the owner, for collection and remittance, and received in payment therefor a check drawn by the American Exchange Trust Company upon itself for the amount of the drafts, which check was delivered to the messenger of the Union Trust Company. Before the check could be presented'for payment on the following Monday — November 17 — the American Exchange Trust Company closed its doors; but the chancery court held that the check was a preferred claim under the act of 1927, supra. In affirming that holding it was there said: “The proceeds of the collection were never the property of the collecting bank. It only held the same in trnst for the appellee, and the check delivered to the messenger of the appellee was nothing more than the symbol of the cash so held, issued according to the custom of banks and accepted, not in lieu of the money, but only as a token of it, and by a presentation of which the cash might be obtained. In other words, it was the vehicle of the transfer of the cash spoken of in subdivision 7, supra, as ‘a remittance of the said bank,’ and as it represented the proceeds of a collection made by the collecting hank by charging the different items collected against the accounts of the depositors — drawees of the drafts — it created a preferred claim, although the transaction did not increase its cash assets, because the drafts with the documents attached had been surrendered to the drawees upon their collection, and therefore could not be restored to the appellee and it be placed in the same condition with respect thereto as it had been before. As stated by the appellee, it is just this state of case where the security could not be restored that the Legislature gives as a substituted security a preference in the assets of the insolvent institution.

“The conclusion reached finds support in the recent cases of Taylor v. Corning Bank & Trust Co., 183 Ark. 757, 38 S. W. (2d) 557, and Taylor v. Dermott Grocery & Commission Co., 184 Ark. 947, 45 S. W. (2d) 23, and the case of Taylor v. First National Bank of De Queen, supra, (184 Ark. 947, 43 S. W. (2d) 1078).”

We conclude therefore that the chancellor erred in refusing to allow the claim of the Valley State Bank as a preferred claim, and that decree is reversed, and the cause is remanded with directions to so allow and class it.

McHaNey, J., dissents.


author: Kirby, J., McHaney, J.,

text:
    Southwestern Bell Telephone Company v. Biddle.
    4-2648
    Opinion delivered October 17, 1932.

      G. E. McCloud and E. B. Bownie, for appellant.

      H. B. Means, for appellee.
   Kirby, J.,

(after stating the facts). .Appellant insists that the court should have directed a verdict in its favor, it being undisputed that the line of poles was placed on the strip of land condemned by the Highway Department for changing the highway, which had authority under the statute, and granted it permission to erect the poles where they were placed, and that, having done so, they were not liable to the payment of any damages to appellee for their erection upon such right-of-way.

The statute provides, § 3989, Crawford & Moses’ Digest, for construction and operation of telegraph and telephone, etc., lines “along and over the public highways * * * and streets of the cities and towns of this State, and on and over the lands of private individuals * * * provided the ordinary use of such public highways, streets, etc., he not thereby obstructed, * * * and that just damages shall be paid to the owners of such lands, railroad and turnpikes by reason of the occupation of said lands, etc., * * * by said telegraph or telephone corporations.”

The relocation of highway No. 67 running along in front of appellee’s property was made pursuant to an order of the county court of Hot Spring County in 1930. The Constitution (art. 7, § 28, Constitution of 1874) and our statute (§ 5249, Crawford & Moses’ Digest) gives the county courts exclusive authority to open new roads and to make such changes in old roads as they may deem necessary and proper. Our court has held that said statute authorizes telephone companies to construct and operate and maintain its lines along and over the public highway and streets of the cities and towns, provided “the ordinary use of such highways and streets be not obstructed by reason of the occupation by said telephone companies.” Ahrent v. Sprague, 139 Ark. 416, 214 S. W. 68; St. Louis, I. M. & S. Ry. Co. v. Batesville & Winerva Telephone Co., 80 Ark. 499, 97 S. W. 660.

The authority given by the said statute (§ 3989, Crawford & Moses’ Digest) for telephone companies to construct, operate and maintain their lines over the public highways, etc., only gives them the free use of such highways, provided they be not obstructed thereby, so far as the State’s interest and that of the public is concerned, expressly providing that “just damages shall be paid to the owners of such lands, * * * by reason of the occupation of said lands, * # * by said telegraph or telephone companies.” The statute could not authorize the free use of appellee’s land in any event in this instance by the telephone company, since the injury complained of was not for erection of the poles and lines upon an old highway, already long established, but upon appellee’s lands just being taken for a change in the location of such highway. Article 2, § 22, Constitution of 1874.

It is not denied that appellee had no notice of the condemnation proceedings, and certainly the statute did not contemplate that the landowner in a proceeding for condemnation of his lands for public use should not he allowed damages for the value of it, nor would he be expected to he hound hy the allowance made for damages of which he had no notice, nor does the statute contemplate that he should he held to look to the county alone for payment of damages for his land taken for such public use.

We also think that the erection of a telephone line upon the public highway along lands of adjoining owners, in which the public only has an easement for use as a highway, would not prevent the owner of the land from collecting damages for the new servitude to which his land is subjected, such use not having been in contemplation when the easement was taken or granted.

The testimony for determining the value of such lands and the damage thereto is largely a matter of opinion of the witnesses, who are familiar with the location of the lands and the use for which they are best suited, having weight only as the reason given by such witness for such opinion of value may tend to convince the jury. Ft. Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W. 440. The evidence is sufficient to support the verdict for damages, and the appellee could not evict the telephone company from the premises, and was limited to a suit for damages, as his remedy, not having been compensated therefor under the provision of the statute, § 5'249, Crawford & Moses’ Digest.

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

McHaney, J.,

(dissenting). For nearly fifty years the act of March 31, 1885, now § 3989 of Crawford & Moses’ Digest, has been the law in this State without amendment, and during all that time no person, except appellee, has conceived the idea that he might recover damages from a telephone or telegraph company for running a line of poles and wires along a street or public highway in front of his adjacent land. At least the records and opinions of this court fail to disclose any such litigation. The majority opinion does not copy said section in full, and it is not clear from the part copied just what it means. The entire section reads as follows: “Any person or corporation organized by virtue of the laws of this State, or any other State of the United States, or by virtue of the laws of the United States, for the purpose of transmitting intelligence by magnetic telegraph or telephone, or other system of transmitting intelligence the equivalent thereof, which may be hereafter invented or discovered, may construct, operate and maintain such telegraph, telephone or other lines necessary for the speedy transmission of intelligence along and over the public highways and streets of the cities and towns of this State, or across and under the waters and over any lands or public works belonging to this State, and on and over the lands of private individuals, and upon, along, and parallel to any of the railroads or turnpikes of this State, and on and over the bridges, trestles or structures of said railroads; provided, the ordinary use of such public highways, streets, works, railroads, bridges, trestles or structures and turnpikes be not thereby obstructed, or the navigation of said waters impeded, and that just damages shall be paid to the owners of such lands, railroads and turnpikes, by reason of the occupation of said lands, railroads and turnpikes by said telegraph or telephone corporations. Act March 31, 1885.”

It is a part of the chapter on Eminent Domain, and this section confers this power or right on such companies. It was enacted when the telephone business was in its infancy, and its purpose was to encourage the development of such business. The first right conferred was the right to build such lines over and along the public highways, and the streets of cities and towns of the State, and across or under the waters and over the lands or public works of the State, free of charge. Many thousands of miles of telephone and telegraph wires have been constructed over and along public highways and streets of this State since 'March 31, 1885, and no adjacent property owner, or owner of property abutting on such streets or highways, nor the State, has received any compensation therefor, so far as I am advised. The remainder of said section confers the right or power to cross the lands of private interests for which “just damages shall be paid to the owners of such lands, railroads, turnpikes,” etc. The only condition attached to the use of public property is that the ordinary use thereof be not thereby obstructed. This section makes no provision for the payment of “just damages” to any one for the use of streets, highways, or other public property, but only when such line crosses private property. This is conclusively shown by the two sections immediately following, sections 3990 and 3991. They read as follows:

“3990. In the event such telegraph or telephone companies should fail, upon application to such individuals, railroads, or turnpike companies, to secure such right-of-way, by consent, contract or agreement, then such telegraph or telephone corporations shall have the right to proceed to procure the condemnation of such property, lands, rights, privileges and easements in the manner prescribed by law for taking private property for right-of-way for railroads, as provided by sections 3992 to 3993, inclusive. ’ ’

“3991. Wherever any such telegraph or telephone company shall desire to construct its lines on or along the lands of individuals, or on the right-of-way and structures of any railroads, or upon and along any turnpike, the said telegraph or telephone company may, by its agents, have the right to peacefully enter upon such lands, structures or right-of-way and survey, locate and lay out its said lines thereon, being liable, however, for any damage that may result by reason of such acts.”

If these three sections, when read together and properly considered, fail to convince any one that such companies are given the free use of the State’s highways, then certainly the decision of this court so holding should do so. In St. L., I. M. & S. R. Co. v. Batesville & Winerva Telephone Co., 80 Ark. 499, 97 S. W. 660, a case cited in the majority opinion, this language is used: “Atelephone line is a public utility (Joyce on Electric Lines, § 275); and its public importance is recognized by clothing it with the power of eminent domain, and giving it the free use of the State’s highways. Kirby’s Digest, §§ 2934-2936, 2937, et secq.” These are the same sections of the digest now under consideration. This the opinion of the majority seems to hold in so far as the interest of the State or the public is concerned, but then it immediately knocks down the straw man it sets up by quoting and applying that part of § 3989 that “.just damages shall be paid to the owners of such lands * * * by reason of the occupation of said lands, * * * by telegraph or telephone companies. ’ ’ Just what lands is intended by “such lands” and “said lands” unless it is the streets and highways, I do not know and cannot tell from the opinion. The opinion then states that “the statute could not authorize the free use of appellee’s land in any event * * * since the injury complained of was not for the erection of poles and lines upon an old highway, already long established, but upon appellee’s lands just being taken for a change in the location of such highway.” Does the majority mean to hold that a telephone line might be built on an old highway without actionable damage to the abutting owner, but for such a line on a new highway such action would lie? Personally, I can see no reason in such a rule. The statute gives the free use of the State’s highways to such companies whether new or old, and there can be no free use thereof if the abutting owners have a right of action for such use.

The telephone line in this case does not pass over appellee’s land. It passes over what was his land until it was taken by Hot Spring 'County at the instance of the State Highway Department and condemned for use of one of the principal highways of the State, — a State and Federal highway. Appellee has either received or could have received full compensation for the land taken and for damages to the remainder of the land not taken, if any, under the provisions of § 5249, Crawford & Moses’ Digest, as construed by this court in Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260, and the many subsequent decisions following it. In, that case it was held that § 5249 is a valid statute, even though it provides “for the taking of private property by order of the county court for a public road, without notice to the interested landowner or a determination of the necessity therefor.” First syllabus. It was further held, to quote another syllabus: “The power of eminent domain may be exercised by the sovereign State, without notice to the interested landowner: necessity for condemnation for strictly public use is a political question to be exercised by the lawmakers, and a hearing upon the question of necessity is not essential to the validity of the proceedings.”

The fact therefore that appellee had no notice of the condemnation proceedings, conceding it to be a fact, is unimportant and not jurisdictional, as it is a taldng by the sovereign State of Arkansas. He had a year in which to present his claim for damages to the county court and the right of appeal if not satisfied with the allowance made. In making his claim for damages he must make it for all damages he has sustained or will sustain by reason of the taking, not only for its primary use as a highway, but for such incidental uses as may be provided by law for which the State’s highways may be utilized, such as their use by telephone and telegraph companies. In other words, when appellee’s land was taken he was entitled to recover damages for all purposes for which the highway might lawfully be used. He could take one bite at the cherry, but no more.

The majority opinion also holds, if I understand it, that the erection of a telephone line along a public highway constitutes an additional servitude in the easement of the public for the highway, and that the abutting owner may collect “damages for the new servitude to which his land is subjected, such use not having been in contemplation when the easement was taken or granted.” No cases are cited in support of this statement. In Campbell v. Southwestern Tel. & Tel. Co., 108 Ark. 569, 158 S. W. 1085, we said: ‘ ‘ The question whether the railroad company had the right to grant a right-of-way to the telephone company does not arise, for the plaintiff’s occupancy up to the edge of the roadbed was a permissive one, and she cannot claim damages for obstructions upon the land which the railroad company had the right to occupy. So long as the railroad company occupied any portion of its right-of-way, it had the exclusive use and right of control coextensive with the boundary described in its deed.” So, in this case, the State’s highway did not occupy the entire right-of-way over appellee’s land, but it cannot seriously be contended that it did not have “the exclusive use and right of control coextensive with the boundary described” in its condemnation proceeding, and that appellee could not recover damages for obstructions upon the land which the State had the undoubted right to occupy seems necessarily to follow. There was therefore no additional servitude, or, if one, it was such as the State had the right to grant. There are many cases in other jurisdictions holding that a telephone line on a public highway is not an additional burden on the fee, several of which are cited in the brief of counsel for appellant. I will not undertake to cite them or comment on them. They are well-considered cases, but I think our own court has settled the principle in the Campbell case, supra. The case should be reversed and dismissed.

Mr. Justice Smith joins in this dissent.


author: Mehaeey, J. Smith, J.,

text:
    Missouri Pacific Railroad Company v. Bennings.
    4-2683
    Opinion delivered October 17, 1932.

      B. E. Wiley and Richard M. Ryan, for appellant.

      II. B. Means, for appellee.
   Mehaeey, J.

This suit was brought by the appellee in the Hot Spring Circuit Court for damages for killing a mule belonging to appellee. He alleged that the value of the mule was $200. It was alleged that the mule was negligently killed by being struck by one of defendant’s freight trains, and that payment had been demanded and refused. Defendant answered, denying that appellee owned the mule, and denying all allegations with reference to killing the mule, and its value.

Appellee testified in substance that on February 14, 1931, he found his mule dead, and that it had been dead for something like three or four hours. The mule was found about two miles from where appellee lived. The mule was' struck inside of the railroad fence, and the signs showed that the mule was knocked toward the south, and the track at this point was not straight; that it was night when he found his mule, but that he went back the nest day and made an examination and he could see where the mule had run down the track. The mule’s tracks disappeared at the cattle guard.

Appellee bought the mule from Green & Meador, and paid $200 for it. It was worth what he paid for it, and it weighed 1,100 pounds. It was three years old when he bought it, and he had had it about three years. Appellee also testified that he had inquired about the value of mules, and mules like the one killed sold generally for about $200. The mule got out because the gate was left open. He did not see the mule killed. There was a deep 'Cut at the place where the mule was killed. The cut was shoulder deep. He saw the mule’s tracks ten or fifteen yards from the crossing, running down by the end of the ties. There was a hole knocked on the mule’s, right hip, and one behind the shoulder. He based his idea of how the mule was struck by the tracks. The tracks were between the ties and the rail.

John Walters testified in substance that he knew appellee, and knew about his mule being killed in February, 1931; made an examination of the place where the mule was killed, and you could see this crossing 1,500 feet from it; the mule’s tracks were along the end of the erossties, and he noticed them for a distance of 75 feet. The tracks were along the end of the ties, and between the ties in the corner, and the mule jumped the cattle guard, and the train struck him and threw him into a post and bent the post; saw the mule after it was killed, and it was hit on the right side, four ribs broken, a hole punched in behind the right shoulder, and also a hole somewhere around the root of his tail. Witness lived about 75 yards from the crossing. The cut there varies from eight to fifteen feet; saw the mule’s tracks 75 yards from the crossing, and could see the tracks between the ties.

John Haynie testified in substance that he did not see the mule struck, but went out to the railroad and saw three mules, and one mule had a hole in its right side. It started to the house stumbling, and ran up to the yard fence and fell dead. The whistle did not sound and the bell was not ringing. He was not positive about the train sounding a warning for the crossing, but there was no stock-alarm whistle.

Tom Bell testified that he is engaged in buying and selling mules; was acquainted with their market value, and the reasonable market value of Benning’s mule was $200.

The appellee was recalled and testified that he gave the railroad notice of thejrilling of the mule, and the claim agent came to see him, and the company had not paid him within thirty days. He testified that he told the claim agent that he wanted $200 for his mnle.

W. B. Haynie testified in substance that he lived in North Little Bock; was a locomotive fireman for the Missouri Pacific Eailroad Company, and had been for 14 years. He was fireman on the freight train when the mule was killed at Wyandotte Crossing; saw»the accident; train was running 35 miles an hour. There was a crossing whistle sounded; the cut was 200 yards from the crossing, and was between 70 and 90 feet wide; saw two mules as the freight train came along that day. The mules were in the right-of-way, about 100 yards north of the cattle guard. The right-of-way fence is about 30 feet from the track. When he saw the mules, there was no danger of their being hurt by the train, and the front end of the train did not hit the mule. The mule was struck by the 7th or 8th car behind the engine. Witness was looking back and saw it happen; was looking back because the mules were running, and they ran about 100 yards before getting to the cattle guard; they started running when the front end of the engine passed them. There was nothing witness could have done to have prevented the accident. The mule attempted to jump between the cattle guard apron and the crossing when he was struck by one of the box cars. Witness saw the mule 100 yards from the crossing, and about 25 feet from the fence. He saw the mule one-fourth of a mile away. He saw two mules, and the other one stayed up on the dump. There was nothing projecting out from the cars. There was no stock alarm sounded, but the whistle for the crossing was sounded.

M. T. Wilbanks testified that he had been working for the appellant for 24 years as section foreman; found the mule on February 15, 1931, near Mr. Haynie’s gate; buried the mule, and there was a hole behind the mule’s right shoulder.

There was a verdict an<| judgment for $195, and the case is here on appeal.

Appellant’s first contention is tliat there is no evidence tending to show that the mule was killed through any negligence on the part of defendant company or its agents, servants or employees, but that the proof shows that the mule was struck by the seventh or eighth car of the train.

Appellee and his witnesses testified that they saw the tracks of the mule where it had run along between the ties, and the evidence on the part of appellee showed •that it jumped the cattle guard, and was struck then.

Appellant’s witness, the fireman, testified that he ran along by the side of the train, and was struck by the 7th or 8th car back of the engine. Of course, it was impossible for the mule to have run along beside the track and make his tracks between the ties as testified by appel-lee’s witnesses.

The evidence as to the manner of the killing of the mule is in conflict. The jury had a right to believe the „ testimony of appellee’s witnesses, and to believe that the mule was running in front of the train. No one testified about seeing the mule at the time it was injured but the fireman. Whether the testimony of appellee’s witnesses or appellant’s witness is true is a question of fact to he determined by the jury. Where the evidence is in conflict, the finding of fact by the jury is conclusive here, although we might believe that it was against the preponderance of the evidence.

Appellant calls attention to authorities holding that where an unimpeached witness testifies distinctly and positively to a fact, and is not contradicted, and there is no circumstance shown from which an inference against the fact testified to by the witness can be drawn, the fact may be taken as established. The rule invoked by appellant is well established, but we have already called attention to the fact that the testimony of the fireman is contradicted, and that circumstances are shown from which an inference against the fact testified to by the fireman can be drawn. The mule could not have been running along by the side of a freight train and made tracks between the ties, as some of the witnesses testified. Onr conclusion is that the evidence was sufficient to justify the finding of the jury.

It is next contended that the court erred in giving instruction No. 1 requested by appellee. That instruction reads as follows: “You are instructed that all railroad companies operating trains in the State are liable for all damages doné to or stock killed which is caused by the operation of such trains in the State.”

This instruction is practically a copy of § 8562 of Crawford & Moses’ Digest, and this instruction should not have been given. We have reached the conclusion, however, that there was no prejudicial error in giving instruction 1 in this case.

It was immediately followed by instructions 2 and 3, which read as follows:

“No. 2. You are instructed that when stock is killed by the operations of a train the burden shall devolve on such railroad company to show that such stock was not negligently killed, and if it fails to discharge that burden then it is liable in damages. ’ ’

“No. 3. You are instructed that, if you find from a preponderance of the evidence in this case that the plaintiff’s mule was killed by the operation of one of the defendant’s trains, it will be your duty to find a verdict for the plaintiff unless the defendant satisfies you that it was guilty of no negligence in the killing of said mule. ”

The court also gave several instructions at the request of the appellant, which told them in substance that there could be no recovery unless the appellant was guilty of negligence. The court also instructed the jury that they would have no right to ignore any part of the law, or to base their verdict on any certain part of the instructions, but should consider them all together as the law of the case.

This court has said: “There are, however, cases, as we conceive, not inconsistent with that rule, where we have held that the law of the case cannot be stated in one paragraph or instruction and, though the instructions given may be apparently conflicting, if, from tbe language used or tbe relation which tbe instructions are made by tbe whole charge to bear toward each other, it is readily seen that they are to be read together without conflict and as a harmonious whole, and they can be so read, then it is onr duty to so treat them.” St. L., I. M. & S. R. Co. v. Rogers, 93 Ark. 564, 126 S. W. 375, 1199. This case has been followed many times by this court. The following are some of the cases approving the rules announced in Ry. Co. v. Rogers, supra; St. L., I. M. & S. R. Co. v. Lamb, 95 Ark. 209, 128 S. W. 1030; Brinkley Car Works & Mfg. Co. v. Cooper, 75 Ark. 325, 87 S. W. 645; St. L., I. M. & S. R. Co. v. Cleere, 76 Ark. 377, 88 S. W. 995; Sou. Cotton Oil Co. v. Spotts, 77 Ark. 458, 92 Ark. 249; Arkadelphia Lbr. Co. v. Posey, 74 Ark. 377, 85 S. W. 1127; Pettus v. Kerr, 87 Ark. 396, 112 S. W. 886; Miller Rubber Co. v. King, 147 Ark. 302, 227 S. W. 301.

This court recently said: “Counsel for defendant insists that these should be treated as separate instructions, and that number 5 is erroneous because it takes away from the jury the consideration of whether, under the facts, the danger was so obvious and patent that the fireman must have known and appreciated it. It will be observed that these two instructions follow each other; and, from the language used, it is apparent that they should be read together, and, when so read together, they harmonize with each other. We cannot see how the jury could have been misled when the two instructions were read and considered together. Each one supplements the other, and they were doubtless so understood by the jury as well as by the counsel for the respective parties in their arguments to the jury.” Ft. Smith-Subiaco & Rock Island Rd. Co. v. Moore, 172 Ark. 353, 289 S. W. 6.

The law requires jurors to be persons of good character, of approved integrity, sound judgment, and reasonable information. No one of sound judgment and reasonable information could have been misled by the instructions in this case. They could not have misunderstood the instructions. No average person on the jury could have been misled when they were told that they should not take one instruction alone, hut they must consider them as a whole, and that they must be read and considered together.

„We think there is no doubt that the jury understood from, the instructions, when considered together, that they could not find for the plaintiff if the evidence showed the defendant was not guilty of negligence.

A verdict will not be set aside because an erroneous instruction is given, where it is immediately followed by other correct instructions, and where it is evident the jury could not have been misled.

There are some other questions discussed by appellant,. but we have reached the conclusion that there was substantial evidence to support the verdict of the jury, and that there was no error except in giving instruction No. 1, and that, when the other instructions were given to the jury, and they were directed to consider them all together, they could not have been misled.

The judgment is affirmed.

Smith, J.,

(dissenting). The instruction numbered 1, set out in the majority opinion, is substantially a copy of § 8562, Crawford & Moses’ Digest, which declares that all railroads operated in this State shall be responsible for all damages to persons and property done or caused by the running of trains in this State. This statute has been construed as imposing only a prima facie — and not an absolute — liability, but the instruction numbered 1 does not so interpret it. This instruction, read by itself, not only authorizes, but requires, the jury to return a verdict for the plaintiffs. The majority do not defend instruction numbered 1 as a correct declaration of the law; they state it does not correctly declare the law if read by itself, but they say it should not be read by itself but should be read in conjunction with other instructions given and should be considered as qualified by them.

Our cases have not been harmonious on the effect of giving an instruction erroneously directing a verdict for 'one party or the other, when followed by an instruction correctly declaring the law which does not direct a verdict for either party.

The case of Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676, recognized this discord in our cases and undertook to declare the correct rule to be hereafter followed, and it was there stated to be the view of the majority of the court that it was .the settled law of this State that “separate and disconnected instructions, each complete and irreconcilable with each other, cannot be read together so as to modify each other and present a harmonious whole.” This question, which was there definitely settled, has not been unsettled, and the giving of separate and disconnected instructions, each complete in itself and irreconcilable with another, may or may not now be erroneous.

I think it unfortunate to disturb what has been declared to be the settled law of this State in the Temple Cotton Oil Company case, supra, and I therefore dissent.