text:
    Gurdin v. Fisher.
    Opinion delivered June 10, 1929.

      Rowell & Alexander, for appellant.

      Busbee, Pugh & Harrison, for appellee.
   Mehaffy, J.

Mrs. Millie Gurdin, one of the appellants, filed suit in the Garland Circuit Court against ap-pellees, and her deceased husband, during his lifetime, had filed suit, and, after his death, his son, Charlie Gurdin, filed a substituted complaint as administrator of the estate of N. Gurdin, deceased, and the two cases, that is, the cases of Mrs. Millie Gurdin and Charlie Gurdin, administrator, were consolidated and tried together.

It was alleged by Millie Gurdin that on the 10th day of July, 1927, she was the invited guest in an automobile owned by the appellee Rose Fisher, and driven by the appellee Charles Rosenfield. She alleged that Rose Fisher is liable to the appellant for the negligence of her agent, driving said car at her direction and request, and that Charles Rosenfield is liable personally for the negligence complained of; that appellee and Charlie Gurdin and N. Gurdin, husband of Millie Gurdin, had started from Hot Springs, Arkansas, to Pine Bluff, Arkansas, in a car belonging to Rose Fisher and driven by Charles Rosenfield, and that in driving said ear on the highway near Red Gates Inn, in Pulaski County, Arkansas, the appellee carelessly and heedlessly, and in wanton disregard of the rights and safety of appellant, and without caution and circumspection, and at a speed in a manner to be dangerous, negligently drove said car off of the pavement. While said car was in motion the defendant, Charles Rosenfield, negligently handled and manipulated said ear, after it left the pavement, by suddenly turning said car back on the highway. At the time said car was negligently permitted to leave the pavement the right wheel sank into a deep rut, and while in that position, without stopping the car or slowing its speed, appellee Charles Rosenfield negligently and carelessly turned the ear in such a manner which caused said oar to wreck and turn over twice, and severely injure this appellant.

There were other allegations about the width of the pavement and there being no necessity to leave the pavement, and allegations of negligence in handling the car as it left the pavement, and about the injury to the appellant. It was alleged that 'Charles Rosenfield was driving the car at the direction and under the control of Rose Fisher, as her agent, and that both of them were liable to appellants; that they were both negligent, and caused the injury. The injury then is described by appellant, and the extent of it. 'She alleged that her injuries were permanent, and asked for $25,000 damages.

The complaint of Charles Gurdin, administrator, contains the same allegations of negligence as the complaint of Mrs. Millie Gurdin, and asks for damages for pain and suffering of N. Gurdin.

The defendants filed answers, denying the material allegations of the complaints. There was a verdict and judgment for the appellees, and this appeal is prosecuted by appellants to reverse said judgment.

We deem it unnecessary to set out the testimony as to the extent of the injuries received by N. Gurdin and Mrs. Millie Gurdin, because the verdict was against them. There was a sharp conflict in the testimony as to the extent of the injuries.

Millie Gurdin testified that she lived in Hot Springs, Arkansas; was 48 years old, and had four sons and one daughter; that before the accident she was in g’ood health, and had never had a doctor. She was injured on Sunday morning, July 10. She wanted to gn to .Pine Bluff to see her daughter, and Mr. Rosenfield and Miss Fisher wanted to go with her. They had a new car, and told her son, Charlie, that they would take them in the new car. Sunday morning between six and seven o’clock they blew their horn, and she was ready. Miss Fisher was in the back seat with Mr. and Mrs. Gurdin, and Mr. Rosenfield and Charlie G-nrdin were in the front seat. About ten miles from Little Rock Mr. Rosenfield, some way or other, got in a rut, or got in something, and all witness knew was a jar and a shook, and the car went over and she was hurt. She testified they were all hurt, but she was hurt worse, except for her husband, who was hurt worse than she was. She did not know how Rosenfield got off the concrete. Imagined he was driving too fast, but really could not tell the speed. He was going between 45 and 50 miles an hour. Could not tell exactly, because she was in the back seat. Before they left Hot Springs, -witness stated that Miss Fisher said: “Mr. Rosenfield is going to drive to Little Rock, and if he gets tired I guess Charlie will take the wheel.” Miss Fisher told her that Charlie Rosenfield was going to drive for her (it was her car) to Little Rock, and Charlie Gurdin would drive after they got to Little Rook.

She then testifies about her injuries and doctor bills, and said she didn’t look at the time after it happened, but guessed it was between nine and ten. They had been gone about an hour and a half or an hour and forty-five minutes. '

The parties were friendly before the accident. They had been riding along as a party of friends, never thinking about an accident. Witness said if she was not mistaken .she remarked two or three times about going fast, but when people were driving and it wasn’t her car she couldn’t say stop. She was going to Pine Bluff Sunday morning. Her son, Charlie, came home Saturday night, and said, “Mamma, we are going with Charlie Rosen-field and Rose Fisher in her new car,” and she said “All right.” They had been planning to drive over in their oar. Rosenfield and Rose Fisher appeared at witness’ house between six and seven o’clock on Sunday morning, and Rosenfield was to drive to Little Rock, and Charlie Gurdin was to drive from Little Rook to Pine Bluff. She noticed Rosenfield driving fast, but told nobody but her husband. He kept driving fast until the accident happened. The accident happened somewhere around Red Gates Inn. Rose Fisher suggested that Rosenfield drive to Little Rock. Witness then testified about her husband’s injuries.

'Charlie Gurdin testified that he was twenty-eight years of age, and that he was a son of the appellant. That on July 10, 1927, Charlie Rosenfield, at the request of Rose Fisher, took them from Hot Springs to Little Rock. They called by the house to pick them up, and Rose Fisher said that Charles Rosenfield would drive from Hot Springs to Little Rock and that witness would take the wheel at Little Rock and drive to Pine Bluff. The accident happened a few minutes after eight o’clock. Witness said that Rosenfield was making curves a little fast, and that he cautioned him once or twice. The curves on the Hot Springs highway up to the Pulaski County line are protected; the curves are easier on the Hot Springs highway to take than the flat curves on the Pulaski County road; the result was, when he hit this curve the momentum at which he was driving pulled him off the curve, right off the road. He did not go off very far, however, but it happened there was a rut paralleling the road, about eight or ten inches in depth. When the front wheel hit the rut, it naturally pulled the back one in, and, instead of using ordinary prudence and caution in driving through that rut, he jerked his wheel around, and when he jerked his wheel around he jerked it all of the way over, and caused the car to run completely from the right side of the road around on the left, and turn over. He made one complete turn of that wheel,- and held it there. When he jerked his wheel around, he ran his wheel just as far over to the left as he possibly could, and never righted it. The car turned over at least twice, or one and a half times, to be exact.

Witness testified about the condition of his father and mother, and their injuries. He then said that if Rosenfield had continued through the rut he would have got back on the pavement all right. The trouble was he was trying to out out of the rut. Witness hollered to him, “Don’t cut, go through.” He was told he would take the car from Little Rock to Pine Bluff. His mother was going to Pine Bluff to see her daughter, and witness went along to help drive as much as anything else.

Charles Rosenfield testified that he was engaged in the mercantile business in Hot Springs; that he knew Mr.'Gurdin during his lifetime; knew Mrs. Gurdin and Charles Gurdin. He was a brother-in-law to Miss Rose Fisher. On Saturday night, July 9, he was in his place of business, and Charlie Gurdin came in with his sister-in-law, and asked witness whether he would be willing to go see his sister in Pine Bluff. An engagement was made for Sunday morning at 6:30. Witness understood at the time whom he was going with, but made no statement about whose ear they were going in. They did not have any understanding either way about whose oar they were going in, and it was understood that they would be over there at 6:30. They took Miss Rose Fisher’s car down to the garage and filled it with gasoline, and went up there at 6:30. The Gurdins oame out, and they started. Witness understood that Charlie Gurdin was tired, and that he would drive from Hot Springs to Little Rook and Charlie Gurdin would drive from Little Rook to Pine Bluff. They were driving a Buick, a closed car, five-passenger. He and Charlie Gurdin were in the front seat and Mr. and Mrs. Gurdin and Miss Rose Fisher were in the back seat. Witness drove all the way from Hot Springs until the accident happened. Did not know what time it was, but heard somebody remark that it was about a quarter to nine when the accident happened. Was driving between thirty and thirty-five miles an hour. Nobody in the car made any statement about driving fast. Charlie Gurdin said nothing about driving fast around the curves. No complaint was made.

When asked to tell how the accident happened, he said: “Well, there was a Ford with four or five people stopping' there, coming this way, and we were going’ the other way, and I tried to avoid the collision, because the Ford occupied a little more of my space, and, trying to avoid the collision, suddenly I turned the wheel towards my right, and suddenly it slipped off the main pavement, and it got into a rut.” Witness then tried to get it back on the pavement the best he could, and made one wrench, and it came up on the highway and then across to the other side. Wasn’t positive whether it turned over, but thought it must have done so. The road was straight; not on a curve. He was trying to pull away to the right to avoid the car he was meeting; to avoid the other oar and avoid an accident, and was trying’ to get back on the pavement. Witness said it was understood that they were invited, and were going for those people to go for the ride to go to Pine Bluff to see Mrs. Gurdin’s daughter. It was Miss Fisher’s car. When he got the oar, Miss Rose Fisher got in the back seat, and then went to the Gurdin’s. Witness drove for Miss Fisher often.

Miss Rose Fisher testified that Charlie- Rosenfield is her brother-in-law. She met Mrs. Gurdin on July 9,‘ and Mrs. Gurdin said: “I am driving tomorrow to my daughter’s in Pine Bluff, and I want you to go too.” She insisted on witness accepting the invitation. She told Mrs. Gurdin she was on her way to the dentist, and she told her that Charlie Gurdin would go with her to the dentist and invite Rosenfield to go to Pine Bluff. Mrs. Gurdin’s son drove witness over to the store, and talked with Rosenfield. When they left the store, Charlie Gurdin turned around and said, “Miss Rose, it would be a good idea to take your car, it is a closed car, and might be bad.” Witness said “All right.” The next morning Charlie Gurdin said to Rosenfield: “I wish you would drive as far as Little Rock, and I will drive to Pine Bluff, because I didn’t sleep any more than two hours last night.” 1S0 they went on, and out from Little Rock Rosenfield, to avoid the big accident, was trying to give them all the room he could to pass, and the ear skidded a little bit off the pavement, and he jerked once, and cried out through the window, and witness was thrown out of the car. The car had turned entirely over. Mr. Gfurdin did not get a scratch. Mr. Rosenfield was driving* between thirty and thirty-five miles an hour. No one complained about fast driving.

On cross-examination, witness said she was 29 years of age, and that she permitted Charlie Rosenfield .to drive her car. He was her agent in handling those matters, and he drove at her request. She said that any time he was driving the ear it was all right, and, at the time of the accident, it was with her knowledge and consent that he was driving the car.

Mrs. G-urdin was recalled, and testified that Rose Fisher did not see her Saturday, and that Sunday morning when she got up and woke Charlie Gurdin and told him that he promised to take her to Pine Bluff, he said: “Mother, Charlie Rosenfield and Rose Fisher are going with us, and they are going to take us in their car,'and we will leave our car for the hoys.” Saturday witness had asked Charlie, her son, to take her in their car, and she did not know that Rosenfield and Rose Fisher were going with them.

The above is all of the testimony that it is necessary to set out, as the other testimony relates chiefly to the extent of the injuries.

Appellant’s first contention is that instruction numbered three, given by the court, was prejudicial because it ignored the liability of Rose Fisher, and was calculated to mislead the jury. We do not agree with appellants in this contention. The court did not undertake in this instruction to cover the entire case, but it told the jury, among other things, that the driver of an automobile is required to use ordinary care in driving and handling* a car in order to avoid accidents and. prevent injuries to others who might be guests in the car with him, and if they found from the testimony that the accident complained of was caused by tbe careless or reckless manner in which the car was being driven, or that, after he had left the pavement, he was guilty of carelessness or negligence in the manner in which he undertook to bring it back on the pavement, and, on account of his negligence in either respect, the accident happened and injured the plaintiffs, or either of them, they were entitled to recover against the defendant, Rosenfield.

This was a correct instruction, and it did not ignore the liability of Rose Fisher, but did not undertake to cover any phase of the case except the negligence of the driver.

The appellants also contend that instruction number five told the jury that it was a joint adventure, and that Miss Fisher was not liable. We do not agree with appellants in this contention. The court, in instruction number five, simply told the jury, in substance, that, if Rosenfield became the driver at the instance and request of Charles Gurdin, he was not the agent of Rose Fisher. Other instructions told the jury that, if he was the agent of Rose Fisher, Rose Fisher would be liable for any act of negligence of her agent. This instruction was not misleading. The .jury, we think, could not have misunderstood the meaning of the instructions. The court did not undertake to cover all phases of the case in one instruction, but gave quite a number of instructions which, taken together, covered the entire case.

Appellants then discuss the doctrine .of joint adventure, and cite many authorities. We do not deem it necessary to review them or call attention to them, for the reason that the law governing such cases is thoroughly settled by the decisions of this court. guests by sufferance, invited or self-invited.” Bennett v. Bell, 176 Ark. 690, 3 S. W. (2d) 996.

“The driver of an automobile or motor vehicle is bound to the exercise of ordinary care in the operation thereof for the safe transportation of his guests and other passengers, and to avoid personal injury to them, and this duty extends to all such passengers, whether

And the court in this case instructed the jury that if the driver, Eosenfield, was guilty of negligence whereby any of the passengers were injured, he was liable. And it would make no difference whether it was a joint enterprise or whether the passengers were guests by sufferance, or whether they were invited by the driver or some one else, or self-invited. Negligence of the driver that resulted in injury to any of them made him liable, and the court so told the jury.

Again, this court has said, in discussing the distinction between the duty to invitees and bare licensees:

‘ ‘ The trend of modern authority is to disregard this distinction and apply the rule of duty imposed on owners and drivers of vehicles to invitees, to self-invitees or licensees also. The prevailing rule, approved by recent cases, requires drivers of automobiles to exercise ordinary care in the operation thereof to transport their passengers safely, whether guests by sufferance, self-invited guests, or invited guests. * * * It seems to us that the only sensible and humane rule is that an owner and driver of an automobile owes a guest at sufferance the duty of using reasonable, care so as not to injure him.” Black v. Goldweber, 172 Ark. 862, 291 S. W. 76.

The court also instructed the jury in the instant case that if Eosenfield was the agent of Eose Fisher, or rather, if Eosenfield was driving the car at the instance and request of the defendant, Eose Fisher, then he would be acting in the capacity as her agent in driving the car, and they should find for the plaintiffs against the defendant Eose Fisher, if they found that Eosenfield, the driver, was negligent.

It is next contended by the appellants that instruction number seven was erroneous; that the giving this instruction was prejudicial, and that the judgment should be reversed for that reason. This instruction, standing alone, would perhaps be incorrect in the form given, he-cause it does not specifically mention tlie charge of negligence in reckless driving, but we think, when the instructions are all considered together, that they constituted a correct guide to the .jury, and that the jury could not have been misled by the giving of instruction number seven, especially as the jury are told in this instruction to find for the defendants if the accident occurred through no carelessness or negligence on the part of either defendant.

The appellants also contend that the instructions requested by them should have been given. Some of the instructions requested by them were correct, and should have been given but for the.fact that they were covered by other instructions given by the court.

A.s to the question of negligence of the driver, the testimony is in hopeless conflict, and, the jury having found against appellants on conflicting evidence, the verdict cannot be disturbed.

It would serve no purpose to set out all the instructions; there were a number of them, and some of them lengthy, but we have reached the conclusion that the charge of the court as a whole constituted a correct statement of the law and a correct guide for the jury, and there is substantial evidence to sustain their finding, and the judgment of the circuit court is therefore affirmed.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Union Indemnity Company v. Benton County Lumber Company.
    Opinion delivered June 10, 1929.

      Vol T. Linclsey, for appellant.

      McGill & McGill, for appellee.
   Butler, J.

E. H. Locher and Tom Eads were partners, doing business under the name of The E. H. Locher Construction Company, and as such entered into a contract with the 'commissioners of Paving District No. 1 to complete the improvement at the contract price of $68,941.31. Afterward it entered into a contract with the board of commissioners of Paving District No. 3 to do the work in that district for the price of $30,865, the two districts being in the town of Bentonville, Arkansas. The Union Indemnity Company executed separate bonds as a surety for the construction company on both of its contracts. Under the contract in each case the commissioners retained in their hands ten per cent, of the sum due the construction company, to be paid when the work was finally accepted, and a maintenance bond, or bond for the maintaining of the work in good condition for a certain number of years, was filed with the commissioners.

Work was begun in District No. 1, and was completed in May, 1927, and on the final estimate there was in the hands of the commissioners the sum of $13,000 due the construction company.- The appellee, Benton County Lumber Company, had sold to the construction company, for the completion of the work in District No. 1, an amount of material for which there was a balance due on completion of the work in the sum of $11,523.24. On the 8th day of June, 1927, the appellee lumber company filed a suit in the Benton County Chancery Court against the hoard of commissioners, E. H. Locher and Tom Eads, the Union Indemnity Company, and Martin & Mueller, a company of Iowa, alleging the facts above stated, and that the board of commissioners refused to pay it the amount of its claim, and that Martin & Mueller were claiming an assignment from said construction company. It alleged that its claim was prior to the claim of said Martin & Mueller, and prayed for the determination of the rights of the claimants to the fund in the hands of the commissioners and for judgment against the indemnity company, “if found to be liable on its bond,” and against the commissioners. It was also alleged that Locher and Eads, composing the construction company, were insolvent.

At about the time of the filing- of this suit the defendants, Locher and Eads, were engaged in putting down a lot of pavement in the town of Rogers, and the Union Indemnity Company was on their bond for the performance of that contract. The agent of the Union Indemnity Company was at Rogers investigating the condition of affairs of the Locher Construction Company at that place at the time of the filing of the suit. Personal service was ha.d upon all of the defendants except the Union Indemnity Company, and as to that company a warning order was issued and an attorney acl litem for it appointed. On the 9th of June all the parties except the Union Indemnity Company met in the town of Rogers in an effort to settle their lawsuit, and during the course of their negotiations one of the attorneys representing the district commissioners was notified by the agent of the indemnity company, over the telephone, that, before that company would do anything further, the amounts due by the construction company to the claimants must be settled, and that the suit must be dismissed with prejudice. Shortly after this communication a settlement was arrived at, by the terms of which Martin & Mueller agreed to and did release their assignment of the final estimate, and the commissioners were authorized by the parties present at the conference to pay the Benton County Lumber Company out o>f the funds in their hands the sum of $7,748.24 in cash, and to some bank in Bentonville the sum of $5,000, and the remainder to the Locher Construction Company, and it (the construction company) was to, and did, execute its note to the Benton County Lumber Company for the sum of $3,500. To secure this note the construction company made to the lumber company an assignment of the final estimate of District No. 3. It was further agreed that the suit filed should be dismissed with prejudice.

On the second day following, namely, July 11, the agent of the Union Indemnity Company, having been informed of the settlement and the agreement as to the disposition of the suit, came to Rogers and secured from the clerk of the court a certificate of the order entered of record by which the case was dismissed with prejudice by the plaintiff lumber company. The local agent of the indemnity company residing at Rogers then delivered the maintenance bond, and, this being done, the board of commissioners paid to the Benton County Lumber Company the amount agreed upon, and to the bank the sum of $5,000, and the balance to the construction company.

Work proceeded in District No. 3 to a final completion, the Benton County Lumber' Company furnishing material on that contract, consisting principally of cement, and contracting with the construction company that it would credit its account with ten cents for each cement sack returned. When the work in District No. 3 had been completed there was shown by the final estimate to be due the contractors by the board of commissioners the sum of $3,850, and it owed the Benton County Lumber Company and other materialmen and laborers an aggregate sum considerably in excess of the amount due them on. the final estimate. The Benton County Lumber Company’s balance on open account for material furnished in District No. 3, as claimed by it, amounted to the sum of $3,370.50.

On the 10th day of November, 1927, the Benton County Lumber Company brought suit in the chancery court of Benton County against the Locher Construction Company and against the partners individually, and against the commissioners of District No. 3, who were also the commissioners of District No. 1, by which it sought to recover judgment against the construction company on the $3,500 note executed in settlement of the controversy in District No. 1, less a credit of $1,008.85 for cement sacks returned, and for the balance due it on open account for material furnished in District No. 3 in the sum of $3,370.50, and prayed that its complaint be taken as an equitable garnishment of funds in the hands of the commissi oners. Thereafter, on the 14th day of January, 1928, the Benton County Lumber Company filed an amended complaint, making the same allegations as in the original complaint against the defendants therein named, and making additional allegations as to the defendant Union Indemnity Company, naming it a defendant, and asking for judgment against it on the bonds executed by it to the board of commissioners for the balance claimed from the construction company on the note executed in settlement of the affairs of District No. 1, and for judgment against it on open account, after distribution of the funds in the hands of the commissioners due the construction company for District No. 3.

After the filing of the complaints a number of interventions were filed, the names of the parties inter-vener being- giveu in the decree subsequently entered in the chancery court. The commissioners of District No. 3 and the Locher Construction Company and the Union Indemnity Company, defendants, filed their. separate answers to the amended complaint of plaintiff.

The testimony, while voluminous and involved, presents few, if any, contradictions as to material matters, so much so that the facts recited above are practically undisputed. The court found that the note given by Locher and Eads was properly credited with the amount of the cement sacks returned, and that the balance due on that note was $2,708.22, and that the defendants were due plaintiff the sum of $3,370.50 on open account for material furnished and used in the improvement in District No. 3, and that they are indebted to the interveners as claimed by them in their several interventions, with the exception of the amount due the intervener, Arkola -Sand & G-ravel Company, the amount of such claim being reduced by the sum of $81.24 in so far as it is a liability against the Union Indemnity Company, but was correct as claimed against the construction company. The court found that, by the terms of the settlement of June 8,1927, the Union Indemnity Company was not released from its obligation as surety on the bond in District No. 1, because it knew and accepted the settlement on the conditions named, and that the Union Indemnity Company was estopped from objecting to the application of the funds in the hands of the commissioners of District No. 3 to the payment of the balance due plaintiff by the 'construction company on its promissory note. The court further found that the plaintiff was entitled to priority in the funds in the hands of the commissioners; that the interveners were due the sums claimed by them — a total of $2,616.76 — and rendered judgment in favor of the interveners and against Locher and Bads and the Union Indemnity Company, with interest and costs for said sums. The court further held that, of the $3,850 in the hands of the commissioners, $150 should be retained by the commissioners and $3,650.50 should be paid plaintiff to be applied to the payment of the balance due on the promissory note, and that the balance of said $3,650 be applied on the open account for material furnished in District No. 3, and that the plaintiff have judgment against Locher and Eads and the Union Indemnity Company for the balance, namely, $3,370. The Union Indemnity Company prayed an appeal from the finding and judgment of the court, and the cause is now here on that appeal.

Appellee lumber company claims, and it is earnestly insisted for it by its learned counsel in their able and exhaustive brief, that the evidence sustains the trial court in its finding that the settlement was made with the knowledge and consent of the appellant, that it accepted it, and was bound by its provisions, and thereby estopped from objecting to the application of the funds of District No. 3 to the payment of the note made in settlement of the affairs of District No. 1.

We have carefully examined the testimony, and are unable to discover any facts from which a reasonable inference might be deduced in support of this contention. It is true the evidence is uncontradicted that a statement of the terms of the settlement was prepared by an attorney representing the appellee lumber company, and .given an attorney for the board of commissioners for transmission to appellant’s adjuster, Mr. McCall, but there is no evidence, direct or circumstantial, that the statement was sent or delivered to Mr. McCall, although, as pointed out by counsel for appellant, if this had been true, there was no reason apparent why proof was not made or attempted, for the attorney to whom the statement was said to have been given was and is a resident of the town of Bentonville. Mr. McCall says he was not informed and did not know the terms of the settlement. It is argued that his appearance in Bentonville and his actions while there discredit his testimony. It is not shown, however, that he had any business in Bentonville on the 11th of June or did anything save to procure the certificate of the clerk of the court to a copy of the written memorandum signed by appellee lumber company and indorsed on the docket entry of the suit filed, and to then go, in company with the local agent of appellant, to one of the commissioners, where the “maintenance bond” executed by appellant was delivered to one of the commissioners. There may be some conflict in the testimony of Mr. McGill and Mr. McCall as to the conversation in the former’s office, tout this was an immaterial matter, as it related only to the time the memorandum on the docket was made, and it is undisputed that, at the time of the conversation in dispute, the settlement had already been made, and fully executed on the part of Locher and Eads by the execution of the promissory note and assignment of the final estimate of District No. 3, and there was nothing remaining to be done to carry same out tout for the commissioners to pay over the $13,000 as agreed and to enter the memorandum of dismissal. There was no occasion at any time for appellant to inquire into all the terms of the settlement; its liability had already attached, and the sums for which it might toe liatole were fully aseer-tained. There was nothing it could do except to see the fund of $13,000 was properly distributed, which might have been sufficient to protect it. Its only interest was to insist that the claims for material and labor be paid and the suit against it be dismissed; how this should be accomplished was not important and about which there was no reason for it to inquire.

The parties most interested in the terms of the settlement, and indeed that a settlement be made, were Locher and Eads and appellee lumber company. Appellant was insisting that Locher and Eads pay off the claims due in District No. 1, and, as it was the security on the bond for the Rogers enterprise and on the bond for the contract in District No. 3, and was expected to execute the maintenance bonds, Locher and Eads were anxious to settle satisfactorily the claims in District No. 1 and thus satisfy appellant; for it is clear that the success of their future operations depended upon the cooperation of appellant. .

Appellee lumber company must have been vitally interested in procuring the settlement. There was owing to it by Locher and Eads a large sum of money it was unable to collect; there was an outstanding assignment to Martín & Mueller of the fund in the hands of the commissioners, the leg’al effect o.f which was undetermined; the condition of appellee’s bond was at that time unknown to appellee lumber company; no “maintenance bond” had been delivered to the board of commissioners, and they were refusing to pay out any of the fund in their hands, and a vexing and uncertain lawsuit was in the “offing.” This was a situation from which, it is certain, it desired to be extricated, and there was no persuasion or inducement needed to urge it to endeavor to accomplish this by every reasonable means and effort and by which it might escape probable loss and certain delay. When it agreed to and did accept the terms of the settlement it was pursuing a course dictated by sound business judgment. Here a loss threatened, and a means was presented by which it could realize a major part of its debt in hard cash and for the remainder substitute an assignment of a probable profit in lieu of the contingencies of a lawsuit. Appellee might assume that Loiaher & Eads reasonably expected to make a profit out of their contract in District No. 3, and appellee lumber company was willing and did exchange an assignment of this for their claim against appellee, and dismissed the suit “with prejudice.” This term has a well recognized legal import; it is the converse of the term “without prejudice,” and is as conclusive of the rights of the parties as if the suit had been prosecuted to a final adjudication adverse to the plaintiff. 4 Words and Phrases (2d Series) p. 1333.

It is doubtful whether appellee had any knowledge of the terms of the settlement, but, if it did, there is a total failure to show any active participation by it in the negotiations or any act upon the part of its agent by which the lumber company was misled or induced to abandon a valuable right or do any other act by which it could be or was estopped to set-off its rights in some future proceeding, for an estoppel can only be predicated on some act or declaration intended to mislead another, who has relied thereon, and acted or refrained from acting to his injury. Merchants’ & Planters’ Bank v. Citizens’ Bank, 175 Ark. 417, 299 S. W. 753.

In this case the principals have made a settlement by which the debt for which the surety was liable was extinguished and another and different obligation created, to suit their convenience, and the surety, appellant not having’ consented thereto, was discharged. Hill v. Trezevant & Cochran, 123 Ark. 244, 185 S. W. 280; Glenn v. Union Bank & Trust Co., 150 Ark. 42, 233 S. W. 798; Snodgrass v. Shader, 113 Ark. 429, 168 S. W. 567. And consent will not be implied by mere knowledge of and acquiescence in the terms of the settlement, but there must be some affirmative action by the party to be bound. Indiana Lumbermen’s Ins. Co. v. Stove Mfg. Co., 164 Ark. 359, 261 S. W. 917; and see also DeKlyn v. Gould, 165 N. Y. 282, 59 N. E. 95, and Rice v. Culver, 172 N. Y. 60, 64 N. E. 761.

As we have seen, there was no conduct on the part of the Union Indemnity Company such as would estop it from insisting that the fund arising on the final estimate be used first in the liquidation of the claims for material and labor, and the decree of the court holding that the appellee lumber company had a priority over the claims of the other materialmen and laborers under its assignment and that the Union Indemnity Company was estopped to insist otherwise, was erroneous.

The evidence shows that the credit of $1,008.85 for cement sacks returned was arbitrarily placed by the ap-pellee lumber company to the credit of the $3,500 note without the consent of Locher & Eads, and in violation of its contract, and that it should have been credited on open account of the appellee lumber company for material furnished District No. 3. Fidelity & Deposit Co. v. Merchants’ & Farmers’ Bank, 120 Ark. 519, 179 S. W. 1019; Herweigh v. Hill, 172 Ark. 1146, 292 S. W. 97.

The Union Indemnity Company executed a bond for the construction company in favor of the commissioners of District No. 3, and we think that because of this it became liable to appellee lumber company and the in-terveners on their claims against Locher & Eads in District No. 3 in such sum as remains after the application pro rata of the fund on their respective claims. The appellee lumber company is due for material furnished for District No. 3, after deducting the credit for cement sacks returned, the sum of $2,361.65, and it is due on the note executed by the construction company the sum of $3,500, with interest, for which it should have .judgment against the Locher Construction Company.

As to the intervention of C. D. Haney, the trial court erroneously held that the amount of his claim for material furnished in the work on District No. 3 was $103.39. This is the true amount due the intervener by the Locher Construction Company, hut the evidence shows that some of the items going to make up this amount were for material furnished the construction company and not used in the work in District No. 3. The judgment should go against the construction company for the total amount furnished by C. D. Haney, hut the Union Indemnity Company would only he liable for the amount used in the work in District No. 3, which is $67.21. Central Lumber Co. v. Braddock Land & Lumber Co., 84 Ark. 560, 105 S. W. 583, 13 Ann. Cas. 11. The findings of the court as to the amounts due the other interveners, we think, are correct as set out in the decree.

The decree of the chancery court is reversed, and remanded with directions to enter a decree in conformity with this opinion.


author: Hart, C. J.,

text:
    Hale v. Hale.
    Opinion delivered June 17, 1929.

      Sidney J. Reid, for appellant.
   Hart, C. J.,

(after stating the facts). It is the settled rule of this court that chancery oases are tried de novo upon appeal, and the findings of fact' of thchancery court will not be disturbed unless they are clearly against the weight of the evidence. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160. Tested by this rule, we do not think it can be said that the finding of the chancellor is against the clear preponderance of the evidence. It is true that the husband testified that his wife continually cursed and abused him, and that at one time she came upon him with a pistol, which he took away from her. In this he is corroborated by the testimony of other witnesses; but, according to his own testimony and that of the corroborating witnesses, the wife was jealous of the husband because of his conduct with another woman. The husband knew that this was. her ground of complaint against him. He knew that she had borne him seven children, and that the last child was born after she had begun to be jealous of him. It is fairly inferable that her jealousy was caused by her nervous condition, brought on by her pregnancy and by the care and attention she had bestowed upon the six other children. These facts should have made the husband more careful about his conduct; and, whether there was any ground for her jealousy or not, he should have refrained from any attention whatever to other women while his wife was in her nervous state.

In this connection it may be stated that the wife might have had some grounds for jealousy, because the woman of whom she was jealous secured a divorce' from her husband, and the plaintiff was the principal witness for her. This woman was also a witness for the plaintiff in the present case.

The result of our views is that the decree of the chancellor was not against the weight of the evidence, and it will therefore be affirmed.


text:
    Stevens v. Shull.
    Opinion delivered June 17, 1929.

      James D. Shaver and Frank S. Quinn, for appellant.

      J. M. Carter and B. E. Carter, for appellee.
   Hart, C. J.,

(after stating the facts). It will be noted from our statement of facts that in each of the above cases the validity of the paving district was attacked by landowners in the district. In the first case the court sustained the validity of the district, and upon appeal to this court no ground for reversal was insisted upon except that the estimated cost of the improvement exceeded fifty per cent, of the value of the real property in the district as prayed for by the landowners, within the meaning of the statute on the subject. Stevens v. Shull, 178 Ark. 269, 10 S. W. (2d) 511. Under the settled rules of, this court this constituted an abandonment of other grounds stated in the complaint.

"When the second case was filed, an assessment of benefits had been made in accordance with the holding of the chancery court in the first case, and this was held by the chancery court to he a proper and valid assessment of benefits. We are of the opinion that the holding of the chancery court on this point was correct. All the members of the board of assessors were present and participated in the new assessment. They were all residents of the improvement district, and were familiar with the location and character of each lot in the district and the nature of the improvements thereon. They had an engineer present, who figured the areas of the lots which the assessors included in the proposed assessment. They had a list of the assessed value of all the property in the district; they considered the fact that some of the lots were already on paved streets; they considered the character and value of the houses in the district; and they considered everything that would affect the assessment of benefits. It was the opinion of the members of the board that each piece of property would be benefited by the amount of the assessment against it; and in making the assessment they considered the value of the property, the front footage, and everything that they thought might affect the benefits to be assessed against each piece of property. They had a map before them, showing the situation and relation of the different pieces of property to each other, and they made an examination of the district in addition. Hence we are of the opinion that the finding of the chancellor, that the assessment appears to have been made in accordance with the principles of law laid down by this court, is not against the weight of the evidence. Kirst v. Street Improvement District No. 120, 86 Ark. 1, 109 S. W. 526; Moore v. North College Avenue Improvement District No. 1, 161 Ark. 323, 256 S. W. 70; Paving Districts Nos. 2 and 3 of Blytheville v. Baker, 171 Ark. 692, 286 S. W. 945; and Board of Commissioners of Street Improvement District No. 349 v. Little Rock, 172 Ark. 549, 289 S. W. 478.

Upon the hearing of the last case filed by the landowners, the chancery court sustained the validity of the district and also a plea of res judicata made by the commissioners. The validity of the improvement district was sustained by the chancery court in the first case, and this operated as a bar to all grounds, of attack in subsequent suits which might have been interposed in the first suit. Howard-Sevier Road Improvement District No. 1 v. Hunt, 166 Ark. 62, 265 S. W. 517; and Tri-County Highway Improvement District v. Vincennes Bridge Co., 170 Ark. 22, 278 S. W. 627. It does not malee any difference that there may have been some different plaintiffs in the various suits. In the two cases last cited it was expressly stated that the remedy in suits of this character is in the interest of a class of individuals of common rights that need protection, and, in the pursuit of a remedy, individuals have the right to represent the class to which they belong. In this connection it may be stated that the present attack made on this district came from different members of the same family. It was also decided in the cases just referred to that the record on appeal in this court may be looked to to see whether the issues in the different cases are substantially the same. An examination of the record in the case of Stevens v. Shull, 178 Ark. 269, 10 S. W. (2d) 511, will show that the same attack was made upon the validity of the district as was made in the second suit, which was No. 1213.

In the last suit, which is No. 1173, two additional grounds of attack upon the validity of the district were added. But these grounds might have been offered in the first two suits, and for that reason the plea of res judicata should be sustained. As pointed out in the cases referred to, if this were not true, litigation would not end until the parties had no more money nor the ingenuity of counsel in suggesting additional grounds in support of the issue had been exhausted. Different landowners could prosecute different suits and make different attacks on the validity of the district, so that it would be practically impossible to make any proposed improvement in a city within a reasonable time. Therefore we hold that the chancery court properly sustained the plea of res judicata in case No. 1173.

Besides this, we do not think that the additional grounds of attack could be sustained on the merits. In the first place, the validity of the district was attacked on the ground that the ordinance creating^ the district was not properly published. We do not deem it necessary to set out the facts relating to this phase of the case. It is sufficient to say that the same point was raised and was decided adversely to the contention of the appellants in the case of Drainage District No. 9 of Miller County v. Merchants’ & Planters’ Bank, 176 Ark. 474, 2 S. W. (2d) 79. The same facts appeared in this 'case as were proved in that case, and we hold that this case is ruled by that.

Again, it was contended that the ordinance creating the district was not properly passed. It is alleged that one of the aldermen who voted for suspending the rules on the passage of the ordinance creating the district did not reside in the city at the time, and that the rules could not have been suspended without his vote. There is no merit in this attack on the validity of the district. The alderman was at least a de facto officer, and, as such, his qualification to serve cannot be inquired into in this suit. McClendon v. State ex rel., 129 Ark. 286, 195 S. W. 686, L. R. A. 1917F, 535.

We find no reversible error in the record, and the decree in each case will therefore be affirmed.


author: Smith, J.

text:
    Huie v. Barkman.
    Opinion delivered June 17, 1929.

      B. W. Buie, Jr., and Joseph Callaway, for appellant.
   Smith, J.

Appellants brought this suit to obtain a writ of mandamus to compel the board of commissioners of an improvement district to issue them a voucher in payment of services. rendered by them for the district. No answer was filed to the petition, and Leslie G-oodloe, one of the- commissioners, in a deposition testified as follows: A¥itness, together with Clark and Barkman, composed the board of commissioners of Paving Improvement District No. 4 oif Árkadelphia. Witness was secretary and Barkman was chairman of the board. Appellants Huie and Callaway were from the beginning of the district its attorneys, and, upon the completion of the improvement, they presented for allowance and payment an account for the balance due as attorney’s fees. A thousand dollars had been paid, and $2,000 in addition was claimed. The board allowed the- claim, although Barkman, the chairman, refused to vote for its allowance or to put the question to a vote.

The validity of the district was hotly contested. The improvement cost $220,000, and a majority of the board thought the fee reasonable, and ordered it paid. The minutes of the board meeting allowing the fee and ordering it paid were read in evidence. Witness, as secretary of the board, issued and signed two vouchers each for $1,000. Barkman, as chairman of the .board, signed one, but refused to sign the other, whereupon this suit was brought.

In denying* the writ prayed, the learned circuit judge. expressed the opinion that the petitioners had an adequate remedy at law, this remedy being to sue the district and to obtain judgment, and for this reason the writ was denied.

Numerous cases in our reports have announced the circumstances under which a writ of mandamus may issue. It is not a writ of right, and it can never be issued to control the discretion of an officer whose action or duty to act depends upon the exercise of official discretion. As has been frequently said by this and other courts, mandamus is not a writ which may he used to establish a right, but is one which can be used only to enforce a right already existing. Carter v. Marks, 140 Ark. 331, 215 S. W. 732. An early and leading case on the subject is that of School District v. Bodenhamer, 43 Ark. 140. In that case suit was brought by a school-teacher to recover an alleged balance due for teaching. Judgment was recovered by the plaintiff, to reverse which it was insisted on the appeal that the plaintiff’s remedy was mandamus to compel the directors to issue an order upon the county treasurer for her wages. In holding that mandamus was not the remedy in that case and that the plaintiff had properly sued and recovered judgment, the court said: “The writ of mandamus is frequently employed to compel public corporations to perform their duties toward their creditors. But there must first he a judgment; to establish the validity and amount of the debt.”

Here, however, there was no necessity to establish the right of petitioners to their fee, nor was there any attempt to do so. That fact had already been ascertained and determined by a majority of the board clothed with the power and charged with the duty of determining the validity of the claim.

The proceedings out of which the litigation arises were authorized by the chapter on Municipal Improvement Districts, § 5647 et seq., C. & M. Digest, and by § 5742 of this chapter it is provided that “any duty required to- be performed by this act may at any time be enforced by mandamus at tbe suit .of any person or board interested therein. ’ ’

There is no question of fraud in the allowance of this claim. It has been allowed in the manner provided by law, and the only question is, how shall its payment be enforced? Section 5656, C. & M. Digest.

It may be that suit might have been brought and judgment recovered and the payment of the demand enforced in this way, and it was upon this theory that the circuit court denied the prayer for the writ. But at § 45 of the chapter on Mandamus, 18 R. C. L., page 132, it is said: “To exclude resort to mandamus on the ground that the relator has another remedy, such remedy must be an adequate one and well adapted to remedy the wrong complained of; if it is inconvenient or incomplete, the court exercises a sound discretion in granting or refusing the writ. ’ ’ Had judgment been recovered, resort to mandamus might have been required to compel the chairman of the board to issue a voucher in payment .of it. Breslin v. Earley, 36 Pa. Sup. Ct. Rep. 49.

At § 44 of the text just cited and quoted from, page 132, it is said: “Where a statute provides that mandamus will lie in all cases where it affords an appropriate remedy for the enforcement of a legal right, without regard to whether there may be some other adequate remedy or not, the general rule as to the nonexistence of another adequate remedy does not apply.”

The legal right of appellants to have issued a voucher having 'been determined by the action of'the board of commissioners, that right may be enforced under the section of the statute above quoted, and the judgment of the court below will be reversed, and the cause remanded, with directions to the circuit court to order the issuance of the writ.


text:
    Watkins v. State.
    Opinion delivered June 17, 1929.

      Hub Blair and 8. V. Neely, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Smith, J.

Appellant was indicted for the offense of assault with intent to kill, alleged to have been committed by assaulting Sam Humphreys with a deadly weapon.

At the trial from which this appeal comes, Humphreys testified that he was the marshal of the town of Norvell, and that a Mr. Matson, who operates a small store in the town, sent for witness to quell a disturbance in an adjoining house. When witness arrived, “there was some hollering going on in the house,” and a negro woman came out of the hack door and ran into another house. Appellant soon followed, and as he did so the messenger who had brought witness to the scene said, “'That’s him now.” Witness said to appellant, “Consider yourself under arrest,” and appellant answered, “I want to talk to that woman, sir; I ain’t been doing nothing.” The woman who had just run out of the house heard this remark, and she said, "Yes, you have been heating me up. ’ ’ Witness then said to appellant, ‘ Come on and let’s go,” and told appellant that he was under arrest for disturbing the peace. Witness called on a boy who had walked up to assist him in making the arrest, and he told appellant that if he did not go on he would hit him with his pistol, and he did what he threatened to do when appellant refused to budge, and, as he did so, the pistol flew out of his hand. At this the boy who had been asked to assist in making- the arrest ran away, and a scuffle ensued, during the course of which "we wallered clear across the road”’ so witness stated. Appellant got possession of the pistol, and put it at witness’ side, remarking as he did so, "I guess you will get down the road now.” Witness said "Yes,” but did not move. There was nothing to keep appellant from shooting witness, but he did not attempt to do so, nor did appellant strike or offer to strike witness with the pistol, but, when appellant saw witness was not going on as he had been told to do, appellant grabbed witness in the belt and jerked it, and in doing so tore witness’ shirt and undershirt. Just then a negro drove up in an automobile, and appellant drew the gun on the driver of the car, who stopped the car when told to do so. Appellant got in the car and drove away. Appellant did not testify at his trial.

Appellant asked the court to direct a verdict in his favor upon the ground that Humphreys had attempted to arrest him without authority, and that he had opposed no more force than was necessary to resist the unlawful arrest. The court refused so to do, and refused also to give an instruction which would, in effect, have directed a verdict of not guilty, upon the theory that Humphreys had unlawfully attempted to arrest appellant, and that appellant had the right to use such force as was necessary “to repel the attack made on him and to regain his liberty.”

We think the court did not err in refusing to direct the jury to acquit appellant, nor was error committed in refusing to give the instruction just referred to. In fact, the instructions given were more favorable to appellant than they should have 'been, for the reason that in one of them the jury was told that Humphreys had no right to arrest appellant. The jury was so instructed upon the theory that Humphreys had no warrant for appellant’s arrest, and that the offense for which he attempted to arrest him — that of disturbing the peace — was not committed in his presence. The court was in error in declaring that the offense was not committed in the officer’s presence. It is true the officer did not see appellant assault the woman, but he stood near the porch of the house and heard her screaming, and he saw her run from the house, and he saw appellant follow her. The offense of disturbing the peace, if not that of an assault, was committed in the presence of the officer, for he heard the woman screaming, even though he did not see her, and it was the screaming which had prompted Matson to send for the officer.

In the chapter on Arrest, 5 C. J. 416, § 45, it is said : “An offense is committed in the presence or view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the acts constituting it, although at a distance, view of such acts as constitute reasonable grounds for arrest being sufficient. An offense is likewise deemed committed in the presence of the officer when he hears the disturbance created thereby and proceeds at once to the scene, or where the offense is continuing, or has not been fully consummated, at the time the arrest is made. He must, however, have direct personal knowledge, through sense of sight or hearing, that the offense is the act of the accused. Merely being near enough to see, but not seeing, is not sufficient, unless the failure to see is due to darkness, and the lack of seeing- is made up for by bearing. ’ ’ Cases cited in the note to the text quoted fully sustain the text. See also State v. Dowd, ante, p. 384.

The court charged the jury that appellant was not guilty of an assault with intent to kill, and this was correct. The court submitted under correct instructions the questions whether appellant was guilty of a simple assault, or assault and battery, or an assault with a deadly weapon, and defined these offenses, and the jury found appellant guilty of the offense of an assault with a deadly weapon, and fixed the punishment at a fine of $100, with imprisonment for six months in the county jail. The court did not submit the question whether appellant had resisted or assaulted an officer (§§ 2585, 6, 7, C. & M. Digest).

The offense for which appellant was convicted— that of an assault with a deadly weapon — is committed when “any person assaults another with a deadly weapon, instrument or other thing*, with an intent to inflict upon the person of another a bodily injury, where no considerable provocation appears, or where the circumstances of the assault show an abandoned and malignant disposition.” Section 2334, C. & M. Digest. The punishment for this offense is a fine of not less than $50 nor more than $1,000, and some imprisonment not exceeding one year.

Under the testimony recited above appellant was not guilty of this offense. He did not assault the officer with a weapon. The officer admitted that appellant did not fire the pistol, nor attempt to do so, and that he was not assaulted with the pistol. Apparently, so far as the weapon was concerned, appellant attempted only to prevent the officer from using it in effecting the arrest, but appellant did lay hands on and assault Humphreys, and in doing so he violated the law.

The error of convicting appellant of an assault with a deadly weapon may be cured by remitting the imprisonment and leaving intact the fine of a hundred dollars, as a fine of that amount is authorized by law upon a conviction for the offense of a simple assault, or for that of assault and battery. The judgment will be modified accordingly, and, as thus modified, will be affirmed.


author: Humphreys, J.

text:
    Harris Hyman & Company, Inc., v. Choctaw Cotton Oil Company.
    Opinion delivered June 17, 1929.

      Hardin & Barton, for appellant.

      Hill, Fitzhugh & Brizzolara, for appellee.
   Humphreys, J.

Separate suits were instituted in the circuit court of Sebastian County, Fort Smith District, by appellant against the several appellees for shortage in weight of certain lists of cotton purchased by it from each.

The several appellees answered, admitting the correctness of the account sued upon, but alleging payment of the several claims by checks drawn in favor of appellant and delivered to W. F. Kelley, who indorsed same as its agent and collected them from the banks upon which they were drawn.

One of the appellees, Choctaw Cotton Oil Company, also filed a cross-complaint against appellant for $292.69 for overweights on certain lists of cotton it sold to appellant.

The several suits were transferred to the chancery court of said district and county, and there consolidated and tried, with the result that'appellant’s several suits were dismissed, and a decree rendered in favor of the cross-complainant, Choctaw Cotton Oil Company, for $292.69, from which is this appeal.

Appellant was a Maryland corporation, with its principal office in New Orleans, where it did an export cotton brokerage business. It employed J. McD.Dufilho, an independent cotton broker, to buy cotton for it in different sections of the South and West, agreeing to pay him 50 cents a bale as commission for his services. He in turn employed W. F. Kelley, who temporarily took up his residence at Fort Smith, Arkansas, to buy cotton at that point for appellant • from the appellees herein, under agreement that the sellers of the cotton, appellees herein, should ship same directly to appellant at New Orleans, on bills of lading with draft for the purchase price attached, based upon the gin weights, with the understanding that the cotton would be re-weighed at the compress, and final adjustment and settlement made upon the basis of the compress weights. Kelley had an assistant by the name of 'Brown, who did his clerical work, but Kelley himself bought all the cotton for appellant from each of the appellees, receipted for same in its name by himself, confirmed the sales in its name by himself, directed the shipment of each lot of cotton so purchased, and frequently prepared the drafts on appellant for the purchase price. A great deal of cotton was purchased this way by Kelley for appellant during the fall of 1924, and, when each shipment arrived at the compress and was weighed, the manager of the compress sent out two statements of the weights, one to appellant and the other to the seller. During the cotton season, as soon as appellant received the compress weights, a memorandum was made up by it, showing the overage or shortage in weights, which was delivered by Kelley to the several appellees. These memoranda had a notation on them that it was cotton purchased by Dufilho and Kelley. They were filed away by the several appellees for reference when there should be a final adjustment or settlement between appellant and the several appellees at the close of the cotton season. These memoranda covering each shipment were called credit and debit sheets, and were made out on the stationery of appellant. At or near the close of the season an itemized account, covering all discrepancies between the gin and compress weights, made up on the stationery of appellant, was presented by Kelley to each of the appellees, showing the balance due by each to appellant. Upon the presentation of these final itemized credit and debit sheets, each of the appellees issued and delivered to Kelley a check for the amount each owed, payable to appellant or its order. Kelley indorsed the name of appellant, by himself as its agent, on the several checks, cashed them, and absconded with the proceeds.

On October 21,1924, during the time Kelley was purchasing cotton from the several appellees .for appellant, one of them, Ohoctaw Cotton Oil Company, wrote a letter to appellant, which is as follows:

“October 21, 1924.
“Harris Hyman Co., New Orleans, La.
“Gentlemen: Find inclosed invoices covering our sales to you up to this date. Owing to a slight misunderstanding as to the requirements of your firm in the matter of these, we have heretofore sent no invoices with draft, but have submitted them to Mr. Kelley, your representative here. He advises that we áre to furnish you as well as him with copies, and in the future we will see that this is done.
“Tours very truly,
“Choctaw Cotton Oil Company,
“By...”

The officers of appellant who testified in the case did not deny receiving this letter. It seems that the letter was written in response to information which the Choctaw Cotton Oil Company had received from appellant. The testimony introduced by appellant was, in substance, to the effect that appellant had no dealings whatever with Kelley, and that Kelley was not its agent, but was merely an employee of J. McD. Dufilho. They testified that they did not know nor had ever heard of Kelley until after he had cashed the checks. They also testified that the cotton was purchased by J. McD. Dufilho, and that even he had no authority to collect the amounts from the several appellees on account of a discrepancy between the gin and the compress weights.

Appellant’s contention for a reversal of the decree is that, according to the weig'ht of the testimony, Kelley did not represent it, and that the delivery of the checks to him, although made payable to appellant, and although cashed and charged to the account of the several appel-lees, was not a payment of the several accounts sued on.

According to the undisputed testimony, Kelley purchased all the cotton from the several appellees for appellant, receipted for same, directed the shipment thereof, and subsequently confirmed the sales; also delivered to appellees the credit and debit memoranda sheets, showing the amount due on account of the discrepancy between the gin and compress weights; also presented a final itemized account of the amount due appellant on account of the discrepancy in the gin and compress weights, and received a check from each appellee for the amount shown to be due on this account from each to appellant. The only reasonable inference from the testimony is that these credit and debit sheets were made up in the office of appellant on its own stationery and mailed to Kelley. There was no way for Kelley to have got them except from appellant, as appellant had the only information or data upon which they could have been made. The denial of the officers that they had ever heard of Kelley until after he cashed the checks cannot be accepted as true, as the various credit and debit sheets and the final itemized credit and debit sheets showed on their face that they represented discrepancies between gin and compress weights of cotton which had been purchased by J. McD. Dufilho and Kelley. Appellant’s officers must have known that Kelley was its only representative at Fort Smith, as they well knew that J. McD. Dufilho resided in and had his office in New Orleans. The letter which the Choctaw Cotton Oil Company wrote to appellant on October 21, 1924, apprised it of the fact that Kelley was its representative iat Fort Smith by telling it that the invoices with draft attached had always 'been submitted to him before being forwarded for collection. Appellant is clearly estopped from denying that Kelley was its agent for the purpose of purchasing and directing the shipment of the cotton to it. The only reasonable conclusion from the testimony is that Kelley had express or actual authority to purchase for and direct the shipment of the cotton to appellant. It is true that the record does not reflect express authority in Kelley to present the credit and debit sheets and receive checks in payment of the several accounts due appellant from the several appellees. Such authority must necessarily be implied from the fact that they sent these sheets to Kelley for some purpose. The only reasonable purpose for sending them to him was for collection. He certainly had apparent authority to present them and receive checks for the several amounts due appellant from the several appellees. This court said in the case of Ozark Mutual Life Association v. Dillard, 169 Ark. 136, 273 S. W. 378, that:

“Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume, or which he holds the agent out as possessing; such authority as he appears to have by reason of the actual authority which he has; such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess.”

It' may be that Kelley had no actual or express authority to indorse the name of appellant and collect the checks, but he certainly had apparent authority to receive them. If he wrongfully indorsed and cashed the checks, it became a question between appellant and the banks cashing them or between appellant and its agent, Kelley, and not between appellant and appellees. Ap-pellees were justified, as reasonably prudent parties, in view of the dealings between themselves and appellant through Kelley, and in view of Kelley’s presentation to them of the itemized credit and debit sheets, in assuming that Kelley had authority to receive checks in payment of appellant’s accounts.

No error appearing, the decree is affirmed.


author: Kirby, J.

text:
    Burgess v. State.
    Opinion delivered June 17, 1929.

      J. B. Harris, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehafftj, Assistant, for appellee.
   Kirby, J.

Appellant prosecutes this appeal from a judgment of conviction in the Madison Circuit Court for the crime of selling whiskey, and insists that the evidence is not sufficient to sustain the verdict of the jury, and that the venue of the offense was not proved.

George Coger and Chester Ogden, young men, one living near and the other in the town of Huntsville, testified for the State. They wanted some whiskey for Christmas, and, upon inquiry of some of the boys they knew, Chester was told that Abe Burgess could probhbly tell them where they could get some liquor. This boy did not know Burgess, and his informant pointed him out on the street, and he drove his car over and inquired of him if he knew where he could get some whiskey. He was told that he knew of two places where it was said they were selling whiskey, one over in Carroll County, on the road to Eureka Springs, and the other at Broad Ford, up on War Eagle. He said to Burgess, “Let’s go up there on War Eagle and get some whiskey.” Burgess agreed, and they got into the car to go for the liquor, and picked up Coger. Burgess told them that he heard Mel Davis was selling* liquor at Broad Ford, near the spring*. They drove out to the rock fence, and stopped the car, honked the horn, and got out and crossed over the fence, and went around a pile of rocks, and found two quart fruit jars with liquor in them, setting over against the rocks. Each of the boys laid down $1.25 on the ground and took one of the quarts and emptied it into two pint bottles they had brought along. Burgess put down $2.50, and took the other quart. They had a drink or two, and went on back to the car. Each of them said Burgess was a little behind them in returning* to the car, one saying that he was taking a drink when he looked back, and Burgess testified that he came along* only a few steps in the rear in getting into the car. Neither o.f the boys saw any one at the place, nor did they see any one take the money that was left on the ground. Burgess said he saw Mel Davis ’ hat over the top of the rocks, and upon going around the rock-pile they found the two quarts of whiskey which they got. Burgess stated that the boy in town, of whom he had made inquiry, giving his name, told him where to find the whiskey between the rocks, and also the price for which it was sold by Davis. The price, however, ap-neared to be well known to them all, one of the boys testifying that it was the standard price for liquor. Neither of the boys testified that he bought any whiskey from Burgess, or that he sold them any. Burgess denied having made any sale of whiskey to the boys; stated that he had no interest whatever in the whiskey; that he made no sale of it, and did not receive any of the money, but only purchased the liquor for himself, as did the other boys; that he lived at Seminole, but was raised in Madison County, and was in the timber and stave business, and that he had made the inquiry about the whiskey, desiring to purchase some for himself for Christmas. Each of the boys gave the name of the person inquired of about where the whiskey might be procured.

There is no evidence that any money was paid to or received by Burgess for the whiskey, nor that he had any interest in the whiskey or sale of it, except as the inference may arise from the facts stated.

The reasonable conclusions that could be drawn from the circumstances surrounding and attending the transaction are not necessarily inconsistent with nor contradictory of the testimony conducing to show the innocence of appellant, and we do not regard the evidence sufficient to show that he was the owner of the whiskey or interested in and made the sale of it. It is not necessary to determine whether the evidence is sufficient, although some of the judges do not regard it so, to establish the venue of the offense, since it will doubtless be disclosed by direct testimony upon a new trial.

For the error designated the judgment is reversed, and the cause remanded for a new trial.


author:
Kirby, J.,
      Mehaffy, J.,

text:
    Mitchell v. Deisch.
    Opinion delivered June 17, 1929.

      Gockrill £ Armistead, W. A. Utley and Shields M. Goodwin, for appellant.

      Hal L. Norwood, Attorney General, for appellee.
   Kirby, J.,

(after stating the facts). Under § 4 of act 113 of 1923 the board was given authority and had the discretion to select a suitable site for the establishment of a tuberculosis sanatorium for negroes, and were directed in making such selection to locate the institution at such point in the State ‘ ‘ as shall appear to them ’ ’ to be more nearly in the center of the negro population of the State. They made this selection for the site of lands in Saline County that they regarded most suitable as a site for the establishment of the sanatorium, regarding it as a compliance with the statute because of its accessibility. There is no intimation that the site is not most suitable for the location of such sanatorium, as the evidence shows it to be, nor any suggestion made that one more suitable could be found elsewhere in the State, but only an insistence that the statute was violated by the board in not selecting lands for the site more nearly in the actual geographical center of the negro population of the State.

The statute is only directory in its terms, leaving the board the discretion to place the institution at such point in the State “as shall appear to them,” etc. There is not a scintilla of testimony indicating bad faith on the part of the board in the selection of the site as made, and the General Assembly, under act 277 of 1927, knowing of the selection under the authority given the board for the purpose, made an appropriation of moneys for the erection of the necessary buildings and improvements “on the lands heretofore acquired for the purpose of a negro tuberculosis sanatorium.” This was an approval by the Legislature of the selection of the site for the sanatorium by the authorized agency of the State, amounting to a ratification thereof, even if any such ratification had been necessary, and the chancellor did not err in so holding.

Tlie argument is without force therefore — the Legislature having decided that question- — that the establishment of a negro tuberculosis sanatorium in a county containing so small a negro population and inhabited almost entirely by white people is a departure from the State’s policy of the segregation of the races, since that is a matter with which the court is not concerned, the policy of legislation and its expediency being questions peculiarly within the province of the lawmaking power. Scalles v. State, 47 Ark. 476, 1 S. W. 769, 58 Am. Rep. 768; State v. Bain, 172 Ark. 480, 289 S. W. 384; Cone v. Garner, 175 Ark. 860, 3 S. W. (2d) 1.

In -modern times a sanatorium is not only considered a beneficent institution, but a public necessity, and certainly its establishment cannot be regarded a nuisance per se. The chancellor did not find that its establishment and operation would cause irreparable injury to the appellants, and, at best, the testimony conduced to show that any injury to the market value of the land would be only temporary, and not irreparable, not furnishing sufficient grounds for equitable relief. Gus Blass Co. v. Reinman, 102 Ark. 294, 143 S. W. 1087; 2 Story’s Eq. Juris., 926; Joyce on Nuisances, 427; Wood on Nuisances, 778; McDaniel v. Forest Park Cemetery Assn., 156 Ark. 571, 246 S. W. 874. For cases in other jurisdictions denying injunctive relief against the maintenance of hospitals see Jardine v. Pasadena, 190 Cal. 64, 248 Pac. 225, 48 A. L. R. 509; San Diego Tuberculosis Assn. v. East San Diego, 186 Cal. 252, 200 Pac. 393, 17 A. L. R. 513; Tompson v. Evangelical Hospital Assn., 111 Neb. 191, 196 N. W. 117, 32 A. L. R. 721; Cook v. Fall River, 239 Mass. 90, 131 N. E. 346, 18 A. L. R. 119; Northfield v. Board of Chosen Freeholders of Atlantic County, 85 N. J. Eq. 47, 95 Atl. 748; Board of Health v. North American Home, 77 N. J. Eq., 78 Atl. 677; LeBourgeoise v. New Orleans, 145 La. 274, 82 So. 268.

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

Mehaffy, J.,

(dissenting). I do not agree with the opinion of the majority in its construction of the statute involved. Section 4 of the act is as follows:

“As soon after the organization of said board as practicable said board shall select a suitable site for the establishment of a tuberculosis sanatorium for negroes, and in selecting said site they shall place institution at such point in the State as shall appear to them to be more nearly in the center of the negro population of said State.”

The majority opinion says that this institution was placed in Saline County by the board because it was a site that they regarded as the most suitable and that they regarded as in compliance with the statute because of its accessibility.' It is true that the testimony of the board showed they thought they had a right to locate it there, but the testimony conclusively shows that the board ignored that part of the section which says “they shall place institution at such point in the State as shall appear to them to be more nearly in the center of the negro population.” Nobody claims that it appears to them to be anywhere about the center o>f the negro population, but the undisputed proof shows that it is not in the center of the negro population, and the board did not think that it was.

The chancery court found from the evidence “that said lands are not in or near the center of the negro population of said State, and that said board, in selecting said lands as a site for said sanatorium, did not conform to the requirements of § 4 of said act No. 113 of 1923, but'exceeded the discretion conferred upon said board by said act.”

The chancery court, however, denied the injunction and dismissed the complaint because it held that the act of 1927 ratified and approved the selection by the board, and, in effect, held that in passing the act for the appropriation for the negro sanatorium the Legislature repealed the provision in the act of 1923 requiring the board to place the institution in the center of the negro population.

The title of the act of 1927 is as 'follows: ‘ ‘ An act to make available funds for the construction and maintenance of the tuberculosis sanatorium for negroes as authorized by act No. 113 of the Acts of the General Assembly of 1923.”

The title states fully the purpose of the act. It was simply an appropriation bill, passed as such, and doubtless the members of the Legislature paid no attention to it, except to ascertain that it was an appropriation for a tuberculosis sanatorium for negroes. If the section means what the majority held it meant, then there was no reason at all for the latter part of § 4. The first part of the section requires said board to select a suitable site, and, giving effect to every clause of the act, as we must, the act required the board to select it in or near the center, of the negro population. The Legislature meant something when it put this provision in the law, but the majority held that it is directory only. We cannot agree to this interpretation of the statute. I agree with the majority that the policy of legislation and its expediency are questions peculiarly within the province of the lawmaking power. I think that the policy of the State is clearly manifested in providing separate schools, separate churches and separate coach laws for the races. This has been the policy of the State of Arkansas consistently, and the passage of the act in question containing the clause referred to is in line with the policy adopted by the Legislature and the people of the State of Arkansas. The policy has been and is to separate the races, providing separate but equal accommodations for each race, and the decision of the majority has abrogated that part of the section that directed the board to locate the institution in the center of the negro population.

The proper construction of the statute is a question for the court, and it must confine itself to the construction of the law as it is, and not undertake to supply defective legislation under the guise of construction. It is the duty of the court to carry out the intention and policy of the Legislature. The intention of the Legislature means the intention as expressed in the statute, and where the meaning- of the language used is plain it must be given effect by the courts, or that would be assuming legislative authority. 36 Oyc. page 1103.

I believe the Legislature meant what it said, and I believe that the statute is mandatory. Whére the provisions of a statute relating to public officers, tribunals or bodies are intended 'for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory, but mandatory. It is not necessary that a statute should in direct terms declare the duty of an officer in order to make it an imperative one. 25 R. O. L., page 770.

I believe that the Legislature intended that the tuberculosis sanatorium for negroes, should not be located among the whites, and I think that the Legislature would refuse to locate a tuberculosis sanatorium for white people among the negroes. One would be as bad as the other, and each, in my judgment, would be in violation of the policy of the State. I think in the passage of the law the Legislature recognized and knew it would be unwise to locate the negro institution in a white settlement or to locate a white institution in a negro settlement, and I think therefore that the selection by the board of the place in Saline County was a violation of the statute, and that a restraining order should have been granted.

■Chief Justice Habt and Mr. Justice Humpheeys agree with me in these conclusions.


author: Mehaffy, J.

text:
    Newark Gravel Company v. Barber.
    Opinion delivered June 17, 1929.

      Wynne & Miller, for appellant.

      S. M. Casey and Shields M. Goodwin, for appellee.
   Mehaffy, J.

The appellee, a citizen of Independence County, Arkansas, was, on the first day of July, 1927, working as a laborer for the appellant, Newark Gravel Company, near the town of Newark, Independence County. The appellee and another employee of the company were carrying railroad ties, and the method of carrying them was for one laborer to take one end on his shoulder and the other laborer the other end, and, when they reached the place where they were to put the tie, it was thrown from the shoulder; the person behind would give the signal, and both parties would throw the tie at the same time.

The undisputed proof shows that it was customary for the man behind to give the signal before the tie was thrown, and the undisputed proof also shows that the warning or signal was not given at the time of appellee’s injury. It was alleged that the fellow-servant of Barber, whose duty it was - at the time to give the warning or signal, failed to give any signal, and, without any notice to the appellee, threw his end of the tie, and it is also alleged that he threw it with more force than was necessary. One end of the tie rebounded and caught appel-lee’s left foot and crushed it, breaking two bones. Ap-pellee suffered great pain, was unable to do any work for more than two months, and prior to the injury he was a strong, able-bodied -man, twenty-seven years of age, making $2 a day. He asked for damages in the sum of $5,000.

The defendant answered, denying each allegation of negligence, and alleged that the appellee voluntarily exposed himself to the danger, of which he had knowledge, and that it was in consequence of the dangers, which were open and obvious and to which appellee exposed himself, that the injury occurred. The answer also alleged that appellee was guilty of contributory negligence.

The case was tried, and a verdict returned by the jury for the sum of $2,000. Motion for new trial was filed, which the court overruled, exceptions were saved, and this appeal is prosecuted to reverse said judgment.

The appellee testified that he and Bob Austin were carrying railroad ties together, about 30 or 40 yards, over to the railroad; they were carrying them from where they were piled- to the track. Appellee was in front, and Austin was in the rear. They walked up, and Austin threw his end before they got ready. Appel-lee had the tie on his left shoulder; Austin was looking right at him; it was customary to say “Go,” and get ready. It was always his custom to give this signal. The man in the rear is supposed to give it. Austin threw his end too far and with too much force; threw it on top of the left-hand rail. The outside corner of the tie struck the top of the rail and caused it to roll back on appel-lee’s foot. Austin did this without notice, and contrary to custom. It caught appellee’s foot between the rail and the tie, and mashed it; broke the bone, and caused him to suffer great pain. Appellee did not see the tie when it fell; it was behind him. He felt the tie fall, and tried to get out of the way, but failed.

Appellee testified about his injuries, and about treatment by the physicians, and about his suffering. The physicians also testified about the injury to his foot, and it was still giving him pain at the time of the trial. The injury is permanent.

Austin testified, in substance, that he was employed by the Newark Gravel Company at the time Cecil Barber got hurt; remembered the accident, and that they had been working as partners, carrying cross-ties some 25 or 30 yards. When they picked up the ties they carried them about 25 or 30 yards to the place to put them down, and stopped, and then unloaded the tie; that he was in the rear, following Barber; that at the time of the accident both of them were straddle of the rail, with the crosstie on their shoulders. They unloaded it, threw it against the other rail, and his end of the tie hit first, and rebounded and caught Barber’s foot. They had. reached the point where they wanted to throw the tie, and had stopped to unload it. Witness did not know whether any word was given to unload or not. They were both supposed to throw it. Witness’ end hit about twelve inches before Barber’s. He also testified about the injury. He said he was behind Barber, and Barber could not see him. He did not say whether he gave the word to unload or not. Does not remember, but he said they generally gave a signal, but sometimes did not. The man behind would give the signal, and witness was the man behind in this case. He also testified that the fact that they had both stopped did not necessarily imply that it was time to throw the tie. They generally gave a signal, but this time he did not remember. It was the custom to give it. He also said that he had -never thrown his end of the tie' too far before. That they failed to throw it at the right place, and this was the only time witness had ever failed. Witness is not positive that he gave the signal, and, if he did not give notice, there was no other way that Barber would know when to throw. He further said: “If Cecil Barber is positive that the notice was not given, I would not attempt to deny that. ’ ’

It would serve no useful purpose to set out all the testimony; the appellee and Austin are the only persons who know how the accident occurred, and there is no conflict in their testimony, except that Austin says ho does not remember whether he gave the signal. Barber says Austin threw the tie with too much force, threw it too far, and Austin says that this is the first time that he had thrown the tie too far.

The appellant urges a reversal of the case, first, on the ground that the injury was due to inevitable accident, and calls attention to authorities holding that no recovery can be had for a mere accident. It is useless to call attention to or review authorities on this question, because this court has repeatedly held that no one is liable for a mere accident. Moreover, the jury were instructed fully on the question of negligence, and were told that appel-lee could not recover unless the injury was caused by the negligence of Austin, and that this negligence must be the proximate cause of the injury.

Appellant is correct in its contention that inevitable accident does not mean absolutely inevitable, but it means not avoidable by any such precaution as a reasonable man doing such an act then and there could be expected to take. In other words, if Austin was guilty of no neglig-ence, and the thing happened, it would be an accident and be inevitable, although, looking’ at it after it happened, it might be easy to see how it could have been avoided. If Austin was guilty of negligence that caused the injury, it was not an accident, and appellant is liable. If Austin had been guilty of no negligence, then it would have been an inevitable accident, and there could have been no recovery. These questions, however, were submitted to the jury under proper instructions, and the jury’s verdict is against appellant on this issue. Moreover, there is no evidence in the record tending to show an unavoidable accident. The undisputed proof shows that it was customary for the rear man to give a signal before he threw the tie, and in this instance, at the time Barber was injured, the signal was not given. Barber testifies that it was not, and Austin says he does not know. Both of them, however, testify that it was customary to give the signal.

It is next contended by the appellant that the court erred in refusing to direct a verdict for the defendant, and attention is called to a number of .authorities, hut we do not think the facts in this case bring it within the rule announced by any of the authorities referred to. If it were the custom to give a signal before throwing the tie, and this signal was not given, and Austin threw his end of the tie, and the injury resulted because of the failure to give the warning, the defendant would be liable. These questions were properly submitted to the jury by the court.

In speaking of an instruction given in a case, this court said recently:

“If appellant regarded the instruction as so indefinite as not to furnish a guide to the jury as to what would be negligence on account of it not stating that the failure of plaintiff’s helpers to wait for the signal to move the tie, and moving it without the giving of said signal, it should have pointed this out with a specific objection.” St. L. S. F. R. Co. v. Miller, 173 Ark. 597, 292 S. W. 986.

The instruction complained of by appellant in that case told the jury that it was the duty of other employees to wait until plaintiff had put his pick into the tie that was to be put under the rails of said track and prepared himself to pull said tie;-that plaintiff’s said helpers failed to wait until plaintiff had prepared himself for pulling said tie, but immediately pulled said tie after the plaintiff had stuck his pick into it, and thereby caused plaintiff’s foot to be injured; that plaintiff’s said helpers thereby failed to exercise ordinary care for plaintiff’s safety, and that plaintiff had not assumed the risk.

In the instant case the fellow-servant threw his end of the tie without giving any warning, and, when the ap-pellee felt the tie moving, then he pushed it from his shoulder. It was the duty of Austin to give the signal, and he should not have thrown his end of the tie without giving the customary signal, and, if he did this, threw his end of the tie without, giving any signal, he was guilty of negligence, and if this negligence was the proximate cause of the injury, appellee was entitled to recover.

The court in the above case held that the facts were sufficient to take the case to the jury; that if plaintiff’s helpers failed to wait until plaintiff had prepared himself for pulling the tie, but pulled without giving any warning, negligence in this respect was a question for the jury, just as it is in the instant case if Austin threw the tie without giving the customary warning.

This court also said in a recent case:

“It was said that Smith was justified in acting upon the belief that his fellow-servant would do his part of the work in the ordinary way and would walk down to the end of the timber nearer the ground before stepping off. * * * So in the case at bar the jury was warranted in finding that, in the exercise of due care, Narra-more should have warned Johnson before he let go of his end of the carrying iron. The five men were working under a foreman, and were directed by him to carry an iron pipe about the same depth. The pipe, weighing between four and five hundred pounds, was lying diagonally across a small ditch two and a half or three feet wide and of about the same depth. The method of wurk was for two men to carry the front end by placing a carrying iron under it, and two others were to carry the rear end in a similar way. * * * The men were working together, and each had a right to expect that his fellow-workmen would exercise due care in the premises for the safp+T' +he others.” Texas Pipe Line Co. v. John son, 169 Ark. 235, 275 S. W. 329; St. L. S. W. Ry. Co. v. Smith, 102 Ark. 565, 145 S. W. 218.

It is next contended that the court erred in giving in charge to the jury plaintiff’s requested instructions. We. do not deem it necessary to set out the instructions. We have reached the conclusion that the court fully instructed the jury, and that the instructions, taken together, constituted a correct guide to the jury.

There is substantial evidence to support the verdict, and the judgment is therefore affirmed.