text:
    Spears v. Missouri Pacific Railroad Company.
    Opinion delivered June 8, 1931.

      W. M. Glover and D. D. Glover, for appellant.

      R. E. Wiley and Richard M. Ryan, for appellee.
   Smith, J.

This is a. suit to recover the value of a skating rink shipped by L. Newton, in the name of J. O. Spears, as consignor, to J. O. Spears, as consignee, from Fulton to Amity (both of which places are in this State) which was destroyed by fire at 1:15 a. m. on February 28, 1930, while the rink was still in the car in which it had been shipped over the road of the defendant railroad company.

Newton and Spears, who joined as plaintiffs in the suit, alleged and offered testimony to the effect that Newton sold the rink to Spears for $3,500, its value, and that a cash payment was made upon the sale and delivery of the property. That the rink was so constructed that it could be taken down in sections eight feet long and four feet wide, and that it was loaded in its knocked down condition in one of defendant’s cars at Fulton for shipment to Amity on February 21, 1930, upon which date a bill of lading was issued by the defendant railroad company. The bill' of lading, as issued, contained no directions as to the manner or place at which notice should be given to the consignee of the arrival of the car. Testimony was offered, however, to the effect that the shipping agent was directed to insert in the bill of lading a direction to notify Spears at Gurdon, which was his place of residence, but this fact was denied by the agent.

The car was delivered at Amity and placed upon a sidetrack near the depot used for unloading cars at 9:45 a. m., February 24. The agent at Amity testified that he did not know Spears, the consignee, or his place of residence, but that he mailed, at the postoffice in Amity on. February 24, a letter containing notice of the arrival of the car addressed to Spears at Amity, which letter contained the car initials and number, the point of shipment, and its contents, in a stamped envelope bearing the return address of the railroad company. This letter was never delivered and in due course was returned to the agent at Amity, who exhibited it at the trial from which this appeal comes.

Plaintiffs sought to excuse their delay in unloading the car upon the grounds (1) that the consignee had no notice of its arrival, and (2) that during the three days preceding the fire, the weather was such that the rink could not be unloaded without damaging it. Upon this last issue plaintiff’s testimony was to the effect that so much rain fell during this time that the rink would have been ruined had it been unloadéd, as it was constructed of high grade maple, and when its sections were put together it was forty by ninety feet, the sections being put together in grooves, which were fastened to make the entire floor smooth and level, and, had it become wet, it would have warped, which would have destroyed its value, as it had to be perfectly level to be adapted to the use for which it. was constructed. When the floor had been put together, it was covered by a heavy canvas tent which protected it from the rains.

Numerous instructions were asked and given, while others were refused, but we do not set them out, as the instructions which will be discussed present the questions of fact and of law involved in the case.

The suit was defended by the railroad company upon the theory that the car was not unloaded within the 48 hours allowed by law for that purpose after notice of its arrival had been given, and that its liability thereafter was not that of a carrier, but that of a warehouseman, and as there was no evidence of negligence on its part causing the fire it was not liable for the destruction of the rink.

The question of the negligence of the railroad company was submitted to the jury in a number of instructions, which told the jury to find for the plaintiffs if the fire resulted from the negligence of the defendant railroad company. The evidence on this issue was to the effect that the car in which the rink was shipped was in good condition and properly sealed, and that the seals were inspected both morning and evening while the car was at Amity before the fire and was found upon each inspection to be intact. The car was destroyed by fire as well as the rink, and when the fire was discovered it was observed that a door of the car had been forced open for about six to ten inches and that, the fire had originated near the door in the middle of the car. It was shown also that the last train to pass preceding the fire went by at 3:30 p. m. on the 27th, and that the engine of this train was an oil burner. This testimony supports the finding that the fire was not caused by the negligence of the defendant railroad company.

All the instructions given by the court declared the law to be that the consignee was under no duty to unload the rink in the rain, and that the “free time,” during which the obligation of the railroad company was that of a carrier and not that of a warehouseman, was not to be reduced in so far as tbe delay in unloading was caused by tbe condition of tbe weather. It is insisted, however, that the undisputed testimony shows that the rink could not have been unloaded on account of the rain, and that this issue should not therefore have been submitted to the jury, and that the court should have declared, as a matter of law, that the consignee’s “free time” had not expired, and that the railroad company.’s liability as a common carrier had not terminated. We are unable, however, to say that the testimony did not present the issue whether the condition of the weather was responsible for the delay in unloading.

The questions of fact in the case were resolved by the jury in favor of the defendant railroad company, as is reflected by the verdict which was returned in its favor.

The most serious question in the case is presented by an instruction numbered 6-A requested by the defendant, which was modified by the court and given as modified. The modification consists in the addition of the phrase which is inclosed within the parenthesis. It reads as follows: “No. 6-A. You are instructed that if you find and believe from the evidence that the plaintiffs did not unload the shipment or skating rink from said railroad car after the 48 hours’ free time allowed them (or were not hindered from unloading same by the rains during the 48 hours’ free time) after the notice had been placed in said mail or postoffice at Amity, if you find that such notice was proper notice, then you are told that the plaintiff cannot recover, and you should so find, unless they have proved by a preponderance or a greater weight of the testimony that the fire in question and damage therefrom was caused by the negligence of the defendant. ’ ’

The plaintiffs made specific objection to this instruction, pursuant to which they now insist that the instruction is contrary to § 903, Crawford & Moses’ Digest. This section appears as § 8 of act 193 of the Acts of 1907 (Acts 1907, p. 453), entitled “An Act to regulate freight transportation by railroad companies doing* business in the State of Arkansas.” This section deals with the notice which a carrier is required to give a consignee of the arrival of a shipment and reads as follows : “ § 903. Legal notice, as referred to in this act, may be either actual or constructive. "Where the consignee or his agent is personally served with the notice of the arrival of freight at or before 6 p. m. of any day, free time begins at 7 o ’clock a. m., on the day after such notice has been given. Constructive notice referred to consists of posting notice by mail to consignee. Where this mode of giving notice is adopted, there shall be 48 hours additional free time; provided, however, that when any case where notice of arrival is given by mail that said notice shall be by registered letter, that notice shall date from the receipt of said registered letter.”

Now it was admitted at the trial that the letter addressed to Spears was not registered, and it is insisted that, upon this admission being made, the court should have charged the jury, as a matter of law, that the consignee had no constructive notice of the arrival of the car, and that therefore the liability of the railroad company at the time of the fire was that of a carrier, and not that of a warehouseman. It is undisputed that the first actual notice of the arrival of the car which the consignee had was obtained by him on Thursday morning, February 27, which was the day before the fire, and that this notice was obtained in a conversation over the telephone between the consignee and the railroad company’s agent at Amity. So therefore, if the unregistered letter was 'not constructive notice of the arrival of the car, the consignee did not have notice, because the “free time” had not expired when the fire occurred.

The case of Arkadelphia Milling Co. v. Smoker Merchandise Co., 100 Ark. 37, 129 S. W. 680, discusses the question of the time when liability of a carrier as such ceases. It was there said: “The liability of the common carrier ceases with delivery of the goods at the point of destination according* to the directions of the shipper, or according* to the usage and custom of the trade at such place of destination. This delivery may be actual, or it may be constructive; and in either case the liability of the carrier terminates with such delivery. An actual delivery of goods is made when the possession is turned over to the consignee or his duly authorized agent, and a reasonable time has been given in which to remove the goods. When such delivery is thus made, the carrier is fully discharged from further liability. Southern Exp. Co. v. Everett, 37 Ga. 688; Brunswick & W. Ry. Co. v. Rothchild, 119 Ga. 604. To constitute constructive delivery, the carrier must give notice to the consignee or his duly authorized agent, if that is at all practicable, of the arrival of the goods, and must also give a reasonable opportunity and time thereafter for the consignee or his agent to remove same. When that is done, the liability of the carrier is terminated, whatever its liability may otherwise be.”

Was there sufficient notice of the arrival of the car? It must be conceded that there was not, under the provisions of § 903, Crawford & Moses’ Digest, set out above.

We are of the opinion, however, that the requirement of this section that constructive notice be given by registered letter has been abrogated by subsequent legislation on the subject and by regulations, approved pursuant to such subsequent legislation by the Arkansas Railroad Commission.

An act was passed at the 1921 session of the General Assembly enlarging and defining the powers of the Commission (Act 124, General Acts 1921, p. 177).

By § 5 of this act it is provided that “the .jurisdiction of the Commission shall extend to and include all matters pertaining to the regulation and operation of all common carriers.”

By § 7 (p. 187) of the act it is provided that no common carrier shall modify, change, cancel or annul any rate except after thirty days * notice to the public and to the Arkansas Railroad Commission, “which notice shall plainly state the changes proposed to he made in the schedule then in force and the time when the changed rates, fares or charges shall go into effect; provided, the particular regulatory body having jurisdiction of such matter under this act may enter an order prohibiting such person, firm or corporation from putting such proposed new rates into effect pending hearing and final decision of the matter by the said regulatory body, and whenever there shall he filed with the said regulatory body any schedule proposing a change in any rates, charges or regulations, the regulatory body shall have, and it is hereby given, authority, either upon complaint or upon its own initiative, upon reasonable notice, to enter upon a hearing concerning the propriety of such rate, charge or regulation; and pending such hearing, and the decision thereon,, (the) such regulatory body upon filing of such schedule, or after such schedule should be filed, and delivering to the carrier or carriers or public service corporations affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate or charge; and after full hearing, whether completed before or after the rate, charge or regulation goes into effect, the said regulatory body may make such order in reference to such rate, fare, charge or regulation as shall he deemed proper and just.”

The act of 1921 repeals all laws in conflict with it.

Pursuant to the provisions of this act the Tariff Bureau of the American Railway Association filed with the Arkansas Railroad Commission “Freight Tariff No. 4-J Naming Car Demurrage Rules and Charges Applying at all points on Railroads parties hereto.”

It does not appear whether these regulations were investigated or otherwise suspended by the Arkansas Railroad Commission, hut the following certificate was offered in evidence at the trial from which this appeal comes:

‘ ‘ CERTIFICATE.
“This is to certify that American Railway Association Freight Tariff 4-J, I. C. C. No. 2192, Arkansas Railroad 'Commission No. 17, issued June 26, 1929, effective August 1, 1929, also Supplement No. 1 to said tariff issued July 24, 1929, effective September 1, 1929, and issued by B. T. Jones, agent, are on file with the Arkansas Railroad Commission. ’ ’ This certificate was attested by the secretary under the seal of the Commission.

The effect of this certificate is that, whether investigated or otherwise suspended, as the Railroad Commission had authority to do under the statute quoted, the regulations became effective on September 1, 1929, and were in force at the time of the shipment out of which this litigation arose. Certain later regulations were also filed with the Arkansas Railroad Commission and approved by that body, but they «do not conflict with or change the regulation in Freight Tariff 4-J, which reads as follows:

“Rule No. 4, Subject Notification. Section A. — Except as otherwise provided in sections B, C, or D of this rule, notice of arrival shall be sent or given consignee or party entitled to receive same by this railroad’s agent, in writing, or, in lieu thereof, as otherwise agreed to in writing by this railroad and consignee, within twenty-four hours after arrival of car and billing at destination, such notice to contain car initials and number, point of shipment, contents and, if transferred in transit, the initial and number of original car. When address of consignee does not appear on billing, and is not known, the notice of arrival must be deposited in United States mail, inclosed in a stamped envelope bearing return address, same to be preserved on file, if returned. An impression copy shall be retained, and when notice is sent or given on a postal card the impression shall be of both sides. (See Rule 3, Sections B and C). In case a car subject to rule 3, section C, paragraph 1, is not placed on public delivery track within twenty-four hours after notice of arrival has been sent or given, notice of placement shall be sent or given to consignee. ’ ’

This rule recognizes the right to contract for other or additional notice than that of a notice deposited in the United States mail, inclosed in a stamped envelope, bearing the return address of the carrier, but it also recognizes such notice is sufficient in the absence of a contract for other or additional notice.

The issue whether such additional notice was requested was submitted to the jury and is concluded by the verdict of the jury.

We conclude therefore that the jury was warranted in finding that notice was given which conformed to the requirements of the law, and that the consignee did not within 48 hours thereafter claim his freight and obtain its delivery, and, fills being true, the liability of the railroad company was thereafter that of a warehouseman, and the railroad company was then liable only for loss or damage which resulted from its negligence.

An objection was made to an instruction which told the jury that the plaintiffs could not recover for the loss of the rink by fire unless it was shown by the testimony that they were the owners of the rink. The objection was made to this instruction that it submitted an issue not raised by the testimony. There appears, however, to have been testimony which cast such doubt upon the plaintiff’s ownership as to present this issue.

Certain other errors were assigned, which we think are not of sufficient importance to require discussion.

Upon a consideration of the whole case we find no error in the record, and the judgment must therefore lie affirmed, and it is so ordered.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Wright v. Lake.
    Opinion delivered June 8, 1931.

      M. A. Matlock and J. B. Wilson, for appellant.

      Mahony d Yocum, J. N. Saye and W. T. Saye, for appellee.
   Humphreys, J.

This is the second appeal in this consolidated case. On the first appeal, this court ruled that the complaints sufficiently alleged causes of action by the appellants against appellees for deceit, reversed the judgments, and remanded the causes for further proceedings according to law and not inconsistent with the opinion. The opinion on the former appeal may be found in the case styled Wright v. Lake, 178 Ark. 1184, 13 S. W. (2d) 826; and reference is made thereto for the allegations of fraud and deceit relied upon by appellants for a recovery. Upon the remand of the cause, appellee filed answers denying the material allegations of the complaints, and the consolidated causes proceeded to a trial upon the pleadings and testimony, at the conclusion of which the trial court, at the request of appellee over the objections of appellants, instructed a verdict for appellee and rendered a judgment thereon dismissing the complaints, from which is this appeal.

During the trial of the cause, the court excluded Exhibit B to the testimony of J. Byrd Wright, one of the appellants being certain correspondence between himself and the Revenue Department of the United States as to the amount due it for income taxes due from the partnership, the earnings of which are involved in this litigation; and also excluded Exhibit A to the testimony of Paul Hanry, the other appellant, reflecting the statement of the income tax return of the partnership involved in this cause. The record discloses that appellants made every effort possible to obtain the books of the partnership referred to, which had been under the control of appellee, and for some reason were unable to secure them. The record also discloses that the only means appellants had in ascertaining the amount of earnings due from the partnership was from the books in the possession of appellee unless permitted to introduce the audit of the officers of the United States revenue department and the correspondence relating thereto tending to show the earnings of said partnership. The court erred in excluding this testimony, since the primary evidence by which the earnings of the partnership could have been established was withheld by appellee. It comes clearly within the rule of admissibility of secondary evidence.

The trial court should have admitted this evidence and submitted the issues joined to the jury for determination.

On account of the errors indicated, the judgments are reversed, and the consolidated cause is remanded for a new trial.


text:
    Missouri Pacific Railroad Company v. Medlock.
    Opinion delivered June 8, 1931.

      Thos. B. Pryor and Thos. B. Pryor, Jr., for appellant.

      Part am d Agee, for appellee.
   Humphreys, J.

This is an appeal from a judgment in the sum of $150 obtained by appellee against appellant in the circuit court of Crawford County for an injury received through the alleged negligence of .a fellow-servant while turning a motor car around which was being used by a section gang to carry their tools and ride upon when engaged in the performance of their duties. It was alleged in the complaint that Sleepy Reeves, a co-employee of appellee, negligently slipped or stumbled without warning or notice to appellee released his hold and allowed the weight of the end of the car they were lifting to fall or rest upon him and strain his back.

Appellant contends for a reversal of the judgment on the sole ground that the testimony failed to show any fact from which it might reasonably be inferred that appellee’s co-employee negligently slipped or stumbled.

Appellee, on the other hand, argues that it may reasonably be inferred from his own testimony that his co-employee negligently slipped or stumbled, thereby causing him to release his hold on the car and throw its entire weight on appellee. The testimony he relies upon is as follows:

“We worked until about 2 o’clock, and we started to turn our car to come back to town; it was at the crossing, and we started to turn the car around, and it got hung and one of the boys went around to prize it loose, and that left two at my end of the car, and some way Sleepy Reeves stumbled and left the weight on me.”

From aught that appears from this testimony, the slipping or stumbling which caused Sleepy Reeves to release his hold on the car may have been due to an accidental misstep. Had the testimony tended to show even inferentially that the slipping or stumbling was due to a failure on the part of Sleepy Reeves to watch where he was walking or to walk as slowly as he should or to inattention or disobedience or other misconduct in the performance of his duties, then such testimony would have created a question of fact upon the issue of negligence for determination by the jury; but, since the cause of the slipping was conjectural only, it was improper to submit the issue of negligence to the jury. Upon the record as it stands, the court should have instructed a verdict for appellant.

Only a few of the parties present when the allegad' injury occurred testified in the case. Sleepy Reeves ws not introduced as a witness by either party. It may he that the case was not fully developed.

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


author: Kirby, J.,

text:
    Talley v. Tuggle.
    Opinion delivered June 8, 1931.

      8. W. Qarratt, for appellant.

      Walter J. Hebert, for appellee.
   Kirby, J.,

(after stating the facts). It can make no difference, as to the liability of appellant upon his contract for a division of the commissions with appellee, broker, that he was not at the time of such agreement a licensed salesman of appellee, in whose employ he had been when the property was listed with appellee for sale and negotiations begun therefor. The jury found, on conflicting testimony, that he had agreed to divide the commissions on an equal basis at the time of quitting the employ of appellee, in case he should make the sale of certain property, which it is admitted that he afterwards effected; and it is unimportant whether he had a license as a salesman for appellee at the time of such agreement, or a license on his own account or any license at all, since he was duly licensed at the time he perfected the sales and earned the commissions.

Appellee was a regularly licensed real estate broker, and could, of course, make a sale of any of his property listed through any individual dealer or salesman, so far as he was concerned, and becomes entitled to whatever commissions were agreed to be paid by such salesman.

There is nothing inherently unlawful in the carrying on a brokerage business, and there is no intimation in the testimony of contemplated violation of any law or affecting the sales through an unlicensed salesman when the agreement for division of the commissions was made. Engles v. Blocker, 127 Ark. 385, 192 S. W. 193.

This is all that was done in this case, and the testimony is amply sufficient to support the verdict. Neither do we find any error in the giving or refusal to give instructions, and the judgment will be affirmed. It is so ordered.


author: Kirby, J.

text:
    Oliver v. Gann.
    Opinion delivered June 8, 1931.

      N. F. Lamb, for appellant.

      Arthur L. Adams, John W. Gann, Jr. and A. P. Patton, for appellee.
   Kirby, J.

The questions raised for determination by this appeal are, whether drainage districts may sell lands forfeited to or acquired by them upon the sale thereof for the collection of taxes for an amount less than would have been required paid by the owner to redeem the lands from such forfeiture and sale; and also the effect of the failure of the clerk to file a certified list of lands included in a commissioner’s report of sale as provided in act 445 of 1923, p. 395.

These ejectments were consolidated for trial, plaintiff claiming title to the Wicker lands, under deed from Drainage District No. 7 of Poinsett County, under date of November 29, 1929, and under a deed from Road Improvement District No. 5 of Poinsett 'County, dated December 22, 1929.

The answer in the Wicker case alleged there had been no compliance with act 445 of 1923, page 395, by District No. 7, and that the consideration expressed in its deed is less than the tax, penalty, cost and interest due on the several tracts of lands forfeited and conveyed.

The same denial and allegations were pleaded in bar of the deed from the Road Improvement District No. 5 conveying the lands.

It was stipulated that, except for the foreclosure sales for delinquent assessments and conveyances by the improvement districts, Gann was the owner of the southeast quarter, section 23, township 11 north, range 4 east; and that an insurance company had a mortgage on the land which became delinquent for drainage taxes for 1926 and foreclosure proceedings were instituted, decree rendered and the lands sold by the commissioners to the district on April 30, 1927, sale was reported on May 3, 1927, and on that date a deed executed by the commissioner of District No. 7. Similar proceedings were had by the district for assessments owing for 1927 and that the district’s deed of November 2, 1929, to plaintiff, recited a consideration of $10 per acre and other consideration paid, but for an actual consideration of $5 per acre, and the assumption by the grantee of all future drainage taxes in said district against said lands. The amount of delinquent taxes due Drainage District No. 7, at the time the deed was executed by the district to appellant, was $1,334.38. That on December 2, 1929, Gann redeemed said lands for the 1927-28-29 levee district taxes by paying the sum of $307.71, the total amount due.

The stipulation also shows that Oliver purchased from the drainage district the land included in the Gann case for an actual consideration of $5 per acre and the assumption by him of the future maturing installments of drainage taxes in said district against said lands, and further that, when the deed to Oliver was executed the amount of delinquent taxes in said district against said lands amounted to $1,334.38, a sum considerably in excess of the actual consideration paid by him. It shows also that the consideration paid by Oliver for the Wicker lands was $5 per acre and the assumption of all future installments, the amount of' delinquent taxes on these lands at the time of the execution of the deed to Oliver was $359, a sum $159 in excess of the sale price to Oliver. The market value of the lands at the time of the conveyances by the improvement districts to Oliver was not less than $25 per acre.

Appellant relies upon the case of Arkansas-Louisiana Highway Improvement Dist. v. Pickens, 169 Ark. 603, 276 S. W. 355. In this case in which lands were purchased by a road improvement district at the sale for assessments due, the court said: “When the lands are bought in by the commissioners at the foreclosure sales, they become the property of the district, to be used for the purpose of raising revenues to pay the bonds. The lands do not belong to the bondholders, and the district is not entitled to take credit, as contended by counsel for appellees, to any extent until revenues are raised by the sale thereof. The lands thus purchased become the absolute property of the district, and express 'authority is conferred by the statute to sell the lands at prices fixed by the commissioners. The theory is, and the practice should be, in order to comply with the spirit of the scheme, for the commissioners in selling the land to secure a sufficient price at least to cover the expenses and all of the delinquent assessments up to the time of the resale, so that the lands will bear their full share of the expense of the improvement.” See also Meyer v. Rolfe, 71 Ark. 215, 72 S. W. 52; Vietz v. Road Imp. Dist., 139 Ark. 567, 214 S. W. 50; Crowe v. Security Mortgage Co., 176 Ark. 1130, 5 S. W. (2d) 346. In the last case, where it was held the district had the right to assign the certificate of purchase, the court said:

“So therefore it must follow that, the improvement district had the right to assign certificates of purchase for lands sold it for a sum not less than the taxes, penalty, interest and costs for which the lands were sold.”

Oliver agreed to pay all future assessments upon the lands at the time of the purchase thereof, and the payment of the consideration therefor, which was in fact a less amount than would have been required to redeem the lands from the sale under the law allowing the owner the right of redemption, but the lands had been acquired by the district under a sale property made, and it had the right to dispose thereof for a less amount than would have been required for redemption by the owner in order to get them back into private ownership where they were still subject to the payment of all the other assessments of benefits of the improvement district.

It may be said that, even though all future assessments were promptly paid, the district would necessarily lose by such sale the difference between the amount paid in cash by the purchaser and the amount it would have required to be paid for redemption b3r the owner, and, even though this be a fact, it is also true that the lands were shown to have been worth at least $25 per acre, and the district could have conveyed the entire title, subject to the payment of the remaining- assessments, and might have received more than the whole amount necessary to redeem and to pay all future assessments, and there, is no indication or .intimation in the testimony that the loss, the negligible amount of the difference between the sale price or the consideration received and the amount that would have been required for the redemption of the-lands by the owner, could or would appreciably affect the security of the lands of the district for payment of the bonds issued.

It was not necessary to resort to a sale under the provisions of the statute (§ 3646, Crawford & Moses’ Digest) before the lands were sold to the district in payment of the taxes due thereon, since they were necessarily sold subject to the lien of all improvement district assessments existing against them at the time of the sale and could not have been sold under said statute free of any such liens, except for the amount of taxes already due. Board of Comrs. of McKinney Bayou Dist. v. Directors Garland Levee Dist., 181 Ark. 899, 28 S. W. (2d) 721.

It has also been held that, if the lands are acquired at foreclosure sales for delinquent taxes by the improvement district, they cannot be sold again by the district for other taxes accruing (Crowe v. Security Mortgage Co., supra); and would thus be left in the district unavailable for realization of other assessments thereafter becoming due to the district, unless ■ and until they could first be sold and disposed of for at least the amount required paid by the owner to redeem the lands from the sale thereof.

Neither did the failure of the clerk to file the certified list of lands included in the commissioner’s report of sale of lands in the improvement district as required in act 445 of 1923, p. 395, render the tax sale, otherwise regular and properly made, invalid. It would be singular indeed if a sale regularly made by the agencies provided therefor under a decree of the chancery court, duly reported and confirmed, with the commissioner’s deed thereafter approved, could be held invalid because the clerk failed to certify it among the list of lands sold by the commissioner in accordance with the said act, which provides a penalty for his failure to do so. Certainly a ministerial officer’s failure to comply with this provision of the statute, for violation of which a penalty is prescribed against the officer, could not have the effect to invalidate a judicial sale and conveyance of lands by the commissioner of the chancery court regularly approved by the court. The construction of the act in Crowe v. Security Mortgage Co., 176 Ark. 130, 5 S. W. (2d) 346, and Wyatt v. Beard, 179 Ark. 305, 15 S. W. (2d) 990, is not in conflict with this holding.

Reversed.


author: Mehaffy, J.

text:
    Keebey’s, Inc., v. Williams.
    Opinion delivered June 8, 1931.

      Martin & Martin, for appellant.

      Carmichael Hendricks, for appellee.
   Mehaffy, J.

The appellant brought suit in replevin in the Little Bock Municipal Court against Edwin W. Shirey* to recover certain personal property.

The appellant made, executed, and filed the statutory affidavit as required by § 8640 of Crawford & Moses’ Digest.

The court issued an order for the delivery of the property and inserted a clause commanding the officer that, if the property mentioned in the order could not be found, to take the body of the defendant, that is, to arrest the defendant, as provided in § 8642 of CraAvford & Moses’ Digest.

Appellant also executed a bond as provided for in § 8643 in Crawford & Moses ’ Digest. This bond is to the effect that the plaintiff shall prosecute the action, and that he shall perform the judgment of the court therein by returning the property if a return thereof shall be adjudged, etc.

The sheriff refused to serve the Avrit, that is, refused to arrest the defendant, until plaintiff executed a bond to the effect that the plaintiff shall pay to the defendant all the damage which he may sustain by reason of the arrest, if the order is Avrongfully obtained.

Upon the refusal of the sheriff to arrest the defendant, the appellant here filed in the Pulaski Circuit Court a petition for mandamus. The sheriff, the appellee herein, filed a general and. special demurrer to the petition. The court sustained the demurrer; the appellant properly excepted, and refused to plead further, and the court dismissed the petition. The case is here on appeal.

The only question for our consideration is whether the sheriff had the right to refuse to seiwe the writ until a bond was given to the effect that the plaintiff should pay the defendant all damages which he might sustain by reason of the arrest if the order was wrongfullly obtained.

The appellant insists that, having given the bond provided for in § 8643, he Avas not required to give any other bond, and that it was the duty of the sheriff to serve the writ, but the bond provided for in this section is in fact a delivery bond and is for not exceeding double the value of the property and the cost of the action.

•Section 8642 of Crawford & Moses’ Digest provides that if the plaintiff shall file an additional affidavit that he believes the property has been concealed, removed, or disposed of in any way with intent to defeat the plaintiff’s action, the clerk or magistrate shall insert a clause commanding the sheriff or other officer, if the property mentioned in the order cannot be had, to take the body of the defendant so that he appear at the return day of the order to answer the premises. The additional affidavit was not made.

It was necessary that this additional affidavit be filed before the court could make the order for the arrest of the defendant, and, since this affidavit Avas not filed, the sheriff ivas justified in refusing to serve the writ until plaintiff executed a bond; but, even if the additional affidavit had been filed, still the sheriff Avould not be required to serve the writ until the bond Avas given.

Section 438 of Crawford & Moses ’ Digest is as follows : “ A defendant in a civil action can be arrested and held to bail only upon the conditions and in the manner prescribed in this chapter. ’ ’ Section 439 provides for the procedure. Section 440 is as follows: “The order of arrest shall not be issued by the clerk until there has been executed in his office, by one or more sufficient sureties of the plaintiff, a bond to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the arrest if the order is Avrongfully obtained. ’ ’

It will be seen therefore that the statute expressly provides that the arrest shall not be made until the bond provided fdr in •§ 440 had been executed.

The appellee calls attention to numerous questions which we do not deem it necessary to discuss because the statute plainly requires the bond before the sheriff can be required to serve the writ. The statute providing for the capias clause has been construed a number of times by this court, and it is sufficient to say that it is a valid statute and not violative of the constitutional provisions discussed by appellee. It does not violate § '2 of art. 16 of the Constitution with reference to imprisonment for debt. In the first place, the statute does not provide for imprisonment for debt, but it provides for the arrest upon the filing of an affidavit charging that the property has been concealed, removed, or disposed of in any way with intent to defeat the plaintiff’s action. The arrest is not for debt, but it is for the fraud in concealing or disposing of the property for the purpose of defeating plaintiff’s action.

An action in replevin may be brought where plaintiff’s property is wrongfully detained by the defendant, whether there is any debt or not. The property might have been stolen or defendant might have gotten possession of it in many ways without being indebted in any way to the plaintiff, but we deem it unnecessary to discuss these questions further, because § 440 of Crawford & Moses’ Digest requires that the bond shall be given before the order of arrest shall be issued.

The judgment of the circuit court is affirmed.


text:
    First State Bank v. Taylor.
    Opinion delivered June 8, 1931.

      Walter L. Pope, for appellant.

      Sam Rorex and Nat R. Hughes, for appellee.
   Mehaffy, J.

On November 13, 1930, the First State Bank, which was at that time operating under the name of the Bank of Knobel, was the owner of a sight draft with bills of lading attached drawn by the Knobel Grin Company on R. A. Downs & Company of Pine Bluff, Arkansas, in amount of $2,398.04, which was on that date sent for collection and credit to the American Exchange Trust Company of Little Rock.

The American Exchange Trust Company received the draft on the 14th of November, 1930, and sent it for collection to the Merchants’ & Planters’ Bank & Trust Company at Pine Bluff, Arkansas. The draft was paid to the Merchants ’ & Planters ’ Bank & Trust Company by the drawee November 15th. November 15th was Saturday, and was the last day that the American Exchange Trust Company was open for business, and the collection made by the Pine Bluff bank was not sent; to the American Exchange Trust Company until after the American Exchange Trust Company became insolvent and closed its doors.

The draft was collected on the last day that the American Exchange Trust Company was doing business and before it closed its doors. On the 20th of November the amount of the draft was paid to the Bank Commissioner into assets of the American Exchange Trust Company, and the Bank of Knobel was on that day notified of the payment. The Bank of Knobel was notified on the 22nd day of November that the draft had not been accounted for.

Both the American Exchange Trust Company and the Merchants’ & Planters’ Bank & Trust Company closed at 1:00 o’clock, November 15th, and did not thereafter operate as banking institutions. The Bank Commissioner took charge of both these banks as insolvents on November 22.

The appellant filed a petition in the chancery court asking that it have a preferred claim against the American Exchange Trust Company for the amount of the draft. The chancery court dismissed the petition for preference, and the case is here on appeal.

The facts are undisputed, and the question here presented is whether, at the time of the failure of the American Exchange Trust Company, the relation between it and the First State Bank was that of debtor and creditor, or principal and agent, because, if the relation of principal and agent existed, the appellee was the owner of the proceeds of the draft, and entitled to recover it; on the other hand, if the relation of debtor and creditor existed, the proceeds of the draft would go into the general fund and the appellee would be entitled to no preference over other depositors.

We recently said: “Although there is some conflict in the authorities, the general rule is that the title to commercial paper received for collection by a bank and forwarded to its correspondent in the usual course of business does not vest in the bank, to which the paper is sent, but remains in the sending bank until the collection has been made. After the collection is made, then the relation of debtor and creditor exists. Before collection however, if loss occurred, it would be borne by the sending bank, and not by the bank to which the papers were sent. Prior to collection, the relation of principal and agent exists. Taylor v. Corning Bank & Trust Co., ante p. 757.

It therefore appears from our former decision that the relation of principal and agent existed until collection was made, that is, until the transaction was completed, and the money received by the American Exchange Trust Company. The question is, who was the owner of the proceeds of the draft after the debtor had paid, but before it reached the American Exchange Trust Company? This question can be answered by ascertaining who would bear the loss, if loss occurred, before it reached the American Exchange Ti;ust Company.

The Pine Bluff bank failed after the collection was made and on the same day that the American Exchange Trust Company failed, but if the money had been stolen or embezzled, or loss had occurred in any other way before the Pine Bluff bank remitted to the American Exchange Trust Company, such loss would have been borne by the First State Bank, the bank which sent it to the American Exchange Trust Company for collection.

If a bank receives drafts for collection and sends them to a correspondent bank and loss occurs, it falls on the owner of the drafts and not on the bank which sent them for collection to its correspondent, unless the sending bank was guilty of negligence in some way that caused or contributed to the loss, and it would then be liable for its negligence, and not because the relation of debtor and creditor existed.

This being true, it follows necessarily that the relation of debtor and creditor did not exist between the Knobel bank and the Little Rock bank until the Little Rock bank actually received the money. “It is likewise well established that a bank receiving a draft for collection merely is the agent of the remitter, drawer, or forwarding bank, and takes no title to the paper or the proceeds when collected, but holds the same in trust for remitting.” Darragh & Co. v. Goodman, 124 Ark. 632, 187 S. W. 673.

The Kentucky court, where the facts were somewhat similar to the facts in this case, said: “That the actual relation between the parties was that of principal and agent is not only shown by the letter of instruction accompanying the draft and the entry mentioned, but the theory of appellant’s right to the money is based' upon the fact conceded in his pleadings that the draft was sent by one and received by the other for collection and credit. There is however, as contended by counsel, a distinction between an instruction by the owner .to a. collecting- bank to collect and remit, and the one given in this case to collect and credit. Bnt whatever difference in meaning of the two phrases there may be, both convey the idea that the party giving is the owner and the one receiving the instruction is agent. Such then being the relation when the draft was received, the main inquiry is whether anything thereafter occurred which had the legal effect to change the attitude of the Fidelity Bank from that of agent to owner.” Armstrong v. Boyertown Nat’l Bank, 90 Ky. 431, 14 S. W. 411, 9 L. R. A. 553.

The court in the above case also said, after discussing the contract and rules applicable: “But it is well settled that where a bank receives a draft or note for ‘collection on account’, or, what is the same, ‘collection and credit’, it does not owe the amount until collected; and, though credit be given therefor prior to collection, the bank is not precluded from canceling such credits, which is regarded as merely provisional, if the paper is dishonored. It would therefore seem just and reasonable, even if there was no authority to support the position, that, if the bank does not, in such case, owe the amount before it is actually collected, it should not be held to have any other right to it than as agent, and that, if not bound by an entry of credit, it should not have power to bind the real owner thereby. It has, however, been distinctly, and we think correctly, held that a holder of paper, who delivers it to a bank for collection and' credit, is at liberty to treat the bank as an agent until the proceeds are collected by the bank in money, and that authority of the bank to credit the customer does not arise until he has -actually received the money. ’ ’

The letter of the Bank of Knobel in the instant case, sent, to the American Exchange Trust Company November 13, 1930, was as follows: “We enclose for collection and credit,” and the letter of the American Exchange Trust Company sending the draft to the bank at Pine Bluff also stated: “Enclosed find for collection and credit;” and, as stated by the Kentucky court in discussing the phrase “collection and credit” and “collect and remit, ’ ’ whatever other differences in meaning in the two phrases there may be, both convey the idea that the party giving is the owner1 and the one receiving is the agent.

That the Bank of Knobel was the owner of the drafts cannot be doubted, and under the general rule followed by this court, it was the owner of the proceeds until actually received by the American Exchange Trust Company. This is true, because, if the loss had occurred before the American Exchange Trust Company received the money, it would have fallen on. the Bank of Knobel and not on the American Exchange Trust Company.

The only question in this case is whether the title to the draft and proceeds was in the Bank of Knobel until the money was received by the American Exchange Trust Company, and, having reached the conclusion that the appellant was the owner of the proceeds, the decree of the chancellor is reversed, and the cause remanded with directions to enter a decree in accordance with the prayer of the complaint.


author: Butler, J.

text:
    Schutt v. Arkansas Rice Growers' Agricultural Credit Corporation.
    Opinion delivered June 8, 1931.

      George C. Lewis, for appellant.
   Butler, J.

This case was tried before the court sitting-' as a jury upon an agreed statement of facts and an agreement that A. H. Hemme would testify to certain things. The court found for the defendant and entered judgment in accordance with the verdict, from which the plaintiff has prosecuted this appeal.

It may be said that the statements which it is admitted that Hemme would make were not disputed by any witness, so that there was no dispute as to any of the facts in the case, which, as reflected by the record, are as follows: Schutt, the appellant, borrowed $200 from the appellee corporation on the 12th day of November, 1927, for which he executed his promissory note bearing interest from date until paid at the rate of seven per cent, per annum, and as security for its payment pledged with the corporation two notes executed by A. H. Hemme, dated February 1, 1927, each for the sum of $250 with interest at the rate of eight per cent, per annum from date until paid. The note executed by Schutt remaining unpaid, on October 3, 1928, the corporation filed suit against Hemme on his aforesaid notes in the justice court and recovered judgment thereon for the amount thereof with interest. A payment of $100 had been made upon one of the notes on February 1, 1927, and the judgment was for the amount of the notes with interest less this payment. Hemme and the agent of the corporation were present at the time the judgment in the justice court was rendered, and thereafter the agent of the corporation satisfied the judgment, reciting that it had been paid in full, and surrendered to Hemme the note given it by Schutt and the two notes executed by Hemme which had been pledged by Schutt as aforesaid, and this action by the corporation was without the knowledge or consent of Schutt.

It was admitted that Hemme would testify that at this time and upon the delivery of the notes to him he was told by the agent of the corporation that satisfaction of the judgment was in full of all claims against him. This statement was not denied. On the 16th of February, 1931, Schutt brought suit against the corporation, alleging- tlie above facts and praying for judgment against the corporation for the difference between $400 with accrued interest and the $200 note with interest representing the amount he owed the corporation.

The court erred in its finding and judgment, but should have rendered .judgment for the plaintiff in accordance with the prayer of his complaint. While the corporation had a qualified title in the notes pledged and could recover on them from TIemme, it could not, under the facts in this case, accept anything- less than the face value of the notes less the $100 payment, and, having received the amount of the note with interest which Schutt had executed, it was its duty to pay the remainder to him. In this case it is plain that the pledgee converted the notes pledged and by the satisfaction of the judgment and surrender of the notes to Hemme placed it beyond its power to return them after the debt for which they were pledged had been collected as it was its duty to do. As is held in the case of First National Bank v. First National Bank, 159 Ark. 517, 252 S. W. 594: “Pri/ma facie, the value of the note is its face, but the defendant is at liberty to show any fact or circumstance tending to invalidate it or reduce its value.” Therefore, in an action for conversion the measure of damage is prima facie the face value of the note, and, where no evidence is interposed as in this case tending to invalidate the note or reduce its value, the prima facie case becomes conclusive.

In the case of Hamburg Bank v. George, 92 Ark. 472, 123 S. W. 654, the rule is stated in the second syllabus, as follows: “ While a pledgor is not entitled to recover the pledge until the debt for which it is pledged is paid, yet when the pledgee converts the pledge and thereby puts it beyond .his power to return it, the pledgor is entitled to sue for the value of the pledge at the time of the conversion, less the amount of the debt.”

It follows that the trial court erred in its holding and judgment. The judgment is therefore reversed, and the cause remanded with directions to enter judgment in accordance with the prayer of the complaint. It is so ordered.


author: Hart, C. J.,

text:
    Booth & Flynn v. Price.
    Opinion delivered June 15, 1931.

      John, G. Rye and W. P. Strait, for appellant.

      Robert Bailey and Hays & Smallwood, for appellee.
   Hart, C. J.,

(after stating the facts). The principal assignment of error is that the court erred in not instructing a verdict in favor of appellants. In determining the rights of the parties to this lawsuit, the court must consider the relation in which they stood. On the part of appellants, it is insisted that the court should have told the jury, as a matter of law, that the relations of master and servant did not exist between appellant and appellee, and that appellee was a mere volunteer in helping the watchman of appellant put out the fire. Consequently, it is said that appellants owed him no duty in the premises except to refrain from injuring him after his perilous condition was discovered. They invoke the general rule that a person who is not authorized to perform as a servant the work, in doing' which he was injured, cannot recover damag'es of the master, because the master, not having authorized him to act, owes him no duty. There is an exception to this rule, where the injured person is an “emergency servant,” acting at the request of an employee who has, under such circumstances, authority to request his services, although ordinarily he is not invested with such power. Central Kentucky Traction Co. v. Miller, 147 Ky. 110, 143 S. W. 750, 40 L. R. A. (N. S.) 1184; Hollenback v. Stone & Webster Engineering Corporation, (Mont.) 129 Pac. 1058; Labatt on Master and Servant, vol. 4, § 1563; and 39 C. J. 554. The latter authority says that it has been held in the case of an “emergency servant” that the liability of the master for an injury to him is governed by the ordinary rules as to the liability of the master for an injury to a servant.

As stated in Marks v. Rochester Railroad Co. (Court of Appeals of New York) 40 N. E. 782, “In every business and employment there are exigencies which are not anticipated, and which require a servant to act, in the absence of the principal, for the immediate protection of his interest; and he may do things in his interest, when the emergency arises, which transcends his usual authority, and .they will be . deemed to have been authorized.” ■ .

This court has recognized.that where an emergency exists, requiring immediate action to protect the master’s interest, the servant has an implied authority to employ help, and the person so employed becomes the servant of the master and entitled to protection as such. See case note to Ann. Cas. 1913C, at 793. In St. Louis, Iron Mountain & Southern Railway Company v. Jones, 96 Ark. 558, 132 S. W. 636, recovery was refused a brakeman employed by the conductor of a freight train, the brakeman having- been injured while assisting in loading and unloading- freight. In Yazoo & Mississippi Valley Rd. Co. v. Kern, 99 Ark. 584, 138 S. W. 988, which was an action for damag-es for the death of a switchman employed by a yardmaster, the trainmaster alone having authority to employ a train crew, a recovery was likewise denied. Again, in Henry Quellmalz Lumber & Manufacturing Co. v. Hays, 173 Ark. 43, 291 S. W. 982, it was held that, if an unforeseen emergency arises rendering it necessary in the employer’s interest that his employee have temporary assistance, the law implies authority to procure such necessary help, and an assistant so procured is entitled to the same protection as any other employee. In that case recovery was denied because the undisputed evidence showed that there was.no sudden or unexpected emergency which would give the ginner the implied authority to employ a temporary assistant to unstop the gin- stand. The court expressly approved the view, however, that whether circumstances constitute an emergency authorizing an employee to procure temporary assistance, so as to entitle the assistant to the same measure of protection as other employees, is generally a jury question.

According to the allegations of the complaint and the proof introduced by appellee, the jury was warranted in finding that the fire was caused by gasoline which had been allowed negligently to escape from the feed pipe extending from the main tank to the carburetor and falling on the platform of the ditch digging machine where the vapors arising- therefrom were ignited by coming in contact with the lighted lantern which the watchman had been instructed to keep lighted and sitting on the platform of the machine. The fire thus started gave' rise to an unexpected and sudden emergency which warranted the jury in finding that the watchman had implied authority to summon to his assistance in putting out the fire appellee and his companion. In other words, the jury might have found that appellants failed to properly inspect their machine or they would have discovered the defect in the feed pipe which allowed gasoline to drip from it, and their negligence in so doing was the .cause of the original fire because the gas formed by the dripping gasoline coming in contact with the lighted lantern caused the original conflagration.

It is claimed, however, by counsel for appellants that this was not the proximate cause of the injury of appellee. They insist that his own conduct in going into the flames to turn off the stopcock near the main tank was an intervening cause, and that therefore appellants are not liable. The general rule is that what is the proximate cause of an injury is a question for the jury. It is to be determined as a fact in view of the circumstances attending it. It is ofttimes difficult of application, but the question always is, was there an unbroken connection between the wrongful act and the injury, a continuous operation? 'So, it is generally held that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable sequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469; Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647; Bona v. Thomas Auto Co., 137 Ark. 217, 208 S. W. 306; Meeks v. Graysonia, N. & A. Rd. Co., 168 Ark. 966, 272 S. W. 360; Standard Pipe Line Co. v. Dillon, 174 Ark. 708, 296 S. W. 52; and Mays v. Ritchie Grocer Co., 177 Ark. 708, 7 S. W. (2d) 980.

In view of the attending circumstances in the present ease, we think the court was warranted in submitting to the jury the question whether or not the original negligence of appellant in allowing the gas to escape from the feed pipe in the vicinity of a lighted lantern was not the proximate cause of the injury received by appellee. It was the duty of the watchman to protect the property, and the emergency was so great that the jury might have found that appellee was an “emergency servant” within the meaning of the rule above announced.

Suppose the watchman had been the one who was in the place of appellee. His injury would be directly traceable to the original negligence of the appellant. Appellants should have anticipated that all the events which did happen in the present case would likely happen if a fire was caused by its negligence in allowing gasoline to escape from the feed pipe, vaporize, and then be ignited from a lighted lantern nearby.

The court also submitted to the jury the question of the assumption of risk and contributory negligence of appellee. It is earnestly insisted by counsel for appellants that the court should have told the jury, as a matter of law, that appellee assumed the risk, and that he was guilty of contributory negligence. This we consider the most serious question in the case, but we do not think that it was per se negligence for a servant to be in a place of danger when his master’s property was on fire and in the discharge of his duty he was trying to put it out. Of course, there is always more or less danger in working around property that is on fire. The greatness of the hazard depends upon the attending circumstances. For instance, the course of the wind might be a contributing circumstance which would greatly increase the hazard, ihe height and extent of the flames, and various other matters might furnish contributing causes. Under the circumstances attending the present case, we do not think that it can be said that the conduct of appellee was so reckless or so unusually hazardous as to prevent the jury from allowing him a recovery. He and a companion were driving along the road, when the watchman suddenly and unexpectedly called them to help to put out the fire. He immediately jumped out of his automobile and came to the fire. He knew something about the value of the property and its necessity to appellant in conducting its work. He probably knew that, if the machine was destroyed, appellants would not only lose the value which was considerable, but that they would have to stop the work until it could procure a new machine. He endeavored to protect himself by wrapping his arm in a quilt to preAmnt it being burned Avhen he Avent to turn off the stopcock so as to stop the gasoline from Aoaving out of the main tank. Doubtless for the moment he overlooked the fact that the gasoline had been spraying out on his clothes from the Avaist downwards and that this might ignite from the flames. It is natural that he could not view the circumstances with the same coolness that any one taking a retrospect of the occurrence could do. He was actuated by a laudable desire to prevent, not only the destruction of the property, but to keep the employees from, having to be idle until a new machine could be procured. In any event, it would seem that the jury might find that he acted Avith as much prudence as any reasonable man would have done under the circumstances, and that it should not be said, as a matter of law, that he acted in such a reckless manner with full realization of the unusual hazard attending the occurrence that he should not be allowed to recover for the damages resulting from his injury.

In Reynolds v. Great Northern Railway (Minn.) 199 N. W. 108, a freight train was distributing supplies to stations along the line of the road. While gasoline AAras flowing from a tank car through a hose into the intake pipe of the pumping plant, a brakeman set his lighted lantern near the mouth of the intake pipe. For some unknown reason, the conductor pulled the nozzle of the hose out of the pipe, and an explosion followed setting hose and car on fire. In an attempt to cut the hose with a knife, the conductor suffered burns which caused his. death. The court held that whether pulling the nozzle out of the pipe was the sole or only concurring cause of the accident was a question for the jury. .It was further held that whether the attempt to cut off the hose was so reckless that the conductor should have been deemed to assume the risk, was also a question for the jury.

Appellee knew that, if the fire reached the gasoline in the main tank, there would be an explosion which would utterly destroy the property. He was confronted with an emergency and adopted the only means which could have been adopted to save the property, and that was to turn the stopcock and thus prevent the g-asoline from flowing from the tank. As we have alread3^ seen, he was somewhat excited, and he should not be prevented recovering because he failed to realize the danger from the gasoline which had escaped on the lower parts of his clothing evaporating and coming into contact with the flames. In view of all the circumstances, we do not think it can be said as a matter of law that his conduct was so unreasonable and reckless that he should be deemed to have assumed the risk as a matter of law or that he was guilty of contributory negligence as a-matter of law.

Numerous instructions were given at the request of both parties. We have carefully examined the instructions given, and we think that the case was fully and fairly submitted to the jury under the principles o.f law above announced. No complaint is made as to the amount of damages recovered; and, in view of the severity of the burns suffered by appellee, there could be no just complaint in this respect.

We find no reversible error in the record, and the judgment will therefore be affirmed.


author: Smith, J.

text:
    Drainage District No. 18, Craighead County, v. McMeen.
    Opinion delivered June 15, 1931.

      Baker $ Gautney, Denver L. Dudley and Joe C. Barrett, for appellant.

      E. L. Westbro.oke, Eugene Bloom-, Jolm W. Gann and Arthur L. Adams, for appellee.
   Smith, J.

Drainage District No. 18 of Craighead County was organized by the county court of that county under the provisions of the statute known as the Alternative System of Drainage Districts, § 3607 et seq., Crawford & Moses’ Digest, and the benefits assessed by the commissioners under the authority of that act were approved and confirmed by the county court in 1919.

After the construction of the improvement, it was found that the lands in the lower or southern end of the district had not received the anticipated benefits, by reason of an insufficient outlet for the drainage, and the commissioners undertook to reassess the benefits of all the lands in the district to conform to this condition. No change in the sum total of the betterments was made, but the commissioners claim that they have equalized the betterments by the reassessment thereof to conform to the actual betterments received, rather than to the benefits anticipated at the time of the original assessment, which, according to subsequent developments, appear to lie inaccurate and unequal.

The upper proprietors resisted the reassessment in both the county court and the circuit court, where the cause was heard upon a stipulation, which recites the essential facts and from which we copy the following statements:

“It is stipulated and-agreed by and between the said exceptors and objectors * * * and the commissioners * * * that because of circumstances, developments and events not known to or in contemplation of the parties involved when the original assessment of benefits was made in said Drainage District No. 18, the plan of drainage as then contemplated could not be and was not carried out, nor were the actual benefits realized to certain of the lands which were contemplated as a result of the improvement when original assessment of benefits was made and filed. That among the particular incidents or developments not known, contemplated or anticipated at the time of such original assessment of benefits was the construction of what is generally known and termed as the lock and dam in Poinsett County, Arkansas, as a part of the improvement constructed by Drainage District No. 7 of Poinsett County, Arkansas, adjacent to said Drainage District No. 18. That the construction of said lock and dam and other developments and conditions have made it impossible to supply the drainage to certain lands in the lower or south end of this District No. 18 which was in contemplation of parties when the original assessment was filed and confirmed. That certain of the lands so situated in said district have, for reasons above indicated, been frequently overflowed and at' all times subject to overflow or damage by water to an extent which has hindered their clearing and development, or their cultivation, and in many instances has entirely prevented it. The reassessment of benefits as proposed to be made under act No. 47 of the Acts of 1929, undertakes to redistribute the burden of assessments in accordance with these conditions, and results in a shifting of assessment which substantially adds to the assessment of benefits upon some lands in the upper or north end of the district, raising’ it substantially - above that fixed by the original assessment, and lowering.it substantially on other lands in the lower or south end of the district.”

The circuit court found that the district was without authority to make the reassessment, and sustained a demurrer to the petition therefor and dismissed the reassessment proceeding, and this appeal is from that order and judgment.

It is conceded by the district that the reassessments cannot be made unless authority therefor is found elsewhere than in the Alternative Drainage District Act under which District 18 was organized, as no such authority was conferred by that act. The protesting landowners insist that no such authority has been conferred, and they also contend that legislation conferring that authority would be unconstitutional if such legislation had been enacted.

We have before us only the question of the power of the district to reassess betterments and __ the constitutionality of legislation authorizing the reassessment if it exists.

In the chapter on Reassessments and Revisions in the excellent work on improvement districts in Arkansas by Sloan, it is said at § 967, under the title, “Alternative System Drainage Districts,” page 854, that “in 1927 the following power was conferred on alternative system drainage districts: ‘ The commissioners of the districts aforesaid shall have the power to make a reassessment of the benefits not oftener than once a year, and such reassessment shall be made, advertised, and equalized as is provided for the original assessment of benefits; and all appeals of landowners objecting- thereto must be taken and perfected within thirty days from the time of the action of the county court thereon. ’ ’ ’

The act referred to is act 203 of the Acts of 1927, page 680, entitled “An act in aid of drainage districts.”

We need not consider whether that act confers the power of reassessment here sought to be exercised, as the particular statute upon which the drainage district here especially relies, and under which it proceeded in making the reassessments, is act 47 of the Acts of 1929 (Vol. 1 Acts 1929', page 94). This act has the following title: “An act authorizing the funding of bond indebtedness of ally levee or drainage district and authorizing reassessment of benefits in such districts. ’ ’

It is insisted that this act should be construed with reference to its title, and that, when so construed, it should be interpreted as meaning that the reassessment which § 4 thereof contemplates is authorized and can only he made in connection with the funding or refunding of the bonded indebtedness of a levee or drainage district, and that authority to reassess is conferred only in such cases, and that, inasmuch as it is not claimed that district 18 is attempting to refund its indebtedness, the act does not apply.

Section 4 of act 47 reads as follows: “A reassessment of benefits may be made in any levee or drainage district in the State, whether created under general law or by special act of the Legislature, not oftener than once a year, and such reassessment shall be made by the commissioners or directors or assessors, respectively, of such district as was authorized for the original assessment therein, and such reassessment shall be made in the same form, after the same notice, hearing- and rights of appeal as were provided for the original assessment of benefits in such district, and with the same time limitation on rights of appeal and suits attacking the assessment of benefits in such district as provided for the original assessment of benefits, and installments thereof levied, extended and collected at the same time, in the same manner, by the same officers, and with the same lien and penalties for delinquencies as were provided for the original assessment. If in any such levee or drainage district the original assessment of benefits was made by assessors, the board of directors or commissioners of such district shall have the power to fill any vacancies in the board of assessors; or, if in any such district the power of the board of assessors was exhausted on making the original assessment, the board of commissioners or directors of such district shall have the power to appoint a new board of assessors composed of the same number and with the same qualifications as the original board, such new board to have all powers to make the reassessments herein provided for as were conferred on the original board of assessors.”

It appears that § 4- of the act, if read by itself, confers the authority to reassess in unmistakable terms, but that section, of course, must be read in connection with the act of which it is a part, and its title is not to be ignored in its interpretation.

In the case of State v. White, 170 Ark. 880, 281 S. W. 678, it was said that “the language of the caption of a statute is not controlling, but it has some force in interpreting the meaning of the lawmakers when otherwise in doubt, * * *.” Conway v. Summers, 176 Ark. 796, 4 S. W. (2d) 19; Huff v. Udey, 173 Ark. 464, 292 S. W. 693; Logan v. State, 150 Ark. 486, 234 S. W. 493; Nixon v. Allen, 150 Ark. 244, 234 S. W. 45; Oliver v. Southern Trust Co., 138 Ark. 381, 212 S. W. 77.

We have concluded that § 4 is not so limited by the title of the act, of which it is a part, as to be applicable only to those districts which are proposing to refund their indebtedness. The section is, of course, applicable to such districts, but we do not think it is limited to them. Section 4 provides that a reassessment of benefits may be made in any levee or drainage district, whether created under general law or by special act, not oftener than once a year. Now, it is usually true that such districts issue bonds to expedite the construction of the proposed improvement, but they are not required to do so, and there may be cases in which they have not done so. If there were such district, § 4 would apply to them.

The alternative drainage act, under which District 18 was organized, does not require such districts to issue bonds. It merely authorizes them to do so. Section 15 of this act (act 279 of the Acts of 1909, page 829), which appears as § 3623, Crawford & Moses’ Digest, provides that, “in order to hasten the work, the board may borrow money at a rate of interest not exceeding six per cent, per annum, may issue negotiable bonds therefor, signed by the members of the board, and may pledge all assessments for the repayment thereof.”

Another recital not to be ignored, but which, on the contrary, is of the greatest importance, is that the reassessments which § 4 authorizes may be made not oftener than once a year. The taxes are payable annually. It is highly improbable that an annual refunding of the district’s indebtedness was contemplated, yet the reassessment may be made “not oftener than once a year.”

Did the General Assembly have the power to pass the act? In answer to this question, it may first be said that it is not claimed that the district proposes to impair the security of the holders of the obligations of the district to pay money. On the contrary, it is proposed to increase that security by equalizing the burden of discharging those obligations in proportion to the betterments, or enhanced value, of the lands in the district.

Further answering this question, it was said in the case of Lee v. Osceloa & Little River Road Imp. Dist. No. 1, 162 Ark. 4, 257 S. W. 370, that, “this court has held that the Legislature may provide for a new assessment of benefits in a drainage district and for a reassessment of benefits of a road district. Burr v. Beaver Dam Drainage District, 145 Ark. 51, 223 S. W. 362, and Earle Rd. Imp. Dist. No. 6 v. Johnson, 145 Ark. 438, 224 S. W. 965.”

This question was thoroughly considered in the last-cited case, where it was said: “The question has never been expressly decided by this court, but we hold now that it is within the power of the Legislature to confer authority on an improvement district to reassess the benefits to property in a district. There is no necessary finality in an assessment of benefits to accrue from a local improvement. ’ ’

In reaching the conclusion announced in the case of Earle Improvement Dist. v. Johnson, supra, it was there said: “Nor can it be said that there are any contractual rights involved in the assessment of benefits which would be impaired by a new determination of benefits; nor does an increase in the amount of assessments under a reassessment constitute a taking of property without due process of law. An appraisal of benefits in advance of the actual realization is a mere anticipation, and we see no reason why there cannot be a subsequent reassessment for the purpose of determining whether or not those anticipated benefits have in fact been realized, or whether in the light of subsequent changes and developments the original assessment was a correct estimate of benefits. Of course, there must be an assessment of benefits before the construction-of the improvement is begun in order to determine whether or not the cost of the improvement will exceed those benefits. But the 'only constitutional or inherent restraint in this regard is that the improvement shall not be constructed until it is found that the cost will not exceed the benefits to accrue to the property from the improvement.

“This is done at the time when the cost of the improvement is a mere estimate as well as the estimate of benefits. If, however, it is subsequently found that the cost of the improvement will be more, there is no restriction upon the right to proceed with the increased cost, provided, it does not exceed the benefits; and there is no legal restriction upon the right to reassess the property for the purpose of determining whether those benefits will be sufficient to meet the increased cost. Hamilton on 'Special Assessments, § 827. We find, in other words, no legal restrictions upon the power of the Legislature, and we have nothing to do with the policy of the lawmakers in granting authority to improvement districts to reassess benefits from time to time.”

It is finally insisted that, oven though authority to make a reassessment was conferred by act 47 of the Acts of 1929, that act has been repealed by act No. 240 of the Acts of 1931, approved March 27, 1931. In support of this argument, it is insisted that act No. 240 of the Acts of 1931 is a recodification of acts 47 and 285 of the Acts of 1929, and therefore repeals both of them.

Act 285 of the Acts of 1929 is entitled "An act to Xirovide for the funding of the indebtedness of any levee or drainage district, other than bonded indebtedness,” and reference is made in § 2 of this act to act 47 of the Acts of 1929 as to the procedure whereby its provisions may be made available.

Act 240 of 1931 does contain provisions which appear in both the Acts of 1929, but the act of 1931 does not expressly repeal either of the Acts of 1929, nor does it do so by necessary implication.

We had occasion in the recent case of Louisiana Oil Refining Co. v. Rainwater, ante p. 482, to thoroughly consider the question of the repeal of a statute by implication, and it will not be necessary to again review the authorities on that subject. It was there held, in conformity with numerous prior decisions, that repeals of statutes by implication are not favored, but that a statute may be repealed by implication when the provisions of the earlier statute are repugnant to each other and irreconcilable, or when the subsequent statute covers the whole subject-matter of the former and is manifestly intended as a substitute for it.

Act 240 of the Acts of 1931, being the last enactment, does, of course, repeal any former act in conflict with it, although it contains no recital of any intention to repeal any act, or any part of an act, but in § 4 of the act of 1929 there is nothing in conflict with the act of 1931, and we therefore conclude that act 47 has' not been repealed.

We are reinforced in this conclusion by the legislative history of act 240 of the Acts of 1931, which was approved by the Governor March 27, 1931.

Contemporaneously with the progress of act 240 through the General Assembly was another bill, which was also passed by both Houses of the General Assembly at the same session. This latter was House Bill No. 196, which was expressly intended to repeal act 47 of the Acts of 3929, and had no other object.

The recent ease of Cordell v. Kent, 174 Ark. 503, 295 S. W. 404, was one in which an improvement district sought to refund its bonded indebtedness under the provisions of act 114 of the Acts of 1927, an act entitled, “An act to authorize road improvement districts in the State of Arkansas to refund present indebtedness, and for other purposes.” Property owners in the improvement district sought to enjoin the proceedings, upon the ground that act 114 had been repealed by act 126, passed at the same session. The latter act was entitled, “An act to provide for the refunding of the indebtedness of local improvement districts.”

The chancellor held that the latter act repealed the prior one, and in reversing his decision we quoted with approval from Smith v. People, 47 N. Y. 330, as follows: ‘ ‘ Statutes enacted at the same session of the Legislature should receive a construction, if possible, which will give effect to each. They are within the reason of the rule governing the construction of statutes in pari materia. Each is supposed to speak the mind of the same Legislature, and the words used in each should be qualified and restricted, if necessary, in their construction and effect, so as to give validity and effect to every other act passed at the same session.”

We must, of course, assume that the General Assembly knew what action it had taken and what the effect of that action was. The futility of passing an act to repeal act 47 is therefore apparent, if that result was accomplished by a contemporaneous act. However, House Bill 196, which expressly repealed act 47 of the Acts of 1929, was vetoed by the Governor on April 1, and it therefore never became a law. This was done by the Governor after he had approved act 240 on March 27, and the proclamation of the Governor vetoing House Bill 196, and stating the reason for so doing, did not recite that act 47 of the Acts of 1929 had already been repealed.

Act 47 was not therefore expressly repealed, because the bill having that purpose, and that purpose only, was vetoed by the Governor, and, as we have attempted to show, it has not been repealed by implication.

We conclude therefore that § 4 of act 47 subsists . and is in full force and effect as a valid law, and the drainage district is therefore entitled to invoke its provisions in making a reassessment.

The judgment of the court below will therefore be reversed, and the cause remanded, with directions to overrule the demurrer to the petition of the commissioners of the district, and for further proceedings not inconsistent with this opinion.

Hart, C. J., and Mehaefy, J., dissent.


text:
    Huffstuttler v. State use White County.
    Opinion delivered June 15, 1931.

      W. D. Davenport, W. II. Gregory, Tom W. Campbell, Brundidge S' Neelly and Miller S Yingling, for appellants.

      Gulbert L. Pearce, for appellee.
   Humphreys, J.

This is an appeal from a decree of the chancery court of White County for $31,789.05, primarily against appellants, W. D. Davenport, J. H. McElwee, and J. Y. Woodson, as depository bondsmen and, secondarily, against H. A. Huffstuttler, treasurer, and his official bondsmen, after the reformation of the bond for county funds lost in the Union Bank & Trust Company; and a cross-appeal by appellee from a decree disallowing its claim against H. A. Huffstuttler and his bondsmen to the amount of $2,005.34, lost in the Bank of Pang-burn, and its claim for interest on the amount lost in both banks.

The record reflects that, under act 113 of the Acts of 1905, the Union Bank & Trust Company was regularly designated by proper order of the county court a county depository of White County for two years from the 12th day of July, 1921; that, pursuant to the order, it executed a depository bond in accordance with said act on the 8th day of August, 1921, signed by a number of sureties, including appellants, W. D. Davenport, J. H. McElwee and J. Y. Woodson; that, at the November term, 1923, of the White County court, the court made and entered another order designating said Union Bank & Trust Company depository for a term of two years from the date thereof, on condition it should file the depository bond required by said act, which it failed to do; that, on October 1,1927, after the passage of the general depository act for the State of Arkansas repealing act 113 of the Acts of 1905, the county court made and entered an order designating said bank a county depository under requirement that it should file a bond satisfactory to the judge of White County before any of the county funds should be deposited in said bank; that no bond was filed by said bank upder said order, and that the said bank continued to receive deposits from various treasurers of White County from and after the 8th day of August, 1921, down to the date of its failure on the 4th day of November, 1930, at which time there was on deposit in the name of H. A. Huffstuttler, treasurer, the sum of $31,789.05; that none of the money deposited by the treasurer of said county within two years after the depository bond was filed and approved on August 8, 1921, was in the bank at the time it failed, but that said moneys had been paid out on proper checks and warrants prior to the failure; that the Bank of Pang'burn was never designated as a county depository by order of the county court, and never filed a depository bond in compliance with act 113 of the Acts of 1905, or the general depository act of 1927; that the treasurer, H. A. Huffstuttler, deposited county moneys in the Bank of Pangburn under oral instructions of the county judge, and that at the time of its failure on the 15th day of November, 1930, the treasurer had on deposit in said bank the sum of $2,005.34 belonging to said county; that, on the 6th day of November, 1929, H. A. Huffstuttler was elected treasurer of White County and filed an official bond on a blank form in the sum of $80,000 on December 31, 19'29, after same was examined and confirmed by the county judge, firmly binding him and his bondsmen to account for all funds coming into his hands, which bond failed to set out the names of his bondsmen in the body of the instrument, the title of his office, the term thereof, and which he failed to sign, but which was regular in all other respects.

Other facts appear in the record, which we deem it unnecessary to-set out in order to determine the questions involved on this appeal.

The first question involved on this appeal is whether the depository bond executed on August 8, 1921, by the Union Bank & Trust Company, and signed by appellants, W. D. Davenport, J. H. McElwee, and J. Y. Woodson, as sureties, was a continuing bond or whether the liability thereon was limited to a two-year period. The bond is silent as to the length of the term thereof, but the statute providing for its execution clearly evinces an intention by the Legislature that its duration should be for a period of two years. Provision was made therein for interest bids by banks for the use of county funds for two years after April 1, 1905, and for a bond in the sum of not less than the total revenue of the county for the years for which the bond should be given, and that, after the approval an order should be made designating the successful bidder as a depository of the funds of said county for a period ending thirty days after the time fixed for another selection of a county depository. These provisions appear in §§ 1, 2, 3, and 6 of the act, and could not appropriately be read into a continuing bond while they can be interpolated into a bond of limited duration. Authority for reading the statute into the bond is found in the cases of Crawford v. Ozark Ins. Co., 97 Ark. 549, 134 S. W. 951; McMillan v. Farmers’ Bonded Warehouse, 169 Ark. 7, 272 S. W. 867; School Districts Nos. 28 and 29 v. Massie, 170 Ark. 222, 279 S. W. 993; and Bolen v. Farmers’ Bonded Warehouse, 172 Ark. 975, 291 S. W. 84. The obligation of appellants on the depository bond to account for the county funds received did not extend beyond the period of two years fixed in the order designating said bank as a county depository.

The next question involved on the appeal is whether the trial court erred in reforming the official bond filed by H. A. Huffstuttler, treasurer, so as to express the intention of the parties. It is manifest that the intention was to execute and file a treasurer’s bond in conformity with § 1906' of Crawford & Moses’ Dig-est. This court is committed to the doctrine that courts of equity may reform written instruments to express the intention of the parties clearly shown when, by mutual mistake, the written contract fails to do so. Welch v. Welch, 132 Ark. 234, 200 S. W. 139. The reformation of the bond followed the clear intention of the parties and was within the jurisdiction of the trial court.

The next question involved on the appeal is ■whether II. A. Huffstuttler, treasurer, and his official bondsmen are liable for deposits made by him in the Union Bank & Trust Company and the Pangburn bank and lost on account of the failure of the banks.

They claim immunity from liability for the amount deposited and lost in the Union Bank & Trust Company under the order made and entered of record by the county court on the 1st day of October, 1927, designating the Union Bank & Trust Company a county depository. This order was made pursuant to the provisions of the general depository act of 1927 and recites that, before any of the county funds should be deposited in said bank, it should file a bond satisfactory to the county judge. The bond was never given; bence the order afforded no protection whatever to the treasurer and his bondsmen. They cannot claim immunity under a conditional and ineffective order.

They claim immunity from liability for the amount deposited and lost in the Bank of Pangburn because the treasurer took a bond from it to repay his deposits, which was approved by the county judge. There is nothing in the general depository act of 1927 authorizing the treasurer to take such a bond and extending immunity to him and his bondsmen for losses in case he does. The treasurer therefore deposited the county funds in the Bank of Pangburn contrary to the provisions of the general depository act of 1927, and he and his official bondsmen are liable for the amount of $2,005.34 lost on account of the failure of said bank.

The next question involved on this appeal is whether the trial court erred in disallowing the sum of $238.14 for accrued interest on daily balances on deposit in the Union Bank & Trust Company and interest after November 4,1930, on the amount lost in the Union Bank & Trust Company and interest from November 17, 1930, on the amount lost in the Bank of Pangburn. There can be no question that-the court erred in disallowing the accrued interest on deposits until the time of the failure of the Union Bank & Trust Company; and, under the rule announced by this court in the case of Talley v. State, 121 Ark. 4, 180 S. W. 330, interest should have been allowed from the time of the failure of the banks up to the time of the decree at the rate of 6 per cent, per annum.

That part of the decree reforming the county treasurer’s bond and the judgment against him and his official bondsmen for the amount deposited and lost in tho Union Bank & Trust Company is affirmed.

The decree is otherwise reversed, and the cause is remanded with directions to the court below to render a decree in accordance with this opinion.