text:
    Goodman v. State.
    Opinion delivered May 15, 1922.
    Criminal law — jurisdiction over island in another state.— Though the enabling acts under which Missouri and Arkansas were admitted into the Union and Acts of Arkansas, 1911, p. 46, and Laws of Missouri, 1911, p. 202, provide for concurrent criminal jurisdiction on the St. Francis Eiver where it is the boundary line between the two States, such acts do. not extend the jurisdiction of the criminal courts of this State over islands which are situated on the Missouri side of the main channel.
    Appeal from Greene Circuit Court, Second Division; R. E. L. Johnson, Judge;
    reversed.

      M, P. Huddleston, for appellant.

      J. 8. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee..
   Hart, J.

Bill. Goodman was indicted, tried, and convicted in the circuit court of Greene County, Ark., of the crime of having in his possession a still .without registering the same with the proper United States officer, in violation of act 324, approved March 23, 1921. General Acts of 1921, p. 372.

The evidence showed that the offense was' committed on Indian Hill Island, which is situated in St. Francis River where that river is the dividing line .between thf> Stales .of. Arkansas and .Missouri,, and that Indian..Hill. Island is in the State of Missouri in that part of St. Francis River opposite Greene County, Arkansas.

The defendant relies for a reversal of the judgment and sentence of conviction on the ground that the offense was committed on an island wit!)in the boundaries of the State of Missouri, and that the circuit court of Greene County, Ark., had no jurisdiction.

It is the contention of the State that the Arkansas circuit court had concurrent jurisdiction of the crime, with the criminal courts of the State of Missouri, on the ground that the alleged crime was committed .at a plaice on the St. Francis River opposite Greene County, Ark., altlioug-h it was wichin the boundaries of the State of Missouri.

The enabling acts under which the States of Missouri and Arkansas were admitted each contain a provision that they may have concurrent jurisdiction on the rivers forming a common boundary line between said States.

In 1911 the Legislatures of both the States of Missouri and Arkansas passed acts which gave, their respective courts concurrent criminal jurisdiction on the St. Francis River where it is the boundary line between the two States. The terms of these acts are set out in Brown v. State, 109 Ark. 373. There, in construing these acts, the court held that, although the actual physical boundary line between Greene County, Arkansas, and Dunklin County, Missouri, is the middle of the main channel of the river, yet the courts of each State have concurrent jurisdiction over crimes committed on the St. Francis River, and upheld the conviction of Brown for gaming on a boat two or three hundred feet east of the middle of the main channel of the St. Francis River, which was within the territorial limits of the State of Missouri.

In Wedding v. Meyler, 192 U. S. 573, the court, with reference to such enabling acts of Congress, said that when.it is enacted by the sovereign power that new States, when formed by that power, shall have, a certain jurisdiction, those States as they come into existence fall within the range of the enactment and have the jurisdiction.

It is the contention of the Attorney General that this doctrine applies to permanent objects or places on the Missouri side of the main channel of the St. Francis River. This contention is contrary to the text-writers and adjudicated 'Cases on the question.

In Rorer on Interstate Law, 2 Ed. p. 437, it is said that when by the Constitutions and laws of two adjoining States they have for a boundary between them the main channel of a navigable river, and also have concurrent jurisdiction over the whole river in its entire width from shore to shore, yet their courts have no jurisdiction over objects of a fixed and permanent nature situated beyond the main channel and within the territorial boundary of the other State. Continuing, the learned author said:

“But in the very nature of things jurisdiction of permanent objects is exclusive in the State on whose side of the main channel they are situated. Concurrent jurisdiction of the abutting States over permanent objects, as islands situated in the river, or permanent erections at either shore, would be utterly impracticable in the administrative affairs of the State, as rendering owners and residents of such property liable to taxation, and other liabilities and duties of citizenship and ownership, to each of the States. Hence it can never be intended in law that jurisdiction which is concurrent over a river is concurrent also over islands and other permanently fixed objects therein. Nor does the reason of the law of concurrent jurisdiction apply to such objects whose true location in reference to the. center of the main channel can always be known or ascertained; but it was to obviate the difficulty of showing on which side thereof occurrences of judicial cognizance had taken place that concurrent jurisdiction was resorted to.in law. ”

In Roberts v. Fullerton, 117 Wis. 222, 65 L. R. A. 953. Judge Marsh add, a great and distinguished judge, in discussing the question, said:

“It was competent for the national Legislature, in the formation of the States, to extend the laws of each for certain purposes over territory of the other. That was done, the jurisdiction on boundary waters being extended as to each State from shore to shore, while the boundary line 'between them was placed at the main channel of the river. That necessarily forms the boundary between them as to sovereign rights of ownership. Sovereign rights as regards ownership of the bed of the Mississippi river or anything permanently affixed thereto coincides with territorial boundaries. Therein, as to everything of a tangible character forming a part of the land, whether above the water or below the water, the jurisdiction of each State is exclusive. It would seem that its authority must be the same as regards sovereign property rights incident to sovereign ownership of the land covered by water.”

Again, the learned judge said:

“It has been decided in many jurisdictions, including that of the Supreme 'Court of the United States, that ‘'concurrent jurisdiction on the river’ extends only to the water and to floatable |objeots therein, not ho bridges, dams on any other objects of a permanent nature. If any such object be located upon the Wisconsin side of the main channel of a boundary river so as to constitute a nuisance, it must, accordingly, be deemed not only wholly within the territorial limits of Wisconsin, but within its exclusive jurisdiction. Mississippi & M. R. Co. v. Ward, 2 Black 485, 17 L. Ed. 311; Gilbert v. Moline Water Power & Mfg. Co., 19 Iowa 319; Dunleith & D. Bridge Co. v. Dubuque County, 55 Iowa 558, 8 N. W. 443; Buck v. Ellenbolt, 84 Iowa 394, 15 L. R. A. 187, 51 N. W. 22; Iowa v. Illinois, 147 U. S. 1, 37 L. Ed. 55, 13 Sup. Ct. Rep. 239. The rule laid down in those cases has been uniformly accepted by all courts as sound. The effect thereof is that there is no such thing as concurrent ownership, so to speak, of territory, or incidents thereof, between the shores of a river diyided by the boundary line between this State and the State of Minnesota. ’ ’

In discussing the question in Wedding v. Meyler, 192 U. S. 573, the court said:

“The conveniences and inconveniences of concurrent jurisdiction both are obvious and do not need to be stated. We have nothing to do with them when the law-making power has spoken. To avoid misunderstanding it may be well to add that the concurrent jurisdiction given is jurisdiction ‘on’ the river, and does not extend to permanent structures attached to the river bed and within the boundary of one of the other States.”

Having reached the conclusion that the acts in question do not, for any purpose, extend the jurisdiction of the criminal courts of the State of Arkansas on the Missouri side of the main channel of the St. Francis River over islands which are of a permanent nature and part of the land of the State of Missouri, it follows that the circuit court of Greene County, Ark., had no jurisdiction to try the defendant for an offense committed on an island within the territorial limits of the State of 'Missouri.

Therefore the judgment will be reversed and the cause remanded for further proceedings according to law and not inconsistent with this opinion.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Wiegel v. Moreno-Burkham Construction Company.
    Opinion delivered May 15, 1922.
    1. Appeal and error — stenographer’s notes as deposition. — Under Acts 1917, No. 81, the chancery court could not, at a subsequent term, adopt a transcription of the notes of the official stenographer made by another stenographer and order it filed as depositions in a case which had been determined at a previous term, and oral testimony so preserved is not a part of the record on appeal.
    2. Reformation of instruments — transfer of cause. — Reformation of a contract for fraud or mistake is a proper matter for equitable jurisdiction, and may be set up by way of cro'ss-bill in a suit at law based upon the contract, in which case the pleader is entitled to have the cause transferred to equity.
    3. Appeal and error — presumption.—In the absence of the evi-. dence properly preserved, the Supreme Court must indulge the presumption that there was ample evidence to sustain the decree of the lower court, where the decree rendered was within the issues joined.
    Appeal from Pulaski Chancery Court; John E. Martinecm, Chancellor;
    affirmed.

      James A. Comer, for appellant.
    No showing of fraud or mistake in the execution of the contract having been made, the case was. improperly transferred to the chancery court. It should have been sent back to the circuit court. 93 Ark. 376; 65 Id. 503.
    All conversations leading up to the execution of the contract are merged in the written contract, and that must govern. 99 Ark. 218-222; 21 Id. 69; 83 Id. 163. Parol evidence is inadmissible to alter, vary or contradict the written contract. 4 Ark. 179; 5 Id. 708; 35 Id. 156; 50 Id. 397; 54 Id. 97; 55 Id. 112; 58 Id. 277; 62 Id. 43; 102 Id. 428; 24 Id. 210.
    Appellee, having read the contract before signing it, will be estopped from saying that it did not know what the contract contained or what it meant. 71 Ark. 185.

      Marvin Karris, for appellee.
    The oral testimony was not preserved. There was no authority in law to order the filing of the transcription, by another stenographer, of the stenographic notes of the testimony taken down 'by the official court stenographer, after the latter’s death, at a succeeding term, and over the objections of the appellee. Act 81, Acts 1917, applicable to the Pulaski Chancery Court, does not authorize any such dangerous procedure, nor the practice recognized by this court. 144 Ark. 436, 439; 80 Id. 579; 83 Id. 424; 114 Id. 167; 117 Id. 221; 136 Id. 376.
    ■ There is, therefore, left for the court to pass upon only the one question:- Was it possible for the decree based upon tlie pleadings to be sustained by-the evidence? The presumption is conclusive that it was. 144 Ark. 440.
    Chancery jurisdiction was invoked by the allegations of the.cross-complaint showing grounds and prayer for reformation, and was rightfully retained by the chancery court. 22 Standard Encyc. of Procedure, 626, 627, and authorities cited; 84 Ark. 349; 98 Id. 23; 108 JA'147; 71 Id. 614; 135 Id. 293; 132 Id. 227; 134 Id. 152.
   Humphreys, J.

This is an appeal from a decree of the Pulaski Chancery Court, reforming a rental contract for a steam shovel, entered into between appellant and appellee on the 8th day of May, 1920, so as to provide for the termination thereof when appellee ceased to need the shovel in the construction of the Nineteenth -Street pike, in said county, and adjudging $240, with costs, against appellee, in favor of appellant. ¡Suit was originally instituted by appellant against appellee in the circuit court of said county for $5,305.05 for the rental of the -steam shovel and repairs on same upon the written contract sought to be reformed, which provided for the rental of the steam shovel at $40 per day for every working day during a period lasting as long as the Nineteenth Street pike was in course of construction. It was alleged in the complaint that appellee paid the rental until October 1, 1920, but failed to pay it after that time; that appellee did not complete the construction of the Nineteenth Street pike until the 24th day of February, 1921; that the rental for the use of the steam shovel during that time amounted, under the contract, to the sum of $5,240; that under the provisions of the contract appellee was to keep the shovel in repair, which it failed to do, to appellant’s damage in the sum of $65.65. To this complaint appellee filed an answer, cross-complaint and a motion to transfer the case to the chancery court. In addition to denying the material allegations in the complaint, appellee alleged that the written contract made the basis of the suit did not express the intention of the parties, or, if it expressed the intention of appellant, appellee’s signature thereto was procured upon the fraudulent representations that the clause in the contract relating to the termination thereof meant that rent should be paid on the steam shovel only as long as it was needed by appellee in the construction of the Nineteenth Street pike.

Over the objection of appellant, the cause was transferred to and tried in the chancery court upon the pleadings and testimony of witnesses taken in open court at the April, 1921, term thereof. The official stenographer, Gardner K. Oliphint, took the testimony of the witnesses in shorthand and filed his notes with the clerk of the Pulaski Chancery Court. W. W. Shepherd transcribed the stenographic notes, and, at a subsequent term, was ordered by the court to file his transcription as depositions in the case. This was done without appellee’s consent . No other method was adopted to preserve the testimony taken ore terms at the bar of the court. Appellee moves an affirmance of the decree of the lower court on the ground that the evidence was not preserved in the manner required by special act No. 81 of the Acts of 1917, applying to the Pulaski Chancery Court, and for that reason has been improperly included in the transcript as a part of the record in the case. We find no provision in the special act authorizing the court, at a subsequent term, to adopt the transcription by another stenographer of the notes of the official stenographer and to order the same filed as depositions in a case tried at a former term. For this reason the oral testimony preserved and brought into the record in this manner cannot be regarded as a record of the evidence in the ease. Holding this view, the only errors which this court could consider on appeal would be errors appearing on the face of the record, without reference to the evidence improperly incorporated in the transcript.

Appellant insists that the court committed reversible error in transferring the cause to the chancery court. We think not. A reformation of the contract was sought on allegations which, if true, authorized a reformation thereof. It was alleged in the cross-complaint that the written contract did not express the intention of the parties, or if it did express the intention of appellant, she procured the execution thereof through fraudulent representations as to the meaning of the termination clause of the contract. Reformation of a contract for fraud or mistake is a proper matter for equitable jurisdiction, and may be set up by way of cross-bill in a suit at law based upon the contract sought to be reformed, and when so pleaded entitles the pleader to transfer the cause from a law court to a chancery court. Augusta Cooperage Co. v. Bloch, ante p. 133. The court did not, therefore, commit error in transferring the cause from the law to the chancery court.

The judgment rendered in this cause recites that it was heard upon oral evidence taken before the court. The evidence was not preserved in the manner required by law, and in the absence of the evidence this court must indulge the presumption that there-was ample evidence to sustain the decree of the lower court, as the. decree rendered was within the issues joined in the pleadings. Rowe v. Allison, 87 Ark. 206; Fletcher v. Simpson, 144 Ark. 436.

No error appearing, the decree is affirmed.


author: McCulloch, C. J. Hart, J.

text:
    Mosaic Templars of America v. Hearon.
    Opinion delivered May 22, 1922.
    1. Insurance — designation of beneficiary. — Where the by-laws of a beneficiary association were part of a contract of insurance, a pro-vision that there should be no payment of benefits unless the beneficiary should be designated in writing by the insured, attested by a local officer of insurer, or by will attested by the same officer, held valid and binding.
    2. Insurance — assignment, of policy. — Unless a contract of insurance contains a restriction concerning assignments, an insurance policy may ordinarily be assigned in any form recognized by law, even by oral assignment.

      3. Insurance — waiver of provision as to designation of beneficiary. — Where the by-laws of a beneficiary association provided that the assignment of a policy should not be valid unless attested by a local officer of insurer, the receipt .of dues by such officer from one to whom the policy had been assigned without its being properly witnessed did not amount to a waiver of the above provision; such officer having no authority to waive the provision.
    Appeal from Nevada Circuit Court; J. H. McCollum, special judge;
    reversed.

      Scipio A. Jones, for appellant, Mosaic Templars.
    The constitution and by-laws of a fraternal beneficiary association are part of the contract between the member and the association. 109 Ark. 400; 113 Ark. 400; 174 S. W. (Ark.) 1197; 105 Ark. 140; 135 Ark. 65. The policy in suit was not “willed of assigned”' according to the by-laws, and there is no liability on appellant.

      H. E. Bouse, for appellant, Rowton.
    The association knew the relationship existing between the insured and this appellant; knew that he had willed the insurance to Rowton, and demanded the payment' of premiums from Rowton, and it cannot now be permitted to take advantage of its own wrong to claim that there is no beneficiary named. 99 Ark. 204; 67 Ark. 506; 71 Ark. 242; 52 Ark. 11; 111 Ark. 435; 142 Ark. 132; 132 Iowa 513. The association having knowledge of facts which would avoid the policy, in justice to the assured and the honest conduct of its business, should have notified the assured of the facts. 127 Ark. 133. By its failure to notify the insured, and the acceptance of the premiums, under the conditions, the association is estopped to claim a forfeiture. 85 Mo. 302; 66 N. T. 23; 82 N. E. 692; 147 N. C. 339; 74 N. H. 334; 57 Ga. 469; 116 Mass. 321. Forfeitures are not favored. 2 May on Ins., sec. 361; 96 U. S. 577; 53 Ark. 499 ; 206 £, W. 970; 103 Ark. 171; 107 Ark. 102;' 130 Ark. 12.
   McCulloch, C. J.

Appellant Mosaic Templars of America is an incorporated fraternal society, Which issues benefit certificates, or policies of insurance, to its members in accordance with tbe terms of its constitution and by-laws.

The certificate, or policy, issued to members of the society does not designate the beneficiary, but merely states that the amount stipulated in the policy will be paid at the death of the member named, if in good standing financially at that time, to the “widow, widower, mother, father, sister, brother or relative by blood to fourth degree ascending or descending, to whom this policy may be willed or assigned.”

The by-laws, which are made a part of the contract, contain the following provisions:

“Section 2. Members holding certificates in this order and dying without designating- in their own writing or mark thereof, attested by the worthy scribe of their temple, or chamber, to whom the benefits shall be payable, then in such event the benefits provided in their certificates or polices will not be paid, under any condition or circumstances.”

“Section 7. Members holding policies in this-order and dying without making some disposition of the same by will or assignment, will not, under any consideration, be paid; and said will or assignment must be made in their own writing, or mark thereof, attested by the scribe of their temple, chamber or palace, and must be sent to the National Grand Scribe on final proof of death.”

B. G. • Bryant became a member of said society, through its local organization at McNeil, Arkansas, and a certificate or policy was issued to him on February 6, 1913, and he died while in good standing financially on September 13, 1919.

Bryant executed his last will and testament on July 21, 1916, whereby he bequeathed his policy in appellant society to his daughter, Minnie L. Hearon, the appellee, who was the plaintiff below. Bryant’s will was duly attested by two witnesses in accordance with the laws of this State and was duly probated, but the instrument was not attested by the local scribe of appellant society as provided in the by-laws.

Subsequent to the execution of his said will, Bryant executed an assignment of the policy to his illegitimate daughter, Frances Rowton, who is one of the appellants here. The instrument was signed by Bryant and witnessed by two persons, but not by the local scribe as provided in the by-laws.

This action was instituted on the policy by appellee, claiming to be the designated beneficiary under the last will and testament of Bryant.

Appellant Frances Rowton was made a party defendant in the action on the allegation that she was claiming some interest in the policy as beneficiary, and she filed her answer and cross-complaint against the Mosaic Templars of America, asking for recovery of the amount of the policy under the assignment to her by Bryant.

Appellant Mosaic Templars of America answered, denying liability to either of the parties.

The cause was tried before a jury, but the court gave a peremptory instruction in favor of appellee.

Each of the appellants filed a separate motion for a new trial, which was overruled, and each has duly prosecuted an appeal to this court.

The by-laws of the society constitute a part of the contract, and there was no liability for the payment of benefits unless there was a designation in the manner prescribed. Baker v. Mosaic Templars of America, 135 Ark. 65. In the case just cited, we said:

“It is insisted by appellant that the failure to designate a beneficiary by will or assignment in the manner provided in the policy cannot prevent a recovery. The policy specifically provides that the laws of the order shall become a part of the contract. The clause in question is law No. 7 of ,the organization. It was therefore necessary for the insured to comply with it before any liability would accrue on the contract.”

The words “will or assign” in by Jaw No. 7 were manifestly used synonymously as meaning the designation of the beneficiary under the policy, and the requirement was for the purpose of certainty and to prevent conflicts, and required that such designation should be in writing, signed by the assured, either in his own handwriting or by mark and attested by the scribe of the local society. No particular form was prescribed for the designation, except, as before stated, that it must be in writing and attested by the scribe. The designation could be by a last will and testament, executed in accordance with the laws of the State, or by a written instrument of assignment, but in either event the instrument must be attested by the local scribe.

In the present instance there was no attestation by the local scribe, either to the last will of Bryant, under which appellee claims, or to the written instrument under which appellant Frances Rowton claims.

The assignment to Frances Rowton does not bear date on its face, but there was proof tending to show that it was executed a short time before Bryant died. Frances Rowton testified herself that the assignment was executed in the year 1918, which was perhaps a year before Bryant died. At any rate, the proof shows that the written assignment to Frances Rowton was executed by Bryant several years after he executed his last will and testament in which. he bequeathed this policy to his daughter, Minnie L. Hearon.

This conflict demonstrates the importance of giving effect to the provision of the by-laws which prescribes that the designation of a beneficiary must be attested by the local scribe. The by-law is mandatory in its terms, and to disregard it would be to set aside the plain contract between the parties, which we are not at liberty to do.

Ordinarily, an assignment of an insurance policy may. be accomplished in any form recognized under the law, unless the contract itself contains a restriction in that respect. There may be even an oral assignment of a policy (Citizens Bank v. Moore, Admr. 134 Ark. 554), but in the present instance we have a plain restriction in the contract prescribing the only method by which the beneficiary may be designated.

It is claimed that there was a waiver of this defect by the conduct of the local scribe in accepting dues and assessments from Frances Rowton with knowledge that there had been an assignment of the certificate to her.

There is proof to the effect that the local scribe, whose duty it was to collect assessments and dues, was informed by Bryant a few months before his death that he had assigned the policy to Frances Rowton and payment of dues and assessments would thereafter be made by her. There was no authority on the part of the local scribe to waive this provision of the by-laws, nor was the society estopped by the conduct of its local officer in so doing. This is not a case of a waiver of forfeiture which may be brought about by the acceptance of payments of dues and assessments, which were payable whether there had been a proper designation of beneficiary or not. A member might continue to pay up to his death, but, as before stated, there was no liability unless there was a proper designation in accordance with the by-laws. The following decisions of this court are in point on that question: Clinton v. Modern Woodmen of America, 125 Ark. 115; Grand Lodge v. Davidson, 127 Ark. 133; Pate v. Modern Woodmen of America, 129 Ark. 159; Miller v. Illinois Bankers Life Assn. 138 Ark. 442; Sovereign Camp Woodmen of the World v. Newsom, 142 Ark. 132; Sovereign Camp Woodmen of the World v. Peaugh, 150 Ark. 176.

There having been no designation of beneficiary, there is no liability, and the peremptory instruction in favor of appellee was erroneous.

There is no liability to either party. Therefore the judgment must be reversed, and the judgment will be entered here in favor of appellant, Mosaic Templars of America, dismissing the action.

It is so ordered.

DISSENTING OPINION.

Hart, J.

I think the judgment should be affirmed. I do not think Baker v. Mosaic Templars of America, 135 Ark. 65, sustains the doctrine of the majority opinion. In that case the insured made no attempt to comply with the by-laws by naming a beneficiary.

In this case the insured named Minnie Hearon, his legitimate daughter, as the beneficiary. She was a blood relation within the meaning of the by-laws, and therefore eligible to be made a beneficiary.

It is true that the appointment was defective in that the will was not attested by the scribe of the Templars; but this was a matter which the insured could waive, and did waive, by accepting the dues of the insured until his death.

The attempt to appoint as the beneficiary Frances Rowton, his illegitimate daughter, was ineffectual for any purpose for the reason that she was not eligible under the rules of the order.


author: McCulloch, C. J.

text:
    Fort Smith Light & Traction Company v. Bailey.
    Opinion delivered May 22, 1922.
    1. 'Actions — joinder—election.—Where causes of action against several defendants were improperly joined, hut the actions Were such that they might properly have been consolidated, it was not error to refuse to require plaintiff to elect upon which cause of action he would proceed.
    2. Jury — consolidation of causes — number of challenges— Where causes of action against several defendants were improperly joined, all of the defendants were entitled jointly to the statutory number of challenges.
    3. Electricity — contributory negligence — question for jury.— Where plaintiff’s decedent, a lineman employed by defendant electric company, while making repairs, requested the person in charge of defendant’s plant to turn off the current and leave it off until instructed to turn it on, to which the person called acquiesced and turned off the current, contributory negligence of defendant in failing to observe safety rules prescribed by defendant held for the jury.
    4. Trial — instruction on matters not proved. — In an action for negligence causing decedent’s death by coming in contact with live wires, an instruction that, if decedent was killed by a stroke of lightning or by static electricity, etc., was properly refused where there was no evidence on these points.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      Hill & Fitshugh, for appellant.
    The deceased was guilty of contributory negligence which would preclude a recovery, even though the defendant is likewise guiity of negligence. 36 Ark. 371; 63 Ark. 65; 76 Ark. 436; 77 Ark. 458; 96 Ark. 394.

      J. E. London, Dave Partam, A. M. Dobbs and G. L. Grant, for appellee.
    Appellant’s motion to require appellee to elect was properly overruled under the following decisions: 86 Ark. 130; 87 Ark. 303; 88-Ark. 124; 113 Ark. 6.
    The court properly refused to allow each defendant three peremptory challenges. 117 Ark. 71.
    The question of negligence was one properly for the jury. 98 Ark. 347. The doctrine of res ipsa loquitur applies. 86 Ark. 75i
   McCulloch, C. J.

This is an action instituted by appellee as administrator of the estate of Macey Bailey, deceased, to recover damages sustained by the reason of the death of said decedent, which is alleged to have been caused by the negligent act of appellant. The action was originally instituted against appellant and two other parties — the Commonwealth Public Service Corporation and Light Improvement District No. 2 of Clarksville.

The causes of action against the defendants were set forth in separate paragraphs, and the death of said decedent in each-count is alleged to have occurred in the same manner, but separate acts of negligence charged against each of the defendants.

There was a motion filed by the defendants to require appellee to elect upon which cause of action he would proceed, but this motion was overruled, and in impaneling the jury the defendants each demanded the right to exercise three peremptory challenges, and this demand was overruled by the court.

After the testimony had been adduced, appellee dismissed against the other two defendants, and the issues were submitted to the jury as to the liability of appellant alone. A verdict was rendered in appellee’s favor against appellant for the recovery of the sum of $5,000 as damages.

Macey Bailey was a lineman employed by the Commonwealth Public Service Corporation, which was .engaged in the business of generating electric current and delivering such current for lighting purposes in the town of Alma and in other towns along the line of the Missouri Pacific railroad.

Light Improvement District No. 2 of Clarksville owned an electric light plant at Clarksville, Arkansas, and generated current for lighting purposes, and at times purchased current from the Commonwealth Public Service Corporation.

Appellant, a corporation, which-was engaged, among other things, in generating and selling electric current in Fort Smith, sold current to the Commonwealth Public Service Corporation and delivered same to that compa&y at or near the town of Alma, where it was furnished-no consumers.

On April 25, 1920, deceased was directed by his employer to go upon an electric tower at Alma and make repairs, and early in the morning of that day, in discharge of this duty, he came in contact with a live wire and received injuries from which he suffered great pain, and later died.

It is charged in the complaint against appellant that its servants were guilty of negligence in turning on the current which caused the death of Macey Bailey after the latter had given instructions to appellant’s engineer to turn the current off and not to turn it on again until further notice.

It is alleged that Bailey, about 7 o’clock, went to the telephone at Alma, and that in conversation with appellant’s engineer at the plant in Fort Smith he directed the engineer to turn on the current for the purpose of testing the wires at the tower, and that a few minutes later he notified the engineer at the plant that he was going on the tower to work, and directed the engineer to turn the electricity off and not to turn it on again until notice was given, but that the engineer, in violation of the instructions, turned the current 'back on while Bailey was at work with the wires on the tower, and that in that manner Bailey come in contact with the current and was wounded and killed.

In the other paragraph of the complaint it is alleged that the wires of the other two defendants were connected at Clarksville, and that current generated by the Light Improvement District at Clarksville escaped, through negligence of said defendants, over the wires of the Commonwealth Public Service Corporation to the connecting wires at Alma, and thus was permitted to pass along the wires where Bailey received his injury.

Appellant, in its answer, denied all acts of negligence charged against its servants, and alleged that Bailey’s death was caused by his own negligence in failing to observe the precautions prescribed by his employer for his own safety while engaged in the work of repairing wires.

Appellant adduced proof. tending to show that Bailey’s employer, the Commonwealth Public Service Corporation, issued safety instructions to its employees, which were brought to Bailey’s notice, directing them to use ground chains as a means of protection while at work on. the wires, and that the death of Bailey was caused by his failing to observe these directions; that there were switches which he could have used in turning off the current, and that his death was caused by his own negligence in failing to turn off the current before coming in contact with the wires.

The cause was submitted to the jury on instructions relating to the issue as to directions given by Bailey to the engineer not to turn the current on until further notice, and on the question of Bailey’s own negligence in failing to observe the precautions for his own safety which had been prescribed by his employer. There was evidence to sustain the verdict in appellee’s favor on these issues.

Two witnesses — one of them an employee of the telephone company at Alma, and the other an associate of his who was in the room with him at the time — each testified that about 7 o’clock on the morning in question Bailey came to the telephone office, and after getting connection with some one claiming to be in charge of appellant’s generating plant at Fort Smith, Bailey told the one in charge of the plant that he had been working on the line and was going to test the wires, and directed the person to turn on the current; that after a few moments he then told the person at the plant to cut the power off and leave it off until further notice. The testimony tends to show that a few minutes after this time, while Bailey was on the tower working with the wires, he came in contact with the current which injured him.

Appellant introduced its fireman, who was in charge at the power-house on the morning in question, and testified that the Alma fine ceased to hold the current during the night before, and he was given directions over the telephone by some one in regard to turning .on and off the current, and that he received directions about 2 o’clock that morning to leave the current off until he received directions the next morning; that about 7 o’clock the next morning the same voice called him over the telephone and gave directions to turn the current on, and that he received no further directions to turn the current off.

Appellant also introduced testimony showing the directions given by the Commonwealth Public Service Corporation to Bailey and other employees in regard to safety methods to be adopted, and also in regard to the safe method in which Bailey may have pursued his work by turning off the current.

The evidence was, as before stated, sufficient to sustain a verdict either way as to the cause of Bailey’s death.

It is contended, in the first place, that the court erred in refusing to require appellee to elect upon which causes of action set forth in the complaint he would proceed, and in refusing to allow each of the defendants the statutory number of peremptory challenges, but these questions have already been settled by this court against the contention of appellant.

We have held that since cases of like nature, pending in the same court, may be consolidated for the purpose of trial, there is no error in refusing to require an election where actions have been improperly joined, and that where there is such a consolidation of causes all of the parties arrayed on each side are only entitled jointly to the statutory number of challenges. Mahoney v. Roberts, 86 Ark. 130; Weigel v. McCloskey, 113 Ark. 1; Fidelity-Phoenix Ins. Co. v. Friedman, 117 Ark. 71.

It is next insisted that, according to the undisputed evidence, Bailey violated the instructions of his employer and failed to exercise ordinary care for his own protection, .and that for this reason there should have been a peremptory instruction in favor of appellant.

Bailey was not the employee of appellant, and received no instructions from appellant in regard to the method of carrying on his work. According to the testimony adduced by appellee, Bailey gave instructions to the man in charge of the generating plant to turn the electricity off and not to turn it on again until further notice, and these directions were acquiesced in by the man in charge of the plant so as to constitute an assurance to Bailey that his directions would be complied with.

Under these circumstances it cannot be said, as a matter of law, that Bailey was guilty of negligence in failing to observe other precautions for his safety. That was a question for the jury to determine under the circumstances, and it was properly submitted to the jury.

Appellant requested the court to give instructions which would have told the jury that if the deceased could have used ground chains for the purpose of preventing the electric current from passing over the wires, he was guilty of negligence and there could be no recovery, but the court properly refused to give the instructions, which was tantamount to telling the jury that Bailey’s failing to do so constituted negligence. This question should, as before stated, have been left to the jury, and not taken away from the jury by a peremptory instruction.

The court gave numerous instructions at the request of appellant, among which was one stating that if Bailey was killed ‘ ‘ on account of an accident, but not on account of the negligence of the defendant, Fort Smith Light & Traction Company,” the verdict should be in the latter’s favor.

Other instructions were asked by appellant, which the court refused, telling the jury that if the death of Bailey was caused by a stroke of lightning or by statio electricity, there could be no recovery, but there was no evidence to justify these instructions, and they were properly refused.

It is believed that the views we have already expressed dispose of all of the other assignments of error with respect to rulings of the court in giving and refusing instructions.

We find that the case was properly submitted to the jury, and that there is no error in the record.

The judgment is therefore affirmed.


text:
    White-Jackson Road Improvement District No. 1 v. Blackshire.
    Opinion delivered May 22, 1922.
    1. Highways — compensation op engineers. — Where engineers were employed by a road improvement district to make preliminary plans and estimates and to supervise the construction of improvements, and a specified percentage was agreed upon as . their compensation, the agreement was premature because entered into before an assessment was made to determine whether the cost of 'the improvement would exceed the benefits, and compensation of the engineers must be determined on the quantum meruit; there being no separate contract for the preliminary work.
    2. Highways — compensation of engineers. — Where the engineers for a road improvement district made preliminary planp and estimates, but the improvement scheme was subsequently abandoned, failure of the engineers to keep a separate account of the amounts paid by them as expenses, except as to the amount of time and number of men used in the work, did not defeat their right to compensation for such expenses.
    3. Highways — compensation op engineers — sufficiency op evidence. — Evidence as to the amount of compensation earned in preliminary work by engineers held sufficient to sustain a finding in their favor.
    Appeal from White Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      Cid L. Pearce and Brundidge & Neelly, for appellant. ’
    A material factor in determining services of this kind is the actual cost and expense of doing the work. Carter v. Franhlin County Road Improvement District, 152 Ark. 302.
    A person asserting a claim should he required to produce evidence of such cost and expense, it being a matter within his knowledge and keeping. 32 Ark. 337.
    The question of the reasonableness of the fee is one of fact to be determined from the weight of the evidence. 122 Ark. 21; 106 Ark. 571; 38 Ark. 139.

      Coleman, Robinson <& House, for appellee.
    This case is controlled by the following decisions of this court: 235 S. W. 403; 119 Ark. 188; 177 S. W. 877; 127 Ark. 1; 232 8. W. 434; Carter v. Franklin County Road Improvement District, 152 Ark. 302.
   McCulloch, C. J.

Appellant is a road improvement district created by a special statute enacted at the extraordinary session of the General Assembly of 1920, and the statute was repealed by a later one passed at the regular legislative session of 1921.

Appellees are professional engineers, engaged especially in road construction, and they were employed by this road district as engineers to make preliminary plans and estimates and supervise the construction of the improvement.

The contract was for the whole of the work, both preliminary and supervisory, and a specified percentage was agreed upon as compensation of the engineer's, but the contract was premature because it was entered into before an assessment of benefits was made to determine whether or not the cost of the improvement would exceed the benefits. There was no separate contract for the preliminary work, therefore the compensation of the engineers is to be determined upon the quantum meruit. Bowman Engineering Co. v. Arkansas-Missouri Highway District, 151 Ark. 47.

The preliminary work was done by appellees, and the plans and estimates were presented to the commissioners, but further proceedings were suspended because it was found that the cost of the construction would exceed the benefits.

The repealing act provides for the payment of the preliminary expenses by taxation of the lands in the district. Appellees thereupon presented their claim in the sum of $8,338.37 for allowance. The commissioners had previously issued certificates to appellees aggregating $2,500, which constituted a part of the total claim presented by appellees. The commissioners refused to allow the claim as presented, and this action was instituted in the chancery court to recover the amount claimed.

The repealing statute provides that, if the commissioners reject the claim in whole or in part, the claim shall he barred unless suit is instituted within ninety days after notice of the rejection of the claim. The present action was instituted within apt time.

The claim of appellees specified the sum of $4,838.43 as actual expenses, and the further sum of $3,500 as compensation to the engineers, and profits.

The chancery court, after hearing the evidence, allowed the claim in the sum of $7,348.52, which was $4,-348.52 for expenses and $3,000 for compensation.

The items of expense allowed by the chancellor are as follows:

For expenses field party..................................................... $2,135.00

For expenses of draftsmen...................... 1,137.50

For expenses of office help........................ 170.00

For expenses of drafting and blue-print paper...... 78.24

For expenses of stakes................................................................ 37.48

For expenses of railroad fare, telephone bills and other incidentals.................................................... 86.95

For expenses of automobile hire, gasoline and repairs................................................................................... — .......... 353.35

For overhead expenses................................................................... 100.00

For depreciation on automobiles and instruments 250.00

Being a total of......................................................$4,348.52

The plans prepared by appellees in accordance with the terms of the statute contemplated the construction of a road 37.5 miles in length, at an estimated aggregate cost of about $600,000.

There is a conflict in the testimony as to the amount of time spent in making the preliminary surveys and plans, and also as to the cost thereof. The evidence shows that the field work covered a period of about thirty-five days, and that there were eight men in the party engaged in the survey, consisting of two instrument men, two chainmen, a stiekman, an axman, a flagman and a rodman.

Appellees testified that the actual cost of the field work was $2,135, and this, item was allowed by the chancellor as claimed by appellees.

The commissioners, testified that when they issued the certificates- to appellees the latter claimed that the total expense of the preliminary work, which included the office work in making the plans, amounted to about $2,300. Appellees denied that they made any such admission, but that they stated that amount as an estimate of the cost of the field work, which they now claim amounted to the sum specified above.

The evidence adduced by appellees, not only their own personal testimony but that of other witnesses, tended to show that the cost of the field work amounted to the sum now specified by them, exclusive of the office work. There is a conflict in the testimony, but the finding of the chancellor on this issue is not, we think, against the preponderance of the evidence.

Appellees, in their testimony, go into details as to the amount of work involved, both in the field w;ork and office work, and amount of time expended, and we are of the opinion that the testimony is sufficient to support the finding of the chancellor.

Appellees testified that they kept no separate account as to the cost of this work, except as to the amount of time and the number of men used in the work. They are not, however, to be denied compensation merely because they failed to keep a separate account of the amounts paid out as expenses.

A further analysis of the testimony would serve no useful purposes, and it is sufficient to say that, after careful consideration, the conclusion is reached that the evidence as to the amount of compensation earned in the preliminary work is not against the finding of the chancellor.

The decree is therefore affirmed.

DISSENTING OPINION.

Hart, J.

I dissent. There were three commissioners in this road district. Each of them testified that, after the preliminary survey had been made and the plans and specifications of the cost of building the road, together with the blue-prints, had been furnished to the commissioners, it was decided that the road would cost too much, and no further effort was made towards its construction; that the engineer appeared before the board and asked the commissioners to issue him warrants for the amounts expended by him in making the preliminary survey, preparing the estimates, and making the blue-prints, and that he said $2,200 or $2,300 would cover all of his expenses. The commissioners issued him a warrant for $2,500. This was shortly after the work had been done, and the engineer certainly knew what it cost him. He now claims that the commissioners misunderstood him, and that he was only referring to the cost of the field work. The commissioners testify that he was referring to the whole expense, and there seems to be no good reason why he should wish to pay for the expense of the field work rather than for the cost of the office work. There is nothing in the record to indicate that the engineer’s testimony is entitled to more weight than that of the commissioners. Their testimony is in direct and irreconcilable conflict, and I am of the opinion that the testimony of the commissioners is corroborated by other facts and circumstances in the record.

To illustrate; in making up his items of the cost of the survey, the. engineer charges the district with the expense of two instruments men for thirty-five days at $10 per day, or a total of $700. He admits that he only paid one of them $175 per month and the other $125. They cost him then approximately $350 or $400, and the district should not be charged with more than that sum. He charges the other four men at $4 per day when they were not paid more than $80 per month each. He then charged the district $853.35 for gasoline, repairs, depreciation on a Ford and second-hand Overland car used by him in carrying his employees to and from the work while making the preliminary survey of the road. This, to my mind, is a very extravagant charge. It is true, the chancellor did not allow this much, but the fact that the engineer charged it shows the extravagance of his charges.

The engineer admits that he did not keep book accounts, and his claim is based upon estimates made more than a year after the work was finished. The only corroboration of his testimony is that of other engineers that his estimates are reasonable. I do not think this had the effect to overcome the positive evidence of the three commissioners as above stated.

I am of the opinion that the court should only have allowed him what the commissioners testify he told them at the time had been the actual cost of making the survey and preparing the estimates and blue-prints from the field notes and in addition a reasonable amount for his supervision of the work.

While preliminary work must be done, and its cost must be met.by landowners, I am of the opinion that the courts should strictly limit it to the actual cost of doing the work with a reasonable allowance to the engineer for his supervision. He should not be allowed to claim that he has kept no books and by a system of estimates charge the district with extravagant sums far beyond that which he has expended.

It is true that the sums claimed by the engineer in this case ate more reasonable than the amounts claimed by engineers in some other cases which have come before us, but courts should require claimants for preliminary expenses to make .proof of the amounts actually expended by them, and should not allow them extravagant estimates on the specious plea that they have not kept an account of their éxpenses.

Judge Wood concurs in this dissent.


text:
    Desha Road Improvement District No. 2 v. Stroud.
    Opinion delivered May 22, 1922.
    1. Highways — act creating road improvement district upheld.— Road Acts,1919, vol. 1, p. 613, creating a certain road improvement district, held a valid act.
    2. Highways — right to attack assessments. — Owners oí land in Desha Road Improvement District No. 2, created by Road Acts 1919, vol. 1, p. 613, cannot attack the validity of assessments of their property by joining in a suit attacking same after 30 days from the completion of the assessments, though such suit was instituted within such period.
    3. Highways — assessment on wrong basis — remedy.—Road Acts 1919, vol. 1, p. 613, giving owners of property in a road improvement district 30 days after completion of assessments to commence an action challenging the correctness thereof, is primarily for the benefit of the individual owners in the correction of their own assessments, but, where the whole assessment is on the wrong basis, each owner may have it canceled if his complaint is filed in time, as an assessment made on the wrong basis is tantamount to no assessment.
    4. Highways — correction of individual assessments. — If a road improvement district as a whole is made on a correct basis, individual assessments may be corrected without declaring the whole assessment void.
    5. Appeal and error — oral testimony. — Oral testimony in a chancery case will not be considered on appeal unless reduced to writing and filed during the term or unless further time for filing is given by consent.
    6. Highways — zone system op assessments. — The zone system of assessments is not an improper method if it is determined upon ■by the commissioners in the exercise of judgment, after considering all the elements affecting the benefits.
    7. Appeal and error — presumption where evidence lacking.— Where a substantial portion of the testimony is not properly in the record, it will be presumed that the court’s'finding as to the mode in which road improvement assessments were made is sustained by the evidence.
    Appeal from Desha Chancery Court; E. 0. Hammock, Chancellor;
    reversed in part.

      E. E. Hopson and Coleman, Robinson & House, for appellants.

      1. The assessment is not illegal for having been made in an arbitrary manner, and the evidence would have to show that it was so made, in order to invalidate the assessments of benefits as a whole in the district.
    Since the plaintiffs did not resist the assessments on the ground of excessiveness before the commissioners and the county court, they cannot in this suit raise that question, and the only question properly before the court is whether or not there has been a discrimination against the plaintiffs themselves, which has resulted in a confiscation of their property. 251 IT. S. 189; 135 Ark. 155; 110 IT. S. 347; 164 IT. S. 112; 191 IT. S. 310; 214 IT. S. 359 and cases cited; 181 IT. S. 340, 341; 172 U. S. 269; 221 IT. S. 550, 553; 139 Ark. 325; 121 Ark. 109; 139 Ark. 322. Under these authorities, it is immaterial that the evidence may show that the taxes assessed are onerous, and higher than the witness thinks they should be, or that inequalities are shown to exist here and there. The question to be decided is whether or not there is such a gross and palpable discrimination as would result in confiscation; and, before an assessment of this kind can be set aside, it must clearly appear that the assessment is invalid as a whole, the burden being on the plaintiffs to establish that fact.
    2. The assessment does not amount to confiscation. The court is not justified in substituting its judgment for that of the commissioners, except for some palpable or clearly shown reason. The fact that dissatisfied property owners are of the opinion that the benefits will amount to confiscation will not justify the court in setting aside the assessment. Opinions and speculative testimony of interested witnesses, plaintiffs in the case, should have been excluded. Road Imp. Dists. 1, 2 & 3 v. Crapy, 151 Ark. 484. There is no evidence except opinions of interested parties that the assessment would amount to confiscation, and that is overcome by positive testimony on the part of the aopellants. bv detailed statements of witnesses and the reasons given as to why the county must necessarily have the improvements. 110 U. S. 347; 154 U. S. 112; 191 U. S. 310; 214 U. S. 359, and cases cited; 172 U. S. 269; 221 U. S. 550, 553
    3. The act is not unconstitutional because it includes 98 per cent, of the land in the -county. 139 Ark. 168.
    4. It is not unconstitutional in delegating to the commissioners the power to issue bonds.

      X. 0. Pindall, DeWitt Poe and Williamson & Williamson, for appellees.
    1. The decree should be affirmed, because oral and documentary evidence taken in open court was not preserved and incorporated in the transcription in the manner provided !by law. Transcribed stenographic notes taken under order of the court, without consent of parties, must be filed during the term. McGrow v. Berry, 152 Ark. 452. Where the recitals of a decree show that there was evidence considered which is not contained in the transcript, it will be presumed that the omitted evidence sustains the decree.
    2. The Desha Road Improvement District No. 2 is one district under the act creating it, and not six separate districts, and, as is stated in the decree, embraces 98 per cent, of Desha County. The entire act is therefore unconstitutional and void. 89 Ark. 513; 118 Id. 296, 302.
    3. Appellants ’ own statement of facts concedes that some of the plaintiffs filed suit in apt time. It is immaterial whether the act and entire assessment he declared void at the instance of one taxpayer or many. There is no legal proof that the statutory notice was given or the necessary hearing afforded the taxpayers. The assessment of benefits has been made in an illegal and unconstitutional manner, the enforcement thereof would amount to confiscation, and it is void. 64 Ark. 558 ; 239 U. S. 478, 60 Law. Ed. 392. Proof of publication of the notice and hearing cannot be made by any other testimony than the record. 55 Ark. 218, 221; 127 Id. 155, 168. Statutory notices against landowners must scrupulously conform to the statute. 135 Ark. 528; 64 Ark. 556.
    4. The entire assessment of benefits is illegal and void, because made in an arbitrary manner and without regard to benefits received by each tract of land. 127 Ark. 315, 316, 119 Id. 196; Whaley v. Northern Road Imp. Dist., 152 Ark. 573; Johnson v. Conway, 151 Ark. 398; 86 Ark. 1, 14; 86 Id. 16; 55 N. Y. 604; 48 L. R. A. 851; 50 Ark. 129. The assessment is void because buildings and other improvements were not assessed. 86 Ark. 14-15. The act itself contemplates the assessment of improvements. §§ 1, 2, 14, 16, 17, 27, 30; C. & M. Dig., §§ 9792; 13 N. Y. 126; 86 Ark. 1; 1 N. Y. 569; 52 Tenn. 473; 152 Mo. 421; 240 U. S. 55. The assessment is void because of illegal classification of property. 86 Ark. 14. The assessment of benefits is confiscatory and therefore unconstitutional. 50 Ark. 116; 86 Id. 1; 98 Id. 543; 68 Id. 376; 119 Id. 254; 118 Id. 303; 147 Id. 181-4; 81 Id. 562; 83 Id. 54; 98 Id. 113. See also 32 Ark. 31; 39 Id. 202; 84 Id. 390; 86 Id. 231.
   McCulloch, C. J.

Appellant is a road improvement district which was created by special statute. Road acts, 1919, vol. 1, p. 613. The territory covered is that part of Desha County lying south of the Arkansas River and situated within five miles of either of the respective roads to be improved. It is shown in the present litigation that the territory comprises about ninety-eight per centum of the whole of the county. The roads to be improved are described, and the district is divided into six sections, numbered, respectively, 1 to 6, inclusive, and the lands within five miles of each road are to be assessed for the improvement in that section.

The statute provides for one organization of commissioners of the district, but it is tantamount to the formation of sis. separate districts with distinct assessments of benefits and levy of taxes to pay for the several improvements. The statute contains the customary provisions for the assessment of benefits and reporting the same to the county court. It provides that the commissioners, after completing the assessments, shall give notice to the property owners by publication in a newspaper for two weeks, and on the day named the complaints of the property owners shall be heard, and the assessments shall be equalized by increasing or diminishing, according to the proof adduced. It further provides that after completing the equalization of the assessments the list shall be filed with the county clerk as the completed assessment.

The following provision is found in the statute with reference to further remedy of the property owners:

“Any person not beginning legal proceedings to contest any of said assessments of benefits within thirty days after the completion of said assessments, and the filing of the copies thereof with the county clerk, shall be deemed to have waived any objection he may have thereto, and shall not thereafter be heard in any court of law or equity to question any of said assessments, the plans on which they were made, or any other action of the commissioners. The term ‘persons’ wherever used in this act shall include corporations, associations and partnerships.” Road Acts, 1919, vol. 1, p. 624.

The commissioners of this district completed the assessment of benefits by filing a list with the county clerk as provided by statute, and within thirty days thereafter the present action was instituted by some of the appellees — Gr. W. Stroud, Gr. K. Morley, D. Morley and Will Roan — who are the owners of land in the district.

In the complaint filed there is an attack upon the validity of the statute creating the district, and also an attack upon the validity of the assessments.

It is alleged that the assessments were not made' bv the commissioners in accordance with the statute, but were arbitrarily made on the wrong basis and without regard to the proper elements to be considered in determining the benefits.

After the expiration of thirty days from the completion of the assessments, numerous other landowners were made parties plaintiff in the action and joined in the prayer for relief in the original complaint. The commissioners of the district appeared and answered, and the cause was heard by the chancery court on depositions of witnesses, oral testimony and documentary evidence, and a decree was rendered holding that the statute creating the district is unconstitutional and void, and that the assessments are invalid, and the commissioners were enjoined from all further proceedings toward the enforcement of the assessments or from issuing- bonds or constructing the improvement.

We are of the opinion that the decree was erroneous to the extent that it declared the statute creating the district to be void and enjoined the commissioners of the district from further proceedings. The questions involved fall clearly within repeated decisions of this court. Bennett v. Johnson, 130 Ark. 507; Cumnock v. Alexander, 139 Ark. 153; Reitzammer v. Desha Road Imp. Dist. No. 2, 139 Ark. 168; Hamby v. Pittman, 139 Ark. 341; Johns v. Road Imp. Dist. of Bradley Co., 142 Ark. 73; Van Hook v. Wallace, 143 Ark. 203; Road Imp. Dist. of Dallas County v. Crary, 151 Ark. 484.

The case of Reitzammer v. Desha Road Improvement District, supra, involved the validity of this identical organization, and we held that the statute was valid. Further discussion of this part of the case is unnecessary.

This suit constitutes a direct attack upon the validity of the assessments of benefits so far as concerns the original complaint filed within thirty days after the completion of the assessments. The plaintiffs who subsequently joined in the action came in too late to join in the direct attack, and so far as they are concerned thn case is controlled by the recent decision of this conr*in Road Improvement District of Dallas County v. Crary. supra.

The statute giving the owners of property a specified time after the completion of the assessments of benefits to commence an action challenging the correctness of the assessment is primarily for the benefit of the individual property owners in the correction of their own assessments; but where the whole assessment is on the wrong basis, each property owner has his remedy to have it canceled if the complaint is filed within apt time. In other words, the remedy of the property owner is not confined necessarily to the correction of his own assessment, if the assessments as a whole have been made on the wrong basis, for in a direct attack upon the validity of assessments, one made on the wrong basis is tantamount to no assessment at all. Kirst v. Street Imp. Dist. 86 Ark. 1; Lee Wilson Co. v. Road Imp. Dist., 127 Ark. 310.

If the assessments as a whole are made on a correct basis, individual assessments may be corrected without declaring the whole assessment void.

The' present case was heard partly on oral testimony, which has not been properly brought into the record. It was not reduced to writing and filed during the term by a stenographer previously designated by the court. It is essential that oral testimony be reduced to writing and filed during the term, unless further time is given by consent. McGraw v. Berry, 152 Ark. 452.

The testimony which appears in the record by deposition of witnesses, duly taken and filed, is conflicting; some of it tends to sustain the allegation that the assessment was made principally by ’one of the commissioners without participation by the others, and that the zone system was arbitrarily adopted without due consideration bv all of the commissioners and in total disregard of all the elements which go to make up the benefits from a local improvement.

We have often decided that the zone system is not an improper method, if it is determined upon by the commissioners in the exercise of judgment, after considering all of the elements affecting the benefits. Board of Improvement v. S. W. Gas & Elec. Co., 121 Ark. 105; Missouri Pacific R. R. Co. v. Conway County Bridge Dist., 134 Ark. 292.

In the absence, however, of a substantial portion of the testimony, which has not been properly brought into the record, we must indulge the presumption that the finding of the court with respect to the method in which the assessments were made is sustained by the evidence.

That portion of the decree which declares the assessments void and restrains the commissioners from enforcing the collection of the same is affirmed, but that portion of the decree which declares the statute creating the district to be void and restraining the commissioners from further proceeding is reversed, and the cause is remanded, with directions to enter a decree dismissing the complaint to that extent.


author: Wood, J.

text:
    Mitchell v. Conway Cotton Oil Gin Company.
    Opinion delivered May 22, 1922.
    1. Appeal and error. — Where there is a decided conflict in the evidence, the Supreme Court will not disturb the trial court’s ruling in sustaining a motion for new trial.
    2. Appeal and error — order granting new trial — affirmance,— Where the evidence was conflicting, and the jury returned a verdict for defendant, but the trial court granted a new trial, from which order defendant appealed, on affirming the order appealed from an absolute judgment for plaintiff will be entered, under Crawford & Moses’ Dig., § 2179.
    Appeal from Faulkner Circuit Court; George W. Clark, Judge ;
    affirmed.

      Edward Gordon, for appellant.
    The court erred in setting aside the judgment and granting a new trial. 6 Ark. 86; 6 Ark. 428; 2 Ark. 360; 10 Ark. 138; 5 Ark. 407; 26 Ark. 609; 39 Ark. 461.

      J. C. <& Wm. J. Clark, for appellee.
    The action of a trial court in granting a new trial is not reviewable, where the evidence is conflicting. 120 Ark. 99; 179 S. W. 175. Neither is it invading the province of the jury to set the verdict aside, where there is conflict in the evidence. 98 Ark. 334; 135 S. W. 925; 100 Ark. 596; 141 S. W. 196.
    The trial judge has control of the verdict of the jury after and during the term it is rendered. 94 Ark. 566; 127 S. W. 962.
    Trial courts have a large discretion in the matter of granting new trials, especially upon the weight of the evidence. 139 Mo. 557; 41 S. W. 215; 98 Ark. 304; 135 S. W. 922.
   Wood, J.

The appellee instituted this action against the appellant upon a promissory note for $159.50 and on an account in the sum of $649.69. The appellant in his answer denied that he was indebted to the appellee, and he set up by way of cross-complaint that the appellee was indebted to him in the sum of $1,812.15 on an account growing out of a contract between appellee and appellant, and that appellee was also indebted to the appellant in the sum of $400 damages for an alleged breach of contract. The appellee and the appellant filed their respective accounts and made them exhibits to their pleadings. The original note was identified by a witness, the manager of the appellee, at the time the same was executed, and introduced in evidence.

The answer of the appellant admitted the execution of the note, and admitted that he was a member of the firm of Mitchell & Sons, but denied that the note was his individual obligation. A contract was introduced in evidence which showed that the appellant had been appointed agent for the appellee for the years 1919 and 1920 to buy cotton seed. The appellant was to receive a commission of $3 per car f.. o. b. Menifee. The contract further provided that the appellant should keep an accurate record of the seed purchased by him for the appellee. The note and account on which the appellee grounded its alleged cause of action and the account on which appellant based his cross-action grew out of the transactions covered by the above contract. A comparison of the items of the accounts between the respective parties shows that, aside from the note, there were eight items in dispute, as follows:

Oct. 6, 1919, 300 yds. bagging, F. & S....:._________________$ 73.50

Nov. 20, 1919, 300 yds. bagging, F. & S.......................... 73.50

Oct. 2, 1919, Cash advanced to buy seed...................... 200.00

Oct. 3, 1919, “ “ “ “ “ ............. 300.00

Oct. 24, 1919, “ “ “ “ “ ........................ 250.00

Nov. 6, 1919, “ “ “ “ “ 300.00

Nov. 8, 1919, “ “ “ “ “ ___________________ 200.00

Nov. 12,1919, “ “ “ “ “ 200.0Q

On the first two items the appellant contended that he was entitled to a reduction of $12, which the appellee conceded. On the next two items-the appellee introduced a receipt signed by the appellant, and the appellant thereupon admitted that he had received the items of $200 and $300 in -cash -charged to the appellant as of October 2d and 3d, respectively. That left in controversy the remaining four items. Concerning these, P. F. Cleaver, manager of the Cotton Oil & Gin Co., testified that these items of cash were furnished to the appellant by the Bank of Conway upon telephone orders from the appellee. Witness stated that, on account of the location of the seed business at Menifee, Mitchell would come to Conway on the southbound train. He would go to the Bank of Conway, and from there telephone that he wanted more money to buy seed, and that he wished to return on the next train. There were only five or ten minutes between the trains that he came and returned on. Appellee, upon receiving appellant’s telephone message, would order the bank to pay the money to appellant and charge the same to appellee’s account, and later in the day the appellee would send to the bank a check to cover the amount advanced. The business was handled in this way to enable tbe appellant to catch the returning train to his place of business without loss of time.

The two items of cash, which appellant admits, were handled in the same way as the remaining four items of cash which he disputed. The vice-president of the bank also testified that the four remaining items in controversy were paid to Mitchell by the Bank of Conway ; that Mitchell did not have time to get checks from the appellee, and that payments were made on telephone orders from the appellee in order that Mitchell might catch his train back to Menifee, and that later in the day the appellee would send down checks to cover the payments advanced.

The appellant in his testimony denied that he had received these items of cash. The above shows the respective contentions of the parties as to the debit items of the account upon which appellee bases its action. The appellant testified, among other things, that he never received credit for a certain car of seed which he purchased for the appellee amounting to the sum of $1,176. He stated that this car was shipped to appellee about the 19th of October. He further testified that the appellee gave him no written notice of its intention to terminate the contract, and that he was damaged by reason of their breach of the contract, in the sum of $400. He further stated that he was entitled to an allowance of one per cent, on one hundred and thirty tons of seed for shrinkage ; that the car of seed for which he had not received credit, his commission, and the shrinkage, and damages for 'breach of contract aggregated the sum of $2,212.15, due him by the appellee.

Witnesses for the appellee in their testimony denied that the appellee had received any car of seed purchased for the appellee by the appellant for which the appellant had not received credit.

The issues were sent to the jury upon substantially the above testimony tending to support the respective contentions of the parties. The jury returned a verdict in favor of the appellant. Upon motion of the appellee the court granted a new trial, and appellant appealed from this order1.

We have set forth the issues and substance of the testimony tending to support the respective contentions of the parties. The testimony shows that there was a substantial conflict in the evidence on the issues of fact submitted to the jury. We have often held that “where there is decided conflict in the evidence this court will leave the question of determining the preponderance with the trial court and will not disturb its rulings in either sustaining a motion for new trial or overruling same.” Blackwood v. Eades, 98 Ark. 304-311; and in addition to the cases there cited, see also McDonnell v. St. Louis Southwestern Ry. Co., 98 Ark. 334-336; McIlroy v. Arkansas Valley Trust Co., 100 Ark. 596-599; Johnson v. Mantooth, 120 Ark. 99; Spadra Creek Coal Co. v. Callahan, 129 Ark. 448; Spadra Creek Coal Co. v. Harger, 130 Ark. 374; Mueller v. Coffman, 132 Ark. 45; Wilhelm v. Collison, 133 Ark. 166.

It is likewise the well established doctrine in this State that this court will not reverse the ruling of the trial court in refusing to set aside the verdict and overruling the motion for new trial, where there is any evidence legally sufficient to sustain the verdict; or, as is often stated, where there is substantial testimony to sustain the verdict. See Drennen v. Brown, 10 Ark. 138, and other cases cited in the brief of counsel for the appellant. In addition thereto, see Hill v. Jayne, 18 Ark. 396; Harris v. Bush, 129 Ark. 369; Childs v. Neal, 138 Ark. 578, and other cases cited in Cumulative Supplement to Crawford’s Arkansas Digest. Appeal and Error, § 369, subdiv. 5.

There is no conflict in the decisions of this court declaring the rules of practice governing trial courts in granting and refusing to grant motions for new trial on the ground that the verdict is contrary to the evidence. There was a decided conflict in the testimony on the issues involved in this cause, and the circuit court therefore did not abuse its discretion in concluding that the verdict was against the preponderance of the evidence. Under the evidence adduced it was strictly within the province of the court to determine whether the verdict was sustained by a preponderance of the evidence. The ruling of the trial court was correct, and under § 2179, C. & M. Digest, a judgment absolute will therefore be entered here against the appellant in favor of the appellee. It is so ordered.


text:
    Walker v. Rose.
    Opinion delivered May 22, 1922.
    1. Landlord and tenant — lien for advances. — Where a landlord directed a merchant to furnish supplies to the tenant, for which the landlord agreed to. pay and subsequently did pay, the landlord in effect furnished the supplies to the tenant, and is entitled to a preference lien therefor, under Crawford & Moses’ Dig., § 6890.
    2. Landlord and tenant — innocent purchasers of crop. — Purchasers of cotton who bought it in the market near where it was grown without making inquiry as to where it was grown or whether there was an outstanding landlord’s lien, were not innocent purchasers.
    8. Landlord and tenant — conversion of crop subject to lien.— Testimony that the officers of a bank knew that landlord had a lien on his tenant’s crop, and directed the tenant to sell his cotton in another State, credited drafts drawn on the purchaser to the tenant’s account, and accepted from him checks on that account for the satisfaction of his indebtedness to the bank, held •to show a conversion of the proceeds of the cotton to the bank’s own use, rendering the bank liable to the landlord for the amount so converted.
    Appeal from Mississippi Cliancery 'Court, Osceola District; Archer Wheatley, Chancellor;
    modified.
    J. T. Coston, for appellant.

      Driver d Simpson, for appellee.
   Wood, J.

R. C. Rose rented to J. A. Walker a certain tract of land in Mississippi County, Arkansas, for the year 1919. On February 16, 1919, Walker executed Ms note to the Bank of Osceola (hereafter called bank) for the sum of $1,600, which was due November 15, 1915. Walker and Rose also executed a note to the bank on April 12, 1919, in the sum of $400, payable November 15, 1919, and Walker, on the 17th of September, executed a note to the bank in the sum of $50. The note for $1,600 was secured by a mortgage on certain personal property and the crops to be grown by Walker on the lands rented from Rose. At the close of the crop season Walker sold two bales of the cotton raised on the land to J. R. Miller for $351.12, and to the Hale Bros, other cotton grown on the lands for the sum of $1,455.95. The purchasers gave Walker checks for the respective amounts of the purchase price of the cotton, and he deposited these checks to his individual credit in the bank. Walker also shipped seven bales of the cotton to the J. T. Fargason Company, cotton factors at Memphis, Tennessee, which it sold for the sum of $311.11, for which Walker 'drew drafts and deposited the same in the bank to Ms credit.

This action was instituted by Rose against Walker, Miller, Hale Bros, and the bank to enforce a landlord’s lien for rents and supplies amounting in the aggregate to the sum of $1,626.76. Rose prayed judgment against Walker for the amount alleged to be due him for rents and supplies, and alleged that the bank had received proceeds from the sale of cotton on which he had a lien for more than the amount due by Walker to Rose, and that the bank at the time it received the proceeds had knowledge that same were from the sale of cotton on wMch Rose had a lien. He also alleged that Miller and Hale Bros, had knowledge of the fact that Rose had a lien on the same for rents and supplies at the time they purchased the cotton from Walker.

The bank and Walker answered, denying the allegations of the complaint and denying liability. They set up also the mortgage of Walker to the bank, and that the amount advanced by the bank to Walker under the mortgage was used by Walker in making Ms crops. They further set up that the bank had advanced to Walker the sum of $400 upon a note which was endorsed by Rose, for wMch he was liable to the bank and estopped from claiming the bank was indebted to him for such amount.

Miller and Hale Bros, filed separate answers, in which they denied the allegations of the complaint, but set up that, if they purchased the cotton from Walker, they did so in the usual course of business and had no notice that Rose had any lien on the same. They therefore denied that they were indebted to Rose in any amount and prayed that the complaint as to them be dismissed. They also set up that the bank received the proceeds of the cotton purchased by them'from Walker, and prayed that, in the event the court should find against them, or either of them, in favor of Rose, they in turn should have judgment against the bank.

Walker made default. The court found that he was indebted to Rose in the sum of $1,468.04, made up of the following sums:

Cash rent..............................................:.....................................$200.00

1/4 of the cotton............................................... 485.00

1/4 rebate.................................................................................... 45.74

Supplies................................................................................... 113.85

Briekey account...................................’............................... 223.35

Bank of Osceola..................................................................... 400.00

The court also found that the bank had furnished Walker the sum of $400 evidenced by a note on wMch Rose was the surety, and that Rose had not paid tMs note. The court further found that Walker had sold to Miller cotton raised on Rose’s land during the year 1919 in the sum of $351.12; and had sold cotton to Hale Bros, for the sum of $1,455.94; that these purchases were made with full knowledge of the fact that plaintiff had a lien on the cotton for rents and supplies; that the proceeds were deposited by Walker in the bank, and that the bank had full knowledge that Rose had a lien on the proceeds for his rents and supplies; that the bank converted to its own nse a part of such proceeds amounting to more than Walker’s indebtedness to Rose. The court further found that neither Miller nor Hale Bros: were innocent purchasers, and that the bank was liable as for conversion. The court gave the bank credit for the sum of $400, the amount of Walker’s note on which Rose was surety. A decree was rendered in favor of Rose against Walker, the bank, and Hale Bros, in the sum of $1,068.04, with six per cent, interest thereon from December 1, 1919, and against Miller in the sum of $351.12. The court also decreed that Walker was primarily liable, and that Rose should proceed first against Walker and then against the bank before issuing execution against Hale Bros, and J. R. Miller, whose liability it adjudged to be inferior to that of the bank. From that decree is this appeal.

1. The court found that the appellee was entitled to a lien on the crops for the item of $223.35, the amount paid by him to Brickey Mercantile Company for supplies furnished Walker. (The undisputed proof shows that this item should be $233.35). E. E. Driver, the cashier of the bank, testified, among other things, that when Walker executed the note and mortgage to the bank, he showed Driver the lease contract agreement he had with Rose for the rent of the land. The cashier therefore knew that Walker was the tenant of Rose. The bank took the mortgage upon Walker’s chattels and the crops to be grown on Rose’s land and made advances to him under that mortgage. Rose testified that he talked with one of the directors of the bank, and that he understood from him that the bank, in addition to what Walker already owed it, furnished Walker about $600; that amount was not sufficient to complete the cultivation of Walker’s crops. The bank refused to furnish Walker any more money. The appellee became responsible to the Brickey Mercantile Company in the sum of $335.35, advances made by it of money and supplies and used by Walker in the cultivation of his crops on appellee’s land. The appellee paid this amount to the Brickey Mercantile Company.

The facts justified a finding that the money and supplies furnished throug'h the Brickey Mercantile Company were in reality furnished by the appellee. The statute, in such cases, expressly gives the landlord “preference over any mortgage or other conveyance of such crop made by such tenant.” Sec. 6890, C. & M. Digest. This is not a case of a landlord becoming a mere surety for his tenant, as was the case in Coffman & Wilson v. Underwood, 83 Ark. 118, upon which counsel for appellants relies; but the facts here warrant the conclusion that appellee himself was responsible primarily to the Brickey Mercantile Company for the advances and supplies made by it to Walker to make his crop.

In Forster v. Bradney, 143 Ark. 320, we held: “A landlord has a lien on his tenant’s crop for the purchase price of supplies, the payment of which he had guaranteed, though he had not actually paid for them.” Under the facts it is precisely the same as if the appellee had furnished the money and supplies himself. Under such a state of facts no contractual rights of a mortgagee under a mortgage executed to him by a tenant on crops can intervene to deprive a landlord of his lien under the above statute. Where the landlord, through another, furnishes the tenant supplies to make the crop, it is the same as if he furnished them directly, and he brings himself by such proof within the terms of the above statute.

2. It is not contended by the appellants that Miller and Hale Bros, were innocent purchasers. It could serve no useful purpose therefore to set forth and discuss in detail the testimony bearing upon this issue. Let it suffice to say that, while the testimony of one of the Hales and Miller was to the effect that when they bought the cotton from Walker they did not know that Walker was renting from Rose and that the cotton was grown on Rose’s land, that they did not know that Rose had a claim on the cotton until after they bought the same; nevertheless they admitted that they made no inquiry of Walker as to where the cotton was grown or whether there was any outstanding landlord’s lien against the same. They purchased the cotton by sample and from ginner’s receipts, and made no further investigation. They were cotton buyers of experience and were buying cotton at Osceola, where Rose resided, and in the Osceola district where the land was situated. Therefore the court correctly ruled that Miller and Hale Bros, were not innocent purchasers, and the decree against them in favor of the appellee for the value of the cotton purchased by them from Walker was correct. Hunter v. Matthews, 67 Ark. 364; Noe v. Layton, 69 Ark. 551; Jacobson v. Atkins, 103 Ark. 91; see also, Lynch v. Mackey, 151 Ark. 145.

3. The court found that the bank knew that the cotton was subject to a landlord’s lien, and that in effect Walker had no right to the funds deposited; that he was, to the extent of appellee’s lien, a trustee of such funds. These findings of the court are supported by a decided preponderance of the evidence. The cashier of the bank himself testified that, after Walker made the contract to move on Rose’s land, the bank took a mortgage upon his chattels and the crops to be made on that land. He further testified that when Walker drew drafts on the Fargason Company, or sold cotton to Hale Bros, and Miller, and the checks came to the bank, witness presumed that they were the proceeds of the sales of the cotton raised by Walker that year. When the checks of Miller and Hale Bros, were brought to the bank, and Walker gave the bank checks on his account to pay the mortgage to the bank, witness believed that they were the proceeds of the cotton that he had raised that year on Rose’s land. The bank got practieallv all of the proceeds of the checks of Hale Bros, and Miller. This witness further testified as follows: “It was mv fault that Walker did ship the cotton. I instructed him to ship the cotton. I know that some of it was shipped. I know that J. T. Fargason Co. was shipped several bales. Mr. Walker drew various drafts on J. T. Fargason Co., to whom he had shipped cotton, and we received those drafts. Thé hank had nothing to do with Walker’s shipment (to Fargason Co.) more than to advise him that we thought it was the best thing' to do. We accepted the drafts that he drew and gave him credit on his deposit for the same. The shipping of the cotton was left to Mr. Walker. I would not have been willing for him to ship it to Rose’s credit.”

The testimony further shows that, after the checks and the drafts were deposited to Walker’s credit in the bank, he then drew checks on his account in favor of the bank to pay his preexisting indebtedness to the bank. The above testimony comes from the bank’s own agents, its cashier and assistant cashier. Such being their testimony, the court was clearly correct in the above findings. When .the bank, through its cashier, advised Walker to ship cotton to a cotton factor out of the State, the cashier knowing at the time that the appellee had a lien on such cotton for rents and supplies, and when the cashier received from Walker a draft on the factor for the proceeds of such cotton and used such drafts in paying Walker’s indebtedness, the bank by these acts converted to its own use the proceeds of the cotton with full knowledge of the fact that the appellee had a lien upon such cotton, or its proceeds, for rents and supplies. The decree of the court holding the bank liable to the appellee for such proceeds under the circumstances was correct as disclosed by the above proof. Having knowledge of the appellee’s lien, it must be held that the conduct of the bank was tantamount to a destruction by it of such lien. Merchants’ & Planters’ Bank v. Meyer, 56 Ark. 499, 505; Carroll County Bank v. Rhodes. 69 Ark. 43-48; Boone County Bank v. Byrum, 68 Ark. 71-74; Blanton v. First National Bank of Forrest City, 136 Ark. 441.

It follows from what we have alreadv said that the court ruled correctly in holding that the note of $400 executed by Walker and Rose to the bank should be considered as paid and canceled as of the date of the conversion by the bank of the proceeds of sales of the cotton upon which the appellee had a lien. The undisputed testimony shows that, by a misprision, the Brickey item which entered into the decree should have been $233.35 instead of $223.35 as found by the court.

We therefore treat the decree as if it had been corrected by stipulation of the parties in the trial court and rendered for the sum of $1,078.04. The decree for this amount is in all things correct, and hence it is affirmed.