author: Mehakfy, J.

text:
    Missouri Pacific Railroad Company v. Watt.
    4-2558
    Opinion delivered July 4, 1932.

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

      John L. McClellan, for appellee.
   Mehakfy, J.

The appellee, Ed Watt, began this action in the Hot Spring Circuit Court against the Missouri Pacific Railroad Company for personal injuries alleged to have been caused by the operation of one of appellant’s trains at Malvern, Arkansas.

W. E. Kelly, a minor, by Zoa Kelly, mother and next friend, and Tom Belote, brought suits against the appellant for injuries alleged to have been caused by the same accident alleged in Watt’s case. These cases were consolidated for trial.

It was alleged in the complaints that William Kelly was driving a truck belonging to Tom Belote, and, while attempting to cross the railroad track on Main Street in the city of Malvern, and while in the exercise of due care, the agents in charge of and operating one of appellant’s trains negligently and carelessly caused the motor truck to be turned over and wrecked, and the occupants of the truck injured.

Appellant’s train had stopped near the crossing, and it is alleged that, as appellees undertook to cross the track in the truck, the train was negligently, carelessly, suddenly, and without warning, started onto said crossing, thereby placing the occupants of the truck in a posi-tión of extreme peril, and, in order to avoid being struck and run over by said train, tbe driver of said truck was compelled to swerve it suddenly and abruptly into tbe curb, turning tbe truck over, wrecking it, and injuring appellees.

It was alleged that tbe employees operating tbe train negligently failed to keep a lookout, and, if they bad kept a lookout, they would have discovered tbe approach of tbe parties in tbe truck in time to have avoided tbe injury.

It was further alleged that tbe appellant maintained a flagman at tbe crossing whose duty it is to give signals and warning of tbe approach of trains to persons in vehicles and pedestrians; that said flagman was present at tbe time of tbe accident and negligently failed to give any signal or warning, and, by reason of such negligence, tbe parties in tbe truck, in tbe exercise of ordinary care, believed it safe to cross at tbe time.

Tbe complaint then alleged tbe manner in which tbe parties were injured and a prayer for damages in each complaint. Kelly and Watt sought to recover damages for personal injuries, and Belote for damages to bis car.

Tbe appellant filed an answer to each complaint, denying all tbe material allegations of tbe complaints. It denied that it was guilty of any negligence, but that, if tbe parties were injured, tbe injuries were due to their own fault and carelessness in not stopping, looking, and listening for tbe approach of trains, and in disobeying tbe signal lights, and alleged that tbe accident was caused by tbe negligence of William C. Kelly, and that appellee Belote was negligent in permitting tbe truck to be driven by a young and inexperienced driver.

When tbe cases were called for trial, appellant filed motion to quash tbe jury panel, and for cause stated that Tom Belote, one of tbe appellees, was a member of tbe regular panel of tbe jury, and bad been sitting on said petit jury and served as juror in many cases determined by tbe jury at that term, and bad been with tbe jury, associated with tbe jurors, and bad deliberated with them, and for that reason, the appellant moved the court to quash the jury panel.

Evidence was taken on this motion. The clerk of the Hot Spring Circuit Court was called as a witness, and testified that he had a list of the petit jurors who served at the present term of court, and that Tom Belote had been serving as a special petit juror; had served for three days; that he had only served as juror at the present term of court in one case; that Belote was summoned as a special juror, and is not on the regular panel. He was summoned late Wednesday afternoon. The court overruled appellant’s motion to quash the panel, and exceptions were saved. .

The evidence introduced by appellees tended to show that the parties were hauling dirt from the Mal-vern Brick & Tile Company, and it was necessary to cross the railroad tracks of appellant at the main street crossing. They were in a Chevrolet truck and were going north at about 4:30 p. m., and were running between 10 and 15 miles per hour; that they shut off for the crossing, and put on the brakes, and brought the truck to almost a complete stop, and saw the southbound passenger train taking water, and the engine was 12 or 15 feet from the crossing. They saw the engine standing and saw the fireman on the back of the tender; noticed him reaching over to get the water nozzle. The bell was not ringing, but the flagman was standing about in line with the right sidewalk; was on the opposite side of the track from the truck, and was hacking on the telephone post with his flagstick and not looking in the direction of the truck. No signals were given by the operators of the train before starting up, and when the truck was about 30 feet from the track the occupants noticed the train beginning to move. The driver of the truck put on his brakes, and swerved to the right to keep from striking the train. The truck hit the curb and turned over.

Witness testified that no signal had been given from the train, the flagman was not out there, and nothing was done to warn the parties that the train was starting. If the driver had not swerved, the truck would either have struck the signal sign or run in front of the engine. There was nothing the driver could have done to prevent the accident.

Witnesses then described the injuries received, and physicians were introduced who testified as to the injuries. The truck was going down a pretty steep grade, and the driver was using his brakes coming down the street. The driver was looking ahead and saw the signal lights at the crossing’, and knew there was danger. He knew that the crossing was dangerous, but he saw the engine standing and saw the flagman there, and he did not give them any signal. The truck was stopped some distance from the track, but they saw the engine was not moving, saw the fireman on top of the tender, and, as no warning was given, either by the trainmen or flagman, they thought it was safe to cross the track.

The evidence on the part of the appellant tended to show that the engineer stopped the engine even with the water spout, and that the front of the engine was about the edge of the sidewalk; that there was an automatic bell ringing when they came into the station. The employees in charge of the train saw the truck coming down the street, and thought nothing of it until it got within about 20 feet of the train; that the engine was at that time moving, the engineer having received a signal from the fireman. The bell was ringing, and the flagman was in the middle of the crossing, and when the train came in, the flagman was in the middle of the street with his stop sign up. There was nothing to prevent the driver of the truck from seeing the train.

' The evidence of appellees’ witnesses was in conflict with the evidence introduced by appellants as to negligence. Attention will be called to such parts as necessary in discussing the issues.

The jury returned a verdict in favor of William C. Kelly for $100, for Ed Watt for $1,000, and in favor of Tom Helóte for $150. Motion for a new trial was filed and overruled, and the case is here on appeal.

Appellant’s first contention is that the court erred in overruling its motion to quash the panel of petit jurors, and it says that Belote had served and sat as a juror in other cases with the jury that tried his case; that he had associated daily with the jurors, and that this influenced other jurors may be seen because in the Belote caso, the verdict was unanimous, and in the Kelly and Watt cases it was not unanimous. The Belote case, however, was for damages to his car, and the other cases were for personal injuries. The jury might very well agree unanimously as to the value of the car, and they might not all agree as to the amount appellees were entitled to recover for personal injuries.

Appellant quotes from 35 C. J. 333 as follows: ‘‘Where a litigant serves on a jury at a term at which he has a case to be tried by a jury, all of the other jurors with whom he has been serving are incompetent to sit in the trial of his case.”

Appellant’s attorney doubtless thought, when he filed his motion to quash, that Belote was a member of the regular panel. The evidence, however, shows that he was summoned as a special juror and served in one ease. The record is silent as to whether he was summoned for the purpose of serving in that case alone. It does show however that he was not on the regular panel, and that he served in but one case, and it fails to show any association at all with the other members of the panel, and there is no evidence in the record tending to show that any juror who tried this case had associated with Belote at all, or even knew that he had been subpoenaed as a special juror and served in one case.

Appellant also calls attention to note one in volume 35 of C. J. 333, but there is nothing in the evidence in this case tending to show any association or unfair advantage or that any of the jurors who served in this case had at any time served with Belote. It would certainly not disqualify the panel because 'Belote served in one case, when there is not any evidence tending to show that he served with any of the jurors in his case.

Appellant next contends that the court erred in sending the instructions into the jury room after the jury had deliberated some time, with the word “pltf.” in pencil at the left hand top corner of plaintiff’s instruction No. 2, and the word “This” on plaintiff’s instructions Nos. 4, 6, 8 and 12.

It appears that the penciled notations on the margin of the instructions were put there during the argument of counsel with no intention or expectation that the jury would see them. The notations were put there for the convenience of the attorney in making his argument, and no one seemed to think about it, and the attention of the court was not called to it. If the court’s attention had been called to it, or there had been any request to do so, he would doubtless have erased the marks.

Whether appellant’s attorney knew about the marks being there before the instructions were given to the jury is not shown by the evidence. He probably did not know of it, but there is no evidence in the record tending’ to show that they were noticed by the jury or influenced the jurors in any way.

It is next contended that there is no liability under the law and evidence in this case, and that the trial court should have directed a verdict in favor of appellant.

It is true that the train did not strike the truck, but an injury may be done or caused by the running of a train without the train actually striking the person or property. If the appellant was guilty of negligence in the operation of the train at the time, and that negligence injured the appellees, while they were in the exercise of ordinary care, this would be damage done and caused by the running of trains. Section 8562 of Crawford & Moses’ Digest.

It was the duty of the appellees to exercise ordinary care for their own safety, and to look out for the trains, but the evidence on behalf of appellees shows that the engine, was not moving, that the fireman was on the tender, and that the flagmán, whose duty it was to warn travelers, was there and gave no warning’, and there was no warning given by the engine crew before starting the engine.

Persons crossing a railroad track where a flagman is kept, whose dnty it is to warn travelers, and when he is standing at his usual place hut does not give any warning, have the right to assume that they may cross the track with safety. Travelers must exercise ordinary care, and that means such care and precaution as a person of ordinary prudence would use under the circumstances.

It is true that they saw the signal lights flicker, and they would have known the train was there whether they had seen the lights or not, because they saw the engine. They knew the engine was not moving, and, according to their testimony, no signal was given before the engine moved.

The question of the negligence of the appellant and the question of the contributory negligence of the appel-lees was submitted to the jury under proper instructions. Whether one is guilty of negligence or contributory negligence is a question of fact to be determined from the evidence introduced, and, if there is any substantial evidence to support the verdict, this court is not authorized to disturb such verdict.

The crossing at which the injury occurred was where the main street of the city of Malvern crosses appellant’s railroad track, and the travel is considerable, and for that reason, doubtless, a flagman is kept, and any one undertaking to cross when the flagman has indicated that it was dangerous to do so would be guilty of negligence, but to travelers knowing that a flagman was kept at this place, seeing him at his place at the time, the failure by him to give any warning to the travelers would be an invitation to cross.

There was no error in permitting defendant’s witness to be asked on cross-examination questions, the answers to which tended to show that he had failed to perform his duty. The answers to these questions would tend to show the credibility of the witness, and no prejudice could possibly have resulted from admitting this testimony.

Appellant had placed the flagman on the stand and asked him about his performance of duty at the time.

Appellant calls attention to the case of Pugsley v. Tyler, 130 Ark. 491, 197 S. W. 1177, and Railway Co. v. Harrell, 58 Ark. 454, 25 S. W. 117. It is true that you can not establish negligence in any given case by showing that the party was negligent in some other case. The evidence on the part of the appellees must show negligence on the part of the appellant, and, while you can not prove negligence by showing that one was guilty of negligence on a former occasion, one whose constant duty is to warn and protect the public at a place where there is constant travel may be asked on cross-examination, for the purpose of testing his truthfulness or credibility, what his habits have formerly been, with reference to the same matter.

Defendant offered to prove by Mr. Halbert, former city attorney of Malvern, that there was an ordinance requiring people using vehicles or automobiles to stop before going across the Main Street crossing. Court and counsel withdrew from the presence of the jury, and Halbert testified that, when he was city attorney, there was an ordinance which required drivers of vehicles to stop at intersections of streets where there were stop signs, and that during his term as city attorney people had been fined in the mayor’s court for not stopping at the railroad crossing in disregard of the stop sign. Witness also testified that he did not know where the ordinance was, but knew that it was passed and published.

The court refused to admit this evidence. This was not error. Appellees admitted that there was a flagman at this crossing with a stop sign, but that he was not displaying it at the time of the accident. There was no controversy about the duty of the travelers to stop if the sign was displayed, and the ordinance which appellant desired to introduce, according to the evidence, was with reference to stop signs at intersections, and whether there was or was not snch an ordinance would in no way tend to prove negligence on the part of the appel-lees because, according to their evidence, there was no stop sign displayed, and it was conceded that, if the stop sign was displayed, it would he negligence to cross.

The appellant urges a reversal because of the giving of certain instructions by the trial court, and its refusal to give others. There were numerous instructions offered, some given and some refused. It would serve no useful purpose to set them out at length. After a careful examination of the instructions given, as well as those refused, we have reached the conclusion that the instructions as a whole constituted a correct guide, and the court therefore did not err in either giving or refusing instructions.

The judgment of the circuit court is affirmed.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Poole v. Thompson.
    4-2630
    Opinion delivered July 4, 1932.

      E. L. Garter, for appellant.

      Steel .& Edwards, for appellee.
   Butler, J.

James Thompson, a negro, executed the-mortgage sued on covering 100 acres of land in sections 14, 16 and 23 in township 9 south, range 29 west, on October 20, 1921. The mortgage was made to the Conservative Loan Company, and regularly assigned to the appellants.

There was no dispute about the mortgage or about the right of appellants to a .judgment against the mortgagor, James Thompson.

The Bank of Lockesburg held a third mortgage also executed by James Thompson against the same lands, and 120 acres in section 8, to secure the payment of a note for $2,160. This note and mortgage were executed June 7, 1922, and were due October 2, 1922. Thompson made payments on the indebtedness to the Conservative Loan Company, and also on the indebtedness to the Bank of Lockesburg. In. 1928 his indebtedness to the bank had been reduced to $1,000, and he executed a note for this amount.

In February, 1929, Thompson paid to the bank $400, leaving an indebtedness of $600, and on that date executed a note for $600 secured by chattel mortgage, and this mortgage was to secure all indebtedness due the Bank of Lockesburg.

All the lands in the mortgages became delinquent for nonpayment of road taxes due for the years 1921 and 1922, and in 1924 the road improvement district filed suit and a decree was entered in the chancery court and a commissioner’s deed executed in October, .1926. The land was thereafter conveyed to Dell Dritt, who conveyed the same to the Bank of Lockesburg on March 1, 1927.

The appellants, assignees of the Conservative Loan Company, brought suit to foreclose the mortgage executed on October 20,1921. The appellee, Bank of Lockes-burg, filed answer and cross-complaint denying all the material allegations in the complaint and alleging that •it was the owner of the lands described, free from any lien of plaintiffs, and alleged that plaintiff’s mortgages constituted a cloud upon its title and asked that they be set aside.

It was further alleged that the lands described in the complaint are embraced in Road Improvement District No. 3, and were sold for the assessments levied against the lands for the years 1921 and 1922; that suit was brought and a decree entered in April, 1924; the lands were sold to the district, and deed was 'made to the road improvement district in October, 1926; that in December, 1926, the road improvement district sold and conveyed said lands to Dell Dritt, and on the first day of March, 1927, Dell Dritt conveyed the lands to the Bank of Lockesburg.

The appellants filed answer to the cross-complaint alleging the mortgage made to the bank and certain payments thereon, and that said mortgage had never been satisfied; that the purchase of said land by Dell Dritt and the Bank of Lockesburg was for the purpose of redeeming the lands from the improvement district taxes. They further alleged that James Thompson, the defendant, had repaid the Bank of Lockesburg, and that it continued to permit Thompson to remain in possession; that the Bank of Lockesburg was estopped from asserting and claiming the title thereto.

James Thompson and Henrietta Thompson, appel-lees, filed an answer and cross-complaint denying the allegations of the Bank of Lockesburg that it had any deed from the improvement district. Thompson further alleged that he was an ignorant negro farmer, and had been a customer of the Bank of Lockesburg, and had sought its assistance in paying taxes and buying and selling land. It was further alleged in Thompson’s answer that the debt to the bank had been reduced to $600, which was secured by chattel mortgage and that that represented all of Thompson’s indebtedness to the bank. They alleged that in the fall of 1929 they paid the Bank of Lockesburg* the proceeds from the sale of their crop, the amount of which was unknown. They further alleged that they paid the taxes due for 1930 and all former years, and that the bank had never demanded possession; that Thompson was advised by the cashier of the bank not to pay the improvement district taxes.

The hank filed a reply to the answer of Thompsons, denying all the allegations made by them.

There is practically no dispute about the facts at between the appellants and the Bank of Lockesburg, and Thompson did not appeal.

The court entered judgment in favor of appellant, Poole, for $989.79 and E. L. Carter, trustee for $59.81. These judgments were against James Thompson. The court also found that the indebtedness from Thompson to the’ Bank of Lockesburg was $600, and that, as to Thompson, the purchase of the land amounted to a redemption, and that the bank had paid $100 in redeeming the land from the road improvement district, and that Thompson could redeem by the payment of the $100 and the $600 secured by the mortgage, and gave Thompson six months in which to pay said sums.

It was further decreed that, if Thompson failed to pay within six months, the rights of the Bank of Lockes-burg in and to said lands be quieted and confirmed against all the parties. The decree further provided that, if Thompson redeemed the land, Poole and Carter should have the right to have the lands sold for the payment of their respective judgments.

The appellants contend for a reversal of the decree because: (1) The court allowed the Bank of Lockesburg a prior lien of $100; (2) the decree provided that only Thompson had the right to redeem; (3) for the reason that the decree required not only the payment of $100, but the $600 that Thompson owed the bank; (4) for failure to require the bank to exhaust its security against the chattels' embraced in the mortgage, and against the 80 acres of land upon which the bank had a first lien; 5, the court erred in permitting the introduction of the deed from the improvement district.

It will be seen from the statement that there is no controversy about the amount of indebtedness, and there is, as we have already said, practically no dispute as to the facts.

Since Thompson has not appealed, the only question for our consideration is whether the appellants have any rights as against the Bank of Lockesburg.

The mortgages owned by appellant, and which they sought to foreclose, were executed October 20, 1921. The road improvement district taxes were delinquent for the years 1921 and 1922, and suit was brought in 1924 by the road improvement district to foreclose its lien. A decree was entered in its favor in April, 1924, and the lands were sold in May, 1924, and purchased by the road improvement district.

A commissioner’s deed was made to the district in October, 1926, and in December, 1926, the Bank of Lockesburg purchased the lands. The appellant could have, at any time from 1921 up to the time the bank purchased the property, paid the taxes and redeemed the land. They could have protected themselves in this manner, or they could have paid the taxes before they became delinquent. They, however, did not do this. They made no effort to protect their lien, and began no proceedings until July, 1931.

As to the rights of the Bank of Lockesburg and the appellants, the authorities are not in harmony. But the questions-here involved have already been settled by the decisions of this court, and it As therefore unnecessary to discuss other authorities.

In a recent case we said: “The holder of the second mortgage was under no obligation to the holder of the first mortgage to redeem the lands in possession of the mortgagor from their sale for delinquent taxes, notwithstanding the owner was bound to the payment of such taxes by the terms of the first mortgage. The appellant, under his mortgage, could have paid the taxes before the lands were sold as delinquent, and charged them against the mortgagor, and it could have redeemed the lands in the manner provided by the act from the tax sale within the time allowed therefor after such sale. “Appellant makes no showing of having been prevented from either paying the taxes or redeeming the lands by any conduct of the holder of the second mortgage calculated to lull him into security in the belief that such taxes would be paid or redemption would be made for his benefit.” Security Mtg. Co. v. Herron, 174 Ark. 698, 296 S. W. 363. The same principle was announced in the case of Security Mtg. Co. v. Harrison, 176 Ark. 423, 3 S. W. (2d) 59.

The decisions in the above cases settle this case. It is, however, contended by appellant that these cases are overruled by the case of Bartel v. Ingram, 178 Ark. 699, 11 S. W. (2d) 488. There is, however, nothing in that case in conflict with the principles announced in the two cases above mentioned. The facts in Bartel v. Ingram case were wholly different. The case is controlled by the principles announced in the above cases, and the decree of the chancery court is affirmed.


author: Smith, J.

text:
    Leonard v. Trice.
    4-2556
    Opinion delivered July 11, 1932.

      Hal L. Norwood, Walter L. Pope, John W. Moncrief and A, G. Meehan., for appellant.
    • M. F. Elms and W. A. Leach, for appellee.
   Smith, J.

The Northern Road Improvement District of Arkansas County, which embraces about one-half the area of that county, was organized under special act 247 of the 1919 session of the General Assembly (vol. 1, Road Acts, 1919, page 1071). The district constructed and improved 111 miles of highway, of which 48 miles were taken into and became a part of the State highway system, under the provisions of the Martineau Road Law of 1927 (act 11, Acts 1927, page 17). The act creating the district authorized it to borrow money and issue bonds therefor to construct the proposed improvements, and this it did. These bonds are being paid by the State under the Martineau act, supra, hut no provision was there contained for State maintenance of the 63 miles of road which were not taken into the State highway system.

The special act creating the district provides that “The district shall not cease to exist upon the completion of the roads, hut shall continue to exist for the purpose of preserving them and keeping them in repair. ’ ’

While the act contains express authority to issue bonds with which to raise money for construction purposes, this authority does not appear to have been conferred for maintenance purposes.

The 1927 session of the General Assembly, however, made provision for maintenance of roads constructed by improvement districts which were not taken into the State highway system. This authority is found in act 112, Acts 1927, page 312. Section 9 of this act reads as follows: “With the approval of the county court, the commissioners in each district whose roads are not wholly included in the State highway system may annually, as necessary, levy a tax not to exceed one per cent, on the assessed benefits in tbe district, for the purpose of constructing, repairing and maintaining roads of the district which are not included in the State highway system, and for such purpose, in order not to delay such necessary work, such road improvement district may issue and sell certificates of indebtedness, bearing interest at a rate of not exceeding six per cent, per annum, and for an amount not exceeding one annual tax, which certificates shall be and are hereby made negotiable, and shall mature and be made payable within one year after their issuance, and shall constitute a lien and charge against the funds of such district. Provided this section shall not repeal Section one (1) of act 180 of the Acts of the General Assembly of 1923.”

The 1931 session of the General Assembly passed an act numbered 63 (page 171) creating a fund to be known as “County Highway Fund,” paragraphs (g) and (h) of § 1 of this act containing the following provisions in regard to its disbursement:

“(g) From the allotment made to each county, as provided for in paragraph ‘f’, the State Treasurer shall deduct the amount required to pay seventy-five per cent. (75%) of the maturing bonds and interest of all bonds issued by road improvement districts issued since February 4, 1927, or hereafter issued by existing road districts or annexes to existing road districts, and fifty per cent. (50%) of the maturing bonds and interest of all bonds issued by road improvement districts created after the passage of this act. The amounts for retiring-such road district bonds issued by districts of any county shall be deducted from that particular county’s allotment and be placed in the State Treasury to the credit of the respective districts. It being distinctly understood that no part of the allotment from one county shall be used for retiring road district bonds of any other county.

“(h) The entire allotment of each county, where there are no such outstanding road bonds, and the residue due each county where there are such outstanding road bonds, shall, after deducting the respective seventy-five per cent. (75%) and fifty per cent. (50%) of such maturing road bonds and interest, be remitted within ten days (10) after such allotment to the county treasurer of each county for credit to the county road fund, to be disbursed by the county judge of said county for any of the following purposes:” * * *

The third paragraph of § 6 of this act reads as follows: “Road district bonds under the terms of this act shall apply to all road district bonds issued since February 4, 1927, and all road maintenance district bonds in each of said counties, and to the payment of any bonds or coupons for improvement of public thoroughfares issued since February 4, 1927, where such district was organized under act 126 of the Acts of the General Assembly of 1923 and amendments thereto, and under act 183 of the Acts of the General Assembly of 1927 and amendments thereto, or organized under other existing laws.”

Under the authority of § 9 of the act of 1927, swpra, the road commissioners petitioned the county court for authority to levy a tax of one-half of one per cent, of the assessed benefits of the lands in the district for the purpose of repairing and maintaining the roads of the district not taken into the State highway system, and, pursuant to this authority, which the county court granted, the tax was levied. The tax thus levied amounted to $20,966.66, of which $15,176.15 was collected. The balance was not paid by the landowners, and is now delinquent. Upon levying this tax, the commissioners issued, in the name of the district, certificates of indebtedness amounting to $8,221.85, covering that amount of borrowed money.

Under act 63 of 1931, supra, there was allotted to Arkansas County, for the year 1931, the sum of $46,-950.25, of which $40,641.50 was paid to the county treasurer to the credit of the “county highway fund” of that county. The balance of $6,308.75 was paid to the road improvement district by the State Treasurer under the supposed authority of act 63 of the Acts of 1931, supra.

This suit was brought by the county judge of Arkansas County to restrain further payments of the county highway fund to the improvement district, and to recover from the district the payment made. The chancellor granted the relief prayed, and this appeal is from that decree.

The question for decision is therefore whether the certificates of indebtedness issued by the district pursuant to the act of 1927, supra, are maintenance bonds within the meaning of the act of 1931, supra.

We think the legislative scheme as to maintenance of improvement district roads not taken into the State highway system was to provide, when necessary and when authorized by the county court, an annual tax for that purpose not exceeding one per cent, of the better-ments, but that this revenue might be anticipated by the issuance of certificates of indebtedness to be paid out of the revenues when collected. We are also of the opinion that these certificates of indebtedness are not bonds within the meaning of paragraph 3 of § 6 of act 63 of the Acts of 1931.

It is not contended that the improvement district has any bonds issued subsequent to February 4, 1927, unless the certificates of indebtedness referred to are such bonds, and it is our opinion that the word “bonds,” as used in act 63 of 1931, was used in its technical sense, and that the certificates of indebtedness in question are not embraced within that meaning.

Certificates of indebtedness cannot be issued until the authorization of the county court has first been obtained, and their issuance is predicated upon a tax levied for their payment. Certainly these certificates of indebtedness are not to be twice paid, first with the proceeds of the tax levy and again from the county’s part of the county highway fund. Nor is to be supposed that this tax money should first be collected from the landowners and later returned to them when the county had been allotted its proportionate part of the county highway fund.

This one per cent, maintenance tax is levied annually, if at all, and the authorization of the county court must first be obtained in each instance, and certificates of indebtedness may or may not be issued when this authorization has been obtained, but, if and when issued, they are payable out of this annual levy.

The word “bond” is not ordinarily applied to short-time obligations. Bonds are ordinarily issued to cover a loan payable over a period of years, while the payment of the certificates of indebtedness in question was contemplated out of the revenue derived from the tax of a single year, and within one year after their issuance. In other words, the issuance of the certificates of indebtedness was authorized as a temporary expedient whereby the collection of the tax for a single and particular year was anticipated and used in advance of its collection.

Cases such as Arkansas State Highway Commission v. Kerby, 175 Ark. 652, 300 S. W. 377, are cited as authority to support the contention that the terms “bonds and certificates of indebtedness” are used interchangeably, and as being synonymous in the road legislation relating to their issuance and payment.

It was held in the Kerby case, supra, that the Mar-tineau Road Law, authorized payments on the construction cost of the roads built by the various road improvement districts, whether evidenced by bonds or by certificates of indebtedness. But, as was there pointed out, this was true because the purpose of that legislation was to assume and pay the construction costs of the roads constructed by the various road improvement districts in the State, however evidenced.

That holding was reviewed in the case of Gaster v. Dermott School District, 184 Ark. 536, 42 S. W. (2d) 990, and the distinction was pointed out between bonds and other evidences of indebtedness, and the subject need not be again reviewed.

The court below was therefore correct in holding that the improvement district had no rig'ht to have its maintenance certificates of indebtedness paid out of the “county hig’hway fund,” and the decree must therefore he affirmed, and it is so ordered.


text:
    State v. Brooks.
    Crim. 3810
    Opinion delivered July 11, 1932.

      Robert F. Smith and Guy Amsler, for appellant.

      H. K. Toney and E. P. Toney, for appellee.
   Smith, J.

The issues presented on this appeal sufficiently appear from the recitals of the judgment from which this appeal comes. This judgment reads as follows:

“On this day these two causes, being consolidated, coming on to he heard, the State being present by Hon. George H. Holmes, prosecuting' attorney, and the defendants being present by their attorney, E. P. Toney, and both sides agreeing to submit the cases to the court upon an agreed statement of facts, which was done, and, after argument of counsel, the court finds:

“That Will Craig is a resident of Chicot County, Arkansas, and hunted deer in said county without having-paid a State license so to do, but had paid for a Chicot County license.

“That Claud Brooks is a resident of Ashley County, Arkansas, and hunted deer in Chicot County, Arkansas, with dogs, and had not paid State license on dogs but had paid Chicot County license on dogs.

“That both cases arise under the 1923 special act numbered 678, approved March 26, 1923.

“That so much of § 4773 of Crawford & Moses’ Digest, and so much of § 4778 of Crawford & Moses’ Digest as requires a State license on dogs, as well as a State license to an individual, to hunt in Chicot County, Arkansas, was superseded by said special act numbered 678 of the Acts of the General Assembly, approved March 26, 1923, and said special act repealed that part of said sections of Crawford & Moses’ Digest (in so far as.it applied to Chicot County).

“It is therefore by the court ordered and adjudged that the said 19'23 special act, numbered 678, supersedes that part of §§ 4773 and 4778 so far as a State license for dogs or for men to hunt in Chicot County, and that part of said Crawford & Moses’ Digest is repealed.”

The controlling question is the one of law, whether special act 678 of the Acts of 1923 (Special Acts 1923, page 1771) supersedes §§ 4773 and 4778, Crawford & Moses’ Digest, in so far as they apply to Chicot County. The court below held that they did, and we concur in this view.

Another statement of the question is, whether, having taken out a license required by the special act, the defendants were required also to take out a State license to hunt in Chicot County.

Sections 4773 and 4778, Crawford & Moses’ Digest, are parts of act 276 of the General Acts of 1919 (General Acts 1919, page 204) creating the Fish and Game Commission. This is a comprehensive act for the protection of the wild life of the State. Section 4 of this act, which appears as § 4773, Crawford & Moses’ Digest, fixes the State license fees for hunting and fishing. Section 9 of this act, which appears as § 4778, Crawford & Moses’ Digest, makes it unlawful to hunt any deer, etc., with a dog without first procuring a license for each dog so used, for which license the sum of $1.50 shall be paid.

At the 1923 session of the General Assembly, special act 678 was passed (Special Acts 1923, page 1771), which was an act entitled, “An act to increase, propagate, preserve and protect the game and fish of Chicot, Desha and Phillips counties, Arkansas, and for other purposes.” This act provides a comprehensive system for the protection of game and fish in the three counties named, and leaves no doubt that it was intended to supersede the general game and fish law in those counties. The special act 'embraces many subjects comprehended in the general fish and game law, and many of its provisions are similar, if- not identical. This special act was passed prior to the adoption of the constitutional amendment prohibiting the passage of local or special hills, and was upheld as valid legislation in the case of Merritt v. Gravenmier, 169 Ark. 779, 277 S. W. 526, where it was said: “The General Assembly of 1923 enacted still another local statute (Acts 1923, p. 1771) covering Chicot, Desha and Phillips counties, and providing a complete game and fish law for these three counties, with six game commissioners, two from each county, to enforce its provisions. This statute contains a complete scheme for the protection of game and fish and the regulation of taking the same, similar to the general statutes of the .State creating the Pish and Game Commission. This statute provides for license fees similar to the general law for taking game and fish, prescribes open seasons and closed seasons, a daily hag limit and catch, and requires all persons fishing or hunting to pay a license except persons under sixteen years of age.”

Section 5 of special act 678 provides, in separate paragraphs, the fees to he paid in each of the three connties there included. The portion of this section relating to Chicot County reads as follows:

“For Chicot County.

“1. Every person fishing with artificial bait shall pay the sum of one ($1) dollar and ten cents ($0.10).

“'2. Every person a resident of Arkansas and over the age of sixteen years who desires a license to kill any kind of game in accord with the provisions of this act, shall pay an annual license of five ($5) dollars and twenty-five cents ($0.25). Provided, that should such person desire to secure license without the privilege of hunting or killing hear, deer and turkeys, such license shall be the sum of two dollars and twenty-five cents ($2.25). Every person keeping a dog for the purpose of hunting deer or quail shall, before using such dog, secure a license for such dog and pay therefor the sum of one dollar and ten cents ($1.10), as other licenses herein provided for are paid. ’ ’

We think the effect of this special act is to prescribe the license fees to he paid in the counties of Chicot, Desha and Phillips, and that these license fees are not in addition to the fees charged and collected by the State Fish and Game Commission under the general statute, hut are to their exclusion. In other words, to hunt and fish in Chicot County one is required to pay only the fees for hunting and fishing in that county, and is not required to pay the State license fee in addition. The defendants paid the fees required in Chicot County, and are not required to pay any other.

At the 1927 session of the General Assembly an act was passed numbered 160 (Acts 1927, page 556), entitled, “An act to protect and propagate game birds and animals and other wild life, to regulate the taking thereof, and for other purposes.”

This act of 1927 contains various regulations in regard to hunting and fishing which we need not consider, as that act expressly provides that it shall not repeal special act 678 of the General Assembly of 1923 except in so far as it affects the open and closed seasons and bag limits for game and the provisions of the special act in regard to fishing with artificial bait.

As the provisions of the special act have not been repealed in so far as they relate to the charge against the defendants in this case, who have complied with this special act, the judgment of the court below must be affirmed, and it is so ordered.

Mehaeet, J., dissents.


author: Humphreys, J.

text:
    Terbieten v. Columbia Scale Company.
    4-2641
    Opinion delivered July 11, 1932.

      Boy Gean and G. L. Grant, for appellant.

      Clinton B. Barry, for appellee.
   Humphreys, J.

Appellee obtained a judgment for $165 against appellant in the circuit court of Sebastian County, Fort Smith District, for an alleged balance due on the purchase price of a weighing scale purchased by appellee from appellant on order. The scale was sold on the installment plan under written contract, the unpaid purchase' money being evidenced by a note. The contract and note were introduced in evidence. The contract contained the following paragraph:

“You may ship me one Columbia weighing scale, freight prepaid. It is sold to me with the understanding that I may return it to you with or without reason at any time within thirty days from date of arrival of the scale, freight collect, instead of paying the purchase price. Should I not ship it back to you by freight only, within thirty days from date of arrival, I will pay you the purchase price, one hundred and ninety-five dollars. Fifteen dollars per month in equal consecutive monthly installments, the first payable thirty days after date of arrival; the remaining installments on the same date of each month thereafter.”

Appellant failed to return the scale, and, when this suit was brought for the balance of the purchase money, he interposed the defense that the scale was mechanically defective and wholly worthless, relying upon an implied warranty in the sale and purchase of the scale that it was reasonably fit for the purpose for which it was intended.

Appellant offered to introduce testimony showing that the scale was worthless, and of no value, on account of mechanical defects therein, which was excluded by the court over his objection and exception. The objection and exception, however, was not preserved in his motion for a new trial, and therefore its admissibility cannot be determined by this court on appeal. Trumbull v. Martin, 137 Ark. 495, 208 S. W. 803; Blair Milling Company v. Jones, 181 Ark. 1145, 24 S. W. (2d) 319.

Only one ground was assigned by appellant in his motion for a new trial, which is as follows:

“The court erred in peremptorily instructing the jury to return a verdict in favor of the plaintiff.”

The note and contract, with evidence to the effect that appellant did not return the scale, constitutes the record in the case, and, upon the record as made, it was the duty of the trial court to peremptorily instruct a verdict against appellant.

No error appearing, the judgment is affirmed.


text:
    Railway Express Agency, Inc., v. H. Rouw Company.
    4-2639
    Opinion delivered July 11, 1932.

      A. M. Uart%mg and Warner ■& Warner, for appellant.

      D. H. Howell, for appellee.
   Humphreys, J.

This suit was brought by appellee against appellant in the circuit court of Washington County to recover damages growing out of the shipment of a car of strawberries from Mansfield, Arkansas, to Denver, Colorado.

In addition to alleging specific acts of negligence on the part of appellant as grounds for a recovery, appellee alleged appellant’s negligent failure to deliver the berries in as good condition as they were when it received them for shipment.

Appellant filed an answer denying the material allegations of the complaint.

Before the introduction of any testimony, appellee elected to rely upon its allegation of appellant’s common-law liability, and the case was tried and submitted upon that theory, resulting in a verdict and consequent judgment against appellant for $434.60, from which is this appeal.

The testimony introduced by appellee was to the effect that, when the berries were delivered to and accepted by appellant for shipment, they were firm and otherwise in good condition. According to expert inspection, they were U. S. No. 1, but, when delivered to the consignee, they had deteriorated in quality from ten per cent, in some crates to forty-five per cent, in others. This proof raised the presumption under the allegation of common-law liability that appellant had negligently failed in its duty in properly caring for the berries in transit and cast the burden of proof upon appellant to show that the deterioration was not due to any negligence on its part.

Appellant first contends for a reversal of the judgment on the ground that the undisputed evidence- reflects that it properly iced the refrigerator car containing the berries to maintain the temperature therein to preserve the berries, and that the deterioration in quality was the result of rhizopus and leather rot. The United States expert inspector, as well as other witnesses who made an inspection of the berries when they reached their destination, testified that the tape of the recording thermometer in the car showed a final reading of 44 degrees. This thermometer was placed in the car after it was sealed at Mansfield for shipment one foot above the load and eighteen inches back of the door and registered the temperature on the tape attached during the period of transportation. The tape itself was introduced in evidence and inspected by the jury. According to the registration on the tape, the temperature in the car was reduced to 65 degrees by twelve o’clock on the night of the 10th of May to 60 degrees at noon on May 11, to 52 degrees by midnight, and to 44 degrees at noon May 13, when the ear was delivered to the consignee. After leaving Monett, the car was not re-iced until it arrived in Kansas City, at which time the ice in the bunkers was four inches below the top. It was not again re-iced until the car arrived in Pueblo, twenty-four hours later, at which time the ice was twenty-six inches below the top of the bunkers. D. C. Buel testified, as an expert, that, if the berries had been properly cared for in transit, they would have stood up in good marketable condition for six or eight days.

In view of the testimony detailed above, we cannot agree with appellant that the undisputed evidence reflects that it maintained the proper temperature in the car by sufficient icing to preserve the berries. According to the testimony, for the first thirty hours in transit, the temperature remained above fifty degrees and never did get down to 44 degrees until the car reached its destination. The high temperature maintained in the car, together with the fact that the ice in the bunkers was permitted to sink down four inches at one time and twenty-six inches at another before being re-iced, and together with the further fact that the berries would have remained in good marketable condition for six or eight days improperly cared for in transit, are strong- circumstances in contradiction of the testimony introduced by appellant to the effect that it sufficiently iced the car to have preserved the berries in transit. The verdict and judgment are supported by substantial evidence.

The testimony set out above differentiates the instant case from the case of Railway Express Agency, Inc., v. S. L. Robinson & Company, 184 Ark. 660, 43 S. W. (2d) 543, cited and relied upon by appellant as ruling this case.

Appellant also contends for a reversal of the judgment because the trial court erred in refusing to give its requested instructions Nos. 2 and 7. These instructions relate to negligent delay in delivery of the berries, and were properly refused because appellee elected not to rely upon that specific allegation of negligence and introduced no evidence upon that issue,

Appellant also contends for a reversal of the judgment because the court refused to give its requested instructions Nos. 3 and 4. These instructions relate to negligence in failing to furnish proper equipment. These specific allegations of negligence were likewise abandoned by appellee before any evidence was introduced, so the instructions were properly refused. They were not responsive to either the pleadings or testimony introduced in the case.

Appellant also contends for a reversal of the judgment because the court gave appellee’s requested instruction No." 3 relating to measure of damages. The instruction conforms to the law relative to the measure of damages announced in the following cases: C. R. I. & P. Ry. Co. v. Walker, 147 Ark. 109, 227 S. W. 12; M. P. Rd. Co. v. Alma Cash Store, 168 Ark. 823, 271 S. W. 453.

Appellant also contends for a reversal of the judgment because written notice of its claim was not filed within the time specified in the uniform express receipt issued and delivered to appellee by appellant when it received the berries for shipment. The provision provided in the express receipt is as follows:

“Except where the loss, damage or injury complained of is due to delay or damage while being loaded or unloaded, or damage in transit by carelessness or negligence, as condition precedent to recovery claims must be made in writing to the originating or delivering carriers within six months after the delivery of the property, or, in case of failure to make delivery, then within six months and fifteen days after date of shipment.”

The notice given was in the form of a letter and is as follows:

“H. Rouw & Company, Yan Burén, Arkansas.

“Shippers of Fruits & Vegetables, Distributors of Bushel Baskets, Fruit & Vegetable Packages

“Van Burén, Ark., Nov. 9, 1929.

“R. E. Turner,

‘ ‘ Claim Agent Ry. Ex. Agcy.,

“Little Rock, Arkansas.

‘ This is to notify you that car strawberries IC 4843 from Mansfield, Ark. May 10,1929, to Denver, Colo., was damaged account of improper refrigeration and handling in transit.

The exact amount of loss will be determined as soon as possible, and we request you make thorough investigation, as we will file claim against you for loss sustained.

“Tours truly,

“H. Rouw Company,

“By D. C. Buel.

“Mailed Nov. 9, 1929.”

The letter was written and mailed within six months after the delivery of the berries to the consignee, and within time for appellant to have received it before the time expired. D. C. Buel testified that later he notified appellant of the amount claimed for damages. We think the letter complies substantially with the clause in the receipt requiring notice to be given.

No error appearing, the judgment is affirmed.


author: Mehaffy, J.

text:
    Perry County v. Gatlin.
    4-2623
    Opinion delivered July 11, 1932.

      Dean, Moore & Brasil, for appellant.

      Evans S Evms, Wilson & Wilson and Bulloch & Priddy, for appellee.
   Mehaffy, J.

The appellant, Perry County, on June 26, 1931, filed in the chancery court of Perry County the following complaint:

“MOTION POE SUMMARY JUDGMENT AGAINST SHERIFF OF YELL COUNTY, ARKANSAS

‘‘Plaintiff states that:

“Plaintiff is the owner of a valid and subsisting judgment against Morgan Utilities, Inc., in the sum of $10,276.94 obtained in this canse on the first day of September, 1930, which now remains wholly unpaid.

“On or about the.day of November, 1930, the plaintiff caused to be issued by the clerk of this court an execution upon said judgment, which said execution was directed to the sheriff of Yell County, Arkansas. Said sheriff was by said execution commanded to make of the estate of said Morgan Utilities, Inc., the sum of $10,-276.94, with interest at the rate of 4 per cent, per annum from April 22,1930, together with $27.70 costs.

“Said execution was promptly delivered to Baxter Gratlin, who was then sheriff of Yell County, but the said Baxter Gratlin has wholly failed and refused to return said execution to the clerk of this court, and plaintiff is therefore entitled to summary judgment against said Baxter Gratlin, and his bondsmen, J. W. Lewis, J. W. Wilson, Lynn Wilson, and C. C. Sharpe, in the sum of $11,577.77, which is the amount called for in said execution plus 10 per cent, penalties.

“A certified copy of the bond of the said Baxter Gatlin, as the former sheriff of Yell County, and signed by said J. W. Wilson, Lynn Wilson, J. W. Lewis and C. C. Sharpe, is filed herein, marked Exhibit A and made part hereof.

“Wherefore plaintiff prays that it be given summary judgment against Baxter Gatlin, J. W. Wilson, Lynn Wilson, J. W. Lewis and C. C. Sharpe in the sum of $11,577.77, together with any and all other legal and equitable relief to which plaintiff may be made to appear entitled, whether specifically herein prayed for or not.”

A copy of the official bond of Baxter Gatlin as the former sheriff of Yell County, principal, and J. W. Wilson, Lynn Wilson, J. W. Lewis and C. C. Sharpe as sureties is.attached.

The motion for summary judgment against the sheriff of Yell County,- Arkansas, and his bondsmen, above set forth, was filed in the 'chancery case of Perry County, plaintiff, against S. R. Morgan et al., defendants, in the Perry Chancery Court, on the 26th day of June, 1931.

On that day the plaintiff in that case, tie appellant here, caused the clerk of the Perry Chancery Court to issue the following summons requiring Baxter Gatlin, «T. W. Wilson, Lynn Wilson, J. W. Lewis and C. C. Sharpe to answer the summary motion above set forth:

“IN THE CHANCERY COURT OF PERRY COUNTY, ARKANSAS

“Perry County...Plaintiff, v. No. 1006

“S. R. Morgan et al..Defendants.

“The State of Arkansas to the sheriff of Yell County:

“You are hereby commanded to summon Baxter Gat-lin, J. W. Wilson, Lynn Wilson, J. W. Lewis, C. C. Sharpe to answer in twenty days after the service of this summons upon them a complaint filed against them by Perry County in the chancery court of Perry County, Arkansas, and warn them that same will be taken for confessed; and you will make due return of this summons on the first day that said court is in session after ten days after the issuance hereof.

“Witness my hand and the seal of this court this '26th day of June, 1931.

“J. R. McBath, Clerk.”

This summons was directed to the sheriff of Yell County and was sent to him or delivered to him. It was served by the sheriff of Yell County in Yell County upon each of the appellees on the 6th day of July, 1931, as shown by the following return which was filed in the office of the clerk of the Perry Chancery Court on the 17th day of July, 1931.

“State of Arkansas, County of Yell.

“On the sixth day of July, 1931, I have duly served the within by delivering a copy, and stating the substance thereof, to the within named Baxter Gatlin, J. W. Wilson, J. W. Lewis, Lynn Wilson and C. C. Sharpe,-as I am herein commanded.

“Buford Compton, Sheriff,

“By J. C. Caviness, D. S.”

On July 17th, appellees filed a petition for permission to appear for a special purpose. The petition was granted, and appellees filed the following motion to dismiss petition for summary judgment:

“MOTION TO DISMISS MOTION FOB STTMMABY JUDGMENT

“Comes now Baxter Gatlin, J. W. Wilson, J. W. Lewis, C. C. Sharpe and Lynn Wilson, by permission of this court, for the special purpose of this motion only, and move the court to dismiss the motion for summary judgment filed in this cause, and to quash the writ issued thereon, and for grounds state:

‘ ‘ That the cause of action, if any, of plaintiff in said summary proceeding, arose in Yell County, and that the venue is wrongfully laid in Perry County, Arkansas.

“That plaintiff obtained the issuance of summons for your petitioners from the clerk of the court, directed to the sheriff of Yell County, where service was had.

“Your petitioners pray this court to dismiss plaintiff’s motion and quash the writ issued thereon for want of jurisdiction.

“Wilson & Wilson,

“Solicitors for Petitioners.”

The court sustained appellee’s motion to dismiss, to which ruling of the court the appellant objected and saved its exceptions, and the case is here on appeal.

Appellee first contends that the case should be affirmed because appellant did not comply with rule IX. Appellant made a general statement of the issues, but, even if insufficient, the abstract by the appellees supplies this deficiency.

It is contended by the appellee that the Perry County Chancery Court had no jurisdiction because the defendants lived in Yell County, and were all served in Yell County, and they cite Milor v. Farrelly, 25 Ark. 353. That was a case brought in the Pulaski Circuit Court, and Milor was sheriff of Sebastian County, and the court said:

“The law under which, these proceedings were had is silent as to where the motion should be made, and as nothing can be taken by intendment, and as the general law of the State provides that suits he commenced in the county where the defendant resides or may be found, and as the remedy created is against the securities as well as the sheriff, and as only three days’ notice is required, we cannot place a construction upon the statute which would require parties living in one part of the State to appear before the circuit court of a distant county upon only three days’ notice, especially when such, a construction can only he made by supplying by intendment what the statute does not express.”

In the case of Smith v. Drake, 174 Ark. 715, 297 S. W. 817, in discussing the jurisdiction of the court, where judgment was issued on an execution in one county, and served upon the sheriff and the sureties on his bond in another county, we said: “The circuit court of Jackson County had jurisdiction in this case. There was no suit pending in any other county, and, to hold that the Jackson Circuit Court, the court out of which the execution issued, did not have jurisdiction, would be to deprive the judgment plaintiff of the. remedy given to him by statute.”

The same may be said in this case. This judgment was in the court in Perry County, and, unless the judg’ment creditor can file his motion in Perry County, where the judgment is, he would be deprived of the remedy given him by statute. We therefore hold that the court in Perry County had jurisdiction, and that it is the only court where a motion for a summary judgment against these defendants could be filed. There is no judgment in any other court.

“In most of these States, proceedings for the enforcement of the officer’s liability are of a summary character. No new or independent action need be commenced. A motion may be made in the suit in which the execution issued, and a judgment obtained therein against the officer and his sureties for the penalty prescribed by statute.” 3 Freeman on Executions, 368; Smith v. Drake, supra.

In a case referred to by the appellee, Edwards v. Jackson, 176 Ark. 107, 2 S. W. (2d) 44, the question we have before us now was not involved. That is a case where a suit was brought in Pulaski County against the sheriff of Montgomery County, his deputy, and members of his posse, and the sureties on his official bond for damages for the alleged wrongful act of the sheriff, and wilful, wanton and negligent killing of her husband, Carl Edwards, in Montgomery County, Arkansas.

It will be observed that this was an original independent suit against the sheriff and the sureties on his bond, and the statute expressly provides that suits of this character must be brought in the county where the cause of action, or some part of it, arose.

This case, as to procedure, is controlled by the case of Smith v. Drake, supra.

The court erred in sustaining the motion to quash service and in dismissing the motion.

The decree of the chancery court is reversed, and the cause remanded with directions to overrule motion of appellees, and permit them to plead, and to proceed with the trial of the case according to law, and not inconsistent with the principles herein announced.


text:
    Life & Casualty Insurance Company v. Dunham.
    4-2680
    Opinion delivered July 11, 1932.

      John A. McLeod, Jr., and H. Jordan Monk, for appellant.

      A. G. Meehan and John W. Moncrief, for appellee.
   Mehaffy, J.

The appellee, Alma Dunham, commenced this action in the Arkansas County Circuit Court against the appellant, Life & Casualty Insurance Company of Tennessee, for the recovery of $435 alleged to be due her from appellant, under a policy of insurance, written on the life of her son, Theodore Clemons. The policy was issued under the industrial plan, and did not require a medical examination prior to its issuance. The application was signed at Stuttgart, Arkansas.

The insured was an inmate of the State Hospital for Nervous Diseases, and it is contended by appellant that he was there as an inmate at the time the application purported to have been signed. The policy is dated in March, 1931. The insured was paroled from the asylum March 20,1931, and was returned in April, 1931, and died there from general paralysis, caused by syphilis, in June, 1931.

The appellant, in its answer, denied the material allegations of the complaint, and alleged that there was fraud on the part of the insured in obtaining the policy sued on by reason of misrepresentations as to health. It alleges the insanity of the insured at the time the policy was issued, and, as a further defense, pleads a specific provision of the policy that, should the insured die within two years of the date of the policy, and had, before its date, been treated for a serious disease by a physician, the company would only be liable for the amount of the premiums paid, which it alleged was $3.75, and it tendered that amount in court. The appellant also charged that the policy was issued and delivered through fraud of the said insured, and upon false and fraudulent misrepresentations, warranties and statements of the applicant.

After the evidence was introduced, attorney for appellant stated that they had pleaded fraud in the answer, but they now waive that, and state that no one perpetrated any fraud in obtaining the insurance on the deceased, Theodore Clemons.

The case was tried before a jury, resulting in a verdict in favor of appellee for the full amount stated in the policy. Motion for new trial was filed, which was overruled by the court, and the case is here on appeal.

It is contended first by the appellant that the court erred in its refusal to give instruction No. 1, requested by it. No. 1 reads as follows: “You are instructed to find for the plaintiff in the sum of $3.75.”

The appellant contends that Theodore Clemons, the insured, had been treated by a physician for a serious disease and complaint before the date of the policy, and that he died from said disease at the State Hospital for Nervous Diseases within two years from the date of the policy.

The undisputed evidence shows that Curling, the agent of appellant, solicited the insured.

Mrs. Alma Dunham, the appellee, and the mother of the insured, testified that she had been acquainted with Mr. • Curling some time before this insurance was taken out; he had been coming there collecting on other policies, and he asked witness every time he saw the boy to let him write some insurance on him; that she did not know that he could get insurance, because he had been hurt; that he fell from a building in Little Rock and injured himself, and she did not think she could get any insurance on Mm. Mr. Curling, the agent, said he believed he could, and that he would take it up with the insurance company right away. Curling had been going to Mrs. Dunham’s place for some time, he knew the insured, knew his mother, and knew that he had been in the insane asylum. He also knew that the insured had been seriously injured by falling from the third story of a building in Little Eock, and she told Curling that he was very nervous and had been put in the hospital, and that he had better have him examined. She told him she would keep the premiums paid up, as she had two other ■boys with insurance in the same company, and, after she told him this, he wrote the insurance.

It therefore appears from the undisputed testimony that the insured had fallen from the third story of a building, and that the agent knew this, and knew that he had been an inmate in the hospital for nervous diseases, and therefore knew that he had been treated by a physician for a serious ailment. There is no positive evidence that the agent knew he had syphilis, and the probability is that the insured himself did not know what his ailment was. The mother of the insured appears not only to have told him all she knew about the physical and mental condition of the insured, but she told the agent, after telling about his injuries and ailments, that he had better have him examined.

It is true that one might know that a person was in the insane asylum without knowing that he had any serious physical ailment, but certainly one could not know that a person in the insane asylum had fallen from the third story of a building without knowing that he had been attended by a physician for a serious complaint. After the agent knew these things, he did not ask the insured any questions about his health or about doctors, and he did not ask the mother any questions about the insured’s health. The agent himself wrote the application, and the insured signed it, but did not read it. The answers in the application were written by the agent, and not by the insured. The application was signed, and Mr. Curling delivered the policy later. The insured was working about the hotel, which belonged to Alma Dunham.

The manager of the company was with Curling when the policy was delivered. When it was delivered, neither the insured nor witness read it.

The evidence of appellee concerning the writing and signing of the application and the delivery of the policy, and her evidence as to what the agent knew about insured’s condition are not only undisputed, but they are corroborated by other witnesses.

It is true that the insured was treated before the date of the policy for a serious complaint by a physician, but it is also true that appellant’s agent knew of his falling, and of his treatment in the insane asylum. Mrs. Dunham was asked if she knew whether or not a year before that time, or longer, he was afflicted with syphilis.^ She answered that she did not know, but she knew and told the insurance agent that he had been hurt.

It conclusively appears that, at the time the application was taken, and at the time the policy was delivered, appellant’s agents knew that the insured had had a serious complaint, and that he had been treated at the Hospital for Nervous Diseases. If the insurance company knew before the date of the application that insured had been attended by a physician for any serious disease or complaint, whether it knew what the specific complaint was or not, would make no difference. The insurance company did know that he had been attended by a physician for a serious disease, and, if it wished to know what specific complaint, it should have made inquiry.

The record shows that the agent who wrote the application and delivered the policy knew the condition of the insured; knew that he had been in the hospital, and knew that he had had a fall from a third story of a building, but he did not ask the insured any questions, but wrote the application himself with a knowledge of all the facts detailed above.

We have held that knowledge affecting the rights of the insured which comes to the agent of the insurance company, while he is performing the duties of his agency, in receiving applications for insurance and delivering policies, becomes the knowledge of the company, and the insurance company is hound thereby in spite of a provision in the policy to the contrary, where the agent who solicited the business was charged with the duty of asking the applicant questions concerning his physical condition. Southern Insurance Co. v. Floyd, 174 Ark. 372, 295 S. W. 715.

There is no dispute about the fact that Mr. G-urling, the agent of the company, had knowledge of the physical condition of the insured, while he was performing the duties of his agency in receiving the application and delivering the policy, and the agent in this case was charged with the duty of asking applicant questions concerning his physical condition. The undisputed evidence also shows that the agent brought this policy to the insured and said, at the time, that it was for $435, and that it was all right, and they relied on what he said.

It is apparent that the insured and his mother were led to believe by the agent that they were getting a policy for $435. The undisputed evidence shows that, when the policy was delivered, appellee asked the agent, and the agent said the company had agreed to let him write the boy up, and they took the policy, and kept the premiums paid up. ‘$435 is the amount ag’reed upon, and neither insured nor his mother read the policy. The agent brought it and said it was for $435.

In speaking of insurance contracts, this court said, speaking through Chief Justice Hill: “Insurance contracts are not, as a rule, made like other contracts. They are prepared by one party to the contract, and the other party thereto has no opportunity to deal with his contractor as to the terms, conditions, and limitations of the contract. The only option open to him is to contract or not to contract, and when he contracts it is upon terms prepared in advance by tbe other party, and reduced to printed form, which is sought to be as unchangeable as the laws of the Medes and Persians.

“To procure these contracts of insurance, agents are sent forth whose duties are limited to procuring insurance, and various clauses are inserted in the policies, and in the application therefor, disabling the agent from binding the company in any manner not stipulated in the policy. Can one party to a contract thus prevent himself being bound by the ordinary principles governing principal and agent? If a man sends forth an agent and clothes him with authority to do certain acts, his acts within the scope of that authority are binding- upon the principal; and moreover, if he clothes him with apparent authority to do certain acts, and privately instructs him to the contrary, and the agent proceeds to do those acts within the apparent scope of his authority, but contrary to his private instructions, still the principal is bound. When an agent does anything within the real or apparent scope of his authority, it is as much the act of the principal as if done by the principal himself.” People’s Fire Ins. Co. v. Goyne, 79 Ark. 315, 96 S. W. 365, 16 L. R. A. (N. S.) 1180, 9 Ann. Cas. 373.

In the instant case the company’s agent was dealing with a person who, he not only knew, had been in the insane asylum, and had been seriously hurt and was very nervous, but the agent did not ask him a question. He wrote the application himself. He not only knew these facts, according to the evidence of appellee, and knew that the insured was insane, but he knew that the mother with whom he dealt did not read the policy, and probably would not have understood it if she had. And these parties were informed, and the agent of the insurance company was bound to know that they believed, that the insurance policy was for $435, and that this amount would be payable upon the . death of the insured.

Appellee also offered in evidence the testimony of F. W. Dunham, the husband of Alma Dunham, but this was excluded from the jury. He was acting as agent in paying the insurance premiums, and, since he was paying the premiums as agent of the insured, the statement of the agent was competent. Dunham stated that he asked the insurance agent if the insurance was any good, and he said, if the hoy should die that night, his mother would get every dollar of it, and witness then paid him the premium.

Appellant states that, since the defense of fraud was waived, the sole defense was the limitation in the policy. If the insurance agent, knowing the facts detailed above, procured the application and delivered the policy, after having led the insured to believe that he was getting a policy for $435, this would constitute a waiver of the limitation in this policy. This, however, is a question of fact for the jury under proper instructions, and it is for the jury to determine whether there was a waiver or» an estoppel. If there was, plaintiff is entitled to recover. If there was not, then she is entitled to recover $3.75 only.

Objection was also made to the evidence as to the application. We think, under the circumstances in this case, this evidence was competent because it tended to show that the insurance company’s agent did not rely on anything said by either the insured or his mother, and, if appellee’s testimony is true, led- them to believe that they were getting a policy for $435.

Appellant next contends that the instructions are erroneous and conflicting. The instructions are in conflict, but we think it is unnecessary to set them out here. The only question, so far as this record is concerned, is whether the insurance company waived the provision in the policy, or is estopped from setting it up, and, as we have already said, these are questions of fact for the jury. There will be no difficulty in the trial court’s properly instructing the jury when the case is tried again.

For the error in giving conflicting instructions, the judgment is reversed, and the canse remanded for a new trial.

Mr. Justice Smith concurs.


author: McHaNey, J.

text:
    Sovereign Camp, Woodmen of the World, v. Condry.
    4-2631
    Opinion delivered July 11, 1932.

      H. M. Jacoway and Lee Miles, for appellant.

      A. G. Meehan and John W. Moncrief, for appellee.
   McHaNey, J.

Appellees are the beneficiaries in a policy of life insurance or beneficiary certificate issued by appellant on the life of George C. Condry, January 20, 1928, in the sum of $1,000. Appellant is a fraternal beneficiary association with a sovereign camp and local camps. Members are initiated into- the local camps by a ritualistic form. On or about said date George C. Condry made application to and became a member of England local camp No. 37, and a beneficiary certificate was issued to him by appellant. He paid his monthly dues and assessments to the Sovereign Camp for about three months, when he was stricken with influenza, which later developed into tuberculosis, and from which he died on July 15, 1931. After he was taken ill the local lodge at England paid all his dues and assessments to appellant with its knowledge, consent and approval up to and including October, 1930. Monthly assessments became due the first of each month, and, if not paid before the last of the month, the policy, under the constitution and by-laws, was .suspended and could be reinstated only by payment of delinquent assessments and furnishing a certificate of the applicant’s then good health. The monthly assessment for November, 1930, was not paid either by the local camp or by said Condry, and in mailing his report about December 1, 1930, to appellant, the clerk of the local camp returned Condry as delinquent and his policy stood suspended.

On February 20, 1929, the clerk of the local camp wrote Condry the following letter: “At a meeting of the camp Monday night, a collection was taken for your benefit and the sum of $5 was collected, which I inclose. Tt was also motioned and carried that the camp pay your dues for you until you get able to work and take care of them yourself.”

According to appellees’ testimony the clerk promised to notify Condry in ample time, if the camp decided to discontinue payments for his account, to permit him to continue them and keep his insurance in force; also that tbe above letter was sent to appellant at its borne office and its receipt was acknowledged.

On December 11, 1930, tbe clerk of the camp wrote Condry that tbe charity fund was exhausted, and that they would not be able to keep up his insurance longer. In this letter he said: “I would suggest that you do not let this lapse. It is $0.85 per month.” This letter was misdirected to Condry at Vallier, Arkansas, whereas his known address was Humphrey, and as a result he did not get it until the latter part of January. Thereupon, his wife caused to be sent appellant at its home office money order for $1.70 covering two months dues. Appellant returned same on the ground that it required a certificate of good health from a physician. Later she sent another money order for $0.85, but this was also refused. When Mr. Condry died July 15, appellees thereafter in apt time made proof of death, demanded payment, which was refused, and this suit followed, resulting in a verdict and judgment for appellees.

For a reversal of the judgment against it, appellant first insists that the court should have directed a verdict in its favor at its request. We do not agree with appellant in this regard. Of course, the application, the constitution, the by-laws and the certificate constitute the contract. And it is provided that failure of the member to comply with the laws of the society makes his beneficiary certificate void. He is required to pay his assessments at a certain time, that is, before the end of the month, and, as we understand it, appellant defended on this ground alone that he failed to pay his dues for November, 1930, and failed to furnish a certificate of good health when he did send in his dues, so that the policy remained lapsed and so continued to his death. These are valid requirements, and no officer is permitted to waive them. Even so-, it does not prevent appellant from pursuing such a course of conduct as to mislead the insured to his detriment and thereby estop itself from insisting on a forfeiture. At least from January, 1929, (and perhaps sooner) the local camp at England paid all of Condry’s assessments to keep his policy in force np^ to November 30, 1930, under a written promise to continue to do so “until you get'able to work and take care of them yourself.” And under the further verbal agreement that, if the camp should at any time discontinue such payments, he would be notified in time to continue them himself before the certificate or policy had lapsed or been forfeited. This latter promise or agreement is corroborated by the letter of the clerk of December 11,1930, to him in which he said: “I would suggest that you do not let this lapse. It. is $0.85 per month.” Why would' the clerk suggest that he not let it lapse, if it had already lapsed? Evidently the clerk was under the impression at that time that the November assessment had been paid, and that he was notifying him in time to pay the December assessment in accordance with his promise to do so. Of course, the local camp was under no binding obligation to perform a gratuitous service such as payment of the member’s dues for any definite time. It could have discontinued to do so at any time, but it could not do so without giving the insured reasonable notice so that he might prevent a forfeiture of his policy. For a period of nearly two years the local camp paid the dues from its charity or home camp funds with the knowledge of appellant and with full knowledge of the fact that the insured was afflicted with tuberculosis. Having adopted and consented to this manner of paying Condry’s assessments, and for such a length of time, it would be unconscionable to permit it suddenly to change such conduct without reasonable notice to him in an effort to avoid liability. No notice of any kind was given him until after the policy had been declared forfeited or lapsed, and that upon the report of its own agent. In Sovereign Camp W. O. W. v. Newsom, 142 Ark. 158, 219 S. W. 759, we held that the local camps or councils in associations such as appellant, and its officers to whom it committed the duty of making collections and remittances, are to be considered as the agents of the governing body, and that such agency is subject to the ordinary rules applicable to agencies of the same general character in the ordinary life insurance business. And to the same effect see Sovereign Camp, W. O. W., v. Pearson, 155 Ark 328, 244 S. W. 344. In the latter case we said: “There was established a course of conduct on the part of the local clerk which was acquiesced in and approved by the Sovereign Camp, which was calculated to mislead Pearson and cause him to believe that the Sovereign Camp was not insisting on the certificate of good health; and to cause him to make his payments believing that he was in good standing with the society. This conduct was such as to estop the appellant from insisting, under the doctrine of the Newsom case, supra, on the forfeiture of the policy because of the non-compliance with the by-laws as to reinstatement. See also Sov. Camp v. Richardson, 151 Ark. 231, 236 S. W. 278; A. O. U. W. v. Davidson, 127 Ark. 133, 191 S. W. 961. Cases from other jurisdictions are cited to the same effect and relied on in appellee’s brief, but it is unnecessary to cite these, as the case is controlled by the doctrine of estoppel announced in Sov. Camp W. O. W. v. Newsom, supra.”

So here appellant’s agent adopted a course of conduct which was acquiesced in and approved by it, which was not only calculated to deceive and mislead Condry, but which did actually do so, by causing him to believe that they would pay his dues, but, if not, would notify him in ample time to pay them himself and prevent a forfeiture. Such conduct was sufficient to estop appellant from insisting on a forfeiture for his failure to pay his November assessment. Nor was it incumbent on Con-dry to continue from month to month to make tender, as the law does not require the doing of a vain or useless thing. Refusal of appellant to accept on two different offers to- pay was sufficient to show that further tenders would be useless.

Complaint is also made of action of the court in giving appellee’s instruction No. 2 over its objections, and of the court’s refusal to give its requested instruction No’. 2. Appellant does not set out in its abstract all the instructions given and refused. We cannot know what they are without going to the record. It may be that its requested instruction No. 2 was covered by other instructions given, and we will so presume in their absence from the abstract. The instruction objected to is a correct declaration of the law as applied to the facts in this case, and is in accordance with what we have heretofore stated.

We find no error. Judgment affirmed.


author: Lamar WilliamsoN, Special Judge.

text:
    Buzbee v. Hutton.
    4-2723
    Opinion delivered July 11, 1932.

      John E. Coates, Jr., and Chas. W. Mehaffy, for appellant.

      Bose, Hemingway, Cantrell & Loughborough and Bonham & Fulh, for appellee.
   Lamar WilliamsoN, Special Judge.

This action is to test the constitutionality of act No. 21 of the General Assembly approved February 16, 1931, entitled, “An Act to Make the Office of Separate Chancery Clerk Appointive Instead of Elective, and for Other Purposes.” This issue is presented to the court by appellant having undertaken to qualify under the rules of the Democratic party as a candidate for nomination at the primary election to be held August 9, 1932, for the office of clerk of the Pulaski Chancery Court in the manner and within the time prescribed by the rules of the party. The Democratic County Committee declined to permit the' appellant to comply with the party rules for the purpose of becoming such candidate on the ground that no such office would be in existence to be filled at the general election because of the provisions of said act No. 21, § 1 of which provides:

‘ ‘ Clerks of chancery courts in counties in which the circuit clerk is not ex-officio chancery clerk shall be appointed by the chancellor of the district in which the county is located, and shall hold office for the term of the chancellor making such appointment. Said clerk shall receive an annual salary of forty-two hundred ($4,200) dollars, payable in equal monthly installments and such clerk may appoint or select his own deputies. No appointment shall be made under this act until the term of office of the present incumbents shall expire or the office become vacant.”

Appellant then, in apt time, filed in the Pulaski Circuit Court his petition for mandamus making the chairman and secretary of the Pulaski County Democratic Central Committee defendants. These defendants plead act No. 21 in justification of their refusal to permit the appellant to qualify as a candidate. To this pleading appellant demurred 'by alleging that said act No. 21 was void because of the provisions of Amendment No. 14 to the Constitution providing that the General Assembly shall not pass any local or special act. The lower court overruled appellant’s demurrer, and, appellant declining’ to plead further, dismissed his complaint resulting in the present appeal.

The court is of the opinion that the judgment of the lower court should be affirmed.

It is the well known rule of this court that statutes are presumed to be framed in accordance with the Constitution, and should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable. Dobson v. State, 69 Ark. 376, 378, 63 S. W. 796. All doubts as to the constitutionality of a statute are therefore to be resolved in favor of the statute. In Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844, this court approved the decision of the Supreme Court of Missouri in State ex rel. v. Yancy, 123 Mo. 391, 27 S. W. 380, where the court used the following language which expresses well the principle controlling numerous decisions of this court: '‘The presumption is in favor of the constitutionality of the act, and, before this court would be justified in holding it invalid because in conflict with the Constitution, it should be satisfied of its invalidity beyond a reasonable doubt.”

The majority of the court is of the opinion that the question is determined by the decision of this court in Waterman v. Hawkins, supra, which announces as the controlling principle: ‘ ‘ Statutes establishing or abolishing separate courts relate to the administration of justice,. and are not either local or special in their operation. Though such an act relates to a court exercising jurisdiction over limited territory, it is general in its operation, and affects all citizens coming within the jurisdiction of the court.

“ ‘Whether an act of the Legislature he a local or general law must be determined by the generality with which it affects the people as a whole, rather than the extent of the territory over which it operates; and if it affects equally all persons who come within its range, it can be neither special nor local within the meaning of the Constitution.’ State v. Yancy, supra. In the case last cited, the Supreme Court of Missouri held that, under a provision of the Constitution identical with the provision of the Constitution of this State now under consideration, neither an act of the Legislature establishing a separate court, nor one detaching the clerical duties of that court and creating a separate clerk of the court, were local or special acts within the meaning of the Constitution.” See also State ex rel. v. Woodruff, 120 Ark. 406, 179 S. W. 813; State v. Hughes, 104 Mo. 459, 16 S. W. 489; State v. Shields, 4 Mo. App. 259; State v. Etchman, 189 Mo. 648, 88 S. W. 643; Greene County v. Lydy, 263 Mo. 77, 172 S. W. 376, Ann. Cas. 1917C, p. 274.

The full force of this principle has been recognized in even the more recent decisions of this court. For instance, in the opinion in Cannon v. May, 183 Ark. 107, 35 S. W. (2d) 70, the court is careful to remark: “In this opinion in the case of Webb v. Adams, supra, (180 Ark. 713, 23 S. W. (2d) 617) on rehearing, we further said: ‘In this connection we do not wish to be understood as impairing in the least the force of the decisions in State v. Crawford, 35 Ark. 236, which holds that a statute settling accounts between the State and certain parties is a general and not a special act; and in Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844, holding that statutes establishing or abolishing separate courts relate to the administration of justice, and are not either local or special in their operation. This is in recognition of that principle of State sovereignty under which the State, through its Legislature, may protect its own interest, and by virtue of it the Legislature may treat every subject of sovereignty as within a class by itself, and bills of that kind are usually held to be general and not local or special laws. There are cases where the State, by its Legislature, commits the discharge of its sovereign political functions to agencies selected by it for that purpose, and such acts have usually been held to be general acts’.”

The court again approved the Missouri decisions hereinbefore referred to by stating: “The Supreme Court of Missouri based its holding on the principle that the judicial system of the .State was a whole, and that acts dealing with the courts have been usually held general, although not applicable to every court of like nature in the State. The ruling proceeds upon the doctrine that the judicial department of the State is a ‘composite unit ’. ’ ’

The clerk of the Pulaski County Chancery Court, under the statutes of this State, is a very vital part of the court organization. Without him there is no court. He is required to perform numerous duties pertaining to judicial functions as well as many administrative matters of the court. Act No. 21 therefore deals directly with the necessary functions of a court for the entire State of Arkansas, and is a general act.

Furthermore, a study of the decisions hereinbefore cited establishes the well-recognized principle that, where there is a specific grant of power confe'rred by the Constitution upon the Legislature upon any certain or particular subject, an act passed in pursuance of such grant will not be held unconstitutional upon the ground that it is local or special legislation. See also Kenefick v. City of St. Louis, 127 Mo. 10, 29 S. W. 241; Spaulding v. Brady, 128 Mo. 658, 31 S. W. 104.

Section 15, article 7 of the Constitution is a specific grant of power conferred by the Constitution upon the General Assembly of Arkansas to establish chancery courts. As will be hereinafter mentioned, the Pulaski County Chancery Court has always been treated as unique since its original creation. The Legislature, not being expressly prohibited by the Constitution, is fully authorized to create separate courts of chancery. This necessarily infers the power to provide its complete organization, and there is no constitutional inhibition against providing separate clerks for chancery courts. The clerks of chancery courts are at present the result of legislation and are not constitutional officers. See § 2196, Crawford & Moses’ Digest. If the Legislature has the power to create the office of chancery clerk under the provisions of the Constitution, it is not unreasonable to conclude that it also - has the power to provide the manner of filling that office, its tenure, and all other necessary provisions to make the organization of the court complete and effective. We therefore conclude that act No. 21 is a general act, not only because it deals exclusively with the functions of a court of Statewide jurisdiction and importance, hut because the Legislature in passing the act in question was exercising a specific grant of power conferred upon it by the Constitution of the State.

The majority of the court is also of the opinion that the act is' not local or special because it is general in its terms, and is not based upon an unreasonable or arbitrary classification. The act affects every one alike coming within its general terms, and is not to be nullified merely because under present conditions only the county of the seat of the State government happens to, fall within the general classification.

A review of the history of the Pulaski County Chancery Court discloses that both the Constitution makers of the State and her General Assemblies have always considered this court as being within a classification unique to Pulaski County. It was created by the act of January 15, 1855, as amended by act of January 13, 1857, under the provisions of the Constitution of 1836. The distinctive classification of this court was recognized in the Constitution of 1874 by the provisions of § 44 of article 7. It was recognized by the G-eneral Assembly as a court of special distinction in act No. 106, approved April 1, 1885, which created the first chancery district of the State, § 18 of the act reciting: “That, inasmuch as the State will necessarily have business, and be interested in cases arising within the jurisdiction of the chancery court of Pulaski County, where the seat of government is situated, the said court shall be provided with a court room and clerk’s office, for the accommodation of said chancery court, in the State House building. ’ ’

Being the seat of the State government, this court exercised jurisdiction over the constitutional officers of the State, and the court may well take judicial knowledge of the fact that every citizen of the State is interested in a large body of the decisions of this court which are applicable to well nigh every department of the State government and organization. Inasmuch as the clerk of this court is exclusively a judicial officer, it cannot be said to be inappropriate that he shall be treated differently from the other clerks of the State who are not exclusively judicial officers. Many cogent reasons for the classification adopted by act No. 21 ■ are suggested in able argument of counsel and come to mind, but suffice it to say that the majority of the court are of the opinion that the classification adopted by the Legislature cannot be said to be either unreasonable or arbitrary.

For either of the several reasons suggested, the judgment of the lower court is correct, and it is therefore affirmed.

Mr. Justice Mehaeey, having certified his disqualification, did not participate.

Hart, C. J., and Kirby, J., dissent.