author: Smith, J.

text:
    Missouri Pacific Railroad Company v. Armstrong.
    Opinion delivered January 11, 1932.

      B. E. Wiley and Ilenry Donham, for Mo. Pac. Rd. Co. and McRae <& Tom/pldns for Prescott & N. W. Rd. Co., appellants.

      Bush & Bush, for appellee.
   Smith, J.

The controlling facts out of which this case arose are undisputed and are as follows. Appellee is the proprietor of a small nursery about five miles from Prescott, at which city G. A. Hayes was the station and freight agent during the months of November and December, 1928, for both the Missouri Pacific and the Prescott & Northwestern railroads. Both railroads used the same depot, freight offices and employees.

On November 22,1928, appellee ordered twenty bushels of peach seed to be shipped him from Concord, Georgia, and on the same day he called on Mr. Hayes, the railway agent, and advised him of the order and told him that it was getting late and an early delivery of the seed was essential for their planting’ and germination, and Hayes was told .the damage which would result in, delay, and he advised appellee that, unless there was delay in transit, the seed would arrive in eight or ten days. Appellee also advised the railway agent of a similar order of peach seed from Toldo., Arkansas, a station on the Prescott & Northwestern Railroad, of which road Hayes was also the agent, and that this shipment of seed would come over that road.

The seed from Georgia were shipped on November 27,1928, and were delivered in Prescott on December 8th thereafter. The order from Tokio arrived about the same time. Mr. Hayes did not advise appellee of the arrival of the seed, and they remained in the freight house until Deoemberi 28th, when appellee was advised by the Agricultural Agent of the Prescott & Northwestern Railroad that the seed were at the freight house. Appellee immediatoly called for and received the seed and planted them in the usual manner, hut on account of the delay in their receipt, and the consequent delay in planting, the seed did not germinate in time for budding, this being the use for which Hayes, as agent, had been advised the seed were intended. The seed were planted, and in May such of the sprouts as had come up were plowed under and the land was planted in cotton.

On March 1,1930, suit was brought against the Prescott & Northwestern road, and on March 8, 1930, an amendment to the complaint was filed making the Missouri Pacific Railroad Company a party defendant. On the............day of April, 1930, the Missouri Pacific filed a petition to sever and to remove to the Federal court, whereupon the cause was dismissed as to that defendant. At the October, 1930, term of the court the case against the Prescott & Northwestern road was tried, and there was a verdict for the plaintiff on account of the Tokio shipment and a directed verdict for the railroad as to the Georgia shipment. Upon motions for a new trial being filed, both verdicts were set aside, and on November 3, 1930, an amended and substituted complaint was filed against both railroad companies, alleging damages in the sum of $3,000 as to the Georgia shipment, and $700 as to the Tokio shipment. There was a trial with verdict and judgment against the Prescott & Northwestern Company for $50 on account of the Tokio shipment and against both railroads for $500 on account of the Georgia shipment, and this appeal is from that judgment.

A number of questions have been raised for the re.versal of the judgment which we find it unnecessary to discuss, for the -reason that the cause of action was barred when the suit was filed from which this appeal comes.

This cause of action is predicated upon the failure of the railroad agent to give the consignee notice of the arrival of the seed. No claim is made that the shipment was delayed in transit or that the seed were damaged, but there was a failure of the railroad agent to notify the consignee of 'the arrival of the shipments.

A cause of action for a failure to give notice of the arrival of a shipment is conferred by § 897, Crawford & Moses’ Digest, which provides that railroad companies shall, within twenty-four hours after the arrival of a shipment, give notice, by mail or otherwise, to the consignee of the arrival of the shipment, with the weight and the amount of freight charges due thereon. Spears v. Mo. Pac. Rd. Co., 183 Ark. 945, 39 S. W. (2d) 727.

This section of Crawford & Moses’ Digest is § 3 of act 193 of the Acts of 1907 (acts 1907, p. 453) which was an act entitled “An Act to regulate freight transportation by railroad companies doing business in the State of Arkansas.”

By § 21 of this act, which appears as § 913, Crawford & Moses’ Digest, it is provided that if any railroad company shall violate any of the provisions thereof, and “shall not do or permit to be done any act, matter or thing in this act required to be done,” such railroad company shall be held to pay to the person injured thereby the actual amount of damages so sustained. But the section further provides: “No action aforesaid shall be sustained unless brought within one year after the cause of action accrued, or within one year after the party complaining shall have come to the knowledge of his or her right of action. Provided that no action shall be brought after two years from time right of action accrues, and as many, causes of action as may have accrued within the year to any one person, firm or corporation, including damages, forfeitures, demurrage, etc., may be joined in the suit or complaint.”

The plain meaning of the language quoted is that a person having a cause of action conferred by this act 193 shall institute suit to enforce it “within one year after the party complaining shall have come to the knowledge of his or her right of action, ” and within two years in any event.

The plaintiff’s cause of action accrued not later than December 28,1928, the date on which the seed were actually delivered. The plaintiff knew then, if not before, that the shipments had been received and that no notice thereof had been given.

We had occasion to construe this limitation upon the time within which suit might be brought for noncomplianca with the provisions of the act of 1907, supra, in the case of St. L. I. M. & S. R. Co. v. Paul, 118 Ark. 375, 176 S. W. 327. There a demand had been made in writing upon a carrier to furnish cars 'for the shipment of stave bolts, but the suit was not commenced until more than a year after the damage had occurred and the shipper’s cause of action had accrued by reason of the carrier’s failure to furnish cars as demanded. It was there said that, in the absence of legislation limiting the period -within which such suit might be brought, the period of limitations thereon would be three years, but that the Legislature had by this act 193 passed a comprehensive act to regulate freight transportation by railroads in this State, and that the right of the State to enact appropriate legislation regulating the business of common carriers had been often recognized in the decisions of this and other courts, and was a right which had been freely exercised. We said of such legislation that some of it was declarative of the common-law duties of common carriers, while much of it imposed additional duties, “and, when the rights and duties of carriers are defined by statute, such statutes must govern, not only in ascertaining what the rights and duties of such carriers are, but also in their enforcement, when the legislation undertakes to provide remedies for their enforcement.” It was there further said of this act 193: “After enacting various provisions in this behalf, § 21 of the act, among other things, provides a time within which suit must be brought” to recover damages for failure on the part of the carrier to comply with the act, and that it was there provided that no action shall be sustained unless brought within one year after the cause of action accrued, or within one year after the party complaining shall have come to the knowledge of his right of action, with a proviso that no action shall be brought after two years from the time the right of action accrues. And it was further said that the two-year proviso had no application to the facts of that case, if the act applied at all. Nor does the two-year proviso apply to the instant case, if the act applies at all, because the plaintiff had come to the knowledge of his right of action when the shipment was delivered to him.'

It was insisted in the Paul case, as it is here, that the plaintiff had a cause of action independent of the act 193, and that the limitation thereof as to the time when suit should be brought did not therefore apply. 'But we answered that contention by saying: “We think the act should be held applicable to suits growing out of a railroad’s failure to furnish cars. The Legislature has by this act imposed several additional burdens on railroads, and, having done so, has seen fit to limit the time within which suits may be instituted to recover damages for failure to perform these duties. A study of the act gives no support to the position that the Legislature intended there should be a difference between the time within which suit should be instituted when the failure to furnish cars was such that a common-law action would lie therefor, and the case where the cause of action was a failure to comply with the statute requiring cars to be furnished shippers. There are cogent reasons why the Legislature should limit to the period of a year the time within which suits may be instituted for failure to furnish cars, and we think the act in question accomplished that result.”

Here the plaintiff’s cause of action is -predicated upon the failure of the carrier to give notice of the arrival of the shipments, and this duty is of statutory creation, being imposed by the act 193. It is true that the instant suit was brought within a year after the dismissal of the first suit, but it is true also that, upon the expiration of the year, there was no suit pending, and the running of the statute was not arrested by the prior suit, which was not pending when the year expired.

The case of Anthony v. St. Louis, I. M. & S. R. Co., 108 Ark. 219, 157 S. W. 394, is conclusive of this question. That was a suit by minors against a railroad for the death, of their father caused by the negligence of the railroad in the operation of one of its trains. The father of the plaintiffs was killed in 1909, and the suit was not begun until 1912. It was there said that the cause of action was conferred by § 6290 of Kirby’s Digest, commonly known as Lord Campbell’s Act, (§ 1075, Crawford & Moses’ Digest) which contains the proviso that “every such action shall be commenced within two years- after the death of such person.”

It was there insisted, however, that the limitation did not apply because § 5075 of Kirby’s Digest 6961, Crawford & Moses’ Digest) provides that persons under disability may bring suit in a cause of action within three years after their disability was removed, and the suit had been brought within that time. That contention was overruled, it being held that, inasmuch as the statute created no saving clause for the benefit of persons under disability, the infancy of the plaintiffs at the time the cause of action accrued did not postpone the running of the statute, and further that, “inasmuch as the act which creates the limitation also creates the action to which it applies, the limitation is not merely of the remedy, but is of the right of action itself.”

This case was cited and applied in the case of Western Coal & Min. Co. v. Hise, 216 Fed. 338. There a suit was brought under § 6290 of Kirby’s Digest on October 19, 1910, upon which a voluntary nonsuit was taken on June 19,1912. On December 5,1912, which was more than two years after the death of the intestate, a second suit was filed. The Federal District Court refused to sustain a demurrer to the complaint, which demurrer had raised the question that the suit had not been brought within the time limited by the act which created the cause of action. In reversing the judgment of the district court, which had refused to sustain the demurrer, the Court of Appeals for the Eighth Circuit, in an opinion by Judge Trieber, quoted from the prior decision of the Court of Appeals for the Eighth Circuit in the case of Partee v. Railroad Co., 204 Fed. 970, 123 C. C. A. 292, as follows:

‘ ‘ The statute, which in itself creates a new liability, and creates an action to enforce it unknown to the common-law, and fixes the time within which that action may •be commenced, is not a statute of limitations. It is a statute of creation, and the commencement of the action, within the time it fixes,, is an indispensible condition to the liability and of the action which it permits.”

It is insisted, however, that, although the cause of action as to the intrastate shipment from Tokio to Prescott may be barred by act 193, that act does not apply to the shipment from. Georgia, which was an interstate shipment.

A similar contention was made in the case of Louisiana, & Western R. R. Co. v. Gardiner, 273 U. S. 280, 47 S. Ct. 386, 71 Law Ed. 644. That was a suit for damages to an interstate shipment of goods which was brought in a district court in the State of Louisiana. The trial court held that the suit had not been brought within the time required by the laws of Louisiana. This judgment was reversed by the Court of Appeals of that State, which held that the State statute did not apply. Upon the remand, judgment was rendered on the second trial for the full amount claimed, which was reduced by the Court of Appeals to the extent of the carrier’s claim for an undercharge and the war tax, and the Supreme Court of the State refused a writ of certiorari from which action an appeal was prosecuted to the Supreme Court of the United States.

In reversing that judgment, it was held by the Supreme Court of the-United States (to quote the headnote in that case) that “Neither the provisions of the Cummins Amendment to the Act to Regulate Commerce, nor that of the Transportation Act, making it unlawful for a carrier to contract for less than the prescribed period for institution of suits, is a statute of limitations, and therefore, the statute of the State where a cause of action arises against the carrier may apply.”

The reasoning of the court was that the State in ■yvhioh the suit was brought had the power to fix the limRation of time within which action might be brought for damages growing out of an interstate shipment where there was no federal statute of limitations applicable. As was said by the court: “Although the rights of the parties depended upon instruments the meaning and effect of which must be determined according to rules approved by the federal courts, there was no federal statute of limitations and the local one applied.”

Our attention has not been called to any federal statute of limitations applicable to this case in conflict with act 193, and the limitation upon the right to sue appearing in that act must be applied.

It is finally insisted for the affirmance of the judgment that the act 193 permitted the plaintiff to delay his suit, not only for one year after he had knowledge of his right of action, but also until he knew the extent of his damage, and that this damage could not be known until the consignee knew whether the seed would germinate, and, if not, what the damage would be on that account.

This argument, however, would lead to the conclusion that the damages were speculative and conjectural, and therefore not recoverable at all. The damages could ■be such only as in the contemplation of the parties would reasonably and probably result from the failure to give notice promptly of the arrival of the shipment of the seed. The plaintiff’s cause of action accrued as of the time when it came to his knowledge that he had not been notified, as the statute required that he should be, of the arrival of his seed. The cause of action arose out of this failure, and the damages were assessable as of the time of this failure.

The law of this phase of the case is considered in a very extensive note to the case of Aachen & Munich Fire Ins. Co. v. Morton, 13 Ann. Cas. 692. The opinion in the case annotated was delivered by Judge Lurton (later justice of the Supreme Court of the United States) for the Circuit Court of Appeals for the Sixth Circuit, 156 Fed. 654. In this opinion he said: “If an act occur, whether it be a breach of contract or duty which one owes another or the happening of a wrong, whether wilful or negligent, by which one sustains an injury, however slight, for which the law gives a remedy, that starts the statute. That nominal damages would he recoverable for the breach or for the wrong is enough. The fact that the actual or substantial damages were not discovered or did not occur until later is of no consequence. The act itself, which is the ground of the action, cannot he legally separated from its consequences. Were this so, successive actions might he brought in many cases of contract and tort as the damages developed, although all the consequential injuries had one common root in the single original breach or wrong.”

The annotator says in his note to this case (13 Ann. Cas. 696) that the occurrence of an act or omission, whether it is a breach of contract or of duty, whereby one sustains a direct injury, however slight, starts the statute of limitations running against the right to maintain an action, and among the large number of oases cited in support of this statement of the law are a number from this court.

Inasmuch as the plaintiff’s cause of action accrued in December, 1928, and the suit from which this appeal comes was not filed until much more than one year thereafter, it was barred when brought. The judgment must therefore be reversed, and the cause will be dismissed. It is so ordered.


source: Caselaw Access Project

license: Public Domain

text:
    Parker v. Nixon.
    Opinion delivered January 11, 1932.

      June P. Wooten and Troy W. Leiois, for appellant.

      Roberts & Stubblefield, for appellee.
   Smith, J.

This appeal is a continuation of the case of Arkansas Mineral Products Company v. Creel, found reported in 181 Ark. 722, 27 S. W. (2d) 1003.

As appears from! the facts there stated, S. H. Creel owned a tract of land in Saline County which contained a valuable clay -deposit, which land he conveyed to a corporation known as the Arkansas Mineral Products Company, which was organized to develop' the land. The conveyance was made to the corporation subject to- a mortgage, which the corporation assumed but failed to pay, and the land was sold under a decree of foreclosure. •Creel died, and his widow, as sole devisee under his will, redeemed the land by paying the' mortgage debt. Mrs. Creel then brought suit in the Pulaski Chancery Court for the money thus paid, and, in connection with this suit, she prayed the cancellation of certain deeds based upon the sale of the land under the execution which had issued on the judgment in favor of Ben P. Beinberger for services rendered the corporation, it being alleged that the judgment had been obtained by fraud. The relief prayed was granted by the decree of the Pulaski Chancery Court, and that decree was reversed in part in the opinion above referred to upon the ground that the suit, which was one, in effect, to compel a reconveyance of the land, was a local action and was maintainable only in the county where the land was situated under § 1164, Crawford & Moses’ Digest. The judgment for the debt resulting from, the ■redemption of the land by Mrs. Creel was, however, affirmed.

This opinion was delivered May 5, 1930, and thereafter, to-wit, on July 28,1930, the receiver who, under the orders of the Pulaski Chancery Court, had taken charge of the assets of the corporation, filed a pleading, which was denominated a petition to vacate the judgment under which the execution had issued and under which the land had been sold. A summons was issued and duly served upon Beinberger, the judgment plaintiff, and testimony was heard in support of and in opposition to the prayer of the petition. The court in which the judgment in favor of Beinberger had been rendered made the following findings of fact:

1 ‘ In this case, the court finds that the Arkansas Mineral Products 'Company acquired the land of the petitioner, Creel, subject to a mortgage of $500; that none of the stockholders actually purchased or paid for the stock, but that the equity in the land was given a fictitious value to' support the stock issue. By the terms of the contract, J. M. Ensor was to loan the company the funds which he might thereafter advance. This amounted to $200. It was not a payment of stock, but a loan to the company. This company employed the plaintiff, Ben P. Reinberger, to procure a permit from the Blue Sky Department for the sale of its stock. Under this contract, the plaintiff, Ben P. Reinberger, was to receive $500- face value of the stock. The work was performed, and the stock was never issued to Ben P. Reinberger according to this contract. At the time suit was filed, J. M. Ensor was president and A. W. Hall was secretary. Demand was made of these gentlemen for the issuance of the stock, but, instead of issuing the stock, which was known at the time to all parties to be worthless, the president and secretary of the Company chose to violate the contract and to confess judgment for $500 in money. There was no meeting of the board of directors in the confession of this judgment, but the answer was prepared by the plaintiff, and the appearance of the defendant entered in violation of the contract, and judgment was confessed in violation of the contract, and the effect of this judgment was to divest all the assets of the company, when, according to the terms of the contract, the stock could and should Rave been issued, in which event the stockholders would have participated with the remainder of the stockholders in the assets of the corporation. Prom these facts, this court concludes that the conduct on the part of the officials of the corporation and the plaintiff amounted to a legal fraud on the court in obtaining the judgment in the ease. Por this reason, the motion to set aside said judgment should be and is hereby granted.
“It is contended that the lapse of time precludes the petitioner from obtaining the relief he seeks. It appears from the testimony that there was no material lapse of time, but that the petitioner asserted his rights in the chancery court of Saline County and in the chancery court of Pulaski County with due diligence on discovery of the fraud of which he complains. The petition for setting aside said .judgment will he granted, and the judgment will be set aside for the reasons indicated.”

Upon these findings of fact the court rendered judgment vacating and annulling the original .judgment rendered in Reinberger’s favor on June 25, 1925, and this appeal is from that judgment.

We will not review the testimony upon which the findings were made that the judgment had been procured by fraud practiced upon the court in its rendition, but, having considered this testimony, we announce our conclusion that it is legally sufficient to sustain the findings made; and we are also of the opinion that upon these findings the plaintiff was entitled to the relief prayed and granted.

This appeal is from the judgment of the court setting aside the judgment in Reinberger’s favor, and its reversal is urged upon several grounds which we now proceed to consider.

The proceeding was brought under the authority of the fourth subdivision of § 6290, Crawford & Moses’ Digest, wherein it is provided that the court in which a judgment has been rendered shall have power, after the expiration of the term at which it was rendered, to vacate or modify the judgment ‘ ‘ * * * for fraud practiced by the 'successful party in the obtaining of the judgment or order. ’ ’ Section 6292, Crawford & Moses ’ Digest provides that the proceeding to' vacate a judgment under the provisions of § 6290, supra, shall be by complaint verified by affidavit “setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action if the party applying.was defendant,” and that on the complaint a summons shall issue and be served and other proceedings had as in an action by proceedings at law.

It is earnestly insisted that the pleading filed was insufficient, and that the receiver had no authority to proceed at all. We think, however, the pleading was sufficient to comply with the statute, and that the receiver had the authority to maintain the action. It is true this pleading was denominated a petition, and not a complaint, but this designation was unimportant, as the petition was in the nature of a complaint and contained all the allegations required by the statute. It was therefore properly treated by the court as a complaint.

It was held in the case of Driver v. Treadway, 175 Ark. 1028, 1 S. W. (2d) 84, that a motion for a new trial, which was not filed as such within the time limited by law, should have been treated as a motion to set aside the judgment, and that that relief should have been, granted upon this motion, a proper case for this relief being made. It is a settled rule of practice with us that a pleading is to be treated according to what its substance shows it to be, regardless of what it is called. Merritt v. School District, 54 Ark. 468, 16 S. W. 287.

It appears that the pleading was not verified as the statute requires; but that question does not appear to have been raised in the court below. We have a statute (§ 1246, Crawford & Moses’ Digest) which provides that no objection shall be' taken after judgment rendered to a lack of verification of the pleading upon which the judgment was rendered. However, the petition was heard on the sworn testimony of numerous witnesses, and the judgment was not rendered by default upon an unverified pleading. The purpose of the statute was to prevent this from being done, and it was not done. Coleman v. Bercher, 94 Ark. 345, 126 S. W. 1070; Randall v. Sanders, 71 Ark. 609, 77 S. W. 56.

As to the authority of the receiver to maintain the action, it may be said that the corporation was the original defendant, and this suit was brought by its receiver.' He had the authority, therefore, to maintain the action. The receiver was appointed by the authority of the Pulaski Chancery Court, and neither the propriety nor the necessity for this appointment can be questioned in this collateral proceeding. Lowenstein v. Finney, 54 Ark. 124, 15 S. W. 153.

It is said there is a defect of parties. But we do not think so. 'The plaintiff in the original judgment was made a party by summons served upon him, and the receiver represents the other party, the original defendant corporation.

It is also insisted that no sufficient grounds were alleged to vacate the judgment, and that no defense to the original action was shown. The findings of the court, set out above, which, as we have said, were sustained by sufficient testimony, answer these objections.

It was found by the court that the contract was to recover, not $500 in money, but $500 worth of the corpo.rate stock, which was worth much less than $500 in money.

The testimony shows that the answer of the corporation was prepared by the plaintiff himself, and instead of pleading the contract under which the services sued for had been rendered, an answer was filed in which liability was admitted for $500 in money. Upon this answer judgment was rendered, and execution was issued, and the land, which constituted the entire assets of the corporation was sold. At this sale the plaintiff became the purchaser, and upon receiving the execution deed he conveyed to his own wife an undivided half interest and the other half interest was conveyed to the wife of the president of the corporation, who had '.entered the appearance of the corporation in the suit and who had caused the answer to be filed upon which the judgment was rendered.

It was held in the case of Williams v. Alexander, 90 Ark. 591, 119 S. W. 1130, that where an attorney having no authority, express or implied, to consent to a decree against his client, consents to a decree which is prejudicial to his client, such consent decree amounts to a fraud upon the court and the client and will be set aside. That principle applies here. The fraud, of course, must have, been practiced upon the court in the procurement of the judgment, but the case of Williams v. Alexander, supra, is authority for holding that the action of the president of the corporation in filing, without the authority of the corporation, an answer admitting a liability which did not exist was a fraud upon the court.

It is insisted that the motion to vacate the judgment was not filed in'apt time, and that, inasmuch as more than five years-had elapsed after the rendition of the judgment before this proceeding was filed, it was barred by laches if not 'by limitations. -

It was held in the case of Foohs v. Bilby, 95 Ark. 302, 129 S. W. 1104, that there is no statute limiting the time within which an application to vacate a judgment may be made under § 4431, Kirby’s Digest, which is identical with § 6290, Crawford & Moses’ Digest, under which this proceeding was brought, and that holding was reaffirmed in the case of Wade v. Saffell, 177 Ark. 1186, 9 S. W. (2d) 803.

Nor do we think the action was barred by laches. The case of Arkansas Mineral Products Company v. Creel, supra, sought, in effect, the relief here prayed and granted. This relief was granted by the Pulaski Chancery Court in that case upon the same findings of fact here made, to-wit, that the judgment had been procured by fraud, and the decree of the Pulaski Chancery Court was reversed by this court, not upon the ground that the testimony did not support the decree of the court, but upon the ground that the action was a local one and had not been brought in the county where the land was situated. A prosecution o'f this suit to a favorable decree, which i^as reversed on the question of jurisdiction, refutes the imputation of acquiescence in the judgment for such length of time as to constitute laches.

It is finally insisted that the reversal of the decision of the Pulaski Chancery Court in the former appeal (Arkansas Mineral Products Co. v. Creel, supra) is conclusive of the present case. But such was not the effect of that decision. Certainly the receiver was not discharged, as is here insisted, by the reversal of that decree, nor is there any element of estoppel in the judgment of this court on the former appeal.

In the chapter on Judgments, 15 E. O. L., page 973, § 450, it is said that “ * * * it is well settled that the judgment in the first suit operates as an estoppel only as to 'the point or question actually litigated and determined, * # Numerous annotated cases are cited in. the note to- support the text quoted.

As has 'been said, it was not decided on the former appeal that the plaintiff was not entitled to the relief prayed, but it was decided only that owing to the local nature of that action the court was without jurisdiction to- award the relief prayed and granted. The present proceeding is a statutory one to vacate a .judgment, and was brought in the court which rendered the judgment, and no showing was made that the situation of the parties in relation to the judgment had become such that the parties were precluded or estopped from instituting proceedings, as is here insisted. Sanders v. Flenniken, 180 Ark. 303, 21 S. W. (2d) 1847.

No error appears in the judgment here appealed from, and it must therefore be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Garner v. State.
    Opinion delivered January 11, 1932.

      Wils Davis and A. B. Shafer, for appellant.

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

This is an appeal from a judgment of conviction in the circuit court of Crittenden County fori the crime of transporting’ liquor.

Three alleged errors in the trial of the cause are assigned as grounds for a reversal of the judgment, as follows :

First, because the liquor being transported was seized by the officers of the law without a search warrant.
Second, because the prosecuting attorney interro.gated the appellant in an effort to show that he had purchased the license for his automobile under the name of Gaston Whitmore.
Third, because the verdict was excessive.

(1) The officers overtook appellant on a highway, arrested him, searched his car, and found two five gallon cans of whiskey therein in gunney sacks. .Their evidence was! admitted over appellant’s objection. In cases of this character evidence procured without a search warrant is admissible. Knight v. State, 171 Ark. 882, 286 S. W. 1013.

(2) Objection was not made to the questions propounded by the prosecuting attorney relative to themame under which appellant bought a license for his car, nor was this matter incorporated in his motion for a new trial in the circuit court. Under the well-settled rule of this court, the question presented cannot be considered as a cause for the reversal of the judgment. Maroney v. State, 177 Ark. 355, 6 S. W. (2d) 290.

(3) A fine of $750 and ninety days in the county jail was imposed upon appellant as a punishment for the crime. The .jury did not exceed the maximum punishment fixed by the statute, so this court cannot reduce the penalty. That matter was within the peculiar province of the jury. Cox v. State, 164 Ark. 133, 261 S. W. 303.

No- error appearing, the judgment is affirmed.


author: Kirby, J.

text:
    Detroit Fidelity & Surety Company v. Yaffe Iron & Metal Co., Inc.
    Opinion delivered January 11, 1932.

      Ira D. Oglesby, for appellant.

      Sill, FitsJmgh & Brissolara, for appellee.
   Kirby, J.

This is an action by the appellee company against the contractor and the appellant company, surety on the contractor’s bond for the construction of a part of State Highway No. 64, for the purchase price of some iron pipe and similar materials sold by appellee to the contractor and used in connection with the construction of the State Highway near Ozark in Franklin County.

The construction company had been awarded the contract by the State Highway Commission, and it ordered from the appellee the materials for the purchase price of which the suit was brought and used the same in connection with building the road. The construction company gave bond with appellant company as surety as required by act 368 of 1929 for the use and benefit of all persons performing labor or furnishing materials for use in the construction of the road.

There is no dispute about the amount of the claim included in the original suit, it being admitted that the construction company bought the materials from appellee at the prices for which suit was brought and also the execution of the contractor’s bond. Suit was brought within a few weeks after the completion of the contract, bnt the construction company moved from the -State before summons could be served on it. While the suit was pending, appellee, in accordance with an ag’reement with the man in charge of the material, took back a part of the pipe giving the defendant proper credit thereon. This credit was given by an amendment to- the pleadings.

Appellant claims that, after the work was completed, it took a bill of sale for all the pipe together with all other property owned by the construction company in the State, which was probably done for collateral security upon its obligation under the bond, since it is not claimed by the- bonding company that the construction company was indebted to it for any amount other than the liability that might have been incurred on the bond, nor was it shown that the surety company had paid out any money for the construction company under its bond.

The -appellant’s answer admitted the correctness of the account, but denied liability on the ground that the material purchased was part of the construction company’s equipment and not covered by the terms of the bond. Proof shows that the material, pipe, joints and things of this kind, was bought by the construction company for use on this particular work and job, and delivered by appellee at the site of the work. The construction company had been engaged in similar work for 10 years, but needed special size pipe for bringing water to its concrete mixer and wetting down the concrete after it had been laid. - After the completion of the .job the construction company moved all the equipment and material to Ozark, and stacked up this pipe, for the value of which suit is brought, on a lot separate from all its other pipe and major equipment. Appellee, having a demand for pipe of the kind, sent its representative to Ozark to get the construction company to turn back part of the pipe and take credit on its account therefor. The man in charge of the pipe said it was all right to do this, and turned over to appellee about 2,700' feet of the pipe, for which credit was given.

Both, parties asked peremptory instructions on the ' question of liability of the bonding company, and the court instructed the jury in behalf of appellee, submitting to the jury only the question of the value of the pipe repossessed or taken 'back by appellee during the pendency of the suit. The jury fixed the value, which was deducted from the claim, and the court gave judgment for appellee for the difference.

The only question, therefore, for determination here is whether the appellant company, surety on the contractor’s bond, is liable to the payment for the materials furnished by appellee, the fact of the sale, purchase and use of the materials being undisputed. The statute requiring bonds of contractors for road construction, etc., made by surety companies authorized to do business in the State of Arkansas, provides:

‘ ‘ Section 1. That all bonds required by any commission or commissioners or board, or the agent or agents thereof, county courts or judges thereof, or any other public officer or officers for the construction of any public buildings, levee, sewer, drain, • road, street, highway, bridge or other public buildings or works aforesaid, shall be liable for all claims for labor, material, camp equipment, fuel including oil and gasoline, food for men and feed for animals, labor and material expended in making repairs on machinery or equipment used in connection with the construction of said public buildings or works aforesaid, lumber and material used in making forms and supports and all other supplies or things entering into the construction, or necessary or incident thereto or used in the course of construction of said public.buildings or public works; said bonds shall also be liable for rentals on machinery, equipment, mules and horses used in the construction of said public buildings or public works aforesaid, and all persons holding* such claims shall have a right of action on said bonds.” Act 368 of 1929.

Section 3 of said act requires the bond to specifically include liability for the things enumerated in § 1, but the failure to include said provisions in the 'bond shall not prevent the holders or owners of claims as provided in said section from bringing" suit and enforcing- snch claims against the bond.

The construction company had 5 miles of 2-inch pipe in its equipment, but found it necessary to use 2%-inch pipe for the furnishing of water to the concrete mixer and wetting down the concrete after it was laid and bought this pipe from appellee company and used it for that purpose in the construction and completion of this road work under the contract.

Appellant’s only contention is that the pipe purchased by the contractor, for the value of which the suit is brought, is part of the major equipment of the construction company, which could be used in the construction of other work of a like kind, and that there was no liability on the part of the surety company under the bond for the payment thereof, and that the court erred in not so directing the jury.

This statute requiring the giving of bond by contractors for the construction of public works, roads, etc., was intended for the protection of furnishers of labor and materials used in or incident to the construction of such works, and bonds given under it must be construed liberally in order to effectuate the purpose of the Legislature as declared in its terms, and as our courts had been giving a limited or narrow construction to bonds made by contractors for such work, this doubtless caused the enactment of the present statute. The law requiring the bond to be executed to cover liabilities in accordance with the terms of the statute, the principal and surety, even by express terms of the bond, could not limit or restrict their liability by employing or omitting to include therein the terms of the statute.

The undisputed testimony shows that this pipe was purchased from appellee company and was necessary to the construction of this particular piece of work or road, and was used in such construction as necessary or incident thereto, for supplying water to the concrete mixer and wetting down the concrete on the road surface after it was laid; and payment of the purchase price thereof comes within the provisions of the statute -and bond, without regard to whether the materials or pipe could be used on other construction work thereafter by the contractor. It makes no difference whether it was called major equipment in the bond, as a fair construction of the statute includes within its terms the purchase and use of the materials sued for as certainly incident to the construction of the public work, and the contractor and surety were liable to the payment thereof under the statute and bond, and the court did not err in directing the verdict for appellee. The jury found the value of the pipe that was returned to appellee company under proper instructions, and the court properly gave credit to appellant for the value thereof as found upon the amount otherwise due appellee for furnishing the pipe.

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


text:
    Perry v. Gill.
    Opinion delivered January 11, 1932.

      Alexander S Cooper and T. J. Crowder, for appellant.

      Jesse Taylor and W. Leon Smith, for appellee.
   Kirby, J.

This appeal is prosecuted from a judgment of the circuit court affirming and approving the order of the county board of education consolidating School Districts No. 23 and No. 44 of Mississippi County.

One hundred and sixty-three petitioners filed with the board of education a petition praying the creation of a new school district to be formed out of the territory theretofore embraced in School Districts. Nos. 23 and 44. Forty-five of the petitioners were residents of School District No. 44, and one hundred and eighteen of School District No. 23. It was stipulated that the petitions contained a majority of the qualified electors of both districts, Nos. 23 and 44, residing in the entire territory, although it did not contain a majority of the qualified electors in said School District No. 44. The two school districts adjoined each other, and State Hig’hway No-. 18 runs practically through the center of them. The school building in said District No. 23 is situated in the town of Dell, and is a modern two-story brick building costing about $30,000. The town of Dell Is located on State Highway No. 18. The school house in District No. 44 is a small frame building located about 3% miles west of Dell and about 1% miles south of said hard surface road. Neither school district was financially able to maintain more than a grammar school, and the purpose of the consolidation and creation of a new school district was to make a larger unit, in order that the pupils of both districts might have the benefits of a junior high school. Eighty-one electors from District No. 44 signed a remonstrance before the County Board of Education against the creation of the new district.

It is contended by appellants that the petition was insufficient, not being signed by a majority of qualified electors in each of such districts. The law only requires, however, that such petition be signed by a majority of the qualified electors in both districts sought to be consolidated, and not that it contain a majority of the qualified electors in each of said districts, as held in the case of Beard v. Albritton, 182 Ark. 588, 31 S. W. (2d) 959.

The discretion to form snch new districts is vested in the several boards of education. Bledsoe v. McKeowan, 181 Ark. 584, 26 S. W. (2d) 900.

The testimony is ample to show that the law requiring a certain number of notices to be posted in the territory to be consolidated was complied with and that the form of these notices was sufficient. It is true that the copy of the notices posted in the districts of application for the consolidation thereof had been lost after the hearing before the board of education and could not be introduced at the trial on the appeal in circuit court, but it was shown by testimony of witnesses that they were made on blank forms of notices supplied by the State Board of Education for use in such cases, and it was conceded that they gave the correct numbers of the districts, the territory of which was to be consolidated, with a correct description also of the limits and boundaries of the lands to be included in the consolidated district. The notice having been lost or mislaid, proof of its contents could be supplied by witnesses who had knowledge of it, and no error was committed by the court in allowing the introduction of such testimony, notwithstanding the insistence that it was not to the best interest of the children of School District No. 44 to have it included in the consolidated district because it was shown that such district had revenue sufficient to take care of the educational needs of the children residing therein and that the schools were adjusted to their accommodation by sessions being held in the summer and winter, allowing the pupils time, to assist in the making of the regular crops produced in the territory. The districts were sought to be consolidated, however, for the purpose of furnishing the pupils of both districts the advantages of a junior high school, which could not be carried on or conducted by either of said districts by itself.

It was shown that the pnpils of District No. 44 conld easily reach the school in the consolidated district, and the order of the county board of education consolidating the old districts is not to be disturbed on appeal unless it appears that such order is arbitrary or unreasonable as held in Bledsoe v. McKeowan, supra, and no such showing is made against the order of consolidation herein, which both the board of education and the court on appeal found to be for the best interest of all parties affected.

We find no error in the record, and the judgment must be. affirmed. It is so ordered.


author: Mehaeey, J.

text:
    Greer v. Stilwell.
    Opinion delivered January 11, 1932.

      Ira J. Maek and Culbert L. Pearce, for appellant.

      Brundidge ■& Neelly, for appellee.
   Mehaeey, J.

Appellee, J. S. Stilwell and Carrie Bosley were married October 16, 1889 and lived together as husband and wife until her death on November 30, 1929.

The appellee is a dentist, and Mrs. Carrie Bosley Stilwell, wife of the appellee, had a stroke of paralysis some time in May or June, 1929. On the 2nd of June, she was taken to Trinity Hospital in Little Rock, where she remained for two weeks, and was then carried back home.

After Mrs. Stilwell’s death, the appellant was appointed administrator of the estate of Mrs. Stilwell. She had no children, father or mother, and she left surviving her her husband, J. S. Stilwell, and a half-brother, T. W. Wells, two nieces and one nephew who were the children of her sister, Mrs. John Love.

It was alleged in the complaint that Mrs. Stilwell was the owner of diamonds worth $28,500' and forty shares of the capital stock of People’s Bank, which was alleged to be worth $4,000, and other assets consisting of money and securities. The People’s Bank was made defendant, and it was charged that appellee, Stilwell, was a director in the bank, and had access to its files and that the property mentioned in plaintiff’s complaint was on deposit with and in safety deposit boxes of the bank at the.time of the death of Carrie B. Stilwell.

It was further alleged that Carrie B. Stilwell for six or seven months before her death was incapable of transacting business of any kind on account of illness and disease which affected her mental powers and rendered her mentally incompetent.

The People’s Bank filed separate answer denying all allegations in the complaint with reference to it, and alleged that forty shares of stock were transferred by Carrie B. Stilwell to J. S'. Stilwell several months prior to her death, and that the transfer was made in the usual way.

J. S. Stilwell filed separate answer denying that Carrie B. Stilwell at the time of her death was the owner of the diamond rings and jewelry described in the complaint. He denied that she was the owner of the forty shares of capital stock of People’s Bank and other assets consisting of money, etc. He also denied that he was wrongfully claiming any of her property, and denied all the material allegations in the complaint.

The court found in favor of the People’s Bank and from this finding there is no appeal. The court also found that J. S. 'Stilwell was the owner of the forty shares of capital stock of the People’s Bank and the proceeds of the bank’s check of $100 issued by it to Carrie B. Stilwell on June '29th for dividends on capital stock. The court also found that J. S. Stilwell was the owner of the proceeds of a personal check dated July 23, 1929, for $849.47. There was also a finding that appellant and J. S. Stilwell were each the owners of one-half interest in the diamonds belonging to said Carrie B. Stilwell. The case is here on appeal.

The appellant appeals from that part of the decree which gave the forty shares of capital stock, proceeds of the dividend check and the proceeds of the personal check to J. S. Stilwell. The appellee prosecutes a cross-appeal from that part of the decree which gave one-half interest in the diamonds to appellant.

The undisputed evidence shows that Carrie B. Stilwell, deceased, was the owner in her lifetime of the diamonds involved in this suit. Under act 149 of the Acts of 1925, if she owned the diamonds at the time of her death, one-half of them would go to J. S. Stilwell, her husband.

It is contended by the appellee, however, that the diamonds belonged to him; that this property was given to him by his wife before she died. He testified that she gave him the certificate of stock and the diamonds on April 4, 1929.

Appellant’s first contention is that the testimony of Dr. Stilwell is incompetent under § 2 of the schedule of the Constitution. That section provides, among other things: “that in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate, or ward unless called to testify thereto by the opposite party.”

The testimony therefore of Dr. Stilwell, as to any transactions with or statements of the intestate, was incompetent.

■Chancery cases are tried here, however, de novo, and we consider only such testimony as is competent. Lasker-Morris Bank Trust Co. v. Gans, 132 Ark. 402, 200 S. W. 1029; Newsom v. Reed, 177 Ark. 177, 6 S. W. (2d) 10; Harrell v. Southwest Mortgage Co., 180 Ark. 620, 22 S. W. (2d) 167.

There was therefore no competent testimony tending to show that Mrs. Stilwell had given her diamonds to her husband, and the court’s finding that Dr. Stilwell was entitled to one-half of this property is correct.

It is also contended by the appellant that Mrs. Stilwell did not transfer the checks and certificate of capital stock to Dr. Stilwell, but that, if she did, she was mentally incompetent at the time of the transaction.

There is considerable conflict in the evidence on these questions, but the chancellor found that she made the transfers, and that she was at the time mentally competent to do so. Several witnesses testified on the question of Mrs. Stilwell’s mental condition, but there was ample evidence to sustain the chancellor’s finding that at the time she made the transfers of the stock and indorsed the checks, she had mental capacity to do so.

Mr. J. H. Deener testified that he had been connected with the People’s Bank for 30 years, and that during that time he had served as cashier and is now vice-president; that he had had experience with signatures, and that in his opinion Mrs. Stilwell sighed her name on the stock certificate introduced in evidence.

There was other evidence tending to show that the signature on the assignment of the stock certificate and on the checks was the signature of Mrs. Stilwell, and while there ivas conflict in this evidence, we do not think the chancellor’s finding was against the preponderance of the evidence.

As we have said, this court tries chancery cases de novo upon appeal, and the findings of fact of the chancery court will not he disturbed unless they are clearly against the weight of the evidence. Hale v. Hale, 179 Ark. 763, 18 S. W. (2d) 341; Lynn v. Quillen, 178 Ark. 1150, 13 S. W. (2d) 624.

We think therefore that the evidence is sufficient to support the chancellor’s finding as to the stock and checks.

It is next contended by the appellant that there is no evidence except Dr. StilwelFs that Mrs. Stilwell intended to deliver and did deliver the tilings mentioned as a gift. We think the fact that Mrs. Stilwell signed the stock certificate and the checks some months before her death, and that these instruments with her signature were presented to the bank, whose officials were familiar with her signature, and that her signatures were recognized and acted on by the bank, was sufficient evidence to justify the finding that they had been delivered to Dr. Stilwell.

In addition to this, the evidence shows that she had no children; that she and Dr. Stilwell had lived together for 40 years as man and wife; and it would be the natural thing for her to do to give this property to him.

The evidence being in conflict, we do not deem it necessary to set it out in detail, but we think it sufficient to say that the finding of the chancellor on the facts submitted to him was not against the preponderance of the evidence-.

Appellee contends that the decree -of the chancery court should be reversed and states that if the stock was a valid gift, it must follow that the gift of the diamonds was a valid gift because both grew out of the same transaction; the gift of the stock and diamonds being made at the same time. As we have already said, there is no evidence of the gift of the diamonds except the evidence of J. S. Stilwell, which was incompetent. Moreover, if this evidence had been competent, other witnesses testified that they had seen Mrs. Stilwell in possession of the diamonds after the time that Stilwell claimed that they had been given to him, and tbe finding of fact on this issue is not against tbe preponderance of tbe testimony.

The decree of the chancery court is therefore affirmed, both on appeal and cross-appeal.


author: ¡MoHaney, J.

text:
    Swaim v. State.
    Opinion delivered January 11, 1932.

      Reed & Beard, for appellant.

      O. E.- Williams and Joe P. Melton, for appellee.
   ¡MoHaney, J.

The only question presented by this appeal is the constitutionality of our bastardy statute, §§ 772-785, Crawford & Moses’ Digest, as amended by act 111 of the Acts of 1927. It is argued that this statute is unconstitutional, for the reason that it denies the right of trial by a jury on the question of the amount to be adjudged against the putative father for lying-in expenses of the mother and the monthly sum to be paid for the support of the child. Section 776 provides that, if the accused denies being the father of the child and demands a .jury, one shall be impaneled to try this issue. In this case a .jury was demanded and a trial resulted in a verdict against appellant, that is, that he is the father of the child. Thereupon the court entered judgment against him for $40 lying-in expenses and $5 per month from the date of birth of the child until it shall be 14 years old, although the act of 1927 provides for a minimum of $10 per month.

We think appellant’s contention untenable. This is an old statute, enacted in 1875 (Acts 1875, No. 24), and slightly amended in 1879' (Acts 1879, No. 72) and in 1927 (Acts 1925, No. 111). Many cases have been prosecuted under it and its validity inferentially sustained in many cases. It should not therefore be held invalid except for very cogent reasons and on the attack of one injuriously affected thereby.

The act of 1927 provides for judgment against the putative father for a minimum of $25 for lying-in expenses and $10 per month for the support of the child. Since the court rendered judgment on the verdict of the jury, finding appellant to be the father, for $40 for lying-in expenses and only $5 per month, it is difficult to perceive how appellant has been injuriously affected by the judgment, as a jury could not have found less than the minimum fixed by statute. He is therefore in no position to question the validity of the statute on the ground mentioned, that is, that it does not provide for a jury to fix the amount to be paid.

What we have said makes it unnecessary to determine the constitutionality of the statute, although we have no doubt as to its validity. The circuit court sustained a demurrer to the petition for certiorari to the county court and dismissed it. That judgment is correct, and is accordingly affirmed.


author: McHaney, J.

text:
    Gibson v. Minturn.
    Opinion delivered January 11, 1932.

      G. M. Gibson, for appellant.

      W. P. Smith, for appellee.
   McHaney, J.

Appellant brought this action against appellee to recover .judgment on a warrant issued to Mm by appellee in the sum of ’$200, which warrant provided it was given to appellant “to grade and rock road from the end of Bock Boad No. 4 in the town of Minturn to the north railroad crossing in the town of Minturn, Arkansas,” issued to him on the 10th day of February, 1928.

He alleged in his complaint that he had graded and rocked the road as provided in the warrant prior to the date thereof and had done so for an agreed consideration of $200, for which amount he prayed judgment. Appellee answered and denied that appellant had performed any work for it prior to the issuance of said warrant, and stated that he had agreed to do the work mentioned in the warrant which he had wholly failed to do. Prior to the introduction of evidence, appellee admitted the execution of the warrant, and that its defense was that the work was not done. Thereupon, counsel for appellant stated that appellant had done part of the work and stood ready to fulfill his contract, but that appellee found that a concrete road was going over this street and that the grading and rocking contemplated by the contract was not needed. Thereupon appellee assumed the burden of proof, and its witnesses testified very positively that appellant did not do any work upon the street except to fill up some holes with rock where his trucks had bogged down in the street in attempting to haul rock to a road he was constructing for the State Highway Department. Appellant testified that he did perform the work or a major portion of it, and stood ready to complete his contract, but was prevented from doing so by appellee. At the conclusion of the testimony, appellant requested the court to instruct the jury that, if they believed from the evidence that when he was ready to finish gravelling the road he was told by the members of the town council that a concrete road was going to be built through Min-turn, and that on that account they did not desire any more gravel placed on the road, and not to put any more on it, then he would be excused from further performance of his contract. The court refused to give that instruction. The court did instruct the jury that the issue was whether appellant had done the work agreed to be done, and that, since appellee admitted the execution and delivery of the warrant, the burden was upon it to show by a preponderance of the testimony that the work contracted to be done by appellant was not done and performed, and that, if the jury believed from a preponderance of the evidence that appellant had failed to comply with his contract by grading and rocking the road, it would be their duty to'find for appellee; otherwise, to find for appellant. The jury found for appellee, upon which judgment was entered, and this appeal followed.

The only error assigned 'for a reversal of the case is the refusal of the court to give his requested instruction No. 1 above set forth. We think the court correctly refused to give this instruction, as the issue was not whether appellant was ready, willing and able to do the work contracted, but whether he had done it. He alleged that he had done so in his complaint, and the answer denied this allegation, and this made the issue to be submitted to the jury, which the court did under proper instructions.

We find no error, and the judgment is accordingly affirmed.


author: Butler, J.

text:
    Tudor v. Bank of Lincoln.
    Opinion delivered January 11, 1932.

      E. I). Chastain, for appellant.

      W. A. Dickson and Price Dickson, for appellee.
   Butler, J.

Negotiations were begun between P. C. Miller, acting for T. E. Maxwell and wife, and Gr. C. Tudor, for the purchase by the latter of a tract of land belonging to the Maxwells. On January 2, 1931, the negotiations had proceeded to the point that Tudor deposited $200 of the agreed purchase price in the Bank of Lincoln, and on January 3 an abstract of title to the land, certified to December 30, 1930, was delivered to Tudor for examination by his attorney. On J anuary 5, 1931, the attorney rendered an opinion on the title specifying eighteen particulars in which it was his opinion the title as shown by the abstract was defective and calling particular attention at the foot of his opinion to some of the objections set out.

On J anuary 6 Tudor and his attorney met with Miller, the agent of the Maxwells, and T. L. McCulloch, the cashier of the .Bank of Lincoln, when the objections were discussed, and, according to Miller and McCulloch, the objections to the title were waived except the satisfaction of a certain mortgage and the recording of the power of attorney, and on that date a written agreement was entered into between the parties, which is as follows:

‘ ‘ This agreement, made and entered into on this the 6th day of January, 1931, by and among P. C. Miller, as agent for T. E. and Addie Maxwell, Gr. C. Tudor, and T. L. McCulloch, for himself and for Bank of Lincoln, as its cashier;
“Witnesseth, That- the said Gr. 'C. Tudor, having placed in said Bank of Lincoln, Lincoln, Arkansas, as and for full consideration of purchase price of the following described real estate situated in Washington County, Arkansas, to-wit:
“Part of the northwest quarter of southeast quarter, section 23, township 15, range 33, more fully described as follows: Beginning at northeast corner thereof, extending west 40 rods, south 60 rods, east 40 rods, thence north to place of beginning 60 rods, containing 15 acres.
“The said sum so deposited being $1,300, and the said bank and its cashier hereby agrees to retain safely the said money to be returned to the said Tudor upon failure to furnish satisfactory abstract to said land in a reasonable time, specifically, ten days. And I, the said P. C. Miller, as such agent, do hereby agree with the said Tudor that I will so furnish a satisfactory abstract for said premises within a reasonable time, otherwise this sale to the said Tudor of the said land is to be canceled, and his said money refunded to him bjr said bank and said T. L. McCulloch.”

Miller attempted to comply with the requirements regarding the title and returned the abstract to Tudor’s attorney for further examination. On the 14th of January the attorney returned the abstract with the additional requirements, and on the 16th Tudor demanded of the bank the return of $1,284 which he had deposited with the bank, that being the amount of the purchase price less the taxes for the current year. Payment was refused by the bank, and suit was brought at law by Tudor to recover same. The Maxwells intervened and asked for a specific performance of the contract, and the case was transferred to the chancery court, where, upon a hearing, the chancellor found the issues in fayor of the interveners and decreed the specific performance of the contract.

The words in the contract, “specifically, ten days,” as interpreted by the appellant, related to the provision by which the bank was to return the money and not to the time in which the abstract should be examined and objections to the title met. This seems to be what the parties intended, i. e., that, if it should finally be determined that the abstract was not acceptable at the expiration of ten days from that time, the bank should return to Tudor the money he had deposited. The court construed the language of the contract, “a satisfactory abstract for said premises within a reasonable time, ’ ’ to mean a marketable title or good title. The authorities are not in accord as to the effect to be given to a provision in a contract for the sale and purchase of land that there should be “a satisfactory abstract furnished” or language of similar import, but the weight of authority appears to sustain the view taken by the trial judge, and which we think is supported by the better reason. A sufficiency of the title disclosed ought not to be, and is not left, to the exclusive judgment of the examiner, but means that the title disclosed need only be a merchantable title within the rule announced in Tupy v. Kocureck, 66 Ark. 433, 51 S. W. 69, and Griffith v. Maxfield, 63 Ark. 551, 39 S. W. 852, 27 R. C. L. 487, § 204; Mott v. Business Men’s Invest. Assn., 157 N. Y. 201, 52 N. E. 1; Hogg v. Herman, 71 Mont. 10, 227 Pac. 476.

The testimony in the case tended to show that the appellees were endeavoring in good faith and with reasonable diligence to meet the objections to the title pointed out by the attorney of the appellant and to conform to his requirements, but that within two days after the last requirements were made the appellant disavowed the contract and demanded the return of his deposit. The chancellor found'that the appellees furnished an abstract within a reasonable time under the facts and circumstances, showing a merchantable title. It is obvious that the appellees were the owners of the land contracted to be sold under a title free from any liens or incumbrances, and that they were proceeding in a reasonable way to complete the abstract in conformity with the requirements made, but before they could do so the appellant arbitrarily disavowed the contract. It is also apparent, and the chancellor found, that the abstract was finally perfected so as to show a merchantable title in the vendors. The evidence justified the finding of the chancellor that the appellees had perfected the abstract within a reasonable time, and that it discloses a merchantable title in the vendors, such as they contracted to convey, and the appellant was bound to accept.

The decree is correct, and it is therefore affirmed.


author: Mehaffy, J.

text:
    Wells v. Henry.
    Opinion delivered January 11, 1932.

      Aubert Martin and J. R. Wilson, for appellant.

      D. A. Rraclhanh, for appellee.
   Mehaffy, J.

J. T. Beard of Bradley County, Arkansas, on the 6th day of August, 1921, made a will, giving all of his property to his two children, Bossie Wells and Bufus Beard. The will provided for the sale of the property, giving one-half to the daughter, Bossie Wells, absolutely, and the other half to be put upon interest to be paid annually to Bufus Beard, the son. The will provided for paying Bossie Wells her one-half interest and placing the other half in some institution and paying interest annually to Bufus Beard.

The will was filed for probate, and it was agreed between Bossie Wells and Bufus Beard, the only heirs at law of J. T. Beard, that the will should be probated, and that the property should be divided according to the provision of the will, but that the property should not be sold.

The agreement entered into provides for a complete inventory of the estate and an equal division of - the assets, and then provides for the sale of the property by the commissioners, the part allotted to Rossie Wells to be sold to her and deeds executed to her for the same, and the part allotted to Rufus Beard to be sold to him and a deed executed'and held in escrow, he to have the entire revenue derived as rents, incomes, profits, or in any other way from same. In other words, they agreed on a division of the property, and agreed that one-half of it should be deeded to Rossie Wells, and delivered to her, and that the other half should be deeded to Rufus Beard, but that the deed should be held in escrow, and that he should receive the income from his half of the property.

The will, as we have said, was dated August 6,1921, and J. T. Beard died on December 11, 1924. After the division of the property as above mentioned, Rossie Wells took possession of the property deeded to her, and Rufus Beard took possession of the property deeded to him for the purpose of receiving the income from said property.

After the death of J. T. Beard, and after the division of the property, improvement districts were formed and assessments made on the property deeded to Rufus Beard. These assessments were not paid by him and the property was sold for the assessments and State and county taxes, and purchased by H. T. Henry and others.

Rossie Wells brought suit in the chancery court alleging, among other things, that Rufus Beard owned a life estate only, and that he had made contracts with H. T. Henry and others under the terms of which his property was to be sold for taxes and purchased by the persons who rented said property, and that the purpose was to enable Beard to get title to the property.

A portion of the property was sold to the State for nonpayment of taxes for the year 1927, and the same property was sold for the nonpayment of paving taxes in December, 1928. It is unnecessary to recite the sales of the property other than that purchased by Henry, becanse all the other property was redeemed, by Rossie Wells, and the only controversy here is between H. T. Henry and the appellant, Rossie Wells.

After the suit was brought Rufus Beard died, and the property then became the property of Rossie Wells, she being’ the only heir at law of Rufus Beard. •

On August '24, 1927, Rufus Beard and H. T. Henry entered into a lease contract under the terms of which Henry was to pay Beard $15 a month for what was known as the Neeley store lot on West Pine Street in the city of Warren for a period of five years from and after September 1, 1927. The lease provided for the removal of a store building and for Henry placing such improvements on the lot as he might desire, and said improvements to remain the personal property of said Henry, with the right to remove said property within a reasonable time after the expiration of the lease. The lease, by its terms, will expire September 1, 1932.

Henry, on August 18, 1930, leased the property to the Standard Oil Company for two years, said term to begin August 24, 1930, and ending August 23, 1932.

When the property of Beard was sold for nonpayment of taxes, Henry purchased not only the property that he occupied as lessee, but also the adjoining property.

The chancery court entered a decree reciting among other things that, upon the death of J. T. Beard, all property of which he died seized and possessed passed by devise, share and share alike, to Mrs. Wells and Rufus Beard, in fee to Mrs. Wells, but with life estate only to Rufus Beard with remainder over to Mrs. Wells; that the agreement executed by Mrs. Wells and Rufus Beard, at the time the will was probated, did not change the intention of the testator with reference to the class of title willed; that, through failure of the executors to act, the estate was never partitioned, but was left intact at the date of the death of Rufus Beard; that the property, not having been partitioned, the burden of support and maintenance of Rufus Beard was imposed upon the whole property, and that the lease executed by Rufus Beard to Henry merely subjected a moiety of the estate to the use for which part or all of the estate was subjected under the terms of this will; that the terms of the lease were reasonable, and that Henry, having bought the property for delinquent improvement taxes, to protect his lease, was between the time of purchase and redemption entitled to the use and profits of the property so bought; that he was entitled to recover the amount expended in paying taxes without deduction on account of rents; that Henry had a right to remove his property from the lot leased by him, but must restore the property to a condition such as it was before he took possession; that Mrs. Wells had a right to redeem upon paying the amounts paid out by Henry with interest and penalty.

Mrs. Wells objected to the decree of the court and prosecutes this appeal to reverse said decree.

The appellee did not object to the decree of the court, but states in his brief: “Henry has never claimed that Rufus Beard had no right of redemption, and he does not now claim that appellant has no right of redemption; he always wanted it redeemed, as he needed the money he had tied up in taxes. All he wants is his money back with interest and costs as provided by law.”.

Therefore the only questions are, what appellant is required to pay to redeem the property, and whether appellee was entitled to the rents and profits after the purchase, as claimed by him.

Appellee claims that he paid out to equip this property $657.03, and that he paid out - other sums at tax sales amounting to a total of $1,325.39. It is wholly immaterial what the appellee paid out to equip the property. When he entered into the lease contract with Rufus 'Beard, he expressly agreed to equip the property with the right to remove it at the expiration of the lease. He would therefore in no event be entitled to any amount expended for equipping’ the property for his use.

Appellee calls attention to § 5642 and § 5644 of Crawford & Moses’ Digest. Section 5642 provides that the purchaser in possession shall not he accountable for rents upon redemption, and § 5644 provides for redemption by one in possession under color of title. Neither-of •these sections has application here.

The purchase at tax sales by the'appellee and the agreement made between him and Rufus Beard amounted to merely a redemption from the tax sale.

It was the duty of the life tenant to pay the taxes. Henry occupied the lands under a lease from the life tenant. Neither Beard nor Henry could acquire title to the property by purchasing- it at tax sale while occupying it and receiving the rents and profits. The record in this case clearly shows that the purchase at tax sale by Henry was merely a redemption.

Henry himself says in his testimony: “I went and talked to Rufus after I bought it in. He was boarding over there in this little house Mrs. Cotton lives in, and I said, ‘Rufus, you are boarding over there, and I understand are getting your board for the rent of the house,’ and he said, ‘I am.’ ‘Well,’ I said, ‘I want to act fair with you. You go ahead and keep that up, and I won’t have anything to do with the big house, and also this other house here, you collect the rent on it and pay the paving tax next year, and I won’t have anything to do with it,’ and he said he would.”

He then testified that when Rufus did not pay the paving- taxes next time he collected the rent himself.

We said in a recent case: “One cannot occupy and enjoy the use of premises and at the same time acquire a valid tax title by permitting the lands to be sold for .taxes, purchasing at the sale, or purchasing from one who has purchased at the tax sale, based upon a tax forfeiture during the time he was so occupying and enjoying the premises.” Roberts v. Miller, 173 Ark. 38, 291 S. W. 814; Sanders v. Ellis, 42 Ark. 215.

This court said in speaking of the duty of the life tenants to pay taxes: “It was held that it was the duty of the life tenants to pay the taxes, and that the reconveyance to them by the purchaser at the tax sale amounted to a redemption of the land by the widow and heir at law, and extinguished the tax title of the purchaser.” Lefevers v. Dierks Lumber & Coal Co., 161 Ark. 67, 255 S. W. 554.

In the instant ease, Henry was occupying the premises under a lease from the life tenant paying $15'a month rent. He purchased at the tax sale not only the property, but adjacent property, and agreed, according to his own testimony, with Beard that Beard should continue to receive the rents of this other property. Thereafter, when Beard did not pay the next improvement tax, Henry occupied the entire premises, receiving the rents and profits. According to Henry’s own testimony, there was some sort of an agreement between him and Beard.

This court quoted with approval the following: “Where a cotenant entered into negotiations with a third person by which such third person agrees to bid in the property at the tax sale and after the period of redemption expires to transfer it to the cotenant, or where, after a third person has bid in the property at a tax sale a eotenant, by collusion with him, secretly redeemed the property, and after the period of redemption has-expired takes a deed from the purchaser, the transaction is fraudulent and the purchasing tenant acquires no title as against his co-tenants.” Inman v. Quirey, 128 Ark. 605, 194 S. W. 858.

But, whether there was a fraudulent agreement between Henry and Beard or not, Beard was a life tenant. Henry occupied under a lease from Beard. Henry purchased .at tax sale and received the rents and profits from the property purchased at tax sale, and it would be unjust and inequitable to permit him to recover the amount of money paid in taxes and keep the rents of the property.

Counsel have discussed many authorities which' we do not deem it necessary to review, because, under the circumstances in this case, we think it clearly appears that Henry’s purchase at a tax sale was a redemption which inured to the benefit of the owner.

The chancery court held that the appellant had a right to redeem, and there is no appeal from this finding, and, as we have already said, appellee agrees that she has a right to redeem.

Appellant calls attention to authorities holding that the improvement district taxes should be apportioned between the life tenant and owner of the fee. We do not think these authorities have any application here for the reason that, whether the taxes should have been paid by the life tenant or the owner of the fee, Henry is entitled to receive the money which he paid for taxes, less the rental value of the property during the time he held it.

The decree of the chancery court is reversed, and the cause remanded with directions to ascertain the rental value of the property during the time it was held by Henry, and deduct this sum from the amount of taxes paid by him, and the balance will be the amount Mrs. Wells will be required to pay in order to redeem.


text:
    Dupree v. State.
    Opinion delivered January 11, 1932.

      Sami M. Levine and L. DeWoody Lyle, for appellant.

      'E. W. Brockman, Prosecuting-Attorney, for appellee.
   Butler, J.

This ease raises the question of the constitutionality of act No. 297 of the Acts of the Gfeneral Assembly of 1931. The appellant was prosecuted and convicted of unlawfully killing a squirrel under § 5 of act 160 of the Acts of the General Assembly of 1927, by which it was made unlawful to kill squirrels in any county in this State except between the dates of May 15th to June 15th, both inclusive, and October 1st to January 1st, both inclusive. The defendant defended on the ground that the act of 1927 had been superseded by act 143 of the Acts of 1929 as amended by act No. 297 of the Acts of 1931.

Act No. 143 of the Acts of 1929 provided for an open season for killing squirrels between the dates of July 1st to January 1st in fifty-seven of the seventy-five counties of the State. It provided for an open season between October 1st to January 1st in fourteen counties and in three counties two open seasons were provided — May 15 to June 15 and October 1st to January 1st — and as to one county it was provided that there should 'be no closed season at all. Act No. 297 of the Acts of 1931, as act No. 143, supra, made it unlawful to kill squirrels except in open season, which was fixed generally at July 1 to January 1. Jefferson County was included in this open season. In other counties the open season was fixed, at other and different dates with the following proviso: “Provided that there shall be no closed season for hunting, killing and possessing squirrels in Marion, Madison, Searcy, Logan, Carroll, Baxter, Newton, Boone, Pulton, Izard and Sharp Counties.” It will be observed therefore that the act of 1931 made it unlawful to kill squirrels within certain named dates in all the counties of the State except those named in the proviso, and in those counties there was no closed season and .squirrels might be lawfully hunted in those counties throughout the year.

Amendment No. 14 to the Constitution provides:

“The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.”

In the case of Webb v. Adams, 180 Ark. 714, 23 S. W. (2d) 617, the inhibition of that amendment was applied to an act of the General Assembly which provided for an optional county unit or a consolidated school system for the State operating equally throughout the State except in two counties, which, by proviso, were excluded from the provisions of the act. The court said:

“The exclusion of a single county from the operation of the law makes it local, and it cannot be both a general and a local statute * * *. A local law is one that applies to any subdivision or subdivisions of the State less than the whole. 3 Words & Phrases, Second Series, p. 172. A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some person, place or thing from those upon which, but for such separation, it would operate.”

In the act of 1929 and that of 1931 the Legislature exempted certain counties from the operation of the law. This arbitrarily places these counties in a separate class and leaves them outside the provisions of the law. As was said in the opinion on rehearing in Webb v. Adams, supra-. “This would amount to allowing the Legislature to wholly disregard the constitutional amendment and leave the Legislature at its own will to say whether or not the law shall apply throughout the whole territorial limits of the State or whether its operation should be restricted to certain counties. While proper classification is allowed, it must stand upon some reason and have regard to the character of the legislation and cannot be arbitrarily used by the Legislature. ’ ’ See also the recent case of Simpson v. Matthew's, ante p. 213.

It necessarily follows from what is said in the cases last cited that the acts of 1929 and 1931, supra, fall within the inhibition of the Constitution and are therefore void, and leave act No. 160' of the Acts of 1927 in force, and, as July 16 was a time under that act when it was unlawful to kill squirrels, the appellant was properly found to be guilty, and the judgment of the circuit court is affirmed.


author: Hart, C. J.,

text:
    Railway Express Agency, Inc. v. J. W. Myers Commission Company.
    Opinion delivered January 18, 1932.

      A. M. Hartung and Warner $ Warner, for appellant.

      D. H. Howell, for appellee.
   Hart, C. J.,

(after stating the facts). This is not a case where the common-law presumption against carriers who have received perishable commodities in good condition and have delivered them in damaged condition is applicable, as was the case in Chicago, Rock Island & Pacific Railway Company v. George E. Shelton Produce Company, 172 Ark. 1017, 291 S. W. 428, and Railway Express Agency, Inc., v. S. L. Robinson & Co., ante p. 660. In cases like those, when the goods are damaged in the hands of the carrier, the burden of proof is upon it to show that its negligence did not contribute to the damage. The reason is that the goods are exclusively in its custody during transit, and it alone would know whether or not it had been guilty of negligence in handling the goods in transit.

The shipment involved is an interstate one, and it is settled that the rights and liabilities in respect to damage depend upon acts of Congress, and upon the common-law principles expressed in the federal courts. Chicago & Northwestern Railway Company v. C. C. Whitnack Produce Company, 258 U. S. 371, 42 S. Ct. 328; St. Louis-San Francisco Railway Company v. H. Rouw Company, 174 Ark. 1, 294 S. W. 414; St. Louis-San Francisco Railway Company v. Burford, 180 Ark. 562, 22 S. W. (2d) 328; St. Louis-San Francisco Railway Company v. Greig, 182 Ark. 262, 31 S. W. (2d) 290; Missouri Pacific Railroad Company v. Fine, 183 Ark. 13, 34 S. W. (2d) 755; and American Railway Express Company v. Cole, ante p. 485. In these cases, it is held that, where specific acts of negligence are alleged as a right to recover by plaintiff, he must rely thereon and make proof thereof in order to recover. In such cases, he will not be permitted to recover under the common-law doctrine that a carrier must account for the deteriorating condition of commodities received by it in good condition and delivered in bad condition.

The first ground of negligence relied upon in the present case is that the carrier did not furnish a properly equipped refrigerator car. There is no evidence on the part of the plaintiff at all to sustain this allegation of negligence. On the part of the defendant, it was shown by evidence of witnesses, which was consistent in itself and uncontradicted, that the car was of the latest modern type and was properly equipped in every respect without any defect in it.

The next allegation of negligence is that the car was not properly iced in transit, and that this caused the damage to the peaches. On this branch of the case, the defendant introduced witnesses who had iced the car at the point of shipment and en route from Heavener, Oklahoma, to St. Louis, Missouri. The testimony shows that the bunkers were kept filled to capacity and the ice was tamped down. The drains were left open, and there was no negligence whatever on the part of the express company in handling the peaches. The train which carried the peaches arrived at its destination in St. Lonis on schedule time, and was promptly placed on the side track for unloading. When inspected there, they were found to contain brown rot, which is a progressive disease. Peaches may be loaded in a car in apparently good condition, and brown rot may develop in them to the extent that was discovered while in transit. According to the evidence for the defendant, the damage to the peaches in question was caused by brown rot, a field disease, and not by any negligence whatever of the defendant.

It is insisted, however, that the evidence for the plaintiff is to the contrary and establishes negligence in failing to properly ice the car in transit. We do' not so regard the effect of the evidence. The most that can be' said of the evidence for the plaintiff on this branch of the case is that brown rot will develop more rapidly in peaches when the refrigerator car in which they were carried is not properly iced. On this point, the son of the plaintiff testified that he inspected the peaches when they were loaded and that the ice was down six inches. In the very nature of things, ice will melt, but the testimony of the defendant, which is uneontradicted, tends to show that the initial icing was completed at 3:15 p. m. and that the car was reiced eight and a half hours after-wards. The plaintiff loaded the peaches into the car through its agent, 300 crates of peaches being taken out of cold storage and the balance from sheds at the loading* point. According to the testimony of J. W. Myers, the only thing that could cause development of brown rot in peaches loaded at Heavener in sound condition and arriving at St. Louis with as high as twenty-five per cent, decay is improper refrigeration. It is apparent from reading his testimony that brown rot is a field disease, and that peaches are often sprayed in the fields to control it. He only states that, if the peaches had had brown rot when put in the car, good refrigeration would have checked the brown rot. The uncontradicted proof shows that the peaches had the disease called brown rot, and that this was a disease which originated in the fields. The condition in which the peaches were found in the car when it arrived at its destination showed that there had been no improper handling’ of the peaches. The decayed condition of the peaches was due solely to a field disease which was not caused by any negligence on the part of the defendant. The disease originated in the peaches before they were delivered to the carrier, and the undisputed evidence shows that the disease is frequently not apparent at the beginning. Here the uncontradicted proof shows that the decay in the peaches was due to this field disease called brown rot, and not to any negligence of the defendant in handling the peaches in transit.

Therefore the court should have directed a verdict in favor of the defendant as requested by it. For its failure to do so, the judgment must be reversed; and, inasmuch as the cause of action seems to have been fully developed, it will be dismissed here. It is so ordered.


text:
    Inter-Ocean Casualty Company v. Huddleston.
    Opinion delivered January 18, 1932.

      A. R. Cooper, for appellant.

      R. W. Wilson, for appellee.
   Humphreys, J.

The judgment appealed from in this case was obtained in the circuit court of Jefferson County under sections Gr and H in a health insurance policy executed by appellant on February 9, 1930, to appellee pursuant to her application, which sections are as follows:

“Section Gr — Monthly Sickness Benefits. — If the insured is totally disabled, necessarily and continuously confined in the home and therein treated by a doctor (sat-isfactory to the company) at least once each seven days, due to disease or illness that originates more than thirty (30) days after this policy is issued, or more than thirty (30) days from date of any reinstatement, benefits will be paid at the rate of $75 per month or $2.50 per day.
‘ ‘Section H — Non-confining Sickness. — If immediately following total disability and house confinement, as defined in section Gr, and for the period of time during which the insured shall be totally disabled from performing his or her duties, although not confined in the house, but receiving regular treatments from the physician at his office at least once each seven days, benefits shall be paid at one-half the amount provided in section G1 hereof for a period of time not exceeding three consecutive months.”

It was alleged in the complaint that appellee was sick, confined to her bed, and obliged to have the services of a physician between July 6 and September 9,1930, and entitled under section H, on account of said illness to $160; between September 9 and December 9, 1930-, was sick, totally disabled, and received regular treatment from a physician at least once a week and entitled, under section H, to $100; that, by reason of appellant’s failure to pay said sums, she was entitled to a 12 per cent, statutory penalty and a reasonable attorney’s fee.

In addition to denying’ the material alleg’ations of the complaint, appellant pleaded in bar of a recovery that in appellee’s application she made the following’ false warranty:

“I am free from all injury. I am not subject to, do not now have, nor have I ever had, fits of any kind, vertigo, hernia, paresis, or rheumatism, nor any other disease or infirmity, mental, physical, nervous, venereal, chronic or inherited, except as follows: No exceptions.
“I have not been disabled nor had medical treatment during the past three years except as follows: No exceptions.
I understand and agree that I have made the above statements as material representations to induce the issuance of the policy applied for, and I hereby represent them all to be true, full, and complete.”

Upon the trial of the cause, the court sitting as a jury, the following findings were made:

“The statements in the application for said insurance were mere representations and not warranties. They were not made by plaintiff knowingly and wilfully, and with the intent to defraud, and further finds that said representations were not of such a nature as to affect the health of the applicant in 1930, nor was the illness in 1929 in any way dependent on, or connected with any illness in 1930, and that said statements, if false, were .not material and not a defense to plaintiff’s right tó recover herein.”

Based upon the finding, judgment was rendered for the full amount claimed under the terms of the policy and an additional amount for the statutory penalty of $30 and an attorney’s fee of $50, from which is this appeal.

The main contention of appellant for a reversal of the judgment is that the excerpts quoted above from the policy constituted a warranty.-Under the rules reiterated and reannounced in the recent case of Modern Woodmen of America v. Whitaker, 173 Ark. 935, 293 S. W. 1045, that govern and distinguish between warranties and mere representations in insurance policies,, the language used in the instant policy is clearly a representation only. The language itself is not sufficiently specific to constitute a warranty. A* representation merely, though untrue, will not invalidate a contract of insurance unless material. It is insisted that because appellee admitted, and her physician testified, that she was treated for malaria in 1929, or within three years from the date of the policy, the representation was material and necessarily avoided the contract. This is not true because appellee’s physician testified that she was cured of the disease and discharged by him in 1929, and that the malaria for which she was treated in 1930, after the issuance of the policy, was not a continuation of the malaria she had in 1929, but was the result of a new infection. There was no relation whatever between the two attacks of malaria, but they were due to separate bites of mosquitoes, so the first was not material to the second.

Appellant also contends for a reversal of the judgment because appellee’s illness was chronic within the meaning of heir representation. The word “chronic” used in the representation carried the meaning- of a disease of long standing. The evidence failed to show that the diseases for which she had been treated were of longstanding, so there is no merit in this contention.

Appellant also contends for a reduction of the judgment because appellee was not treated by a physician at least once a week, either in his office or at her home, after September 9, 1930. The testimony shows that after that date she went to her father’s home in New Edinburg at the instance of her physician, and that she was thereafter treated by him, either at his office or through the mail, at New Edinburg- once a week until December 9, 1930. Treatment by sending medicine or prescriptions through the mail constitute regular treatment by a physician within the meaning of section H of the policy.

No error appearing,-the judgment is affirmed.