text:
    Missouri Pacific Railroad Company v. Jones.
    Opinion delivered October 13, 1930.

      R. E. Wiley and Henry Donham, for appellant.

      J. H. Loohadoo, for appellee.
   McHaney, J.

Appellee brought this action against appellant to recover the value of a hound dog, killed by the operation of a motor car on the track of appellant near Okolona, Arkansas. Appellee had loaned his dog to Tom Beard to go rabbit hunting. Beard and two others, with two other dogs, had been hunting for some time and had started home. They came to the railroad track and were walking north on the track, approaching a road crossing about a quarter of a mile away. It was necessary to cross a bridge about 100 feet long. Two of the boys had crossed the bridge, as well as one of the dogs. Beard was some distance behind walking toward the bridge when he saw appellant’s motor car coming south, meeting them. Appellee’s dog got on the bridge and was attempting to cross, when it was struck by the motor car. The track was straight for a considerable distance ahead. There was a verdict and judgment for appellee in the sum of $50.

For a reversal of the case it is first urged that the court erred in refusing to direct a verdict in appellant’s favor at its request, on the ground that Beard, who had charge of appellee’s dog, was guilty of such contributory negligence as to bar appellee’s right of recovery. We cannot agree with the appellant in this contention, as. the proof shows that Beard was some considerable distance ■behind the dog when it was struck by the motor car, and could not have reached, him in time to save him after he discovered the motor car coming down the track. Moreover, there was some proof that the other two boys who were hunting with Beard endeavored to get the dogs off the track and succeeded in getting two of them off, one of which had gotten on the bridge, but got away before being struck. The court submitted the question of the contributory negligence of Beard to the jury under proper instructions, and we think the evidence was sufficient to take this question to the jury.

It is next insisted that the court erred in giving appellee’s instruction No. 1, and in modifying appellant’s instructions Nos. 2 and 3, and in refusing to give its requested instruction No. 4. Instruction No. 1, given at appellee’s request, reads as follows:

“The jury are instructed that it was the duty of the defendant’s employees in charge of the operation of the motor car to exercise ordinary care to observe persons and property on defendant’s track, and to exercise such care to avoid injuring such property after the same is discovered. So, in this case you are told that it was the duty of defendant’s servants to exercise ordinary care to observe plaintiff’s dog on its track, and to exercise this degree of care to avoid striking the dog after it was discovered on the track; and if you find from a preponderance of the evidence that defendant’s servants in charge of the'car failed to exercise such care to discover the dog on the track, or negligently failed to avoid striking the dog after discovering him on the track, then the defendant would be liable to plaintiff for the death of his dog, and you will so find; provided, you do not find that the persons in charge of the dog at the time it was struck were guilty of contributory negligence as defined in these instructions.”

The effect of this instruction was to tell the jury that it was the duty of appellant’s employees in charge of the operation of the motor car to exercise ordinary care to observe appellee’s dog on its track, and that, if they failed to exercise ordinary care to discover the dog on the track, the appellant would be liable for the death of the dog. We think this states the law too broadly. It must be remembered that this dog was not killed by the operation of a train, but by the operation of a hand-car, propelled by a motor instead of by hand. The lookout statute, § 8568, C. & M. Digest, does not.therefore apply. St. L. Sw. R. Co. v. Mitchell, 115 Ark. 339, 171 S. W. 895 ; Cook v. Mo. Pac. Rd. Co., 160 Ark. 523, 254 S. W. 680. In the latter case it was held that, while the lookout statute applies only to the operation of trains, and not to motor cars, it is the duty of persons operating a motor car to keep a lookout at or near public crossings, not by the virtue of the lookout statute, but because of the duty imposed upon railroad companies by the common law. In L. R. & Ft. Smith Ry. Co. v. Holland, 40 Ark. 336, this court said: “Ordinary care in the management of their trains is the measure of vigilance which the law exacts of them in their relations to the owners of such animals. And this means practically that the company’s servants are to use all reasonable efforts to avoid harming the animal, after it is discovered or might by proper watchfulness have been discovered to be on or near the track. ” In Memphis & L. R. R. Co. v. Kerr, 52 Ark. 162, 12 S. W. 329, 5 L. R. A. 429, 20 Am. St. 159, the court corrected or limited the broad language used in the quotation above, and said: “If the intimation, supra, that a railroad company is liable, if the engineer in charge of the train when stock is injured, ‘might, by proper watchfulness,’ discover the animal on or near the railroad track in time to avoid injuring it, means that a railroad company owes to the owner of stock that stray upon its track a duty to keep a lookout to prevent injuring it, it states the rule too broadly.” A little later on in the same case the court said: ‘ ‘The extent of the duty which a railroad company owes to the owner of stock upon its track is that the engineer in charge of the train at the time shall use ordinary or reasonable care, after the stock is discovered by him, to prevent injury to it, and this negatives the idea that the engineer is bound to keep a lookout for stock.” After the decision of the Kerr case, supra, the Legislature passed what is commonly known as the lookout statute, which was amended, and the provisions thereof extended by the act of May 26, 1911, page 275, which is now § 8568, C. & M. Digest. In Ark. Short Line v. Bellars, 176 Ark. 53, 2 S. W. (2d) 683, this court by Mr. Justice Wood, in defining the duty of railroad companies to trespassers and bare licensees, said: “In many cases before the lookout statute, which does not apply here, this court has held that a railroad company owes trespassers and bare licensees no affirmative duty of care, and only the duty not to willfully or wantonly injure them, or the duty to exercise ordinary care not to injure them, after discovering their peril and inability to escape. To bare licensees railroad companies owe no affirmative duty of care, for such licensees take their license with the concomitant perils.” Citing cases.

We therefore conclude that the court erred in giving appellee’s instruction No. 1, because it placed the duty upon the railroad company to keep a lookout for persons and property on the track in the operation of a motor car. As to appellant’s instructions 2 and 3, which were modified, and requested instruction No. 4, which was refused, we think these instructions were covered by a correct instruction given by the court at appellant’s request, which is No. 7. What we have said with reference to appellee’s instruction No. 1 will no doubt eliminate any error in this regard on a retrial of the case, and it therefore becomes unnecessary to discuss these assignments in detail.

For the error indicated, the judgment will be reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    St. Louis-San Francisco Railway Company v. State use Craighead County.
    Opinion delivered October 13, 1930.

      E. T. ■Miller, E. L. Westbrooke, Jr., and E. L. Westbrooke, for appellant.

      8. L. Gladisli and A. W. Young, for appellee.
   Butler, J.

The town council of the town of Bay, under the general powers conferred by § 4006 of Crawford & Moses’ Digest, established a street in the town in such a manner as to cross the roadbed and track of the St. Louis-San Francisco Railway Company and filed a petition under § 4009 in the Craighead Circuit Court. The hearing’ of the petition was set down by the court for June 25, 1929, at which time the railway company appeared and contested the proceeding on the ground that the-town council no longer had authority to make the order establishing the street so that it would cross its roadbed, and that this authority had been divested by act of the Legislature, approved March 29, 1913, now § 1645 of Crawford & Moses’ Digest. From a judgment adverse to appellant’s contention it appealed to this court, which appeal resulted in an affirmance of the judgment of the circuit court on February 3, 1930. St. L. S. F. Ry. Co. v. Bay, 180 Ark. 1040, 23 S. W. (2d) 968.

On July 22 following the judgment of the circuit court, the town council gave notice to the railway com pany as provided by § 8484 of Crawford & Moses’ Digest, requiring it to construct a crossing on and over its tracks as prescribed by § 8483, lb. The twenty days within which it was required to construct a crossing after notice having expired, notice of that fact was filed with the clerk of the county court and by him communicated to the prosecuting attorney, who brought this suit to enforce the provisions of § 8486 providing for a penalty of not less than one hundred nor more than two thousand dollars for failure or refusal to construct the crossing, and $5 for every day such refusal or neglect should continue after the expiration of the twenty-day notice. This suit was filed on September 10, 1929, and summons served on defendant on September 13, 1929. An answer was filed by the railway company, the date of such filing not being given in the record. On the 21st day of February, 1930, the cause came on before the court sitting as a jury upon the pleadings and an agreed statement 'of facts, and a penalty was fixed in the sum of $100. The court found that 189 days had elapsed during which the railway company had failed and refused to comply with the order requiring it to construct a crossing, and judgment was rendered for the said $100 and for a further penalty of $5 per day for 189 days, making a total of $1,045, from which judgment is this appeal.

It is the contention of the appellant that the trial court erred in assessing a penalty against it because at the time of the filing of its suit an appeal was pending in this court in the case of St. Louis-San Francisco Ry. Co., appellant, v. Town of Bay, appellee, and that no right accrued to the appellee in this ease to have any penalty assessed until after the case of Railway Co. v. Town of Bay, supra, had been decided and the mandate of this court handed down, and that the entering of a judgment for the penalty was a taking of the defendant’s property without due process of law and in violation of the Federal Constitution. It is insisted by the appellant that the appeal in the case of Railway Company v. Town of Bay, supra, suspended and totally eliminated the charging of the railway company in the instant case with a penalty for not constructing the crossing under notice given by the town of Bay, and it further insists that the statute authorizing the collection of penalties was one from which no appeal was provided, and is itself void because its effect would be to deprive the appellant of its property without due process of law. This latter contention is refuted by the action of the appellant in the instant case, for here it has appealed and rightfully so under the general statute granting the right of appeal in all cases; and, as the Legislature did not' attempt specifically or by any reasonable inference to debar or prevent an appeal, it must be deemed to have had in mind the general laws relating to appeals and intended that those should govern.

To sustain its contention that to enforce the penalty against the railroad company will deprive it of its property without due process of law, a number of cases are cited and extensively quoted, and it is insisted that the holding in those cases established appellant’s contention under the facts in the case at bar. It cites S. W. Tel. & Tel. Co. v. Danaher, 238 U. S. 482, 491, 35 S. Ct. 886, which case involved the validity of the statute imposing a penalty of $100 per day against the telephone company for denial of its service where such denial was the result of a rule promulgated by it. This rule was held by this court to be unreasonable, and the penalty properly assessed. In reversing that decision, the Supreme Court of the United States, spealdng through Mr. Justice Vande venter, said: “If it be assumed that the State Legislature could have declared such a regulation unreasonable, the fact remains that it did not do so, but left the matter where the company was well justified in regarding the regulation as reasonable and in acting on that belief.” Continuing, the court said: “There was no intentional wrongdoing, no departure from any prescribed or known standard of action, and no reckless conduct. Some regulation establishing a mode of inducing prompt payment of the monthly rentals was necessary. It is not as if the company had been free to act or not, as it chose. It was eng'aged in a public service which could not be neglected. The protection of its own revenues and justice to its paying patrons required that something be done. It acted by adopting the regulation and then impartially enforcing it. There was no mode of judicially testing the regulation’s reasonableness in advance of acting under it.”

The next case relied upon by the appellant here is that of Oklahoma Operating Company v. Love, 252 U. S. 331, 40 S. Ct. 338, which was an appeal involving the enforcement of rate fixing orders made by the State Corporation 'Commission of Oklahoma. In holding the order invalid on constitutional grounds, the court reached its conclusion on the ground that “it appears that the only .judicial review of an order fixing rates possible under the laws of the iState was that arising in proceedings to punish for contempt. The Constitution endows the commission with the powers of a court to enforce its order by such proceedings. * * * By boldly violating an order a'party against whom it was directed may provoke a complaint; and if the complaint results in a citation to show cause why he should not be punished for contempt, he may justify before the commission by showing that the order violated was invalid, unjust, or unreasonable. If he fails to satisfy the commission that it erred in this respect, a judicial review is opened to him by way of appeal on the whole record to the Supreme Court. But the penalties which may possibly be imposed, if he pursue this course without success, are such as might well deter even the boldest and most confident.”

Another case relied on by the appellant is that of Missouri v. Chicago, B. & Q. R. Co., 241 U. S. 533, 36 S. Ct. 715, where the rule was stated that a permanent injunction should issue to restrain enforcement of penalties accrued pendente lite, even though upon final hearing the maximum rates fixed should be found not to be confiscatory if the plaintiff had reasonable grounds to contest them as being such.

The case of Ex parte Young, 209 U. S. 123, 28 S. Ct. 441, cited by the appellant and extensively quoted, was an appeal in a case under a statute providing for the establishment of rates for railroad transportation without giving the corporation an opportunity to be heard and fixing penalties for disobedience of its orders by large fines and severe imprisonment. The case of Mo. Pac. Ry. Co. v. Tucher, 230 U. S. 340, 33 S. Ct. 961, cited by the appellant, was also a case involving the validity of an act prescribing penalties for failure of a carrier to comply with an order fixing’ the rate of charges for shipments over its lines. Finally, attention is called to the case of Wadley Southern v. Georgia, 235 U. S. 651, 35 S. Ct. 214, where the right of the Georgia Railroad Commission to fix penalties for failure to obey an order preventing discrimination between shippers is questioned.

From a survey of these cases it will be observed that the legality of all of the orders involved was not apparent on the face of the order and the statute conferring the right to make the same, but depended upon a showing of some extraneous fact which might or might not exist and upon testimony to establsh it, and the decision of some tribunal. As is said in Wadley Southern v. Georgia, supra: “Their legality is not apparent on the face of such orders, but depends upon a showing of extrinsic facts. A statute therefore which imposes heavy penalties for violation of commands of an unascertained quality is, in its nature, somewhat aldn to an ex post facto law, since it punishes for an act done when the legality of the command has not been authoritively determined. Liability to a penalty for violation of such orders, before their validity has been determined, would put the party affected in a position where he himself must at his own risk pass upon the question. He must either obey what may finally be held to be a void order, or disobey what may ultimately be held to be a lawful order. If a statute could constitutionally impose heavy penalties for violation of commands of such disputable and uncertain legality the result inevitably would be that the carrier would yield to void orders, rather than risk the enormous cumulative or confiscatory punishment that might be imposed if they should thereafter be declared to be valid.”

In the statute under consideration in the case at bar there is no dependence upon a showing of extrinsic facts that may affect its validity. There is no command of an “unascertained quality or of disputable and uncertain legality.” Here is a power expressly and in unmistakable terms conferred on the city council to lay out the streets; the duty, in equally express terms, imposed upon railroads to construct crossings on such streets over its roadbed and tracks, a reasonable time being given to make such construction after notice, and for a willful failure to comply with the plain legislative mandate a penalty fixed which in no wise can be said to be confiscatory. We therefore think the cases cited by counsel for the appellant have no application. It cannot be questioned that the State may impose penalties to compel obedience to its mandates, and that the dne process clause of the Federal Constitution has no power to override the power of the State to establish all regulations that are reasonably necessary to secure the health, safety and general welfare of the community and to enforce same by the imposition of reasonable penalties, and all property rights are held subject to the fair exercise of such power. The statutes here involved are clear and explicit, and it is no excuse for a failure to obey the order in this case, made by virtue of powers conferred by such statute, that in the opinion of appellant that statute was superseded by the enactment of another; nor was it ground for the suspension of the penalties pending the interval in which appellant was prosecuting its appeal in the case of Railway v. Town of Bay, supra. The statute conferring the power upon the Corporation Commission, approved March 29, 1913, to designate and order crossings over railroads, by .its express terms was not to be construed as amending or repealing the statute by which city councils were given the authority to lay off streets and to require railroad companies to construct crossings on said streets where they passed across the line of railroad. This has been impliedly recognized by the legal profession and the courts of this State for the procedure in crossing cases continued to be pursued by town and city councils after the passage of the act of March 29, 1913, as before, as is pointed out in St. L. S, F. R. Co. v. Bay, supra. It was generally recognized that statutes such as that of March 29, 1913, conferring powers on public service commissions to require the construction of crossings did not deprive cities and towns of like powers which had previously been conferred on them by legislative grant. See Atlantic Coast Line v. Goldberger, 155 N. C. 362, which case on appeal to the United States Court was affirmed in 232 U. S. 548, 34 S. Ct. 364 ; also City of Durham v. So. Ry. Co., 185 N. C. 240, 117 S. E. 17, 35 A. L. R. 1313.

We must indulge the presumption that the order of the town council of Bay laying off the street and requiring the crossing was a matter involving the public safety and general welfare of the community, and, in view of the unambiguous terms of the statutes governing the construction of railroad crossings and the views of the courts construing such statutes, the appellant in this case did not have the right to refuse to comply with the order of the circuit court condemning the right-of-way at the instance of the town council or its refusal to comply with the notice to construct the crossing; It received its permit to do business in this State and to construct its lines of railway burdened with the statute requiring it to construct crossings on streets to be opened by town councils, and was under the implied obligation to construct suitable crossings at new streets. It had no right to refuse to comply with this duty and to suspend the penalties for its dereliction while it was litigating an order made under a statute which no subsequent act had attempted to repeal or amend, either expressly or by implication. It deliberately planted its refusal to comply with the order on the ground that it was invalid for want of power because of the effect of the act approved March 29, 1913, and thus delayed and interfered with the public safety and welfare of the people in the town of Bay and that vicinity. It did this at its peril, and, having failed in the contentions made by it in the case of Ry. Co. v. Bay, supra, it must now abide the consequences.

The judgment of the lower court is therefore affirmed.


text:
    Hembey v. Cornelius.
    Opinion delivered October 13, 1930.

      Alfred Featherston, for appellant.

      P. L. Smith, for appellee.
   Butler, J.

This suit was first brought in the court of a justice of the peace by the filing of the following complaint :

“The plaintiff, W. P. Hembey, for his cause of action against defendant states that sometime-in 1928, prior to November 1, 1928, the defendant, B. B. Cornelius, represented to plaintiff that one E. P. Hammons was indebted to him, and that he was working for the said E. P. Hammons, and, acting upon such representations made from time to time, he did furnish the said B. B. Cornelius goods, wares, and merchandise of the value of sixty-two and 88/100 dollars, of which amount the said defendant has paid fifteen and no/100 dollars, leaving- a balance now due the plaintiff-of $47.88, which is justly due and unpaid. That the representations made by defendant, namely, that Hammons was indebted to him and had not paid and was not paying him was relied upon by plaintiff, and that plaintiff would have sold him nothing on open account without such representations; and that said representation was in fact false, as plantiff has since been informed, and that said goods were fraudulently obtained. Premises considered, plaintiff prays that he have judgment against defendant, R. B. Cornelius, in the sum of $47.88 in tort, for Ms costs herein expended and for other just and proper relief.”

Accompanying- the complaint was an itemized, verified account, the first item being dated November 1, 1929, “To bal. agreed on............$17.83,” following which on various dates from November 3, 1929, to and including January 25,1930, appear various items, some being for merchandise in small amounts, medicine, and doctor’s visits, aggregating the sum of $52.88. Three credits appear at various times, two cash payments of $5 each and a credit on July 20, 1930, for work, leaving a balance due of $47.88.

There -was a trial before a jury, and the following verdict was rendered: “We, the jury, find judgment against the defendant for $47.88 for Dr. W. P. Hembey,” and the justice thereupon rendered judgment in the following language: “It is therefore ordered, considered and adjudged that the plaintiff have and recover of defendant the sum of $47.88 as sued on in complaint and all costs.” The judgment was rendered on August 23, 1929. On September 14, following, an execution having been issued, the defendant filed a schedule claiming the property listed therein as exempt, stating in the said schedule that he was a married man, the head of a family, and the property claimed was all the property owned, it being less than the amount allowed under the exemption laws. The justice denied the claim for exemptions and refused to issue a supersedeas, on the ground that the judgment was in tort, and that the five days ’ notice of the filing of the claim had not been given. Prom this order of the justice there was an appeal to the circuit court, where a demurrer was interposed to the complaint of plaintiff (appellant here) and the court found “that the demurrer to the complaint should be sustained with reference to statement or allegation of the complaint of the right to obtain, judgment in tort, ’ ’ and ordered ‘ ‘ that the demurrer be and the same is hereby sustained with reference to the right to obtain judgment in tort.” The plaintiff refused to plead further, whereupon the court dismissed the cause of action, and the plaintiff at the time saved his exceptions et cetera.

As the trial was in the justice court, no written pleadings were necessary, and we are unable to say upon what testimony the jury based its verdict, whether it found liability because of fraud and deceit in the procurement of goods and services, or whether the liability was founded upon contract. Therefore we are remitted to the papers filed by the plaintiff and the verdict of the jury in the ascertainment of the nature of the action. Such being the case, in order to sustain the contention of the appellant that it was an action sounding in tort, all the necessary elements of such an action must be specifically pleaded. Otherwise, the action must he held to be one based upon contract. We are of the opinion that the complaint and the account filed with it present a claim for debt by contract. Appellant appears to have been a doctor and a merchant, and, while he alleges that he furnished the goods upon the faith of certain false representations made by the appellee, these representations do not appear to us to be of a material nature. The representation was merely that one E. P. Hammons was indebted to the appellee, and that appellee was working for the said Hammons. In the first place, the amount of Hammons’ debt to appellee is not alleged, nor the financial responsibility of Hammons, nor that the appellee had no other means or resources from which he might expect to pay for the goods, and that he purchased them with fraudulent intent not to pay for them. •

In the case of Winter v. Bandel, 30 Ark. 362, we held that the allegations to support a recovery on the ground of fraud for false representations must relate to material matter. In the case of Taylor v. Mississippi Mills, 42 Ark. 247, 1 S. W. 283, it was held, in order to avoid a sale on the ground of fraud (or to sue for value in an action for deceit), a dishonest intention must exist at the time in the mind of the vendee, an actual intention to cheat or to do an act the necessary result of which will he to defraud the seller. To the same effect is the holding in the case of Mack v. Adler, 48 Ark. 70, 2 S. W. 345.

It is also settled law -that fraud is never presumed, but must 'be specifically pleaded and proved. These principles, we think, sustain our conclusion. The trial judge evidently intended by his order merely to allow the schedule and to order the supersedeas, for the appellant would be entitled to a judgment on his contract debt and the appellee to the relief he prayed, namely, that the exemptions be allowed and the judgment superseded as to the property claimed. As there appears to be some ambiguity in the judgment, the same is here modified to meet the view herein expressed, and as modified is remanded with directions to allow the defendants schedule of exemptions.


author: Per Curiam.

text:
    Cook v. Surplus Trading Company.
    Opinion delivered October 13, 1930.

      Sam T. Poe and Tom Poe, for appellant.

      Rose, Hemingway, Cantrell & Loughborough, for appellee.
   Per Curiam.

As pointed out in our original opinion, under § 9889 of the Digest all property assessed in this State shall be assessed by the duly authorized authorities according to its value on the first day of May. The record shows that appellee failed to assess its personal property, and that the clerk put the same on the tax roll as omitted property, and the assessor duly assessed the same under the provisions of 9906 and 9910 of the Digest. In making the assessment, however, the county assessor assessed the property in a lump sum of the value of $100,000. A part of this property was situated at that date on the Camp Pike Military Reservation, and was not subject to assessment by the State authorities. Surplus Trading Co. v. Cook, 281 U. S. 647, 50 S. Ct. 455, 74 L. ed. 625.

On the date of May 1, 1922, there was stored in the Terminal Warehouse in the city of Little Rock blankets of the estimated value of $20,000. These blankets should have been assessed by the county assessor. We are asked now to direct the chancery court to segregate these blankets from the others and make the assessment. It is not within the province of the courts to assess property. Under our Constitution and laws, the duty of assessing all property devolves upon the assessor, and no one else can perform that duty. Lyman v. Howe, 64 Ark. 436, 42 S. W. 830 ; and Walton v. Arkansas County, 153 Ark. 285, 239 S. W. 1054. Courts can only review the assessments made by the assessing officers and have no power under our Constitution and laws to make the assessments.

Therefore the decree of the chancery court will be reversed, and the cause will be remanded with directions to the chancery court to direct that the county assessor shall make an assessment of the blankets and other personal property of appellee which was situated in the Terminal Warehouse in the city of .Little Rock, Pulaski County, Arkansas, on the first Monday of May, 1922. In all other respects, the decree of the chancery court will be affirmed.


author: Hart, C. J.,

text:
    Lepanto Gin Company v. Barnes.
    Opinion delivered October 20, 1930.

      Caraway, Baker Gautney, for appellant.

      Dudley & Dudley, for appellee.
   Hart, C. J.,

(after stating the facts). The sole issue raised by the appeal and decided by ns is whether or not the court erred in finding that there was no liability against the defendants upon the certificates of stock which had 'been issued to them and for which each of them had given his note.

Article 12, § 8, of our Constitution provides that no private corporation shall issue stocks or bonds, except for money or property actually received or labor done, and all fictitious increase of stock or indebtedness shall be void. In the construction of this clause of the Constitution in Bank of Dermott v. Measel, 172 Ark. 193, 287 S. W. 1017, it was held that a note given to a private corporation for the purchase of stock in it is void. To support the holding, the court quoted from Bank of Commerce v. Goolsby, 129 Ark. 416, 196 S. W. 803, the following:

“'"When notes are taken in exchange for stock, it is a palpable violation of the constitutional provision, because notes are merely evidences of indebtedness, and such a transaction shows upon its face that the stock has not been paid for. The design of the framers of the Constitution was that stock should not be issued and sold except for its value in money or property actually received, or labor done. A note is not property in the sense of the Constitution, because it only indicates that the stock has not, in fact, been paid for; and where the notes are worthless the stock has been exchanged for nothing. Notes are not money and not bankable paper, but mere choses in action and it in no sense meets the requirements of the above provision of the Constitution to accept a note in exchange for stock” (citing authorities).

The notes introduced in evidence in this case were contractual in their nature because they contained a clause that they were given for shares of stock of the Lepanto Gin Company. The notes were merely evidence of the indebtedness of the persons executing them; and if the notes were void as being given in violation of the constitutional provision above referred to, there was no indebtedness of the stockholders to the corporation, for the certificates of stock which had been issued to them were also void; and the court properly held that there was no liability upon the part of the defendants.

Having reached this conclusion, it is unnecessary to consider the other questions discussed by counsel in their respective briefs. Therefore the judgment will be affirmed.


author: Hart, C. J.

text:
    Chesshir v. Copeland.
    Opinion delivered October 20, 1930.

      McConnell Jackson, for appellant,

      Feazel $ Steel, for appellee,
   Hart, C. J.

This appeal is prosecuted to reverse a decree restraining appellants from carrying into effect an order of the county court o.f Howard County, made on the 13th day of September, 1930, authorizing the county court to borrow $100,000 for the purpose of improving the roads and bridges in Howard County and to issue bonds therefor. The order further recited that at the general election to be held on the 4th day of November, 19'30', the proposition should be submitted to the voters of Howard County to vote a three-mill tax for the purpose of paying the bonds and interest for a period of thirty years.

The county court claimed the right to act under an amendment to the Constitution proposed by the Legislature of 1915 and adopted at the general election held in 1916. The amendment reads as follows:

“The county courts in their respective counties, in addition to the county tax now allowed to be levied, shall have power when authorized, as hereinafter provided, to levy an annual tax not exceeding three mills on the dollar on all-taxable property, which shall be collected and expended in making and repairing public roads. and bridges in their respective counties; and said court shall have power, after authority given as hereinafter provided, to levy a tax not exceeding three mills on the dollar on all taxable property for a period of time not to exceed thirty years, to borrow money, issue bonds and pledge the revenues arising from the tax levied for a period of time, to pay the interest and principal of any. sum or sums so borrowed. All bonds issued by authority herein given shall bear a rate of interest not to exceed six per cent, per annum. All sums so borrowed shall be used exclusively in making and repairing the public roads and bridges in the county. The annual tax and the tax for a period of years shall not both be levied and be in force at the same time in any county — the levy of one shall exclude the levy of the other.
“Before any levy of taxes herein authorized shall he •made, the question of levying such tax shall be submitted to the qualified electors of the county at a general or special election called for that purpose, at which a majority of the qualified electors voting at such an election shall have voted in favor of such levy of taxes.” Acts of 1915, pp. 1491, 1492; Constitution of Arkansas, Apple-gate, p. 200.

It will be noted that the amendment in effect provides for the county court to levy a tax not exceeding three mills on the dollar on all taxable property for a period of time not to exceed thirty years, to borrow money, issue bonds, and pledge the revenues from the tax levied to the payment of the principal and interest thereof. The amendment further provides that, «before the tax shall be levied, the question of levying the tax shall be submitted to the qualified electors of the county at a general election or at a special election called for that purpose.

The decree of the chancery court restraining the county judge and the county election commissioners from proceeding further in the matter was based upon the holding that the amendment copied and referred to above has been impliedly repealed by the passage of an amendment proposed by the Legislature of 1923 and adopted at the general election 1924. Acts of 1923, 797; Acts of 1925, p. 1087; Constitution of Arkansas, Applegate, p. 219. The first section of this amendment amends section 4 of article 12 of the Constitution by adding thereto that the fiscal affairs of counties, cities, and incorporated towns shall be conducted upon a sound financial basis and prohibited the making of a contract or allowance for any purpose whatever in excess of the revenue from all sources for the fiscal year in which the contract or allowance is made. The section contains a proviso, which reads as follows:

“Provided, however, to secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, eonnties, cities and incorporated towns may issue interest bearing certificates of indebtedness or bond with interest coupons for the payment of which a county or city tax, in addition to that now authorized, not exceeding three mills may be levied for the time as provided by law until such indebtedness is paid.”

We think that the chancery court correctly held that the amendment under which the county judge and election commissioners proceeded to act was impliedly repealed by the later amendment adopted at the general election in 1924 and referred to above. It is a rule of universal application that the Constitution must be considered as a whole, and that, to get at the meaning of any part of it, we must read it in the light of other provisions relating to the same subject. The general rule is that constitutional provisions and amendments thereto must be harmonized where practical. If there is to some extent an inconsistency or repugnancy between a provision of the Constitution and an amendment thereto, so that one or the other must yield, the amendment being the last expression of the sovereign will of the people will prevail as an implied repeal to the extent of the conflict. The same rule of construction would apply in the construction of amendments. The later amendment would govern to the extent that it was repugnant to or in conflict with the provisions of the former one. Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785 ; Ferrell v. Keel, 105 Ark. 380, 151 S. W. 269 ; State ex rel. v. Donaghey, 106 Ark. 56, 152 S. W. 746 ; Grant v. Hardage, 106 Ark. 506, 153 S. W. 269 ; Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649 ; Lybrand v. Wafford, 174 Ark. 298, 296 S. W. 729 ; Polk County v. Mena Star Company, 175 Ark. 76, 298 S. W. 1002 ; and Lake v. Tatum, 175 Ark. 90, 1 S. W. (2d) 554. The principle of constitutional construction above laid down has been uniformly adhered to and applied according to the varying facts of the different cases.

In the case of Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649, the court held that the amendment adopted in 1918 purporting to be an amendment of § 1 of article 16 of the Constitution, which authorized counties, cities and towns of 1,000 inhabitants to issue bonds, to raise funds to construct certain public improvements was impliedly repealed by what was called amendment No. 11 adopted in 1924, purporting- to amend § 4 of article 12 of the Constitution which limited the purposes for which bonds might be issued by counties, cities and towns to the payment of existing indebtedness, both because there was an irreconcilable conflict between the two amendments, and because the later amendment covers the subject-matter of the former amendment. The court expressly stated that the later amendment was a complete substitution for the provision in the former amendment with reference to the issuance of bonds, and leaves nothing of that amendment except the restatement of the original § 1 of article 16 of the Constitution.

The amendment adopted in 1918 readopts in full § 1 of article 16 of the Constitution, and then adds to it a provision authorizing incorporated towns of 1,000 or more in population and cities of the first and second class to issue interest-bearing bonds for the purpose of funding or refunding existing indebtedness incurred prior to the adoption of the amendment, and also for the purpose of using the funds to construct any of the public improvements enumerated in the amendment. The later amendment makes an addition to § 4 of article 12 of the Constitution by a provision authorizing counties, cities and incorporated towns to issue bonds to pay indebtedness existing at the time of the adoption of the amendment, and to levy a tax not exceeding three mills on the dollar to raise funds to pay the bonds as they mature. The amendment further provides that the fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and that no county court shall make any contract or allowance for any purpose whatever in excess of the revenue from all sources for the fiscal year in which the said contract or allowance is made. The language just referred to was declared by the court to be too clear to admit of any construction that would harmonize it with the authority given under the amendment of 1918 to issue bonds.

The court further stated in Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782, that amendment No. 21, adopted in 1924, prohibited the issuance of warrants or other evidences of indebtedness in excess of the revenue of the current year, and this without any exception whatever. The court further said that amendment No. 11 contains the distinct provisions which are applicable* regardless of the particular place in which it is inserted in the 'Constitution, and the fact that it is annexed to § 4 of article 12 does not limit its effect in repealing the conflicting provisions of the amendment adopted in 1918 to issue bonds in certain instances.

In all subsequent cases which have come before this court in the construction of what is generally called amendment No. 21, being the amendment adopted at the general election in 1924, it has been held that contracts made or warrants issued by a county in any year in excess of the revénue for that year are void. The court has said that the amendment deals with the rights and powers of counties with respect to their fiscal affairs. The amendment forces counties to live within their annual income derived from a maximum constitutional tax levy, and by it the people intended to put the counties of the State, in so far as the future is concerned, upon a cask basis. Ivy v. Edwards, 174 Ark. 1167, 298 S. W. 1006 ; Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002 ; Lake v. Tatum, 175 Ark. 90, 1 S. W. (2d) 554.

We are of the opinion that by the adoption of the amendment at the general election in 1924, commonly called amendment No. 11, the people intended to place the fiscal affairs of counties, cities, and towns upon a cash basis, and to prevent the issuance of further bonds by them except for the payment of indebtedness existing at the time of the adoption of the amendment. As we have already seen, the court has expressly declared this to be the purpose and effect of the amendment, and said that it impliedly repealed the provisions of the amendment adopted in 1918 with reference to the issuance of bonds. It would be repugnant to and in conflict with the provisions of the amendment adopted at the general election in 1924, commonly called amendment No. 11, which intended to prohibit the issuance of bonds except for indebtedness existing at the time of its adoption, to say that the provisions of an earlier amendment looking to the issuance of bonds for constructing roads, adopted in 1910, should also continue in force.

This view is strengthened when we consider that the power to issue bonds in amendment No. 11 is given by the proviso. This calls for an application of the maxim, “Expressin unius est exelusio alterms.” The fact that the framers of the amendment to the Constitution by the proviso authorized the issuance of bonds to pay existing indebtedness and the levying of taxes in the future to pay the principal and interest of the bonds, negatives the idea that counties, cities, or towns should have the power to issue bonds for any other purpose than that expressly granted in the proviso. Stanley v. Gates, 179 Ark. 886, 19 S. W. (2d) 1000.

"We do not think that the decision in Lybrand v. Wafford, 174 Ark. 298, 296 S. W. 729, is in conflict with the views herein expressed, but we are of the opinion that the holding in the present case follows from the principles of law therein announced and applied to' the facts of that case. There the court had under consideration the question of whether an amendment adopted at the general election in 1926 repealed the bond-issuing clause of the amendment adopted in 1924, commonly known as amendment No. 11. The amendment adopted in 1926 contains a clause that no county, city, town or municipality shall ever issue any interest-bearing evidences of indebtedness except sncb bonds as may be authorized by law to provide for and secure the payment of the indebtedness existing at the time of the adoption of the Constitution of 1874. It was there claimed that the provision just referred to by necessary implication repealed the proviso of amendment No. 11, authorizing the issuance of bonds to pay indebtedness outstanding at the time of the adoption of the amendment in October, 1924. The court said that to hold that the provisions of the later amendment referred to the indebtedness existing at the time of the adoption of the Constitution of 1874 would lead to absurdity and a contradiction between different parts of the amendment because later on in the same section a proviso is inserted allowing cities of the first and second class to issue bonds for the payment of any indebtedness existing at the time of the adoption of the amendment, and for other purposes enumerated therein. The court expressly stated that the expression, “present existing indebtedness,” and the expression, “indebtedness existing at the time of the adoption of the Constitution of 1874,” mean precisely the same thing. After a comprehensive and exhaustive discussion of the question, the court concluded by holding that the later amendment called No. 15 did not repeal the earlier amendment called No. 11 and that both must be retained as a part of the organic law of the State. Having reached the conclusion that the expression, “indebtedness exist-, ing at the time of the adoption of the Constitution of 1874,” meant the same as the phrase, “present existing indebtedness,” the court held that there was no implied repeal of the bond-issuing clause in the amendment adopted at the general election held in 1924 by the amendment adopted at the general election in 1926 for the reason that, as construed by the court, there was no conflict in the two clauses of the amendments with regard to the issuance of bonds, and it necessarily followed that the later amendment gave cities of the first and second class power to issue bonds for the improvements enumerated therein in addition to the power conferred by the earlier amendment to issue bonds to pay debts outstanding at the time of the adoption of the amendment.

Consequently, we are of the opinion that the people by the adoption of amendment No. 11 at the general election in 1924 intended to prevent the further issuance of bonds by counties, cities, and towns except for the payment of indebtedness existing at the time of the adoption of the amendment; and this, by necessary implication, repealed all former amendments looking to the issuance of bonds by counties, cities or towns. Under the views we have expressed, the amendment under consideration in this case and under which the county court was acting has been repealed by implication by the later amendment as pointed out above, and we may add that this leaves amendment No. 3 relating to the annual road tax of three mills in full force and effect.

It follows that the decree of the chancery court was correct, and must be affirmed.


author: Smith, J.

text:
    Taylor v. White.
    Opinion delivered October 20, 1930.

      A. J. Johnson, for appellant.

      W. B. Sorrels, for appellee.
   Smith, J.

The Lincoln County Bank closed its doors, and its assets are now being administered by the State Bank Commissioner, who filed this suit November 26, 1929, to enforce the collection of a note dated January 9, 1923, maturing November 15, 1923, payable to the order of the insolvent bank. The note was offered in evidence, and its execution by appellee White was admitted, and on its back the following indorsements appear:

“Dec. 31,1924, Paid on this note by R. L.
Calhoun .........................................................................$300.00
2/5/25 paid on note...................................................... 2.94”

W. R. Alsobrook testified that he was the cashier of the Bank of Star City, which institution was acting as liquidating agent for the bank commissioner in winding up the. affairs of the Lincoln County Bank; that he “judged” the credit of $2.94 was the amount of the deposit of the maker of the note with the Lincoln County Bank at the time it was taken over by the bank commissioner. This, however, was a mere surmise, and the witness did not state it as a fact, nor did he testify that White was a depositor of, or had any balance to his credit with, the Lincoln County Bank when it failed.

As to the apparent payment of the $300' on the note, the testimony is as follows: H. D. Palmer, called as a witness by the plaintiff, testified that he had been the cashier of the Lincoln County Bank, and had indorsed the credit dated December 31, 1924, under these circumstances. He had sent White word to pay the note or “else bring the property in we had a mortgage on,” given to secure the note, as it was his intention to sell the mortgaged property; and apply the proceeds of the sale on the note, whether White was willing or not. R. L. Calhoun, upon whose farm White lived as a sharecropper, came to the bank and wanted to buy the property mortgaged, and they agreed upon $300 as its price. Calhoun gave a note to the bank for this sum, due the next fall, which was paid at its maturity, and the $300, the proceeds of this note, were credited upon the note in suit.

White testified that he told 'Calhoun about the message from Palmer, and Calhoun said he would try to buy the mortgaged property from the bank, and Calhoun later told him he had bought it. White knew, of course, that the mortgaged property was worth much less than the mortgage debt. The mortgaged property appears to have consisted of live stock, probably mules, for, on his cross-examination, White testified as follows: “Q. You turned the stuff over to him (Calhoun) ? A. He already had it. Q. You had already turned it over to him (Calhoun) ? A. No, sir. He worked the stuff that year for feed.” White further testified that Calhoun told him later that he had “bought the stuff.”

Th§» transaction just detailed was, in effect and in fact, a foreclosure of the mortgage, with the public sale waived which the mortgage, no doubt, provided for, and was not such a voluntary payment as the law requires to toll the statute of limitations.

The law is well settled that a voluntary part payment arrests the running of the statute of limitations, and forms a new period from which the statute must be computed. This results from the fact that a voluntary partial payment is a recognition of the validity of the debt, from which a promise to complete the payment is implied in law. But, as was said by Cockrill, C. J., in the case of Wilson v. Pryor, 44 Ark. 532 : “The presumption of a deliberate promise to pay the residue, which the fact of payment raises, can arise only from what would be deemed an actual part payment.”

The court below found that there was no proof of an actual voluntary part payment by White, and dismissed the complaint for that reason, and we concur in that view.

The fact of a part payment, which was relied upon to stop the running of the statute of limitations, was denied by White, and the burden was therefore upon the plaintiff to prove that fact. Simpson v. Brown-Desnoyers Shoe Co., 70 Ark. 598, 70 S. W. 305 ; Johnson v. Spangler, 176 Ark. 328, 2 S. W. (2d) 1089, 59 A. L. R. 899 ; Slagle v. Box, 124 Ark. 43, 186 S. W. 299 ; Clark v. Lesser, 106 Ark. 207, 153 S. W. 112.

Certainly the indorsed credit of $2.94, of itself, did not suffice. There was no proof whatever by what authority this had been done. Desha Bank & Trust Co. v. Quilling, 118 Ark. 114, 176 S. W. 132, L. R. A. 1915E, 794. Indeed, it was a mere surmise on the part of Alsobrook that White had any sum of money to his credit with the Lincoln County Bank when it closed its doors. Nor does the $300 credit suffice. White had no volition in this matter. The transaction was, as we have said, a foreclosure of the mortgage, which Palmer testified was done without regard to White’s wishes.

In the note to the case of Howard v. Pritchett, 207 Ala. 415, 92 So. 782, 25 A. L. R. 55, the annotater says: “With the exception of one case in Missouri, since repudiated, the authorities uniformly support the doctrine that the application to an indebtedness of the proceeds arising from the enforcement of a mortgage or deed of trust does not interrupt the running of the statute of limitations.” The annotater cites numerous cases supporting his note, but did not, of course, cite our case of Meisner v. Pattee, 170 Ark. 217, 279 S. W. 787, as the opinion in that case had not then been delivered. But in the Meisner case, supra, we expressly approved the annotater’s statement of the law. We there said: “It is settled by practically unanimous authority that the application of the proceeds arising from the foreclosure of a mortgage does not interrupt the running of the statute of limitation. Note to 25 A. L. R. 62.”

The judgment of the court below is correct, and it is therefore affirmed.


text:
    St. Louis-San Francisco Railway Company v. Britton.
    Opinion delivered October 20, 1930.

      E. T. Miller, E. L. Westbrooke, Jr., and E. L. Westbrooke, for appellant.

      Dudley ■& Dudley, for appellee.
   Smith, J.

Appellee, Ed Britton, recovered judgment against tbe appellant railway company to compensate a personal injury, and as tending to support tbe right to recover tbe following testimony was offered. Appellee’s and other colored families were emigrating- from Kewanee, Missouri, to ‘Wilbeth, Arkansas, and they chartered from the appellant railway company two box cars in which to move their personal effects, consisting of household goods, farming implements, and some mules and chickens.

The waybill issued by the railway company recited that ail owner would accompany each car, and appellee assumed charge of one car, and Ed Bishop assumed charge of the other. A local freight ’train picked up the cars at Kewanee, and carried them to Hayti, Missouri, where they arrived about dark, and where they remained until about 2 p. m. of the following day, when they were picked up by a through freight train and carried to Harvard, Arkansas, where they were transferred to another train and later carried to their destination.

Appellee and Bishop remained in the cars while they were standing at Hayti to protect their contents and to attend to the stock and chickens. In watering the chickens, the coops containing them had been disarranged, and appellee was engaged in rearranging them, in anticipation of the resumption of the journey, when the through freight train came along. Appellee testified that, while he was so engaged and without knowing that the train had arrived, the engine of that train bumped into his car, with such unexpected force and violence that he turned a somersault, the chicken coops were thrown down and one of them was broken open and the chickens escaped therefrom and flew away. A brakeman admitted that he saw two chickens fly out of the car. Some of the household goods were damaged, and some dishes broken.

This testimony is sufficient to support the finding that there had been a collision which would not have occurred but for the negligent operation of the portion of the train to which the engine was attached, and was not such a jar as might reasonably be expected in the ordinary operation of a freight train. The testimony was therefore sufficient to support a finding of negligence, both under the law of this State, where the trial was had, or under the law of Missouri, where the injury occurred. St. Louis-San Francisco Ry. Co. v. Coy, 113 Ark. 265, 168 S. W. 1106.

For the reversal of the judgment it is insisted that the plaintiff had no right to be where he was without notifying the trainmen of his position. This assignment of error may be disposed of by saying that the -waybill gave this notice. Appellee had the right to be in this car, and the train crew should have anticipated that he was exercising that right.

It is insisted that there was a caboose to the freight train, in which appellee had the right to ride, and where, if he had been, he would have been safe and would not have been injured. There are two obvious answers to this insistence. The first has been stated, and that is that he had the right to be in his car. The train crew testified that they did not know appellee was in the car and called out at the door of the car to see if there was an occupant in it, but received no response. This was denied by both appellee and Bishop, and this issue of fact was submitted to the jury and is concluded by the verdict. The second answer is that appellee’s car and the other car had been standing on the sidetrack for nearly a day, and there was no caboose which they could have occupied until the arrival of the train, and the first knowledge appellee had of its arrival was when he was turned a somersault.

Error is assigned in the modification of an instruction numbered 2, requested by appellee, which', as asked, read as follows: “The court instructs you (that it is not practical to operate a freight train without occasional jars and jerks which may throw off his balance one standing in a freight car, and you are further instructed) that in the operation of its freight trains the defendant is required to exercise only the highest deg'ree of care that is usually and practically exercised and consistent with the operation of trains of that nature.” The court modified the instruction by striking out the portion thereof included in the parentheses.

There- was no error in this modification. The instruction, as requested, contained a charge upon the facts. It contained, as a declaration of law, a recital which was a question of fact. It was, of course, competent for the railway to show that it was not practical to operate a freight train without occasional jars and jerks, and testimony to this effect was admitted without objection. But the instruction required that the railway “exercise only the highest degree of care that is usually and practically exercised and consistent with the operation of trains of that nature” and therefore submitted to the jury the truthfulness of the testimony of the railway company whether the jar in question was one to be anticipated in the practical operation of a freight train. Beasley v. Hines, 143 Ark. 54, 219 S. W. 757, 15 A. L. R. 864 ; Meeks v. Graysonia, N. & A. R. Co., 168 Ark. 966, 272 S. W. 360.

It is the theory of the railway company that appellee was not injured by a collision at Hayti, but that he received such injury as he, in fact, sustained at Harvard, after the train reached that place, by. falling out of a door of the car. But this issue of fact was submitted to the jury, and the testimony amply sustains the finding that appellee received his injury at Hayti, and did not fall out of the car at Harvard.

It is further earnestly insisted that the verdict is excessive, and this is the difficult question in the case. The jury Returned a verdict for $1,500, and there was a judgment for that amount.

Appellee testified that his foot caught between a crate of chickens and the wall of the car, and that his back was wrenched as he fell, and that he was still suffering from the injury at the time of the trial, which was nearly two years after the date of the injury. He offered, upon his cross-examination, to submit to an. examination by any doctor, but the offer was not accepted. He had bought $8 worth of liniment, with which his back was rubbed, but obtained no permanent relief. His landlord sent him to a doctor, who treated him, and he supposed his landlord paid the doctor’s bill, but as he did not know the amount of the bill the jury was directed to allow nothing for the medical treatment; yet it was competent for the jury to consider that he did receive medical treatment as bearing upon the extent of his injury. He made two crops after his injury, and had done much of all the work necessary for this purpose, but he testified that his efficiency was impaired, and that he was required to hire labor which would not otherwise have been done. Upon a consideration of all the testimony we are unable to say that the verdict is excessive.

As no error appears, the .judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Runyan v. Community Fund of Little Rock.
    Opinion delivered October 20, 1930.

      Francis T. Murphy and Eugene H. Murphy, for appellant.

      8. E. White and 8. 8. Jefferies, for appellee.
   Humphreys, J.

This suit was brought by appellee against appellant in the Pulaski Circuit Court, third division, for balances totaling $1,450 after allowing -certain credits, upon two alleged written subscriptions to appellee by appellant of $1,000 each. The written subscription cards were filed as Exhibits A and B to the complaint.

Subscription A was dated November, 1925, and promised to pay appellee $1,000 for the year ending October 31, 1926, in installments as follows: ‘ ‘ One-fourth by December 1, one-f onrth February 1, one-fourth May 1, one-fourth July 1.” The card was not signed by appellant, but there appeared after the word “signature,” ‘ ‘ pledged verbally to J. J. Harrison. ’ ’ On the reverse side of the card appeared appellant’s name and. address in typewriting, and the amount subscribed with the following credits thereunder: “Dec. 22, 1926, $250; $100 without legible date; July 28, 1928, $100. ’ ’

Subscription B was dated November, 1926, and promised to pay appellee .$1,000 for the year ending October 31, 1927, in installments as follows: “One-fourth by December 1, 1926, one-fourth February 1, 1927, one-fourth May, 1, 1927, one-fourth .July 1, 1927.” On the reverse side of the card appears the name of appellant, the amount subscribed with credit thereunder of $100 without date.

Appellant filed an answer denying that he signed the subscription card marked Exhibit A, or that he authorized the subscription, or that he made any payments thereon; admitted that he signed subscription card marked Exhibit B and alleging that the payments credited on subscription A should have been credited on subscription B.

The prayer of the answer is that subscription A be canceled and held for naught, and that the credits appearing on subscription A be transferred and treated as credits on subscription B.

The cause was submitted to a jury upon the pleadings and testimony adduced by the respective parties which resulted in a verdict and consequent judgment against appellant for $550 on subscription A with interest and $900 on subscription B and interest, from which is this appeal.

Appellant contends for a reversal of the judgment because the court refused to instruct that he was not liable on subscription A and that he was only liable on subscription B in tbe sum of $450, upon the theory that the undisputed evidence showed that he was not liable on subscription A and that he only owed $450 with interest on subscription B.

The record reflects without dispute that appellant did not sign or authorize any one to sign subscription card A, or that he authorized a subscription for $1,000 for the fiscal year 1925-1926. His name does not appear on the card signed by himself or any one else. .Opposite the word “signature” are these words: “Pledged verbally to J. J. Harrison.” Appellant testified that he did not make a verbal pledge to J. J. Harrison, who was the leader of the community drive that year. J. J. Harrison testified that appellant was associated with him in raising the community fund for the fiscal year 1925-1926, and that during the activities of the campaign appellant stated to him and others that he planned to give $1,000, and, based upon that statement, he told O. H. Wickard, the secretary, that appellant had pledged verbally $1,000 but that he would not state at all that appellant had authorized him to pledge that amount for him, and made it still more emphatic by saying that he did not authorize him to make the pledge. Under our interpretation of this testimony, it was clearly error for the trial court to submit the issue of the^liability of appellant on subscription card A to the jury.

Appellee argues, however, that the liability of appellant on subscription A was submitted to the .jury upon the theory that the testimony, though conflicting on the point, tended to show that he subsequently ratified the subscription of the fiscal year 1925-1926, and in support of ratification, calls our attention to the testimony of C. H. Wickard to the effect that they mailed appellant monthly statements showing balances, and to an O. K. written on the letter by appellant which he received from H. W. Hennegin Company, auditor of appellee’s account, mailed to him in November, 1926, which showed on its face that appellant owed $1,000 on an unpaid pledge to appellee up to October 31,1926.

Relative to the monthly statements the testimony was insufficient to show that appellant received them. C. H. Wickard’s testimony failed to show that the envelopes containing the notices were properly addressed to appellant and deposited in the postoffice. No presumption could or would arise that appellant received the notices sent by mail unless properly addressed and deposited in the mail.

Appellee testified that, before receiving the latter from the auditors, he subscribed $1,000 for the fiscal year 1926-1927 to appellee, and that when he O. K.’d the letter and returned it he though! it related to the subscription he had made for the fiscal year 1926-1927. It is true that if appellant had carefully read the letter he would have discovered that it related to a subscription of $1,000 for the fiscal year 1925-1926, but one relying upon ratification of an unauthorized act of an agent must show that at the time of ratification the principal had full knowledge of all the material facts connected with the transaction. Martin v. Hickman, 64 Ark. 217, 41 S. W. 852 ; Haines v. Rumph, 147 Ark. 425, 228 S. W. 46 ; DeCamp v. Graupner, 157 Ark. 578, 249 S. W. 6 ; Arkansas Valley Bank v. Kelley, 176 Ark. 387, 3 S. W. (2d) 53, 58 A. L. R. 808 ; Hoxie v. Woolen, 181 Ark. 483, 28 S. W. (2d) 61. In order to meet the requirements of the rule, full knowledge of all the material facts connected with the transaction should have been shown, and not merely an opportunity to know all the material facts connected therewith. In other words, the doctrine of ratification is not based upon the carelessness or negligence of a principal in failing to find out all the material facts connected with the transaction, but is based upon his actual knowledge thereof.

In the instant case, however, there is another essential lacking. The subscription was not made by an agent or one acting as an agent for appellant. J. J. Harrison did not claim to have acted as agent for appellant in making the subscription. He disavowed acting in such a capacity for appellant. It is said by Mr. Page in his work on Contracts, § 1768, that: “'The doctrine of ratification in agency applies only to the contract of one who is an agent or who claims to act as an agent. A contract made by one who is not an agent and does not claim to act as an agent cannot be ratified. To permit ratification under such circumstances would be to permit a person to whom an offer was not made to force a contract upon a party who did not mean to deal with him.” The text is supported by sound reasoning and a long line of well considered cases.

The evidence was therefore whollv insufficient to submit the issue of liability of appellant to appellee on subscription A, and the trial court erred in doing so.

Tt follows that the credits on subscription “A” should be applied as payments on subscription “B.” This is accordingly done, and the judgment is reduced from $1,450 to $450 and, in accordance with the modification, is affirmed.


text:
    Pine Bluff Heading Company v. McMorris.
    Opinion delivered October 20, 1930.

      S. Hubert Mayes and Harry T. Wooldridge, for appellant.

      Coleman S Gcmtt, for appellee.
   Humphreys, J.

Appellee brought suit against appellant in the. circuit court of Jefferson County to recover damages in the sum of $10,000 for injuries he received through the alleged negligence of appellant’s superintendent and general foreman ordering him 'to go hack in the boiler room, which they knew or should have known was a dangerous, place on account of the burning mill or plant, to put more water in the boilers in an effort to prevent them from blowing up.-

Appellant filed an answer denving the material allegations of the complaint, and pleading the affirmative defenses of assumed risk and contributory negligence on the part of appellee.

The cause was submitted to a jury on the pleadings, testimonv and instructions of the court which resulted in a verdict and judgment against appellant for $4,000, from which is this appeal.

The correctness of the instructions is not questioned, the only ground urged for a reversal of the judgment being-that there is a total want of evidence to show negligence on the part of appellant; but, if so, that the undisputed evidence reflects the assumption of the risk and contributory negligence by appellee.

The plant or mill was a large heading factory located in the eastern part of Pine Bluff. The boiler room containing several large boilers was located south of the mill. The engine room was between the boiler room and the mill, and dynamo room was adjoining the boiler room on the east. The mill caught on fire, spread through and completely destroyed the plant, including the engine, boiler and dynamo rooms. During’ the conflagration a large crowd had gathered and all were excited. Appellee, a colored man, the head fireman, who had been employed by appellant in that capacity for twenty-three years, came out of the boiler room to spe what progress the fire had made and to help, if needed, and was standing with the crowd on the west side of the' boiler room where he could not observe the dynamo room when the superintendent, George Meehan, and the foreman, Lee Hetzel, came running around from the dynamo. room and ordered appellee to go back into the boiler room and see that plenty of water was in the boilers, stating that if the boilers exploded for want of sufficient water all the people around there would be killed. Appellee asked Mr. Hetzel if he thought he (appellee) could make it, and was told that he could and to hurry if he was going. Some of the witnesses testified that the orders to go in were accompanied by oaths. Appellee obeyed by entering the boiler room and following a narrow passageway the length of the boilers, and, while behind them turning on the water pumps, flames and smoke burst into the boiler room from the dynamo room and made it hard for him to escape. In an effort to get out through the darkness he struck his side against the end of a pump, fell over against a pile of burned-out arch bars, seriously injuring his left side and right leg. He was overcome by the heat and smoke, and was pulled out of the room by a fellow-workman who happened to see his hand near the door before the room burned down. As a result of the injuries, he was confined to his bed for two months and has not been able to work, except at light jobs intermittently since then. At the time of the injury he was in good physical condition, fifty-one years of age and was earning $21.60 a week.

The general rule of law is that an employee must obey the orders of his employer unless the dangers in obeying are so obvious and imminent that no person in the exercise of ordinary care and prudence would undertake to do so. Choctaw, Oklahoma & Gulf Rd. Co. v. Jones, 77 Ark. 367, 92 S. W. 244, 4 L. R. A. N. S. 837 ; Southern Cotton Oil Co. v. Spotts, 77 Ark. 458, 92 S. W. 249 ; Scott v. Wisconsin Arkansas Lumber Co., 148 Ark. 66, 229 S. W. 720.

Where performance of an order or command involves danger, unless obviously and apparently certain, the employee may rely upon his superior’s knowledge and judgment relative to the hazard in the undertaking. St. L. I. M. & So. Ry. Co. v. Rickman., 65 Ark. 138, 45 S. W. 56 ; St. Louis & North Arkansas Rd. Co. v. Mathis, 77 Ark. 184, 91 S. W. 763 ; Dickinson v. Mooneyham, 136 Ark. 606, 203 S. W. 840.

We think the facts in the instant case bring it well within the rule 'announced in the cases referred to. It is true that obedience of the order in the instant case involved a degree of hazard and. risk, but the extent of the danger was not so obvious and apparent that appellee was not justified in relying upon the judgment of his superiors. The superintendent and foreman knew more about the condition of the dynamo room than appellee, and were in closer touch with the situation and the condition than appellee. Before obeying the emphatic command of Hetzel, the foreman, to go back into the boiler room and put more water in the boilers appellee asked him if he thought he could make it and was informed that he could. In reliance upon his foreman’s judgment, he performed the task assigned to him to his great injury and in doing so was not guilty of contributory negligence, and did not assume the risk under the rules of law applicable to cases of this kind.

Appellant makes the further contention that the verdict is excessive. We find nothing in the evidence to sustain it in this contention. The record reflects that appellee suffered great physical and mental' anguish, as well as the loss of his earning capacity on account of the injury.

The judgment is affirmed.


author: Kirby, J.,

text:
    Jeffery v. Patton.
    Opinion delivered October 20, 1930.

      D. L. Ford, for appellant. -

      Cravens & Cravens and C. M. Wofford, for appellee.
   Kirby, J.,

(after stating the facts). The conveyances of the lands from the grantor, E. B. Petty, to his children were ordinary warranty deeds reciting a certain consideration paid with no indication of any other consideration to be paid or the grant of the lands upon condition, making no mention of any trust or security for the payment of any further sum or the performance of any service to the grantor by the grantees. “An express trust cannot be proved by parol evidence, and neither will such evidence be heard to graft an express trust upon a deed absolute in its terms.” Fenter v. First National Bank of Malvern, ante p. 89.

The conveyances were not voluntary conveyances without consideration, nor was there any attempt to set them aside as in fraud of creditors. If the consideration for the deeds was an undertaking' on the part of the grantees to support and maintain the grantor, their father, for the remainder of his life and there was a failure on their part to comply with the undertaking, the grantor himself could have sued at law for the amount of the consideration after it became due, or treated the contract as void and brought suit in equity to cancel and set it aside for failure of consideration. If the conveyances had been made on such conditions, he or his heirs upon the condition broken could have set it aside. The grantor did not find it necessary, however, to convey the property upon condition and the right to cancel for failure of consideration because of maintenance not being furnished in accordance with the agreement, if there was such an agreement, was personal to him. Priest v. Murphy, 103 Ark. 465, 149 S. W. 98.

The guardian ad litem could not consent to the erroneous decree charging against the lands belonging to them or their interest therein a lien for payment of contribution to one of the grantees who had advanced money for the support of their father, the grantor of them all.

The decree is accordingly reversed, in so far as the rights of the minor appellants and their interest in the lands is concerned, and the cause remanded with directions to enter a decree of partition setting aside their interest in the lands to them without regard to and free of any claim for contribution from them to Mrs. Brilla Patton and John Petty for money advanced or services rendered to the said grantor in his lifetime.


author: Mehaeey, J.

text:
    Gill v. Saunders.
    Opinion delivered October 20, 1930.

      McMillan McMillan, for appellant.

      D. H. Crawford, for appellee.
   Mehaeey, J.

W. D. Saunders and others filed a petition in the county court of Clark County for an order creating a stock district under and in accordance with the provisions- of act 17 of the Acts of 1905 and amendments thereto. It was alleged that the territory was contiguous and -comprised an area of more than 5 square miles. The territory which was to constitute the district was described in the .petition. A map of Clark County showing the district was filed with the petition. The county clerk certified that he had made a careful examination of the petition, checked the signers, and that the signers of the petition are a majority of the qualified electors living in said territory or having cultivated lands therein; that they had deposited money to pay the expense of making the order, and that a majority of the qualified electors of the subdivision sought to be made into a stock district had signed the petition.

G-. A. Stoffer and others filed a remonstrance, alleging that they were qualified electors residing in the territory and opposed to the forming of the district, and asked the court not to make an order forming said territory into a stock district.

On March 29, 1929, the county court found that the territory described in the petition and shown on the plat comprised an area of more than five square miles; that the petition prayed for an order establishing a stock district; that the petition was signed by a majority of the qualified electors residing in said territory and all owners of cultivated lands within said district, who are qualified elector's of Clark Oounty but who reside without the district; that the petition was accompanied by the certificate of the clerk; that the petition clearly set forth that hogs, sheep and goats are all to be prohibited from running at large within the territory, which the court finds to be particularly described and the boundaries thereof clearly designated. The court also found that all the requirements of act 17 of the Acts of 1905 and the amendments thereof had been strictly and fully complied with, and that the petitioners were entitled to have their prayer granted, and the order was made by the county court accordingly.

The remonstrants appealed to the circuit court where a trial was had on January 30, 1930. The same findings were made by the circuit court which were made by the county court, and an order establishing the district was made. A motion for new trial was filéd 'by the remonstrants alleging, first, that the decision of the court is contrary to law, and, second, that the decision of the court is contrary to the law and the evidence. Motion for new trial was overruled, and this appeal is prosecuted to reverse the judgment of the circuit, court.

There is very little dispute about the facts, and it is unnecessary to set out the evidence.

Both the county court and the circuit court found that the territory described in the petition and shown on the plat comprised an area of more than five square miles; that the petition was signed by a majority of the qualified electors residing within said territory and all owners of cultivated land within said district who are qualified electors of Clark County but reside without the district; that the petition was accompanied by the certificate of the clerk of the county court, stating that sufficient money had been deposited to pay the expense of making the order prayed for; that the poll books verified the statement that a majority of the qualified electors of said subdivision of Clark County have signed the petition, and the court also found that the petition particularly described the boundaries of the territory and that all the requirements of act 17 of 1905 and amendments thereof have been strictly and fully complied with. Not only did both courts find these facts, but we think there was ample evidence to justify the findings.

Appellants contend that the case of Palmer v. Palmer, 132 Ark. 609, 202 S. W. 19, did not construe the act because the question here presented was not raised or passed on. The court in that case passed on the con-, stitutionality of the act and also held in speaking of the amendments: ‘ ‘ This, in effect, amended section 1 of act 17 of 1905 the same as if it had directly amended section 1 of act 17. It is insisted that act 262 of the Acts of 1905 repealed section 1 of act 17 of 1905, and that the amendment of a repealing statute does not have the effect of reviving the original statute amended. In support of this contention, § 7796 of Kirby’s Digest is cited, which is as follows: ‘When a statute shall be repealed and the repealing statute shall afterwards be repealed, the first statute shall not thereby be revived except by express words.’ This section of the statute has no bearing, because act 262 was not a repealing statute. It was an amending statute. It amended section 1 of act 17 of the Acts of 1905’ by excluding Amity Township and other territory in Clark County from the effect of the act. * # The effect of the passage of act 183, Acts 1915, was to set section 1 of said act in the place and stead of section 1 of act 17, Acts 1905. * * * It is quite clear that the Legislature intended by act 183, Acts 1915, to fully and completely reinstate act 17, Acts 1905, so as to permit Clark ■County or any subdivision thereof not less than five square miles to be organized into districts to prevent hogs from running at large.”

We think the above case practically settles the questions involved in the present case. It is contended, however, that “subdivision” means a township, but when the entire act is construed, its object and purpose, it is clear that “subdivision” was used in the sense of “part.”

“It is indispensable to a correct understanding of a statute to’ inquire first, what is the subject of it, what object is intended to be accomplished by it. When the subject-matter is once clearly ascertained and its general intent, a key is found to all its intricacies; general words may be restrained to it and those of narrower import may be expanded to embrace it to effectuate that intent.” Lewis, Sutherland, Statutory Construction, 2d Ed. Yol. 2, § 347.

This court has held: “That, in construing statutes, the intention of the Legislature is a fit and proper subject of inquiry is too well settled to admit of doubt. This intention is to be collected either from the words, the context, the subject-matter, the effects and consequences, or the spirit and reason of the law and other acts m pari materia. * * * Such a construction ought to be put upon the statute as may best answer the intention which the lawmakers have in view, and this intention is sometimes to be collected from the cause or necessity of making the statute, and sometimes from other circumstances; and whenever such intention can be discovered, it ought to be followed with reason and discretion, in the construction of the statute, although such construction seems contrary to the letter of the statute. And such construction ought to be put upon it as will not suffer it to be eluded.” Turner v. Ederington, 170 Ark. 1155, 282 S. W. 1000.

In construing a statute this court recently said: “Every such instrument is adopted as a whole, and a clause which, standing by itself, might seem of doubtful import may yet be made plain by comparison with other clauses or portions of the same law. It is therefore a very proper rule of construction that the whole is to be examined with a view to arriving at the true intention of each part. * * * If any section of a law be intricate, obscure or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections and finding out the sense of one clause by the words or obvious intent of another.” Lybrand v. Wafford, 174 Ark. 298, 296 S. W. 729.

Act No. 17, which is here involved, provides that it shall be the duty of the petitioners to particularly describe and clearly designate the boundaries of the district proposed to be formed. There would be no occasion at all to advise the court of the description of a political township nor to designate its boundaries. This requirement is only necessary when a part of the county is to be formed into a district and would not be necessary if the petitioners sought to create a district whose boundaries were the same as the political township.

Some courts have held that the word “subdivision” means “precinct” or “township,” but it will be found that in most of those eases, if not all, the stock law provided for an election and the courts held that there was no provision in the law for elections except in precincts, townships and municipalities.

Again, this act provides that the district shall consist of not less than five square miles. There might be a township which would not contain five square miles, and if subdivision meant a precinct or township, then any township or precinct of less than five square miles could not form a stock district although that particular territory might - need it more than any other in the county. If subdivision meant township or precinct, not only would a township with less than five square miles be unable to organize, but it could not be joined to some other township 'because, if subdivision means what appellants contend that it does, every district formed in the county would have to consist of a township or precinct and could not be more or less. Certainly the Legislature did not intend to pass a law for the creation of stock districts in such a manner that they could not be created. The act of 1905 provided that the district should consist of not less than five square miles, but the act of 1915 says not less than five miles square. If they intended what they said in that act, five miles square and subdivision meant a township or precinct, then it seems to be impossible to create a district under the law. Five miles square would not fit any township' or precinct in Clark County, and if it means five miles square, then the law would be absurd, and the Legislature evidently did not intend this.

We said in Palmer v. Palmer, 132 Ark. 609, 202 S. W. 19: “It is quite clear that the Legislature intended by act 183, Acts 1915, to fully and completely reinstate act 17, Acts 1905, so- as to permit Clark County or any subdivision thereof not less than five square miles, to be organized into a district.” Any other construction or interpretation of this statute would make it inoperative.

“Where there is no way of reconciling conflicting clauses of a statute, and nothing indicating what the Legislature regarded as of paramount importance, force should be given to those clauses which would make the statute in harmony with other legislation on the subject. * * * In order to conform to the legislative intent, errors in an act may be corrected or words rejected and others substituted.” McDaniel v. Ashworth, 137 Ark. 280, 209 S. W. 646. The cardinal rule of interpretation is the ascertainment of the meaning of the law-makers as expressed in the language which they have used.

“It is the duty of every court, when satisfied of the intention of the Legislature, clearly expressed in constitutional enactment, to give effect to that intention, and not defeat it by adhering too rigidly to the mere letter of the statute, or to technical rules of construction, and any construction should be discarded that would lead to absurd consequences. * * * The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the Legislature apparent by the statutes; and if the words are sufficiently flexible to admit of some other construction, it is to be adopted to effectuate that intention. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. ’ ’ State ex rel. v. Trulock, 109 Ark. 556, 160 S. W. 516 ; Summers v. Road Imp. Dist. No. 116, 160 Ark. 371, 254 S. W. 696.

It was manifestly the intention of the law-makers to enable Clark County or any part of Clark County to organize a stock district, and we think that the construction contended for by appellants would make it impossible to organize a part of the county into a distiict. The petitioners complied with the act in every respect.

The judgment of the circuit court is affirmed.