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

text:
    Donaghey v. Lincoln.
    Opinion delivered October 25, 1926.
    1. Eminent domain — deduction of benefits. — In estimating the benefits from a public improvement, the advantages and disadvantages to a particular tract should be balanced against each other, so as to ascertain the net result of the construction of the improvement, in its effect upon the assessed property.
    2. . Eminent domain — deduction of benefits. — Where no question is raised as to the correctness of the assessment of benefits from the construction of a bridge under Sp. Acts 1919, p. -78, .since it was the duty of th'é' assessors to. offset the damages against the benefits, it is too late, in a property owner’s suit to review the action of°the assessors, to raise the question that the actual benefits exceeded the benefits assessed.
    3. Eminent domain — injuries to property not taken. — In determining the damages to a building by reason of changes in the width and grade of bridge approaches, the difference in value of the building before the improvement was made 'and after the improvement should be considered, and in estimating this difference the cost of restoration should be considered.
    4. Eminent domain — injuries from construction of bridge. — A bridge district, created by Sp. Acts 1919, p. 78, is not responsible in damages for temporary interference with the .use of abutting property by reason of construction of the bridge and changes in the grade and width of approaches, whether such changes were authorized by the municipality or not,' since the bridge was a public highway and the changes were acquiesced in by the city. • ' ■ :
    5. Eminent domain — nature of injury — In determining the damages to abutting store owners from a change of width and grade of a bridge approach, under Sp. Acts 1919,, p. 78, allowance of damages to a strip of ground leased from the county and used to broaden the approach to the bridge, was properly refused where there was no showing of substantial injúry or lessening of rental value of the stores.
    6. Eminent domain — injury to property not taken. — In awarding damages to the owners of abutting stores for changes in the grade of bridge approaches, under Sp, Acts 1919, p. 78, allowance .of damages for reduced ceiling height of the stores was properly refused, in the absence of any evidence as to the extent of the injury.
    7. Appeal and error — presumption as to master’s finding.— Where the testimony as to the cost of restoring a building necessitated by a change of grade of bridge approaches was conflicting, and the master did not specifically refuse to allow architect’s fees in awarding damages, it will be presumed on appeal that such item was considered in estimating the damages as part of the cost of restoration.
    8. Eminent domain — appropriation op property — interest.—Piling of the ¿ssessment list for construction of a bridge, under Sp. Acts 1919, p. 78, was not a condemnation of the property, and consequently interest should not be allowed except from the time of injury to or taking of the property, which was the maturity date of the notice that work of cutting the wall of the building would be commencéd on a certain date.
    Appeal- from Pulaski Chancery Court; John E. Martinecm, Chancellor;
    modified.

      Moore, Smith, Moore & Trieber, for appellant.

      Ashley Cockrill, John W. Newman and H. M. Armistead, for appellee.
   McCulloch, C. J.

The Broadway-Main Street Bridge District of Pulaski County is a local improvement district created by a statute of the G-eneral Assembly of 1919 (Special Acts 1919, p. 74), authorizing the construction of two bridges across the Arkansas River connecting the two cities of Little Rock and North Little Rock, one of the bridges being known as the Broadway bridge and the other as the Main Street bridge, the latter forming a connection with Main Street, on the Little Rock side, and with Maple Street, on the North Little Rock side of the river. The width, of the Main Street approach to the north side covers the full width of Maple Street up to the curb line, and the sidewalk continues from the intersecting street corner across the bridge. The approach begins at the intersection of Maple Street with Washington Avenue, which runs east and west at right angles with Maple Street. ■

The appellees, Charles K. Lincoln and his sister, Mrs. Shipton, are the owners of improved real estate situated in North Little Rock, on the east side of the Main Street bridge approach, and this litigation involves the question of the extent of the damage done to this property in the construction of the improvement.

The statute creating the district provides for the appointment of assessors to “assess the benefits which will accrue to all lands, railroads, tramroads, and telegraph, telephone and pipe lines within the district, from the making of the proposed improvement, and all damages which will result therefrom.” It provides that the assessors shall make a return showing “the description of the property benefited, the name of the supposed owner, and the amount of the benefits and damages, together with an estimate of what the work will probably cost such property owner, and the amount which the property owner will be called upon to pay the first year.” After the return of the assessors is made and filed with the county clerk, notice is given so that owners of property may have an opportunity to appear and make complaint, and there is a provision that any dissatisfied property owner “may bring suit in the chancery court of Pulaski County within thirty days to review the action of the board of assessors.” All these provisions with reference to the assessments are contained in § 3 of the statute, supra.

The assessment list was filed with the county clerk in May, 1920, and within thirty days thereafter appellees filed separate actions in the chancery court of Pulaski County attacking the correctness of the appraisals of damages to their property made by the assessors. The causes were consolidated and tried together, but separate findings were made with reference to each piece of property owned by each of the appellees. There was a reference to a master, and there were exceptions filed to his reports by both sides, but, on hearing the exceptions, the court overruled them all and rendered a final decree on December 24, 1924, in accordance with the findings of the master. An appeal has been prosecuted by the district, and appellees have also prosecuted cross-appeals from portions of the decree adverse to their claims on certain issues.

The new Main Street bridge had been completed before the trial of the cases below, and the testimony shows that it is a modern type structure, erected in replacement of the old bridge, which was constructed by the county many years ago, and which had gotten considerably out of repair.

The property in controversy owned by appellee Lincoln consists of a hotel building fronting west towards the bridge, but not actually abutting thereon, and a store building adjoining the hotel building on the north, and running through to Washington Avenue, and also three other store buildings fronting on Washington Avenue, designated as Nos. 124,126 and 128. The hotel building is 60 feet square and has three stories and a basement. The first story consists of four store rooms, each 15 feet wide, fronting west towards the bridge, and the second and third stories are used for hotel purposes. The building was constructed of brick. The drugstore building is 20 feet wide and is a one-story structure. The other three stores owned by Lincoln are one-story brick buildings, 20 feet wide, fronting on Washington Avenue. The property of Mrs. Shipton consists of four store buildings adjoining the Lincoln property on the east and fronting on Washington Avenue. The second floor of the hotel building and the ground floor of the drugstore building were on a level with the approach to the old bridge, and between the two buildings and the bridge there is a triangular-shaped strip of ground owned by the county. The base of the triangle at the southwest corner of the hotel building is 19.8 feet wide, and it runs to a point at the northwest corner of the drugstore building at the intersection of Maple Street and Washington Avenue. This piece of ground was a deep hollow, far below the surface of the street and bridge approach, and, after the construction of the buildings owned by Lincoln, the latter leased the ground from Pulaski County, under a written contract, for a period of fifty years. The purpose of the county in granting this lease was, as declared in the contract, to widen the approach to the bridge, and the contract imposed upon the lessee an obligation to fill in the ground and construct a sidewalk over and above it from his building or property line to the embankment and sidewalk of the bridge. The sidewalk was to be on a level and connecting with the sidewalk of the bridge so that the whole of the paved area could be used by the.public as a part of the bridge approach. The contract was complied with by Lincoln, and the structure, as it then existed, provided a sidewalk covering the space between the bridge approach and the front of the buildings and continuing clear .across the bridge. This made a sidewalk about 24 feet wide, and afforded plenty of space for the occupants of the store buildings in the hotel to display their goods for sale.

In constructing the new bridge on the site of the old one which was torn down, Maple Street was widened to the extent that a few feet were taken from the northwest corner of the drugstore building and a narrow strip was taken off the edge of the leased property next to the bridge. A triangular cut was made from the front of the drugstore building about six feet wide, thus narrowing the front. The court below made an allowance of $4,000 for this injury to the drugstore building, and neither side questions the correctness of that award. The effect of widening the approach on Maple Street was to narrow the sidewalk between the walls of the building and the curb line from 24 feet, as it existed prior thereto, to 18 feet when the new structure was completed. There was also a change in the grade of the approach on Maple Street, so as to raise it from the intersection of Maple Street and Washington Avenue to the bridge proper. The raise in front of the four stores in the hotel building was 15 inches in front of the first room on the south, and 22 inches in front of the store on the north. This change in the grade made it necessary to raise the floors of each of the four store rooms in the hotel building so as to place them on a level with the sidewalk, and in doing so the height from floor to ceiling in each of the stores was reduced from about 13 feet to a little more than 11% feet. It also became necessary, on account of the raise in grade on Maple Street, to raise the grade on Washington Avenue so as to conform to that grade. The raise at the intersection of those two streets was 3.9 feet higher than the old grade, and extended east 170 feet on Washington Avenne at a downward grade of 3.44 per cent. It was necessary to raise the floors of the brick store buildings so as to put them on a level with the raised sidewalk, and the ceiling height was reduced from 13 feet 9% inches to about 10 feet 3% inches. The change in the grade made it necessary to raise the floors in the other three buildings owned by Lincoln on Washington Avenue and two of the buildings owned by Mrs. Shipton, and this, of course, resulted in a slight reduction of the ceiling height.

The report of the master sets forth the findings of fact with respect to the various changes in the property and the extent of restoration and injury, and- he made specific findings as to damage^ as follows: •

Statement as to Separate Property.
Land leased from Pulaski County.
This claim disallowed.
Hotel Property.
Raising floors and sidewalks ................................................$3,015.18
Damage to basement ................................................................... 300.00
Water mains and plpmbing ..................................................... 334.J 9
Loss of rents during reconstruction .............................. 160.00
Total .......................................................................:_________________________.$3,809.37
If loss of rents during construction of bridge is allowed, there should be added to the above amount .....................................................................-.......................$2,335.00
Land at corner of Washington and Maple.
lvalue of land taken ......................................................................$4,000.00
Lincoln Property, Nos. 130,128, Í26 and 124, West Washington Avenue.
Cost of restoration .......................................................................$ 9,967.36
Damage by increase of grade.......................-.................... 1,350.00
Loss in rentals during reconstruction ..:..................... 570.00
Total .$11,887.36
If rents during construction are allowed, to this total amount there should be added ..................$1,935.00
Shipton property, Nos. 122, 120 West Washington Avenue.
Cost of restoration .................................-................................$4,-983.68
Damage by increase of grade................................................... '600.00
Loss of rentals during reconstruction ........................ 240.00
Total ....................................:....................... — .............................$5,823.68
If rentals are allowed during construction of the bridge, there should be added to the above amount.................................................................................$720.00

The court, in approving the master’s findings, allowed the claim for loss of rents during the construction of the bridge, and included those items in the decree in favor of each of the appellees. The master refused to make any allowance for damage to the first two buildings on the east owned by Mrs. Shipton, and also refused to allow any damage to the leasehold estate held by Lincoln under his contract with the county.

The present litigation challenges only the correctness of the appraisal of damages, and nothing else. Neither party has made an attack on the correctness of the assessment of benefits made by the assessors of the district, but appellees commenced these actions in apt time to enlarge the award of damages. So the assessment of benefits for the purpose of taxation must stand as returned by the assessors. The attack on the award of damages is a direct one, and calls for an independent investigation by the court as to the amounts to be allowed.

In the trial below, appellants offered evidence tending to show that the actual benefits accruing to the property of appellees were largely in excess of the amount of benefits assessed by the assessors of the district, and contended that this excess ought to have been considered in reduction of the damages. In other -words, that the benefits proved in addition to those allowed by the assessors for taxation purposes should be balanced off against the award of damages, thus reducing the amount of damages correspondingly. The court refused to consider that testimony, and the. question of its admissibility is presented here as the principal one involved in this appeal.

Counsel rely upon two recent decisions of this court (Gregg v. Sanders, 149 Ark. 15, 231 S. W. 190, 17 A. L. R. 59; Sain v. Cypress Creek Drainage District, 161 Ark. 529, 257 S. W. 49, 258 S. W. 637) as supporting their contention. In Gregg v. Sanders, supra, the only feature of the case reviewed on the appeal involved the question whether or not, in ascertaining the damages on account of the taking of a portion of a tract of land by an improvement district, the benefits accruing to the remainder of the tract should be considered in reduction of the amount of damages to be awarded. We decided that, in view of the fact that the benefits accruing to the remainder of the tract were taxed the same as the benefits to other lands in the district, they could not be offset against the damages accruing on account of the loss of the tract actually taken. And, in announcing our conclusion on that question, we stated the converse of this rule' as follows: “Damages to the property not taken may, however, be balanced off against the benefits which accrue, for damages must necessarily be taken into account in the estimate of benefits.” This was but another way of saying that, in estimating benefits, the advantages and disadvantages should be balanced off against each other so as to ascertain the net result of the construction of the improvement in its effect upon the taxed property. We have no hesitaney now in reaffirming that statement of the law, for we are of the opinion that it is correct. Undoubtedly the orderly method o,f appraising benefits and damages is to consider the advantages and disadvantages to accrue, the extent of the injuries and the value of the enhancement, so that they may be balanced off against each other and a net result obtained; the lesser amount, either benefit or damage, being merged into the greater. The statute now under consideration provides, however, for separate appraisals of the benefits and damages, so that the one may be taxed and the .other paid. That was the method adopted hy the assessors, and neither party has challenged the correctness of that method. Now, under that method of assessment, the taxable benefits must be estimated in uniformity with the assessments on other property in the district similarly situated, the advantages and disadvantages to accrue from the improvement as a whole being considered and balanced off against each other in deterr mining the amount of net benefits; and then the estimate of damages must be based upon the direct physical effect of the construction of the improvement upon the particular piece of property being appraised, the direct advantages and disadvantages being likewise considered in reaching the result. In other words, in following out that method of separate assessments, the benefits are assessed on the same basis ás all other property the district, whereas the. damages are estimated in accordance with the direct effect of the improvement upon the value of the property, considering all the advantages and disadvantages which may result. As we have already seen, there has been no question raised as to the correctness of the assessment of taxable benefits, therefore it was too late in the trial of this cause to question the assessment or to offset additional benefits against the damages.

As we understand the findings of the master, he did not fail to consider the difference in value between the building before the improvement was made and in its restored 'Condition after the improvement was completed, and, in estimating the difference in value, the cost of restoration was considered. Our conclusion is that there was no error committed in this respect.

The only complaint made hy appellants against the specific allowances made by the master in his award relates to the items allowed for loss of rents during construction of the bridge. We are of the opinion that this complaint is well founded. The master should not have included those rents in his award of damages. The authorities on this subject all hold that a municipality or othér public agency, in the construction or improvement of streets, is not responsible in damages for temporary interference with the use of abutting property. The doctrine is stated in 13 E. C. L., p. 223, as follows:

“A municipality has a -right to close or obstruct a street temporarily for the purpose of repairing it, or making a public improvement therein, and may delegate its authority in this respect- to one who has contracted with it-to make the improvement or repairs. The use of the street for such purposes becomes paramount to its use for travel under such circumstances, and the obstruction or closing of it does not constitute a nuisance, so long as reasonable care and diligence are exercised in prosecuting the work; nor is it a damaging of abutting property for which the Constitution requires compensation to be made, although access thereto is temporarily interfered with.” See also 1 Lewis on Eminent Domain, § 230; Peck v. Chicago Ry. Co., 270 Ill. 34, 110 N. E. 414; Slatterly v. St. Louis, 120 Mo. 183, 25 S. W. 521.

This court gave approval to the doctrine in Kansas City Southern Ry. Co. v. Anderson, 88 Ark. 129, 113 S. W. 1030, where we said:

“Many consequential losses to the landowner, such as injury to busines-s, inconvenience, expense and losses from interruption of business, are not recoverable as damages in condemnation suits.”

The change of grade which caused the interruption in the use of the buildings of appellees for business purposes does not appear from the evidence to have been directly authorized by the municipality, but the bridge constitutes a public highway, and, if the city of North Little Eock did not reestablish the grade, the change was acquiesced in by the city authorities, and, as it was done for the public benefit, individuals cannot complain of the temporary interference with business.

This brings us to. the consideration of the cross-appeal, upon which appellees insist upon the insufficiency of the award of damages with respect to certain items. In the first place, it is contended that something should have been allowed for damages to tbe strip of leased ground covered by tbe pavement between tbe walls of tbe building and.tbe bridge. Tbe purposes in leasing tbe ground to appellees was, as before stated, to broaden tbe approach to the bridge so as to furnish a continuous passageway along the sidewalk in front of the stores and across the old bridge. The ground was unfit for any other use, and the construction of the pavement between the walls of the building and the bridge precluded any other substantial use of the ground. It is true that there was proof of construction of a small garage on the strip underneath the pavement, but it is not shown that any very substantial injury resulted from the raising of the grade or the broadening of the approach. It is also urged that the narrowing of the sidewalk in front of the stores materially affected the usable value of the store fronts because the space for displaying goods was diminished. It is not shown that there was any actual lessening of the rental value of the stores on account of the narrowing of the display space in front. We think the master was correct in refusing to allow anything on this item.

It is further contended that the master erred in failing' to allow any damage for the reduced ceiling height of the stores in the hotel building. According to the testimony in the case, the reduction of the height left sufficient space for all purposes. There was expert testimony to the effect that ceiling height is an element for consideration in determining the rental value of a storeroom, but there is nothing in the testimony to base a finding upon as to the extent of such an injury in dollars and cents.

It is next contended that the master erred in refusing to allow architect’s fees for restoration of the building by raising the floors. The readiest answer to this contention is -that there was a conflict in the testimony as to. the cost of restoration, and, as there was no specific finding by the master refusing.to allow architect’s fees, we must assume that that item was considered in estimating the damages 'by way of cost of restoration.

Complaint is made as to the amount of cost of restoration in the way of raising the floors and reconstructing the sidewalks so as to conform to the new grade. Counsel argue very earnestly that the master and the chancellor failed to give proper force to the testimony of the experts who furnished information concerning the extent of the damage and cost of restoration, but, after comparing the finding of the master with the proof in the case, we are unable to say that the finding was incorrect.

Finally, it is insisted that the court erred in refusing to allow interest from May 11, 1920, the day of the filing of the assessment list. This contention is based upon the theory that the filing of the assessment list was tantamount to the commencement of, condemnation proceedings, and that, iii a condemnation proceeding, interest should be allowed on the award of damages from the date of the commencement of the proceeding. The authorities on this question are collated in the case-note to Campau v. Detroit, 225 Mich. 519, 32 A. L. R. (Mich.) 91, and it will be seen that the theory upon which most of the authorities proceed in determining this question is that the continued possession of the owner after commencement of condemnation proceedings is precarious and liable to be disturbed at any time, so that the situation amounts to a constructive taking of possession, and that interest should be allowed. These authorities, as well as the decisions of this court cited by counsel for appellees (School District v. Smith, 113 Ark. 526, 168 S. W. 1089), relate to cases in which there was a taking of the property, and none of them, so far as we have observed, apply to consequential damages arising where property is not actually taken. All of the injury in the present case was consequential, except the taking of a small part of the corner of the brick store building, and as to that, as well as to the consequential damages, the answer to the contention of appellees is that there has been no judgment of condemnation nor any formal proceedings for that purpose. The filing of the assessment list did not in any sense constitute a condemnation of the property. On the contrary, § 18 of the statute creating the district provides for a method of condemnation similar to proceedings of that kind 'by railroad, telegraph and telephone companies. There having been no condemnation, there is no basis for allowing interest except from the time the injury was done to the property. The record shows, that, on October 28, 1923, the commissioners of the district served notice on appellees that the work involving the cutting, of the wall of the building would be commenced fifteen days thereafter, and we are of the opinion that the maturity of this notice constituted a taking of the property and established a period from which interest on the award of damages should be computed at the legal rate.

The decree in each case will be modified by excluding the award of rents during the construction of the bridge. In accordance with this modification, judgment will be entered here in favor of appellee Lincoln for the sum of $19,696.73, and in favor of Mrs. Shipton for $5,823.68, with interest on each amount at six per cent, per annum from November 12, 1923. It is so ordered.

Hart, J.,

(dissenting). Under our Constitution, that property shall not be damaged for public use without compensation, it is no longer necessary that there should be a physical invasion of one’s land in order to give a right of recovery. Hot Springs R. Co. v. Williamson, 45 Ark. 429.

' Under the original plans, it was contemplated that all the buildings of appellees would be damaged by actually cutting away a part of the walls ■ of them: On October 28, 1923, the commissioners notified appellees that they expected to begin work on the Main Street bridge at the location of their property, and the notice contained the following: “This work will involve the cutting into a part of the west wall of one or more buildings on your property, and we will be glad if you will make quick disposition as will enable us to begin the work within fifteen days, ”

On account of this notice, appellees were compelled to make new contracts with their tenants in conformity with the provisions of the notice, and they resulted in a depreciation in the rental value of their property. Subsequently, the commissioners changed their plans, and only one wall of any of the buildings of appellees involved in this suit was cut.

The majority opinion recognizes that the damage within the meaning of our. Constitution commenced when appellees received the written notice above referred to, and it fairly and reasonably follows that the damage continued until appellees were notified that it would not be necessary to cut but one of the walls of the buildings.

It also reasonably follows that the measure of damages in such a case is the depreciation in the rental value of the buildings from the date appellees were notified that the walls of their buildings would be cut until this plan was abandoned and appellees were notified of the change in plans.- I.think this view of the matter was recognized and .applied by this court. in Pine Bluff & Western Ry. Co. v. Kelley, 78 Ark. 83, S. W. 562.

In this case the court held; “Where a railroad company instituted proceedings to condemn a right-of-way, and used the land for a short time, and then abandoned it, the measure of damages in such case is the rental value of the land in the condition in. which it was when taken for the time it was occupied, and the depreciation in value thereof by reason of timber cut and other acts done thereon by the railroad company, and the damage, resulting to the remainder of the owner’s land from the building of the road across it and from overflow caused by the construction thereof; but, for all other damages occasioned by torts committed or wrongs done by the railway company, the owners have remedies in actions to recover the same.”


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Donaghey v. Fones Brothers Hardware Company.
    Opinion delivered October 25, 1926.
    1. Eminent domain — change in bridge approach — damages.— Evidence held to sustain a finding- that a change in the approach of a bridge damaged property used in a wholesale business to the extent of $27,500.
    2. Eminent domain — change in bridge approach — damages.—The owners of a building are entitled to recover the depreciation in value of the building caused by a change in the approaches thereto, regardless of what use the building might be put to by eonsolidating' it with adjoining buildings.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      Moore, Smith, Moore S Trieber, for appellant.

      Robinson, House & Moses, for appellee.
   McCulloch, C. J.

The lot and building involved in this controversy are located in the city of Little Bock, at the foot of Main Street, at the intersection of Main and Water streets, and abut on the west side of the new Main Street bridge constructed by the Broadway-Main Street Bridge District of Pulaski County. There was an assessment of benefits and damages, and the list was filed in May, 1920. The owner of the building claims' damages considerably in excess of the amount awarded •by the assessors, and this action was instituted in apt time by appellees against the district for a review of the assessment of damages and for recovery of the amount claimed.

The property consists of a lot having a frontage of 150 feet on Main Street and a depth of 124.5 feet, on which there is a three-story and basement brick building, occupied, up to the time of the construction of the bridge, as a wholesale hardware store. The facts of the case, with respect to the location and condition of the building at the time the new bridge was constructed in replacement of the old bridge and the changes brought about by constructing the new bridge and its approach, are set forth with accuracy by counsel for appellant in their brief, and we adopt the same as substantially correct for the purpose of disposing, of the case on this appeal. The statement is as follows:

“Prior to the construction of the new bridge, the old county free bridge and its approach stood at the foot of Main Street in front of and east of the Pones property. The approach to the old bridge began somewhat south of the intersection of the Pones and Lincoln buildings, and its grade ascended toward the north to where the old bridge actually began, a distance of about 54 feet north of the south line of the Lincoln property. At the south end of the Pones building, only a few feet north of the north wall of the Lincoln building, there were double doors opening onto Main Street, the south of which was used for shipping purposes. In front of these doors was a sidewalk 12 feet wide, in front, to the east of which lay Main Street, there being, on account of the approach to the bridge, a slope from the middle: of the street west toward the curb of the sidewalk. Por a space of about 25 feet north and south, in front’ of -the doors, the grade was sufficiently level to make it possible to back trucks up to the curb for shipping purposes.
“The west side of the old steel bridge was about 30 feet from the east property line of the Pones building. Between the old bridge and the curb of the sidewalk in front of the Pones building there was originally a roadway 17% feet wide, leading north along and parallel to the sidewalk to the north end of the building. There was attached to the north wall, at the northeast corner of the Pones building, a wooden platform, inclosed with tin sides and roof. This shed abutted upon the railroad tracks, and was used for the receiving and shipment of carload freight, there being doors cut into the wall of the basement of the building so that the shed communicated with the basement floor as well as with the elevator at the north wall. * * # It will be seen that the shed had a double door cut into its east side, through which shipments were also loaded into trucks and wagons. The old bridge was built of steel girders, and the lower part of Main Street nnder it and east of the north part of the Fones building was open, it being possible to drive trucks and wagons from the Fones building clean under the bridge to the east side of Main Street, east of the bridge, to what was known as the Wait building, a brick warehouse located on north Main Street north of Elm and east of the bridge.
“The 17%-foot roadway between the curb of the Fones property and the west side of the old bridge was used for the passage of trucks down to the north end of the Fones building, to be loaded at the east doors in the shed. Trucks would be driven down this roadway, swung or turned east under the bridge, and then backed up to the shed entrance for loading. It was testified that there was room along the 17%-foot roadway for two trucks to pass, one going north and the other south up the hill. As stated, immediately in front of the south doors of the Fones building the street running north and south, although on grade, was sufficiently level for a space of about 25 feet to back trucks into the curb, to be loaded from these doors. A few feet north of the south doors, however, the 17%-foot roadway began a steep slope toward the north. On reaching the north end of the building the grade decreased, there being a fairly level space in front of the shed for a space of ten or fifteen feet north and south; but the average grade of the roadway between the south doors of the building and the north or shed entrance was 13% per cent. ■ The roadway itself was macadam. * * *
“The method adopted by the Fones Bros. Hardware Company of operating their business in the old location was as follows, according to the testimony of appellee: about 50 per cent, of the incoming freight or hardware was received and unloaded at the north shed entrance of the building, along the railroad tracks. The other fifty per cent, consisted of local shipments from factories, all of which was trucked from various freight depots in the city to the building, and unloaded through the south front doors on Main Street on to the first or main floor, whence it was taken by an elevator at the south wall to the other floors for storage until shipped. The building contains two elevators, one at the south end, against the south wall, and about 50 feet west of the east wall of the building, and the other at the north end of the building, against the north wall, about 40 feet west of the east wall, the north elevator having an opening or door direct from the shaft into the shed. According to appellee’s testimony, about ninety per cent, of outgoing shipments were handled by truck or wagon, owing to the fact that the company buys in large quantities and sells and ships out in small, shipments to customers being necessarily smaller than quantities bought by the company.
“According to their testimony, appellees used both entrances, the shed entrance at the north and the Main Street entrance at the south, for loading on to trucks or wagons their outgoing shipments, the modus operandi being described as follows: A truck would proceed down the steep 17%-foot roadway between the building and the old bridge to a point near the north end of the roadway, where it would be turned to the east under the bridge, and from that point backed up opposite to the east entrance to the shed, the freight being loaded from the shed onto the vehicle. The truck would then be driven back up the roadway to a point opposite the .south or'front door entrance, where it would again be wheeled to the east and then backed up to the curb for further loading, a good deal of the heavy merchandise being loaded at the north end. In loading trucks at the north end of the property, there was a two- or three-foot lift from the sidewalk to the bed of the truck, but at the south entrance, owing to the fact that ’there was an eighteen-inch depression of the street at the. curb, the bed of the truck slanted toward the sidewalk, there being not so much to lift. It was testified that, under the old, arrangement, it was possible to load two trucks at the north end and three trucks at the south end of the building at the same time. The goods loaded into trucks at the north end were usually such as were stored and kept in the basement, while the goods loaded at the south end were such as were kept on the main and higher floors, the elevator at the north end being used chiefly for elevating incoming goods to higher floors. The goods for loading out at the north end were usually assembled in the shed, the goods shipped from the south or main floor entrance being assembled at the south end of the main floor inside of the two south doors. The entire sidewalk east of the building, from the south doors to the shed entrance on the north, was also used for the assembling of goods during dry weather, as is shown by the photographs above referred to; and great quantities of goods were also stored in the- middle of Main Street under the old bridge ***** *.
“The surroundings have been changed as follows: The old steel and iron structure has been replaced by a modern and permanently constructed concrete bridge, with an easier grade or approach from Markham Street north to the. point where the bridge connects with Main Street. This has necessitated the raising of the grade of Main Street north of Markham to the bridge and the widening of the bridge itself. * * * * The bridge sidewalk actually begins at the south wall of the C. K. Lincoln building and extends flush with the Lincoln and Fones buildings to a point 29 feet north of the south wall of the Fones building. At that point a flight of eight concrete steps leads from the bridge sidewalk in front of the-Fones property down to the original or old sidewalk leading north along and east of the Fones building to the railroad tracks. The raised sidewalk along the south 29 feet of the Fones building is sufficiently higher than the grade of the original sidewalk at that point to make the new sidewalk- 5 feet 7 inches above the main floor at the south doors. The height of the ceiling above the main floor is 14 feet. ■
“As stated, the sidewalk opposite this 29 feet of the building is the bridge and Main Street sidewalk, and, to accomplish this result, the west wall of the bridge * * * * was curved to the east and brought into the sidewalk 29 feet north of the south wall of the building. This resulted in cutting off and eliminating the old 17%-foot driveway formerly existing between the old bridge and the building, it being no longer possible to drive vehicles between the Fones building and the bridge, down to the north or shed entrance, for loading. To take care of this situation, the roadway on the east side of the bridge, between it and the Wait building, was very materially altered and improved. * * * * A narrow sidewalk borders the Wait building on the west, the Wait building being at the northeast comer of north Main and Elm Streets, this sidewalk running north for a distance of 51 feet. Between the curb of the sidewalk and the east wall of the bridge the roadway is 20.3 feet wide. After passing the point where the sidewalk ends, an additional space of 4.5 feet is added to the width of the roadway, making it 24.8 feet wide. This roadway has been paved with concrete, and its grade has been reduced from the original fifteen per cent, to a six per cent, grade. At a point down this east roadway, about 90 feet north of the north side of Elm Street, a large opening or arch has been made in and under the new bridge, for the purpose of enabling trucks and vehicles to pass from Main Street down east of the bridge, between it and the Wait building, and to drive under the bridge to the Fones building and its loading facilities on the west side of the bridge * * *.
“The roadway under the arch and clean over to-the sidewalk along the east of the Fones building is paved with concrete, and, after passing out from under the arch to the west, in front of the Fones building, there is now a paved open space from the west wall of the bridge to the east property line of the Fones building, of 21 feet, this space being the space between the west wall of the bridge south of the archway and the Fones building, leading up to the staircase in the sidewalk. * * *
“The result is that, while the operations of the bridge district have shut off the access down the west side of Main Street to the loading shed at the north end of the Fones building, yet the district has substituted therefor a new and improved'roadway down east of the new bridge and under the arch, so as to enable trucks and vehicles to come down east of the bridge, turn west under the archway, and thus have what appellants claim, to be' easy and practicable access to the north end of the building.
“It is to be noted that, while the new sidewalk along the south 29 feet of the front of the Fones building has been elevated to a point 5 feet 7 inches above the main floor level, it leaves the building at the point 29 feet north of the south wall, turning on to the bridge. At this point the flight of concrete steps above referred to takes one from the new sidewalk down to the level of the old sidewalk, which is far below the level of the main floor, the old sidewalk from that point north to the railroad tracks sloping north along what is the basement of the building, and reaching a level with the • basement floor at about the north end of the building.
“The west wall of the new bridge is about 12 feet nearer the property line than the west .side of the old bridge. There is very little difference in the height of the two bridges. At a point opposite the two doors at the south end of the Fones building the grade of the new bridge is 2% feet.higher than that of the .old. From that point the difference between the grade of the two bridges grows less and less, until, at a point. opposite the north end of the building, the grade of the new bridge is only one foot higher than that of the old.”

There was reference to a master, before whom proof was adduced by both parties, and the master made his report, fixing the damages at $27,500, to which report appellants filed exceptions. The court overruled the exceptions, and rendered judgment in favor of appellees for the recovery of the amount of the award.

It is the contention' of appellees that the changes in the surfoundings of the building have caused a compíete deprivation of the nse of the building as a wholesale store, and that now the best restoration that can be effected will be to confine its use to mere storage purposes, and that the amount of damages awarded by the chancery court does not more than compensate for the loss in value of the building. On the other hand, it is contended by appellants that, under, the plan of restora.tion suggested by architects introduced by the commissioners, the building can still be used, with the proper facilities, as a wholesale business house, and that the damages awarded below are grossly excessive. Both sides introduced numerous witnesses as to .value and as to the effect of the change in the usefulness and.value of the building caused by the construction of the new bridge. There is no conflict in the testimony as to the changes that were made, but there is a wide difference of opinion as to the usefulness of .the building now and the depreciation in its value.

The evidence adduced by appellees was to the effect that a wholesale business could not be successfully operated in the building under the restricted shipping facilities after the construction of the new bridge. According to the testimony, the north, or shed, entrance from the railroad track could be used only for shipping heavy goods kept in the basement, and that the shipping of all other goods on the main floor and the upper floors could only be conveniently handled out of the entrances on Main Street. The testimony adduced by appellants tended to establish the fact that, even though the driveway between the front of the building and the west side of the old bridge had been shut off from travel, there had been a substantial restoration of access to the building by widening and paving the twenty-foot street on the east side of the bridge and providing a paved archway which afforded access to the building. In addition to that, the evidence thus adduced tended to establish the fact that there could be substantial restoration of the shipping facilities by cutting double doors at a new place in the front on Main Street. It is unnecessary to state in detail the various plans for restoration suggested by witnesses introduced by appellants.

There was a sharp conflict in the testimony of wit-, nesses who gave testimony as to real estate values and 'the extent of depreciation. The testimony as to the original value of the building ranged all the way from $60,000 to $100,000, and the depreciation runs all the way from twenty to fifty per cent, of the original value. The owner of the building held it at a value of $77,500 — carried the value at that sum on the books — and after the construction of the bridge, but before any steps were taken towards restoration, the building was sold on the market for $50,000. A fair consideration of the testimony, weighed in the light of the conflicting opinions of the various witnesses, warrants the conclusion that the building in its original condition was worth $77,500, and that its value was reduced by the construction of the new bridge to the sum of $50,000. The master, in his analysis of the testimony, seems to have given considerable weight to the fact that the building was sold in the market for $27,500 less than the original value, and he adopted that as the amount of the award.

Our conclusion is that the findings of the master are in accordance with the preponderance of the evidence. It seems clear to us that, from the standpoint of good business, the property, even with the best of restoration, is not available for ordinary business purposes otherwise than for storage purposes. Access to the building by customers is restricted to the eight-foot stairway running down from the sidewalk near the corner of the building. The front of the building is necessarily unattractive by reason of lack of access to it, and, while there is an approach to the building from the east side of the bridge and under the archway, it is a roundabout- way to .get to the building, and the testimony shows that it does not afford sufficient access to give proper shipping facilities. Conceding that each of the restoration plans suggested by witnesses introduced by appellant are feasible, the fact still remains that the building is isolated and its usefulness very much restricted, almost entirely so, as a business building, and to some extent even as a place of storage. Of course, it may be of value to the owners of adjoining property if the building be consolidated with other buildings, but the owners at the time the damage accrued are entitled to recover the depreciation in the value of their property, regardless of what it may be used for if consolidated with other buildings. Of course, the possibility of a sale to adjoining property owners would not be without probative force. But, when everything is considered, we are of the opinion that the master and the chancellor reached the correct conclusion in fixing the amount of the award. The evidence fully sustains the original value at $77,500, and it appears from the testimony that the owner, after the damage accrued, and after putting the property on the market for sale, and after reasonable effort, made a sale at the price of $50,000. Besides that, there is plenty of evidence in-the record to show that $50,000 is a fair value for it in its damaged condition. The result of our views is that the decree is correct.

Other questions involved in the appeal have been disposed of in the decisions rendered today involving damage to property of other owners.

Affirmed.


author: Smith, J.

text:
    Fire Association of Philadelphia v. Bonds.
    Opinion delivered October 25, 1926.
    1. Insurance — concurrent fire insurance — waiver.—A condition in a fire insurance policy against concurrent insurance held not waived by insurer’s agent.
    2. Insurance — retention "of policy — presumption of acceptance. —Though retention of a policy by insured raises a presumption of .acceptance, which, in absence of explanation, makes insured liable for the premium, such presumption is rebuttable.
    3. Insurance — application and acceptance of policy. — An insurance agent cannot, by sending a policy to one who does not want it and has not authorized .its issuance, impose an obligation to pay the premium, and such a policy would not be effective as a contract of insurance if there were no obligation to pay the premium.
    4. Insurance — acceptance of policy. — In an action on a policy of fire insurance, where the defense was that insured carried other insurance in violation of a provision against carrying concurrent insurance, evidénce held to show that insured never accepted the policy, but elected to reject it by refusing to pay the premiums thereon.
    5. Insurance — time to sue on policy. — A suit on a policy of fire insurance before the expiration of the 60 days allowed to the company to determine whether to pay the policy was not premature where the company had definitely refused to pay more than half of the face of the policy.
    6. Insurance — penalty and attorney’s fee. — An insurance company which refused to pay the face of its policy when liable thereon is liable for the statutory penalty and reasonable attorney’s fees.
    Appeal from Randolph Chancery Court; Lyrncm F. Reeder, Chancellor;
    affirmed.

      Roseoe R. Lynn, for appellant.

      John L. Rledsoe, for appellee.
   Smith, J.

Appellee owns a house and lot in the city of Pocahontas, upon which he -had executed a mortgage to the Randolph County Bank to secure a loan of $300 made to him by the bank. The mortgage is not copied into the transcript, but it is admitted that it contained a clause requiring the mortgagor to insure the property in a sum sufficient to protect the loan made by the bank.

Appellee applied to and obtained from tbe appellant insurance company a policy covering tbe house in the-sum of $800, with additional insurance of $250 on tbe household goods. Tbis policy was issued January 13, 1924, by Judge Meeks, tbe local agent of tbe appellant company, who bad authority to countersign, issue and deliver policies, and expired one year from that date. After receiving tbis policy, appellee delivered it to tbe bank, and it remained in tbe bank’s possession thereafter.

Appellee bad' for several years been carrying bis insurance with Judge Meeks, and bad directed him to renew tbe policy, but, about tbe time of tbe expiration of tbe policy held by tbe bank, appellee received from tbe ■bank a policy written by tbe barde as agent of tbe Atlas Fire Insurance Company, covering the bouse and household furniture. Appellee then went to Judge Meeks and told him that be wished him to write the insurance, but that be owed the bank, and be was apprehensive, if be did not allow tbe bank to write the insurance, tbe loan would be foreclosed upon its .maturity. Judge Meeks told appellee be thought tbis could be arranged by getting another bank in tbe city to carry tbe loan if tbe Randolph County Bank attempted to foreclose. Judge Meeks saw the other bank, made tbe necessary arrangements, and advised appellee that be bad done so, whereupon appellee told Judge Meeks to continue tbe insurance. Judge Meeks bad, before tbe expiration of tbe first policy, written tbe policy here sued on, and had place’d it on bis desk, and tbis last policy was delivered to appellee and tbe premium paid after tbe arrangement bad been made for another bank to carry the loan if tbis became necessary.

Tbe assistant cashier of tbe Randolph County Bank, wbo bad charge of tbe insurance department of that bank, testified that tbe bank was tbe local agent of tbe Atlas Insurance Company, and that, when the policy expired which appellee had placed in its possession, be wrote a policy for appellee on tbe same property, which became effective on tbe day tbe old policy expired. Tbe bank bad never' before written any insurance for appellee. It was not directed to write insurance for appellee. The matter of writing- the policy was not mentioned to appellee, but the policy was written to protect the bank’s security and the policy was mailed to appellee, who never returned it. Monthly statements covering the premium were sent to appellee, but no response of any kind was received. Witness called at appellee’s home on two occasions to see him about the insurance, but appellee was not at home either time, and nothing was ever said to appellee about the insurance, until after the fire, except to send statements covering the premium, which appellee ignored.

Appellee testified that, when he conferred with Judge Meeks, he told the judge that he would have to cancel one or the other of the policies, as he was not able to pay for both, and when Judge Meeks removed the fear of foreclosure if he did not take and pay for the policy written by the bank, appellee told Judge Meeks that he would keep his policy, and he paid him the premium. Appellee also testified that he did not return the Atlas policy to the bank because he had never told it to write the insurance, and did not feel that he ought to run after it to take the policy back, as he felt it was trying to impose upon him because it had a mortgage on his property. That he never considered the Atlas policy in force; that he never paid the premium on that policy o.r promised to do so, and that he never had any intention of doing so.

The property insured was destroyed by fire on April 19, 1924, and negotiations were entered into with the adjuster of the appellant company, and, when the adjuster was advised of the issuance of the Atlas policy, he declined to pay more then one-half the amount of the insurance. This position of the adjuster was based upon a provision found in both the policies, that the insurer should not be liable for a greater proportion of the loss than the limit of the policy bore to the whole amount of insurance on the property , destroyed.

When the adjuster announced this position, this suit was brought against appellant company. ' Appellant filed an answer, setting up the fact that another policy was outstanding, and prayed that the Atlas Company he made a party defendant. This was done, and the cause was transferred to the chancery court, on the motion of appellant,, and, upon a trial there; it was decreed that appellant alone was liable, and judgment was rendered against it for the face of the policy, with the statutory penalty of 12 per cent., and an allowance of $100 as" attorney’s fee was made, and this appeal is prosecuted to reverse that decree.

For the reversal of the decree, appellant insists that it is not liable in any sum, for the reason that the policy sued on contained a provision that the- policy should be void “if insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.” Appellant also insists that in no event is' it liable for more than one-half of the amount of loss sustained by appellee, and it is also insisted that the suit was prematurely brought, in that the policy provided that no suit should be brought within sixty days of the date of loss, and, for these reasons, appellant insists that it could not be liable for the statutory penalty and an attorney’s fee.

For the affirmance of the judgment appellee insists (a), that the provisions of the policy against concurrent insurance was waived by Judge Meeks, acting for appellant; and .(b), that the provision was never violated, in that only one policy — the one sued on — was in force as a contract of insurance..

We do not .agree with appellee'in his contention that Judge Meeks waived.the provision of the policy which invalidated it in the event there was other insurance. This court has many times held that such provisions are valid, and will be enforced unless waived; but we have also frequently held that the provision may be waived, and is waived if, with knowledge that the condition has been violated, the agent issuing the policy consents to a continuance of the contract of insurance. This principle was applied in the late cases of Fidelity Phenix Fire Ins. Co. v. Roth, 164 Ark. 608, 262 S. W. 643, and National Union Fire Ins. Co. v. Kent, 163 Ark. 7, 259 S. W. 370, and in other cases there cited.

The principle applied in those cases was that the provision was for the benefit of the insurer, and being for its benefit, might be waived, but, ,to constitute a waiver, there must be knowledge of the violation of the provision and consent, either expressly given or necessarily implied from the fact that, with knowledge of its violation, the policy was not canceled as a contract of insurance, as it might have been.

We think, if it does not appear from the undisputed evidence, it is certainly shown by a clear preponderance, that Judge Meeks did nothing which could be construed as consenting that two policies should be outstanding on the property burned. The proposition addressed to Judge Meeks was which of two policies should be effective, and his efforts were directed to arranging for appellee to carry the insurance in his company. He testified that he did not think there ought to be two policies covering the same property, and, ydien asked, “What would have been your duty to your company if you had known that the other policy was to be kept?” he answered, “I think I would have canceled mine. I should have canceled it if I had known that there were two policies.” He testified that he understood appellee intended to, return the Atlas policy, and that he presumed this would be done. He was also asked, “If you had not understood that he' (appellee) was going to take it, (the Atlas policy) back, would you have canceled your policy?” and he answered, “I think so; I feel sure that I would.” Appellee did not remember that he had promised Judge Meeks to return the Atlas policy, but he does not deny that he had done so.

Under these circumstances we do not think it can be said that Judge Meeks, acting for the appellant company, waived the provision against concurrent insurance. It is true he did not cancel his policy after knowing that the bank had written one for the Atlas company, bnt we think it very clear this was not done for the reason that he believed appellee had elected to keep his policy and would not keep the other.

We do think, however, that appellee is' correct in his second position, that is, that there was never in fact but one policy in effect.

In the case of Gray v. Blackwood, 112 Ark. 332, 165 S. W. 958, suit was brought to collect a premium on a life insurance policy which had been issued to and held by the defendant, the insured, and we there held that it was error to charge the jury that the burden was on the plaintiff to prove that the defendant had accepted the policy. In that cáse we quoted from the case of Mutual Life Ins. Co. v. Parrish, 66 Ark. 612, 52 S. W. 458, the following declaration of law: ‘ ‘ The mere manual possession of .the policy by either party makes a prima facie case for that party, subject to be rebutted by proof aliunde that the contract of insurance was complete and valid, or that delivery was essential to completion or not without delivery.” And we there further said: “If the beneficiary had brought suit on the policy and produced the same at the trial, and the company had admitted the death of the insured, this would have made a prima facie ease in favor of the beneficiary, and the burden of proof would have been on the insurance company to show that the policy of insurance had not been accepted. So here the defendant, to whom the policy was issued, remained in possession of it from that time until the institution and trial of this case in the court below. This made a prima facie case in favor of the plaintiff, and, in the absence of evidence to the contrary, Mrs. Blackwood (the insured) would be deemed to have accepted the policies at the time they were left in her possession, and the burden of proof was on her to show that she had not accepted them.”

The judgment in that case was reversed, and a second appeal was prosecuted under the same style, and is found reported in 117 Ark. at page 100. In that case the judgment in favor of the insured, who was sued for the premium, was affirmed, and in affirming it we said: “It is well settled that one who retains a policy of insurance in his possession will be deemed to have accepted it, and cannot avoid liability for the premium, but that principle does not apply when the proof shows there was express refusal to accept the policy in any form. ' Appellee was not bound to do anything more than her own testimony showed that she did in expressing her nonacceptance, and her testimony was sufficient to overcome any prima faoie presumption of acceptance- arising from the fact that the policies were found in her house or possession.”

It thus appears that, while the retention of a policy of insurance does raise a presumption of acceptance, which, in the absence of proper explanation, makes the person insured liable for the premium, this presumption • is not conclusive, but may be rebutted. So here we think that, while the testimony does show that the Atlas policy was sent to appellee, and never returned by him, the testimony also shows that he never authorized its issuance and never accepted it as a contract of insurance.

An agent cannot, by mailing or sending a policy to one who does not want it, and who has not authorized its issuance, impose an obligation to pay the premium required by the policy; and the policy would not be effective as a -contract of insurance if there were no obligation to pay the premium. The retention of the policy might raise a presumption of acceptance, but this presumption may be overcome by showing there was in fact no acceptance; and we think that showing was made here, and the Atlas Company policy was never effectual as a contract of insurance, and the court below was correct in so holding.

It is an undisputed fact that appellee did not authorize the bank to write the Atlas policy, and it is also undisputed that he never at any time agreed to pay the premium, and that he ignored several statements sent him by the bank covering this premium. He testified that he felt the bank was attempting to impose upon him because it had a mortgage on his property, and his -conduct in connection with the issuance of the policy sued on shows, we think, very clearly his election to take the policy issned by Judge Meeks and to reject the other. Had he sued the Atlas company, the right to recover would have been denied appellee if the testimony before us had been offered in that case.

It is .true that the bank had the right to protect its security. The mortgage required the mortgagor to insure the property, and this provision would have given the mortgagee the right to take out insurance to protect its security had this been necessary. But this was a secondary right. The primary duty to insure was upon the mortgagor. It was his duty to take out the insurance and pay the premium. He had done this, and had delivered a satisfactory policy to the mortgagee. There was no refusal on his part to keep insurance in force; indeed, he was making a very earnest effort to do so, and if he had in fact discharged this obligation, then the bank had no right to require him to pay for additional insurance. The amount of the insurance was largely in excess of the debt due the bank, and it had no right to carry insurance in a larger amount than was necessary to protect its security. Sufficient insurance was being carried for this purpose, and the action of the bank in issuing the policy in the Atlas company was therefore unauthorized. .

The bank was anxious, no' doubt, to write this policy to earn the premium which would have inured to it, so also was Judge Meeks, but appellee was unwilling to carry insurance in so large an amount. He probably knew nothing at the time about the provision invalidating his policy if concurrent insurance was carried, and he did not put his objection on that ground, but, whatever reason might have prompted his action, he had the right to decline to take any more insurance than was necessary to protect the security of the bank. We think he did this, and that the court below was correct in holding that there was in fact no liability against the Atlas Insurance Com-puny, and in refusing to prorate the loss between appellant and that company.

Upon the proposition that the suit was prematurely brought, it may be said that, before the expiration of the sixty days allowed the company in which to determine whether it would pay the policy or not, the conclusion was announced that it would pay only one-half the policy, and this position appellant has since consistently maintained. The suit was therefore not brought prematurely. The refusal of the appellant to pay the face of the policy was in effect a denial of liability, and, when that position was announced, the right to sue accrued, even though the sixty days had not then expired. Old American Ins. Co. v. Wexman, 160 Ark. 571, 255 S. W. 6; German Ins. Co. v. Gibson, 53 Ark. 494, 14 S. W. 672.

If the appellant company was, in fact, liable for the face of its policy — and wé think the court below was correct in so holding — then it is also liable for the statutory penalty and for a reasonable attorney’s fee, and no objection is made as to the fee allowed.

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


author: Humphreys, J.

text:
    Cruce v. Missouri Pacific Railroad Company.
    Opinion delivered October 25, 1926.
    1. Witnesses — privileged communication. — In an action for personal injuries testimony of a government medical examiner disclosing information obtained in examining plaintiff on his application for disability compensation held inadmissible against plaintiff, being privileged under the Veterans’ Compensation Act, § 30.
    2. Compromise and settlement — evidence of prior settlements.— Evidence relative to injuries previously settled for and having no connection with the injury which is the basis of this suit was erroneously admitted in an employee’s suit against a railroad for personal injuries.
    3. Damages — evidence of previous injuries. — In a suit by an employee against a railroad for personal injuries, testimony of persons in charge of the files of the United States Veterans’ Bureau, relative to a claim filed by such employee for previous temporary injuries while in the government’s service, held improperly admitted.
    4. Master and servant — instruction on assumed risk. — An instruction on assumed risk held not to impose on employee knowledge of danger by reason of the situation he occupied.
    Appeal from Jackson Circuit Court; Dene H. Coleman, Judge;
    reversed.

      Brundidge & Neelly, for appellant.

      Thos. B. Pryor, Vincent M. Miles and H. L. Ponder, for appellee.
   Humphreys, J.

Appellant brought this suit against appellee in the circuit court of Jackson Coupty, on September 13, 1923, to recover damages for an injury received on the Í2th day of June, 1922, through the alleged negligence of appellant in allowing a tool-hox full of tools to fall out of the rack of the engine in which he was working, and striking him with such force that it caused an abrasion of the skin at the base of his neck and the small of his back, which paralyzed his right leg, and permanently crippled him. .

Appellee filed an'answer, denying the material allegations of the complaint, and, by way of additional-defense, pleaded an assumption of the risk and contributory negligence by appellant.

Upon the first trial of the cause, the court instructed a verdict for appellee, and dismissed appellant’s complaint, from which an appeal was duly prosecuted to this court. The judgment was reversed, and the cause was remanded for new trial. That case is reported under the' style of Cruce v. Missouri Pacific Railroad Company, 167 Ark. page 88, 266 S. W. 981. In rendering the opinion, a full and compléte statement of the facts was made relative to the issues of negligence, contributory negligence, and assumption of the risk.

In obedience to the mandate of this court, the cause was submitted to the jury upon the pleadings, and testimony introduced by the parties, which resulted in a verdict and judgment in favor of appellee, from which is this appeal.

The question involved on this appeal renders it unnecessary to again set out the testimony in the case. Suffice it to say that appellant served as a private in France during the World War. He was honorably discharged from the service on July 3,1919, and soon thereafter was employed by appellee as a fireman oh locomotives, in which capacity he served until he was injured on the 12th day of June, 1922. During this term of service he was able, physically, to perform his duties- as fireman. At the time of his injury he was earning about $200 per month, was twenty-six years old, and in line for promotion with an increase in pay.

Appellant’s first contention for a reversal of the judgment is that the court erred in permitting Dr. W. H. DeClerk to disclose information obtained in making an examination of appellant in August, 1921, and in testifying to communications which he received, during the examination, from appellant, relative to injuries he sustained during army service in France.

The testimony of Dr. DeClerk was objected to upon the ground that the communication And information were privileged, because obtained by a physician in the examination of a patient. Dr. DeClerk was the medical examiner for the Government under the Veterans’ Compensation Act, at the time he examined appellant in August, 1921. Appellant had presented a claim to the Government for disability compensation. Under that act, veterans of the World War are entitled to medical and hospital services free of charge. Dr. DeClerk tes-, tified that he made the examination of appellant with the view of sending him to a hospital, and that, after making the examination, he sent him to the Army and Navy Hospital at Hot Springs. Section 30 of that act makes the record confidential, ¡and provides that no disclosure shall be made unless within one of the exceptions provided for.

We think it must be said that, in view of the fact that the Government furnishes its veterans free medical and hospital services, and the further fact that Dr. DeClerk examined appellant with a view to sending him to a hospital, and did send him to the Army and Navy Hospital at Hot Spring’s, the confidential relationship between physician and patient attached when appellant presented himself to the doctor for examination.

Dr. DeClerk’s testimony relative to the physical condition of appellant when he examined him, and touching communications he received from appellant in the course of the examination, was incompetent.

Appellant’s next contention for a reversal of the judgment is that the court erred in permitting appellee to introduce testimony relative to five separate and distinct injuries, covering a period of about two years, in settlement of which it had paid sums ranging from fifty to one hundred dollars. As we read the record, these injuries had no connection with the injury which is the basis of this suit. Appellee had settled with appellant for each one and had retained appellant in its employment for a period of twelve months after the last one of the injuries occurred. We think proof of these injuries was incompetent, and that the trial court committed reversible error in admitting the evidence.

Appellant’s next contention for a reversal of the judgment is that the court erred in not excluding the testimony of Cleveland Cabler. Cleveland Cabler had charge of the files of the United States Veterans’ Bureau, which contained a claim of appellant which he filed with it for disability under the Veterans’ Act. The trial of the cause had been postponed for one day for this witness to be present, to prove that he had a claim, signed by appellant, to the effect that he had received an injury to his back while in France, which had permanently injured him. When he appeared as a witness, no objection was made to the introduction of his testimony because it was thought that the claim would contain such a statement. As soon as it was discovered that it did not contain such a statement, the appellant moved to exclude the testimony and objected and excepted to the court’s refusal to do so. Temporary injuries, from which appellant had recovered, and which had no connection with the injury made the basis of this suit, were incompetent and prejudicial. The testimony of Cleveland Cabler was of this character, and should have been excluded, and the court committed reversible- error in not doing so.

Appellant’s last contention for a reversal of the judgment relates to the refusal of the court to give certain written instructions requested by him, and in giving, on its' own 'motion, instruction No. 9.

We have examined all of the instructions given by. the court, and think every phase of the case "was fully covered, and that no prejudice resulted to appellant on account of refusing additional instructions requested by him.

Instruction No. 9, given by the court, to which our especial attention is called, is as follows:

“You are instructed that, although you may believe that the prong or prongs of the rack of the tool-box were bent out, and that it was neglect on the part of defendant to have said prong or prongs in such condition, yet if the plaintiff was so situated that he knew of such condition, and appreciated the dangers therefrom, he assumed the risk of the injury occasioned by the condition of said prong or prongs.”

The objection made to this instruction is that it imposed upon appellant knowledge of the position of the tool-rack and also the dangers therefrom, by reason of the situation he occupied.

Of course it would be error to place such an imposition upon appellant. We do not think the court intended to do so by giving this instruction. Perhaps it is ambiguous and misleading. If the ambiguity had been pointed out to the trial court by specific objection, he would likely have changed the language so as to eliminate the cloud in this, as well as the other two instructions mentioned in appellant’s brief.

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

Smith, J., dissents.


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    Bennett v. Weil Brothers' Plantation Company.
    Opinion delivered October 25, 1926.
    1. Eminent domain — authority to dig ditch. — Under Sp. Acts 1911, p. 352, authorizing a landowner within a certain drainage district to institute proceedings to condemn a right-of-way across the land of an intervening landowner who refuses permission to cross his land, held that it was not necessary to dig a new ditch where an existing ditch could be enlarged to- carry the water.
    2. Appeal and error — moot case. — Where plaintiif procured a permanent injunction against defendant’s bringing a condemnation proceeding to enlarge a ditch across his property, and the district commissioners enla'rged the ditch during the pendency of the appeal, question on the appeal did not become moot, since the issue of damages for wrongful procurement of the injunction remained.
    Appeal from Jefferson Chancery Court; H. B. Lucas, Chancellor;
    reversed.

      Coleman & Gantt, for appellant.

      Sam M. Levine and Danaher $ Danaher, for appellee.
   Humphreys, J.

This action was instituted in the chancery court of Jefferson County by appellee against appellants to enjoin them from prosecuting a suit in the circuit court of said county, which they had brought against it to condemn a right-of-way for a drainage ditch across its lands, under act No. 144 of the Acts of 1911, amending act No. 283 of 1907, creating Oousart Bayou Drainage District.

Appellants and appellee owned large tracts of adjoining lands within said drainage district, upon which they paid drainage taxes. The lands of appellants lay to the north of those of appellee, and were in sections 14, 23 and 24, while those of appellee were in sections 25 and 26, all being in township 6 south, range 8 west. Lateral ditch No. 3 was a component part of the drainage system in said district, its purpose being to drain Grlen Lake, mainly in section 23, and surrounding lands. The original purpose was to dig it with a dredgeboat for its entire length of 9,600 feet. It emptied into the main canal near the north line of section 25, and traversed the lands of both appellee and appellants, running in a northerly direction to a point east of Glen Lake. At the time the lateral was being dug, growing crops were upon the lands now belonging to appellee and appellants. They were then owned by other parties, who objected to holding the water in the ditch which was necessary to float the boat, so they consented that the drainage of the lake might be deferred. When one-half of the lateral had been dug with the dredgeboat, the remainder of the ditch was dug with scrapers after the dredgeboat had been removed. The upper half thereof was not of size and depth sufficient to care for the drainage it was planned to receive.

The upper part of the ditch passed through the lands of both appellee and appellants, and ran on the east side of Glen Lake.

Glen Lake was mostly upon the land belonging to appellants, and the purpose of the condemnation suit brought by them in the circuit court was to obtain the right to widen and deepen lateral No. 3 over and across appellee’s land to the point reached by the dredgeboat before its removal. The plan of appellants was to dig a ditch from the lake to the lateral across their own land and to widen and deepen the lateral from the point of intersection across their own land, as well as the land of appellee, so as to conform to the original design and purpose of the lateral.

It was alleged in the injunction suit that the statute relied upon by appellants in the condemnation suit did not confer power upon a private property owner in the district to condemn land for the purpose of widening and deepening a lateral ditch. This allegation was controverted by appellants, and the cause proceeded to a trial, which resulted in the rendition of a decree permanently enjoining appellants from prosecuting their condemnation suit.

At the time the injunction suit was instituted a bond was filed by appellee to pay appellants for all damages they might sustain if it was finally determined that the writ was wrongfully issued. "With the filing of the bond, further construction work upon the ditch by the contractors employed by appellants ceased.

During the pendency of this appeal the commissioners of the district completed the lateral in accordance with the original plans.

This appeal involved the sole question of whether appellants were entitled to maintain a condemnation suit under act No. 144 of the Acts of 1911, for the purpose of enlarging lateral No. 3, over and upon appellee’s land. That act provides:

“Any landowner within the Cousart Bayou Drainage District, as created by act No. 283 of the Acts of the General Assembly of this State for the year 1907 and the acts amendatory thereof, whose lands are assessed for drainage taxes by said district, may construct ditches to drain such lands into the public ditches of said drainage district, and if any intervening landowner should refuse permission to cross his lands with such ditch, the landowner seeking to construct such ditch may, by proceedings in the circuit court, to be conducted in the same manner as condemnation proceedings instituted by railroads, telegraph and telephone companies, condemn a right-of-way for such ditches. In sfich proceedings the jury shall deduct from the damages the benefit that will accrue to such landowner by the construction of such ditch, and said intervening landowner shall have the right to use such ditch for the drainage of his own land.”

Manifestly the purpose of the act was to afford drainage of lands in the district assessed for drainage taxes and to allow the landowner to condemn a right-of-way, if necessary, across intervening lands, to construct ditches to convey the water into the public ditches of the district.

The lower half of lateral No. 3 was regulation size, but the upper half was insufficient in width and dépth to receive and carry the water from Glen Lake and the land surrounding it.

In order to drain the lake and surrounding land, it was necessary to dig an additional ditch from the lake along the general course of the lateral across appellant’s lands and the intervening lands of appellee, to the north end of the lower lateral which had been dug by the dredgeboat, or to intersect the upper lateral with a ditch from the lake,-then widen and deepen the upper lateral from the point of intersection, through the lands of appellants and through the intervening lands of appellee.

■The statute in question must be strictly construed, as the only authority to condemn' a right-of-way across intervening lands is conferred by it; but a strict construction does not mean that a new ditch must be dug over the right-of-way, when an existing ditch thereon may be enlarged, at 'much less expense, to carry the water. The statute does not say the ditch must be a new one, and there is no necessity for making such an interpolation in order to ascertain the true purpose and intent of. the act.

The language of the act is to construct a ditch. We think it would be extremely technical to say the enlargement of an old ditch did not amount to the construction of a ditch. It is true that the act provides that the landowner may construct a ditch over intervening lands to drain his lands into the .public ditches, but the enlargement of one of the public ditches to drain his land would not change the course of the water, and thereby force the construction that the act contemplated the construction- of new ditches only.

Our conclusion is, under the rule of strict interpretation, that the widening and deepening of lateral No. 3 was, in effect, constructing a ditch within the meaning of act No. 144 of the Acts of 1911.

It is suggested that the appeal should be dismissed because the question at issue has become moót on account of the completion of the upper part of lateral No. 3 by the district since the trial.

The completion of the ditch did not dispose of the only question involved, except liability for costs. The issue of damages occasioned by tbe wrongful procurement of tbe injunction remains, and necessitates, that tbe appeal be beard and determined.

On account of tbe error indicated tbe decree is reversed, with instructions to dissolve tbe injunction and dismiss tbe bill, and for further proceedings.


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    Bradley v. State.
    Opinion delivered November 1, 1926.
    Intoxicating liquors — possession op still. — The offense of possessing an unregistered still is sustained by proof that accused, was in possession and control of all the parts of a still and that he has been manufacturing whiskey.
    Appeal from Randolph Circuit Court; John G. Ashley, Judge;
    affirmed.

      J. W. Meeks, for appellant.

      E. W. Applegate, Attorney General,. and Darden Moose, Assistant, for appellee.
   McCulloch, C. J.

Appellant was convicted under an indictment charging him with tbe offense of. having and keeping in bis possession an unregistered still, and tbe only contention on this appeal .is that tbe evidence is not sufficient to sustain tbe verdict of conviction.

Tbe officers testified that they found, at appellant’s home, a copper boiler. It was out in tbe yard, by .the side of tbe bouse. They also found there a barrel which had recently contained mash. Witness McMurtry testified that, while be was confined in jail with appellant, tbe latter made a statement to him that be bad concealed a copper stillworm in tbe waters of a small lake near bis home, and that tbe place was marked by a certain cypress tree. Tbe witness testified that, after be got out of jail, be told tbe officers about it, and accompanied them to tbe place, and that they waded out into tbe lake and found tbe stillworm concealed in tbe water at tbe place designated by appellant. Tbe officers also testified that .they found a stillworm in tbe water at tbe place indicated. They testified that they first went to the house and found the boiler, as hereinbefore stated, and then went back, after they received information about the stillworm, and found it. According to the testimony of the officers, there was no lid on the boiler which they found in appellant’s yard. We are of the opinion that the evidence was sufficient to sustain the verdict.

The different parts of the still were not connected up, but each of the essential parts was in possession and control of appellant. The boiler was in his yard, the barrel, which had recently contained mash, was in the barn, and the stillworm was found in the water a short distance from the house. This indicated clearly that appellant had had all of the parts in his possession, and completed the offense. McGarity v. State, 151 Ark. 423. We do not mean to say that the mere ownership of the parts of a still, though widely scattered, would make an offense of possessing a still. What we do hold is that, where all of the parts are in possession and immediate control of a person, ready to be connected up and used, this is sufficient to constitute possessing a still within the méaning of the law. Besides that, even if this did not constitute possession at the time, the fact that all of the necessary parts are in control of a person, and there is evidence that he has been manufacturing whiskey, is sufficient to warrant the inference that he has had possession of the complete still at some time. This may be said also with regard to the absence of the lid do the boiler. Counsel for appellant rely upon the fact that there was no lid to the boiler as a failure to establish the’ offense. The fact that appellant had been using the apparatus at that place, which the evidence tended to establish, is sufficient to warrant the jury in finding that there had been a lid on the boiler, for the reason that the boiled liquid would not vaporize unless the boiler had been closed with a lid.

The issues were submitted to the jury under correct instructions, and the evidence, we think, was sufficient to sustain the verdict.

Affirmed.


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    Ottinger v. Ferrell.
    Opinion delivered November 1, 1926.
    1. Pleading — motion to make certain. — The remedy for vague and indefinite allegations in a complaint is.not by demurrer, but by motion to make more certain.
    2. Libel and slander — complaint—defamatory matter. — Allegations in a complaint by a school-teacher that school officers uttered and published of him that he is “incompetent as a teacher, immoral, and not a good citizen,” and that he “is unfit to teach school; he curses in his school; talks socialism in his school and to his patrons; and is disloyal to our Government,” held sufficient to point out th.e particular language used and the circumstances under which it was used.
    3. Libel and slander — words tending to injure in profession.— False charges against a school-teacher of incompetency or immorality are actionable as libel or slander.
    4. Libel and slander — joint cause of action. — A joint cause of action is alleged in a complaint for libel which charged that defendants joined in a conspiracy to defame plaintiff’s character, and that, pursuant to that joint design, libelous words were published.
    5. Libel and slander — parties.—While a joint action cannot” be maintained for a slander, such an action may be maintained for a libel.
    6. Pleading — demurrer—misjoinder of causes. — A general demurrer does not reach the objection of a misjoinder of causes of action.
    7. Libel and slander — privileged communication. — A communication by school officers concerning the character and qualification of a school-teacher is not absolutely privileged, and the privilege must be pleaded by answer to the complaint alleging a libel, and cannot be raised by demurrer.
    ..Appeal from Jackson Circuit. Court; . Dene ■ H. Coleman, Judge;
    reversed.

      E. F. Duncan and E. P. Cleveland, for appellant.

      Fred, M. Pickens, for appellee.
   McCulloch, C. J.

Appellant instituted this action in the circuit court of Jackson County against appellees, J. E. Ferrell, T. V. Flemming, C. P. Trice, Garland E. Land and J. O. Goff, alleging in his complaint that he is a school-teacher by profession, and is duly licensed as such; that appellee Land is superintendent of schools in Jackson County, and that the other appellees are directors of School District No. 25 in Jackson County; that appellant was employed as teacher in said district, hut was wrongfully discharged, and that, after the discharge, all of the appellees entered into a conspiracy to prevent him from securing school work in thé State, and that, pursuant to that conspiracy, they uttered slanderous and defamatory words concerning his moral character and his fitness as a teacher, and that they also published libelous words to the same effect.

The language charged to have been uttered and published by appellees concerning appellant is that he is “incompetent as a teacher, immoral, * # #.and is not a good citizen.” In another paragraph the language charged to have been used is that appellant “is unfit to teach school; he curses in his school, talks socialism in his school and to his patrons, and is disloyal to our Government,” etc.

. There are numerous paragraphs in the complaint alleging slanderous and libelous words uttered and published on different occasions and to different persons, but the above are substantially the words alleged to have been used in each instance. It is unnecessary to discuss each paragraph in detail, for the court sustained a demurrer to the complaint as a whole, and it is only necessary to determine whether or not a cause of action was stated in either of the paragraphs.

■Appellees first defended the judgment of the court in sustaining the demurrer on the ground that the 'cause of action was barred by the statute of limitations, but counsel has now abandoned that contention, and nothing more need be said about it.

It is next contended that the allegations are too vague and indefinite to be understood. If that were true, the remedy would not be by demurrer but by motion to make the complaint more definite and certain. Dillahunty v. Railway Co., 59 Ark. 629. We think, however, that the allegations in the complaint are sufficient to point out the particular language used and the circumstances under which it was used. It may he said, in this connection, that the law is well settled that a false charge against a school-teacher of incompetency or immorality is actionable "as libel or. slander. Newell on Libel and Slander, § 148. In this connection it is also urged that the complaint-was not sufficient to charge a joint cause of action against all of the appellees. We find, however, that it is charged specifically in the complaint that all of the appellees joined together in a conspiracy to .defame the character of appellant b'y slander and.libel so as to prevent him from obtaining school work, and that the slanderous words were uttered and the libel published pursuant to that joint design. Now, the rule is that a joint action cannot be maintained against two or more persons for slander, but a different rule prevails concerning a libel, and such publication may be the joint act of two or more persons, who may be sued jointly or separately at the election of the plaintiff. • Newell on Slander and Libel, § 371. The demurrer was general, and therefore did not reach the objection of misjoinder of causes of action.

The principal ground urged in support of . the judgment of the court is that the alleged slanderous and libelous statements concerning appellant constituted, under the circumstances, privileged communication, and that, this appearing upon’ the face, of the complaint, the objection to the sufficiency of the allegations could be raised, by demurrer. We d.o not agree with counsel in .this contention. It appears from the language of the complaint that all of the appellees are school officers, appellee. Land being county superintendent, and the others school directors, and it also appears that the words spoken and written related to appellant’s character and qualifications as a school-teacher, but the privilege could not, in any view, be absolute, and might, or might not, according to the circumstances, be privileged. That being true, it necessarily follows that the privilege must be pleaded by answer, and the question cannot be raised by demurrer. 17 R. C. L., p. 401; Odgers on Libel and Slander, p. 636. Our conclusion is that the court erred in sustaining tbe demurrer to the complaint.

Reversed, and remanded for further proceedings.