author: Hart, O. J.

text:
    Fox v. Pinson.
    Opinion delivered December 22, 1930.

      Coulter d Coulter, for appellant.

      Marsh, McKay d Marlin and J. R. Wilson, for appellee.
   Hart, O. J.

Appellant prosecutes this appeal to reverse a decree of the chancery court dismissing her complaint for damages for breach of warranty and her prayer to restrain the defendant administrator from paying a claim of the Drew County Bank & Trust Company against the estate of "W. J. Pinson, deceased.

The cause has been before us several times. In Fox v. Pinson, 172 Ark. 449, 289 S. W. 320, it was held that a vendor who conveyed land by deed with warranty against incumbrances cannot foreclose his mortgage, taken to secure the purchase money, before clearing the record of all incumbrances. It was further held that, in the absence of an accelerating clause in purchase-money notes or mortgage, a mortgagor cannot enforce his lien for the total indebtedness in default of payment of a part thereof.

Upon the remand of the cause, the court appointed John H. Pinson, administrator of the estate of W. J. Pinson, who had died during the pendency of the suit. Thereafter Yetta Fox filed her cross-complaint, calling on the administrator of the estate of. W. J. Pinson, deceased, to defend her title under the warranty deed of said W. J. Pinson, against those who are claiming title to the property paramount to her title. The court sustained a demurrer to the cross-complaint; and, Yetta Fox declining to plead further, her cross-complaint was dismissed for want of equity. Upon appeal, the court held that in a suit to foreclose a mortgage, a cross-complaint calling upon the administrator of the estate of the grantor to defend the title under his warranty and setting up dispossession and destruction of a building on the premises constitutes a cause of action, and it was error to sustain a demurrer thereto. Fox v. Pinson, 177 Ark. 381, 6 S. W. (2d) 518.

After the second remand, additional testimony was taken, and at the conclusion thereof, and before submis.sion, Yetta Fox took a voluntary nonsuit as to her cross-complaint. The court then rendered a decree in the case on the issues remaining; and the cause was before this court in Fox v. Pinson, 180 Ark. 68, 20 S. W. (2d) 645. The issues decided upon that appeal have no bearing on the question here involved and need not be stated.

The present suit was commenced by Yetta Fox against John E. Pinson, administrator of the estate of W. J. Pinson, deceased, and others, on the first day of February, 1930. The original suit was commenced as a mortgage foreclosure proceeding by W. J. Pinson against Yetta C. Fox. In that suit it was agreed between the parties that the First .National Bank of El Dorado had a mortgage on the property in controversy and that the balance due under it. on April 1, 1925, was $4,500 with interest at the rate of ten per cent, per annum. It was stipulated that W. J. Pinson died on September 26, 1926., and that the building- situated on said property was destroyed by fire on September 29,1926. It was also stipulated that the cause was revived in the name of the heirs of W. J. Pinson, deceased, and in the name of John Pin-son, special administrator of his estate, on September 28, 1927. It was stipulated that Yetta C. Fox took a voluntary nonsuit on her cross-complaint February 4, 1929.

The opinion upon the first appeal of Fox v. Pinson, 172 Ark. 449, 289 S. W. 329, was delivered on December 6, 1926. After the case was remanded to the chancery court, the cause was revived against the heirs and the administrator of- the estate of W. J. Pinson, deceased, on April 4,1927. On April 6,1927, Mrs. Fox filed her cross-complaint, in which she alleged that W. J. Pinson, the original plaintiff, had died since the institution of the action, and she asked that his widow and his heirs at law and John II. Pinson, as administrator of the estate, be made parties defendant. In her cross-complaint she sets up facts which entitled her to affirmative relief; and in this connection it may ¡be stated that the cross-complaint was filed within a year after the appointment of the ad-, ministrator of the estate of W. J. Pinson, deceased; and the institution of her action against the administrator of said estate by way of cross-complaint was equivalent to an exhibition of her claim ag’ainst the estate and prevented the statute of nonclaim from running.

The record shows that she dismissed her cross-complaint on February 4, 1929, and commenced the present suit on the first day of February, 1930, which was less than one year after the voluntary dismissal of her cross-complaint. It will be seen from the opinions of the court upon the former appeals in this case that there was a breach of the warranty against incumbrances in the deed of W. J. Pinson to Yetta C. Fox by the execution by Pin-son of the mortgage to the bank; and the foreclosure proceedings by the bank on its mortgage was equivalent to eviction which gave Mrs. Fox the right to assert damages for breach of covenant as a defense or to ask for affirmative relief by way of cross-complaint. Collier v. Cowger, 52 Ark. 322, 12 S. W. 702, 6 L. R. A. 107 ; and Belleville Land & Lumber Co. v. Griffith, 177 Ark. 170, 6 S. W. (2d) 36.

An action may be dismissed without prejudice to a future action before the final submission of the case to the court. Crawford & Moses’ Digest, <§, 1261. Under § 6969, such plaintiff may commence a new action within one year after such nonsuit has been taken. The present action was commenced within one year after Mrs. Fox dismissed her cross-complaint seeking affirmative relief against the administrator of the estate of W. J. Pinson, deceased, for breach of his covenant against incumbrances in the deed to her.

This brings squarely before us the question whether a cross-complaint of this kind is a complaint within the meaning of § 1261 of the Digest. At common law a plaintiff has an absolute right to discontinue or dismiss his suit at any stage of the proceedings prior to judgment, and this right is a substantial one. It is also the undisputed right of a plaintiff to dismiss a bill in equity before final hearing. L. R. M. R. & T. Ry. Co. v. Manees, 49 Ark. 248, 4 S. W. 778, 4 Am. St. Rep. 45 ; and Ex parte Skinner, 265 U. S. 86, 44 S. Ct. 446.

Under our system of practice, cross-comiplaints are in the nature of independent suits, and parties defendant are necessary to be served in cross-complaints as in original complaints. Bingo v. Woodruff, 43 Ark. 497; and Pilloiv v. Sentelle, 49 Ark. 430, 5 S. W. 783.

There is a distinction between cross-complaints that are merely defensive and those that seek affirmative relief. If Mrs. Fox had merely made allegations in her cross-complaint which would entitle her to damages .by way of defense to the foreclosure suit, this would not have 'made her cross-complaint an independent action. She set up, however, matters which gave her a right to affirmative relief, and asked for all damages against the breach of the covenant which embraces all which she might have asserted in an independent action. This made her cross-complaint something more than merely defensive. She sought affirmative relief as an independent action, and we think this made her a plaintiff within the meaning of • our statute providing for a voluntary dismissal of an action before the final submission of a case to the court by the plaintiff. Her right to dismissal was absolute, and she might bring suit within one year after dismissal. The provision in question has always been treated as a general provision regulating the practice in all cases not excepted from its operation, and the statute does not seem to have made any exceptions in cases where suits are brought against the administrators of estates of deceased persons. Therefore we are of the opinion that Mrs. Fox is not barred of her right of recovery by the statute of nonclaim or by the voluntary dismissal of her cross-complaint.

This brings us to a consideration of her recovery in the present case. As we have already seen, her right to recovery for breach of warranty has been recognized in all of the opinions upon the former appeals in this case. We think she should be entitled to recover under the facts in the record the sum of $11,950 and interest, thereon from May 24, 1925, the date of her constructive eviction. This amount is composed of the following items: $5,000, which she paid on the purchase price; four $500 notes, which she afterwards paid to Pinson and which amount to $2,000; eight $500 notes which she paid to his assignees amounting to $4,000; attorneys’ fees in the sum of $500; and court costs in the sum of $450.32. This makes an aggregate of $11,950.32. The interest from May 24, 1925, the date of her eviction, to the date of the decree at six per cent, should be added. These amounts are allowable under our decisions fixing the measure of damages in cases of this sort. Collier v. Cowger, 52 Ark. 322, 12 S. W. 702 ; Brawley v. Copelin, 106 Ark. 265, 153 S. W. 101 ; Seldon v. Jones, 89 Ark. 234, 116 S. W. 217 ; Bass v. Starnes, 108 Ark. 357, 158 S. W. 136 ; Shelton v. Ratterree, 121 Ark. 482, 181 S. W. 288 ; Smith v. Land Company, 131 Ark. 22, 198 S. W. 107 ; Mayo v. Maxwell, 140 Ark. 84, 215 S. W. 278 ; O’Bar v. Hight, 169 Ark. 1008, 277 S. W. 533 ; Smith v. Thomas, 169 Ark. 1110, 278 S. W. 39 ; and Belleville Land & Lumber Co. v. Griffith, 177 Ark. 170, 6 S. W. (2d) 36.

Therefore, the decree of the chancery court will be reversed, and the canse will be remanded with directions to enter a decree in favor of Mrs. Yetta Fox as indicated in this opinion, and for such further relief as she may be entitled to according to the principles of equity. It is so ordered.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Missouri Pacific Railroad Company v. Foltz.
    Opinion delivered December 15, 1930.

      Thomas B. Pryor and Daggett <& Daggett, for appellant.

      Giles D earing, for appellee.
   Butler, J.

This is a suit for damages for killing a dog by the operation of appellant’s train. It is conceded by appellant that “under the testimony adduced on the part of the plaintiff and that admitted in evidence by stipulation of counsel on the part of the defendant, a question of fact was presented for the determination of the jury.” There are hut two assignments of error which are here pressed for reversal of the case.

1. During the progress of the trial one of the witnesses was asked if the whistle or bell of the train sounded and he answered, “No.” To this testimony the defend-' ant objected on the ground that the complaint did not allege negligence in that respect. The objection being overruled, the defendant asked for a continuance alleging surprise, and also for the purpose of enabling the engineer and fireman operating the train to attend as witnesses. This assignment cannot be sustained because in the stipulation of counsel the statement is made that “the engineer did not have time to sound the whistle after the peril of the dog was discovered, and that, even if he had attempted to do so, the dog would have been struck and killed before he could have sounded the whistle.” This statement was admitted as part of the testimony of the engineer and fireman, so the appellant could not have been surprised at the statement of the witness which it had itself admitted as true.

2. The other alleged error is that on the part of the court in giving to the jury instructions Nos. 2 and 5. Instruction No. 2 warranted the jury in returning a verdict in favor of the plaintiff in the event it was found that the dog was struck and killed by the operation of a train “unless you find from the proof in the case that the defendant, through its employees, exercised ordinary care and prudence to prevent the killing of the dog—to avoid it.” That part of instruction No: 5 complained of is as follows: “The killing of the dog being proved, the presumption of negligence arises, but this presumption is not conclusive and may be overcome by evidence to the contrary.” Appellant specifically objected to the giving of instruction No. 2 on the ground that under it “the killing of the dog results in a prima, facie case so as to cast the burden of proof upon the defendant to prove that the dog was not negligently 'killed, and to release the plaintiff from the burden of proving that the dog was negligently killed.” To the giving of instruction No. 5 appellant specifically objected, for the reason “that such presumption when so arising places the burden of proof upon the defendant and releases the plaintiff from proving that the killing of the dog was due- to the negligence of defendant, its agents, servants and employees.” It is argued here that the instructions as given gave to the statutory presumption of negligence the effect of evidence to be weighed against opposing testimony, and to prevail unless there is a preponderance of opposing testimony. Appellant urges that these instructions place such a construction on our statute, § i8562 of the Digest, and that this is violative of the due process clause of Amendment No. 14 to the Constitution of the United States, and cites in support of this contention the case of Western & Atl. Ry. Co. v. Henderson, 279 U. S. 639, 49 S. Ct. 445.

These instructions are not open to the criticism urged, their effect being merely to advise the jury that the fact alone of a showing that the injury was occasioned by the operation of a train would be sufficient to warrant a finding that the appellant was liable for resulting damages, in the absence of any evidence tending to show ordinary care. The act of February 3, 1875 (now § 8562 of the Digest), providing that “all railroads which are now, or may be hereafter, built and operated in whole or in part in this State shall be responsible for all damage to persons and property done or caused by the running of trains in this State” was early construed by this court in the case of L. R. & F. S. Ry. Co. v. Payne, 33 Ark. 816, where the following rule.was laid down:- ‘ ‘ The true construction of the act in question is that, the killing being shown or confessed, the presumption is that it was done by the train, and that it resulted from want of due care. At common law the onus of proving these facts was on the plaintiff. The statute shifts the burden to the defendant, but does not preclude the company from showing that such due care was exercised in pursuit of its lawful business as to absolve it from liability.” This rule has since been adhered to and was recently reaffirmed in the case of St. L. S. F. R. Co. v. Cole, 181 Ark. 870, 27 S. W. (2d) 992, where it is said: “.When the evidence shows that an injury was caused by the operation of a train, the presumption is that the company operating the train is guilty of negligence, and the burden is upon such company to prove that it was not guilty of negligence. ’ ’ The effect of our statute, as above construed, is to make proof of the injury by operation of the train prima facie evidence of want of ordinary care on the part of the operatives in charge of the train, which would warrant a finding against it for damages resulting from the injury on its failure to produce any evidence tending to establish the exercise of ordinary care on the part of its servants. That is all that the instructions complained of do. It must be recognized that in the hurry of the proceedings in the trial court there is frequently not sufficient opportunity for a precise declaration of the law in exact legal terms. These declarations are often drawn in homely phrases so as to be understood by the jury, who are usually men unacquainted with the language of the law. In this case, if the appellant was of the opinion that the instructions complained of did not clearly declare the law, it should have pointed out in what particulars they were dubious. Instead, the appellant rested its objection on a contention which in our opinion was unwarranted. No fair interpretation of these instructions supports the contention of the appellant that the court meant to say or that the jury would understand that the presumption mentioned should be weighed as evidence against the testimony showing the exercise of due care, but only in the absence of any evidence the law imputed negligence to the appellant. This is the more apparent when these instructions are read in connection with instruction No. 3: “You are further told that the railroad company, through its employees, was required to use only ordinary care and prudence to protect this dog after it discovered its peril, and if you find they complied with this duty, it would be your duty to return a verdict for the defendant.”

Therefore, if the engineer and fireman only had witnessed the occurrence and had testified to a state of facts establishing ordinary care on their part, and there were no circumstances which might negative such testimony, then there could have been no finding of negligence, and the presumption would have disappeared, as we have frequently held. 'Since it is admitted that the evidence is legally sufficient to sustain the verdict, and as no error appears, the judgment of the trial court is affirmed.


author: McHaney, J.

text:
    Mazda Oil Corporation v. Sloan.
    Opinion delivered December 1, 1930.

      Owens <& Ehrmam, for appellant.

      A. L. Smith, for Thompson Oil &¡ Gas Co.; Williams <& Williams, for Forest Park Corporation and Breckenridge & Bostick, for J. W. Sloan, appellees.
   McHaney, J.

This is a suit by appellant as a minority stockholder in the Forest Park Corporation, a holder of class B preferred stock therein, against appellees, J. W. Sloan, Forest Park Corporation and the Thompson Oil & Gas Company, growing out of the alleged mismanagement of the affairs of said Forest Park Corporation by Sloan as its president and its board of directors. A summer resort known as Forest Park, near Siloam Springs, was promoted by J. K. Livingston. The corporation owning and operating the property under Livingston’s management was known as the Ozark-Company. It became heavily indebted to numerous creditors, including appellant, Mazda Oil Corporation, of which Julius Livingston, brother of said J. K. Livingston, was president, Mrs. A. M. Livingston, mother of J. K. and Julius, appellee Sloan, and others holding mechanics’ and vendors’ liens on, different portions of the Forest Park properties. Appellant held a mortgage on the property subject to the prior liens. When it sought to foreclose its mortgage, 'an involuntary bankruptcy proceeding was instituted against the Ozark Company. Thereafter, while the matter was pending in bankruptcy, the principal creditors or their representatives got together and formulated a plan for refinancing the indebtedness of the Ozark Company, which resulted in a written agreement ■ as follows:

“Agreement of creditors of the Ozark Company whereas, The Ozark Company, a corporation, organized under the laws of the State of Arkansas, is the owner of certain real property situated in the counties of Benton, State of Arkansas, and, Adair, State of Oklahoma, respectively, together with certain personal properties situated thereon and appurtenant thereto, comprising a single project or enterprise in the aforesaid counties, known to the public as Forest Park, and
“Whereas, the Mazda Oil Corporation, the owner and holder of real estate and chattel mortgages securing the payment of approximately $106,500, and also has a claim against the Ozark Company, unsecured, in the sum of approximately $3,500, the total of both claims, including accrued interest, amounting to approximately $110,-000, the aforesaid corporation being hereinafter referred to as The Mazda, and,
“Whereas, certain other creditors of the said The Ozark Company are the holders of liens claimed to be prior to the mortgage lien of The Mazda, covering certain of the property hereinafter referred to, amounting to approximately $85,000, said lien claim creditors being hereinafter referred to as ‘lien creditors,’ and
“Whereas, there are numerous unsecured creditors of the said The Ozark Company, whose claims of indebtedness aggregate the approximate sum of $184,000, which creditors will hereinafter be referred to as the ‘general creditors,’ and
“Whereas, there is now pending in the United States District Court for the Western District of the State of Arkansas, sitting at Fort Smith, an action for the foreclosure of the said mortgages of The Mazda, subject to the prior lien rights of the mortgagees, and such of the lien creditors as have prior rights to The Mazda, and
“Whereas, said enterprise is in the nature of a summer resort and playground for tourists, and has heretofore been extensively advertised as such and the properties constituting the same have been so co-ordinated as to constitute one single and individual integral enterprise of such character that the foreclosure of any of the aforesaid liens would so destroy the integrity of the enterprise as to render the balance of said property practically valueless for the purpose for which it has been developed, and for any purpose which might subserve the interest of the various parties connected therewith, including each of the above described classes of creditors, and
“Whereas, it is the mutual desire of each, every and all of said parties interested in said enterprise to avert the depreciation and value thereof by the interposition of any action which may possibly be circumvented, and to this end The Mazda is willing to waive its claim of priority on condition that the other parties interested, or so many thereof as shall subscribe to such agreement, as shown by audit of Peat, Marwick & Mitchell, auditors, shall consent to join with The Mazda in agreeing to turn over each, his or its, respective interest to a trustee hereinafter provided for, for the re-organization of the assets of said enterprise, as hereinafter more fully set forth.
“Now, therefore, it is agreed and consented to by each o,f the undersigned, that W. J. D. McCarter shall act as trustee, hereinafter referred to as trustee, whose duty it shall be to procure the assent of so many of the parties interested in said enterprise as he can, upon the conditions and terms heretofore and hereinafter set forth.
“It is proposed that said trustee shall incorporate under the laws of the State of Arkansas, unless it be found necessary to incorporate under the laws of some other State, the corporation to be organized to have an authorized capital of 600,000 shares of common stock, no par value, with an authorized preferred stock of two classes, to-wit Class A and Class B—Class A preferred stock shall consist of 60,000 shares of par value of $5 per share, and Class B in the sum of $200,000 of the par value of $5 per share. Classes A and B preferred stock to be issued and disposed of as hereinafter set forth. Class A preferred stock of the new corporation shall bear an annual dividend of 7 per cent, cumulative each year, and Class B shall bear an annual dividend of 7 per cent, noncumulative. Out of Class A preferred stock there shall be issued and delivered to the creditors hereinabove referred to as ‘lien creditors,’ so much of said stock as will satisfy their liens dollar for dollar, and in addition thereto shall be issued and delivered to each of said lien creditors five shares of common stock, no par value, with each share of Class A preferred; the remaining Class A preferred stock shall remain in the treasury of the new corporation, subject, however, to be issued and disposed of for the purpose of obtaining funds for the development and for the carrying on of the business of said corporation, subject, however, to this proviso. That if and when there shall have been issued in excess of $200,000 of Class A preferred stock, which shall include all stock issued to lien Creditors, it shall be agreed that 25 per cent, of the net proceeds of-the further„sale of Class A stock shall be used to retire that portion of Class B stock to the amount equal to 25 per cent, of the net proceeds thereof. This retiring feature for Class B stock shall be in addition to any other arrangements .made for the retiring of this Class B stock.
“It is further agreed that, in lieu of The Mazda releasing its mortgage, that there shall be issued to it and to A. N. Livingston Class B preferred stock, in the amount of their respective established claims.
“That said Mazda, and each and every creditor, upon the signing of this instrument, or as soon thereafter as required by the trustee, shall surrender its, or his, respective claim or claims to said trustee, on receipt duly signed by said trustee obligating him, upon the organization of said new corporation, to issue to each stock of the new corporation as hereinabove and hereinafter provided for.
“It is further agreed that, out of the common stock of no par value, there shall be issued to the general creditors shares of stock in the following proportion: for each dollar due the creditor there shall be issued a share of common stock of said corporation, of no par value.
“It is understood that by the word ‘claim’ is meant the claim as established by the audit of Peat, Marwick & Mitchell, recently completed. In the event that there is any dispute over the audit as made by the above-named auditors, said claim shall be submitted to the board of directors of the new corporation and adjustments made according to the facts of the case.
“The Mazda further agrees that there shall be a resolution by its board of directors consenting to and agreeing that its mortgages shall be assigned to the trustee for the purposes heretofore and hereinafter set forth in said contract.
“It is further agreed that both Class A and B stock shall be retired in the following manner: A minimum of 25 per cent, of the net earning from any and all sources shall be applied to retire both Class A and Class B in proportion to the amount outstanding at the same time, immediately after the annual meeting each year, and, in case of a bond issue, 50 per cent, of the net proceeds, when realized, or so much as may be necessary, shall be used to retire both Class A and Class B stock in proportion to the amount outstanding. The above agreement shall be provided for in the minutes of the new corporation and on the stock certificates.
“It is further agreed that, after said corporation has been formed, that the trustee hereunder shall take the necessary steps to have the said corporation issue to the various creditors stock in accordance with this agreement, both preferred and common, and see that the corporation shall call a meeting of all the stockholders of the common stock of said corporation by giving to them .................days’ written notice, unless the said stockholders shall have waived the notice, and to see that the by-laws of said corporation shall be so prepared and adopted as to entitle the holders of record to vote for each share of stock so held by him, and at said meeting to see that a permanent board of- directors to serve at the meetings of said corporation, until their successors are duly elected and qualified, are elected.
“It is further provided that in the event of the liquidation of said new corporation that all holders of Class A preferred stock shall participate pro rata in the distribution of the assets of said corporation, to- the extent of the par value of the stock so held by each, with accrued cumulative dividends, before Class B, or the common stock in said -corporation, shall be entitled to any participation whatever. If, after Class A has been distributed, there are any assets remaining to be liquidated or distributed, Class B preferred stock shall participate in the remainder thereof pro rata, according to par value of stock, to the exclusion of the holders of common stock, and if, after distribution of the assets of said corporation the same shall be distributed to the owners and holders of the common stock pro rata.
1 ‘ This agreement shall be executed in multiple copies and the signature to any one copy thereof shall be considered the signature to such agreement, and the signature to all -copies hereof when assembled and bound together shall constitute the signatures to the entire agreement and the terms hereof shall thereupon become and be binding on and inure to the benefit of each of the parties signatory to each of the copies hereof, and upon the heirs, successors, administrators, and assigns of each’ thereof.
“Each of the parties signatory hereto hereby agree that the foregoing agreement may be considered as irrevocable option up to and including the 11th day of March, 1928', but it is also agreed that in the event that any of' the creditors have not joined in this contract by signing same, and accepting the terms thereof as applicable to himself, said trustee shall immediately proceed to- the liquidation of The Ozark Company, and shall carry into effect as nearly as possible the contract herein set out among those who have participated herein, and the trustee shall be a trustee for all who have joined, and shall proceed as such trustee to the liquidation, adjustment and organization as nearly as possible according to this agreement, and to the distribution of stock among those who have joined herein, within ninety days from date of signature, and for this purpose all signatories and signers hereto shall remain bound until the liquidation, adjustment and organization has been completed,- preserving and retaining, however, all the right of the mortgagee and lien holders, or their assigns, as they now exist or subsist.
“In witness whereof, the undersigned, as an individ- ■ ual, or as a corporation, as the case may be, has caused its name' to be signed hereto, or its president, attested by the secretary and corporate seal, or by such party as thereunto duly authorized.”

A large majority of the creditors accepted the agree- • ment and' surrendered their claims to the trustee, includ- ■ ing appellant and Mrs. Livingston. Thereafter the Forest Park Corporation was chartered in this State, and ■ stock was issued in-accordance with the agreement, Sloan being the president. During 1928 and 1929 it borrowed large sums of money for the operation and improvement of its properties, approximately $100,000 now due the appellee, Thompson Oil & G-as Company. Among other things, this suit challenges the right of the company to borrow this money for permanent improvements. It is also alleged that appellee Sloan agreed to purchase a sufficient amount of Class A preferred stock to finance the company, which he failed and refused to do, and that, had he done so, there would have been no occasion to borrow the money on short time notes. It is also alleged that 'Sloan is a one-half owner of the Thompson Oil & Gas Company, and that his failure to purchase Class A stock, and his action, or that of the company, in borrowing from the Thompson company, constituted a scheme on his part to wreck the new company and acquire all its property under judgment sale free from the lien of any other indebtedness. All these matters were put in issue by appellees, and in addition the Thompson Oil & G-as Company filed a cross-complaint against the Forest Park Corporation for the amount of its indebtedness. The latter, through its directors, confessed judgment. The court found against appellant, and dismissed its complaint for want of equity, and gave judgment on the cross-complaint.

Appellant first says that Sloan should be held liable on his agreement to subscribe for Class A preferred stock. We agree with the trial court that there was no such agreement, or at least that the preponderance of the evidence shows that there was not. It is not contended that such agreement is embodied in the “'Creditors’ Agreement,” hereinbefore set out, but that it was a contemporaneous oral agreement. Whether this character of evidence falls within the parol evidence rule, we do not find it necessary to decide, as we have already stated that according to the preponderance of the evidence no such agreement was made. It would serve no useful purpose to discuss the evidence in detail. However, when we consider how very careful Mr. Julius Livingston was in protecting his own interests and that of his mother in other ways, it is strange that he would have signed the written agreement and have left so important a matter out of it to rest wholly in parol. Nor do we see that appellant’s position would have been materially different, had Sloan bought Class A preferred stock instead of lending the money through the Thompson company. True, the company would not have this judgment against it, but it was appellant that precipitated the trouble. All Class A stock is ahead of and must be satisfied before a distribution could be made on Class B stock. Nor are we able to say that Sloan dealt unfairly or illegally with the corporation. Everything done was authorized by the board of directors and openly approved and ratified by the stockholders.

Other matters were suggested in oral argument, but we do not consider them of sufficient importance to discuss. We have carefully considered the facts as shown by the record and have reached the conclusion that the decree of the court is correct' and that it should be affirmed.


author: Hart, C. J.,

text:
    Wilkins v. Lenon.
    Opinion delivered December 22, 1930.

      Danaher <3 Dcmaher, for appellant.

      Donham <3 Fulk, for appellee.
   Hart, C. J.,

(after stating the facts). The first and most important question in this case is whether an offer to the collector of the street improvement district of payment of all the past-due taxes or assessments upon the lot in question and a payment by the owner of all sums made known to him by the collector are equivalent to an actual payment of the whole and will operate as a redemption from the tax sale.

In Forehand v. Higbee, 133 Ark. 191, 202 S. W. 29, it was held that where a deputy county clerk in the discharge of his official duties issues a certificate of redemption, the landowner has a right to rely upon it as containing the correct amount of taxes, penalty and costs due by him, and that the payment of the sum contained in it is effectual as a statutory redemption. It was further held that a taxpayer cannot be deprived of his right of redemption by the neglect of duty on the part of the officers of the State. Many cases from courts of last resort, including the case of Martin v. Barbour, 140 U. S. 634, 11 S. Ct. 944, were cited in favor of the rule.

The principles announced in that case apply with equal force in the case of the redemption from delinquent street improvement district taxes. The parties acting in the redemption are the owner and the officer. It is the duty of the owner to apply for the redemption, but the officer must furnish him with the means of making his tender. The officer who is the legal custodian of the books and entries of the taxes and costs must necessarily know the sum to be tendered. It is the duty of the collector to give the owner or his agent this information when asked for it; and if he mistakes the amount of taxes and costs to be paid for thé redemption, his mistake shall not defeat the redemption. The owner, having called for the amount and having paid all demanded for the redemption, cannot be involved in the loss of his land by the mistake of the officer.

In the present case, the bank acted in good faith. Through its agent, it went to the collecting officer of the improvement district at his office and asked for the delinquent improvement district taxes due and offered to pay the whole amount necessary for the redemption of the lot.. Reliance was placed in good faith on the statement of the collector, and the amount claimed by him to be due was paid to him. The agent of the bank was justified in so doing and was not required to personally examine the books and ascertain if the amount demanded was correct. The owner had a right to rely upon the assurance of the officer with whom he was required to deal in the matter to correctly inform him of the proper amount necessary to redeem the lot. The agent testified positively that he asked the collector for all delinquent street improvement assesssments and told him that he wished to pay the amount due in order to redeem the land. He did pay the amount given him by the collector.

It is true that he did not specifically ask if there was any decree of foreclosure, but this was not necessary. His offer to redeem included this amount. While the collector of the district testified that the agent for the bank did not ask about all the delinquent improvement district taxes, he is contradicted by the surrounding circumstances. He had been the agent of the bank in renting the property and knew that it was valuable property. The amount of street improvement district taxes due annually was only $1.50. The amount, including taxes and costs iii the foreclosure decree, was only $5.90. The collector must have known that the owner of the property was offering to pay all the delinquent street improvement assessments. To allow the sale to appellant to stand would he to assist the improvement district as an agent of the State to take advantage of its own wrong. The right to redeem is a substantial right given by statute, and was prevented from being exercised within the statutory period of five years by the neglect on the part of the collector of the improvement district to do his duty. Section 5644 of the Digest gives the owner the right of redemption at any time within five years from the date of the sale. The record shows that the offer to redeem was made within the five years allowed by statute, and that a tender of the amount necessary to redeem was deposited in the registry of the court after the refusal of the defendant Wilkins to accept the same.

It is true that Lowe was the original owner of the land, and that the foreclosure for the non-payment of the delinquent street improvement assessment was against him. Lowe had mortgaged the land to the bank, and the bank had foreclosed its mortgage and had become the holder of the legal title to the lot at the time the offer to redeem was made. Therefore, the bank had the right to redeem, and its right could not be defeated by the sale of the property by the district to Wilkins because the latter acquired no better title than the district itself had. The statute gave the right to redeem, and there could be no such thing as an innocent purchaser at a tax sale or from one who purchased at a tax sale as against the statutory right of redemption. Bradbury v. Johnson, 104 Ark. 108, 147 S. W. 865, Ann. Cas. 1914C, 419.

The conclusion we have reached renders it unnecessary to consider other questions argued by counsel in their brief or to abstract the facts upon which such arguments are based. It follows that the decree of the chancery court was correct, and it will be affirmed.


author: Hart, C. J.

text:
    Adams v. Shell.
    Opinion delivered December 22, 1930.

      Oscar II. Winn, for appellant.

      Ilayme, Parks S Westfall, for appellee.
   Hart, C. J.

This is an appeal from an order of the circuit court of Ouachita County sustaining a demurrer of the administratrix of the estate of Roy S. Shell, deceased, to a petition of Martha Adams, guardian of Willie May Shell and Marcell Shell, minor children and heirs-at-law of Roy S. Shell, deceased, to require said administratrix to distribute to them $4,666.66, out of a judgment recovered iby her for their benefit in the sum of $7,000.

On the 15th day of April, 1929, Martha Adams, as guardian of Willie May Shell and Marcell Shell, minor children and heirs-at-law of Roy S. Shell, deceased, filed a petition in the probate court of Ouachita County to compel Mrs. Eritha E. Shell, as administratrix of the estate of Roy S. Shell, deceased, to distribute to them $4,666.66 out of a judgment recovered by her for $7,000. On the 7th day of September, 1928, Mrs. Eritha E. Shell was appointed by the probate court of Ouachita County as administratrix of the estate of Roy S. Shell, who died in Camden, Arkansas, on or about the 21st day of August, 1928. On December 18, 1928, Mrs. Eritha E. Shell, administratrix of the estate of Roy S. Shell, deceased, recovered in the Pulaski Circuit Court against the International Paper Company a judgment for $7,000, on account of the wrongful death of said Roy S. Shell. The judgment recites that Roy S. Shell received a personal injury on the 29th day of August, 1928, while in the employ of the defendant, and that he died on the 31st day of August, 1928. By agreement between the parties to the suit, the court assessed damages to the administratrix in the sum of $7,000 for the wrongful death of her decedent. It was adjudged by the court that Eritha E. Shell, as administratrix of the estate of Roy S. Shell, deceased, for the nse and benefit of said estate and for the nse and benefit of Eritha E. .Shell and Willie May Shell and Mar-cell Shell, have and recover from the International Paper Company the sum of $7,000; and, it appearing that said sum has been paid in satisfaction of the judgment, the judgment is ordered and decreed by the court to be satisfied in full.

In her petition in the Ouachita Probate Court, appellant herein stated that Martha Adams, as guardian of said minors, is entitled to be paid out of said judgment the net sum of $4,666.66, to be divided equally between said minors. Prom an adverse judgment against her in the probate court, an appeal was taken by the guardian of said minors to the circuit court where a demurrer was sustained to the petition of said guardian for said order of distribution; and the cause was dismissed for want of jurisdiction.

Under § 1075 of the Digest, the personal representative of a deceased person may bring an action for the wrongful death of said decedent, and the amount recovered shall be for the exclusive benefit of the widow and next of Idn of such deceased person and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate. Thus, it will he seen that it is the duty of the administrator to bring the suit as provided by the statute, and, in the event of a recovery, to distribute the amount recovered according to the provisions of the statute which covers the distribution of personal property. The damages are recovered in the name of the personal representative of the deceased, but do not become assets of the estate. The relation of the administrator to the fund when recovered is not that of the representative of the deceased, but of a trustee for the benefit of the widow and next of kin; and the suit is wholly for their benefit. The administrator is a formal party to the maintenance of the action, and becomes a mere trustee for those entitled under the statiite to the amount recovered. Little Rock & Ft. Smith Ry. v. Townsend, 41 Ark. 382 ; Davis v. Railway, 53 Ark. 117, 13 S. W. 801 ; and Johnson v. Mo. Pac. Rd. Co., 144 Ark. 469, 224 S. W. 427.

Under the principles of law decided in these cases and in Dennick v. Railroad Company, 103 U. S. 11, cited in the Townsend case, when the money was recovered by the administrator for the widow and next of kin and came into the hands of the administrator, the circuit court in which the fund was recovered could compel distribution as the law directs. The reason is that the court had control over its own judgment; and, the fund recovered for the benefit of the widow and next of kin not becoming assets of the estate, there would be.no interference with the original, exclusive jurisdiction in matters relative to the estates of deceased persons conferred upon the probate court by § 31, art. 7, of our Constitution.

The record shows that there was also a recovery by the administratrix for the benefit of the estate, and the amount of such recovery went to the legal representative of the estate as part of its assets. Davis v. Railway, 53 Ark. 117, 13 S. W. 801, and Carpenter v. Hazel, 128 Ark. 416, 194 S. W. 225. This court has held in an unbroken line of oases that where a sum is recovered for the benefit of the estate, and there is still the necessity for continued proceedings in the courts of administration,, the judgment should be certified to the probate court to be administered by it in due course. It is only where there is no necessity for a further course of administration, and assets are collected in, and nothing-remains to be done except to distribute them, that the judgment should not be certified to the probate court for administration in due course. Reinhardt v. Gartrell, 33 Ark. 727 ; and Union Trust Co. v. Rossi, 180 Ark. 552, 22 S. W. (2d) 370.

The record in this case does not contain any affirmative showing that the amount recovered is not necessary to be used by the administratrix in due course of administration for the payment of the debts of the estate. The record is silent as to whether or not any debts have been probated against the estate, bnt it does appear from the record that the period of time for the probation of claims against the estate has not yet expired. The administratrix was appointed by the probate court of Ouachita County on the 7th day of September, 1928. The judgment in the circuit court was recovered by the administratrix on December 18,1928. The petition of the guardian was filed in the Ouachita Probate Court on the 15th day of April, 1929. Thus, it will be seen that the period of one year has not expired since the appointment of the administratrix; and, under § 97 of the Digest, claims may be filed at any time before the end of one year from the granting of letters of administration.

.This is not a case like Union Mercantile Trust Co. v. Hudson, 147 Ark. 7, 227 S. W. 1, and Gordon v. Clark, 149 Ark. 173, 232 S. W. 19, where the title to the property of the decedent was involved, and the court held that the probate court had no jurisdiction of such contested claims. Here, the amount recovered by the administratrix for the benefit of the estate, under our former decisions cited above, went to the administratrix to be administered by her in the probate court in due course of administration.

The only trouble about the case is that the judgment in the circuit court should have definitely stated the amount that was recovered for the benefit of the widow and next of kin and that which was recovered for the benefit of the estate. The fact that a mistake was made in this respect would not give the probate court jurisdiction over the part of the judgment which was recovered by the administratrix for the benefit of the widow and next of kin and held by her as a trust fund for them. They could not be deprived of their rights in that fund because the administratrix had neglected or failed to obtain judgment for a stipulated amount for their benefit. They might apply to the circuit court in which the judgment was recovered for a distribution of their part of the judgment to them as pointed out above; and if the administratrix had converted the money to her own nse, they might sue her directly for it and recover judgment as for a trust fund. On the other hand, in the absence of a showing that the part of the judgment recovered by the administratrix for the benefit of the estate was not needed for the payment of debts, the probate court had .jurisdiction to require the administratrix to account to it for the amount so recovered and could take proof and ascertain the amount so recovered, and the burden of proof would be upon the administratrix in this respect.

■ The result of our views is that the circuit court erred in sustaining ,a demurrer to the petition of the guardian; and for that error the judgment will be reversed and the cause remanded for further proceedings according to law and not inconsistent with this opinion.


author: Smith, J.

text:
    Johnston v. Order of United Commercial Travelers of America.
    Opinion delivered December 22, 1930.

      Wilson S Martin and Compere & Compere, for appellant.

      Wynne & Miller, for appellee.
   Smith, J.

Appellant is the widow of Sam Carson Johnston and is the beneficiary in a policy of insurance on his life issued by the Order of United Commercial Travelers of America, hereinafter referred to as the order. The insured was found dead in the municipal natatorium in the city of Monroe, Louisiana, on the morning of January 4, 1927, and this suit was brought soon thereafter when the order denied liability.

The constitution and by-laws of the order, which are made part of the insurance policy, provide that ‘‘ This order shall not be liable to any person for any benefit for any death * * # resulting from self-destruction (whether sane or insane) of the insured,” and, further, that: “This order shall not be liable to any person for any benefit for any death, * * * injuries (fatal or otherwise) intentionally inflicted by others (except where such injuries are inflicted for the sole purpose of burglary or robbery or by an insane person) the intention to commit burglary or robbery to be established by the claimant and the insanity to be established by a court having competent jurisdiction.”

There was a verdict for the defendant order, and a judgment accordingly, which the order insists should be affirmed, notwithstanding the assignments of error, for the reason that the undisputed testimony shows that deceased died by his own hand.

The insured had been an active business man, and had made money, but financial reverses came. He became a member of a partnership which attempted to put on the market a patented automobile grease gun, but he lost his investment. He borrowed money from his wife, which was also lost in the same investment. At the time of his death deceased and his wife were not living together, although there does not appear to have been a permanent estrangement. Insured borrowed $500 from a brother-in-law just before the holidays, and borrowed smaller sums from his friends with which he paid current expenses. He remarked to several of his friends that he had involved his wife, but that he “would square that 'by bumping off,” as he carried sufficient insurance for that purpose. He was not a dissipated man, yet he drank heavily during the week preceding his death, and was confined for two nights in the city calaboose on that account. A friend procured his release on Sunday, and he was found dead the following Tuesday.

On) thei morning the insured’s dead body was found, a street car motorman observed an automobile parked near the municipal natatorium with some letters lying on the seat. He reported that fact to the engineer at the power house, who, in turn, called L. V. Tarver, a city detective. Tarver testified that he went to the city park, where he found the car, with two letters on the seat. One was addressed to R. D. Swayze, and the other to Laza Caspari. Witness sent word to Swayze, and when the latter came the letter addressed to him was opened and read. Both Swayze and Caspari identified the letters addressed to them as having been written by the insured. The letter to Swayze reads as follows:

‘'‘Mr. R. D. Swayze.
“Dear Friend: I request that you and Mr. Caspari take charge. Be sure that preparations are inexpensive. Arrange to have my Shrine insurance transmitted to my dear little wife by wire, one of the very best and truest little mates that ever lived. Help and advise her.
“Sam C. Johnston.
“My bag and overcoat are in room 16 Bohemia Hotel. My lodge receipts are in my pocket book inside my bag. I owe 8 days’ room rent please pay and have my wife reimburse you. ’ ’

The other letter was of similar purport.

Tarver and Swayze went to the pool, where, about the middle of the north end, there ivas a derrick, framework that held up a shoot-the-shoot, and resting on one of the -cross-pieces supporting that framework they discovered the body about four feet under the water. The body was sixteen or eighteen feet from the north end of the pool.

Dr. C. P. Gray, the coroner, was notified, and upon his arrival the body was removed from the pool. Dr. Gray testified that he had been coroner of the parish for twenty years; that he was a practicing physician, and that he had made a special study of similar cases, and that, in his opinion, there was no question but that the deceased had committed suicide. The testimony of this witness was taken by deposition. Dr. Gray further testified that, when the body was taken out of the water, an open knife was found tightly clutched in the right hand. There were three -cuts in the neck, which began at the left ear and stopped just before reaching the mid-line of the neck in front. The wounds had cut through the skin and the larger blood vessels on the left side of the throat and the deceased had died from the loss of blood resulting from severing the larger blood vessels in the throat. There was a small amount of coagulated blood on the knife where the blade went into the handle, and the blade of the knife was protruding between the thumb and first finger of the right hand of the deceased when his body was removed from the water, the cutting edge of the knife being turned towards the body.

If the facts just detailed were admitted to be true, or were undisputed, we would not hesitate to hold that only one inference could be deduced from them, and that is, that insured committed suicide, in which event it would be unnecessary to review the record for error in the trial; but there is some dispute in the testimony, and we are unable to say that the undisputed facts are such as to compel all reasonable minds to reach the conclusion that the insured committed suicide.

Just here it may be said that there was some testimony to the effect that deceased had become much embittered at one of his business associates and another party, but there is no testimony warranting the submission of the question whether these men, or either of them, might have killed him. It would not help plaintiff’s case, however, if these men, or either of them, had killed the insured, for there is not even a suspicion that they did so for the purposes of burglary or robbery. The death of the insured at their hands, except for purposes of burglary or robbery, or unless they were insane, would have given no cause of action under the provisions of the policy set out above.

The application of deceased for the policy sued on was offered in evidence, and his signature thereto was sufficiently identified to use it as the basis of comparison with the signature to the letters in the deceased’s automobile, and the addressees in these letters both testified that they recognized the signatures as those of Mr. Johnston, the insured. But Mr. Johnston’s wife and stepdaughter both testified that the signatures were not those of Mr. Johnston, and this conflict in the testimony makes a question for the jury as to the genuineness of the signature. In addition, the stepdaughter testified that Mr. Johnston was left-handed and, in eating, held his knife in his left hand, whereas, when the body was found, the bloody knife was in the right hand. We cannot, therefore, say that the undisputed testimony shows a case of suicide, and, this being true, it cannot be said that no prejudicial error was committed at the trial.

In the depositions of Dr. Gray and some of the other witnesses the opinion was expressed that the case was one of suicide, and the deposition of Dr. Gray not -only expressed this opinion, but contains some cogent arguments in support of that opinion.

Opposing counsel have briefed the question of the admissibility of an expert opinion that the death in question resulted from wounds self-inflicted with suicidal intent, and there appears to be several authorities holding such testimony competent. Miller v. State, 9 Okla. Cr. 255, 131 Pac. 717, L. R. A. 1915A, 1088. We think, however, that the better rule excludes this expert testimony. This is the point in issue, the decisive fact in the case, the question which the jury was impaneled to decide, and is an inference which one person might draw as well as another. Of course, the trained physician and surgeon might know the depth and character and consequences of cuts and wounds and the manner in which they might have been inflicted, which the lay witness might not have, and testimony of this character may be given by the expert, but, when it has 'been given, the jury, and not the witness, should say with what intent the wounds were inflicted.

It was therefore error to permit witnesses to express the opinion that the deceased had committed suicide, and, as we have said that the undisputed testimony does not show death by suicide, we must hold this incompetent testimony prejudicial.

Complaint is made of several of the instructions; but we find no error prejudicial to appellant in this respect. The law of the subject has been declared in many opinions by this court, the most recent being that of Home Life Insurance Company v. Miller, ante p. 901. The instructions declared the law as favorable to appellant as she had the right to ask.

For the error in the admission of the incompetent opinion evidence the judgment must be reversed, and the cause will be-remanded for a new trial.


author: 'Smith, J.

text:
    Jones v. Euper.
    Opinion delivered December 22, 1930.

      Partcán S Agee, for appellant.

      G. M. Wofford and James Seaborn Holt, for appellee.
   'Smith, J.

Appellant alleged that he was the owner of certain lands forming an island in the Arkansas River near the city of Van Bnren, which had been damaged by the operations of appellee company in removing sand and gravel from the river bed just above appellant’s lands, thereby changing the course of the river and causing appellant’s lands to cave into the river and to be washed away, and at the trial from which this appeal comes offered testimony to that effect.

It was admitted at the trial that the lands involved in this suit are the same lands which were involved in the case of Jones v. Hunter, 126 Ark. 300, 189 S. W. 1068. In that case, as appears from the opinion, the appellant there, who' is also the appellant here, had sought to recover possession of the island. The suit was 'brought .under the authority of act of April 26,1901 (acts of 1901, page 197), which appears as § 6783, G. & M. Digest. This act provides that “all land which has formed or may hereafter form in the navigable waters in this State and within the original boundaries of a former owner of land upon such stream, shall belong to and the title thereto shall vest in such former owner, his heirs or^assigns, or in whoever may have lawfully succeeded to the right of such former owner therein.” The appellant—the plaintiff in that case—was unsuccessful in his attempt to show that the land—the island—there sued for had formed within his original boundaries. Thereafter he bought the title of his adversaries, Hunter et al., and at the trial from which this appeal comes he exhibited their, deeds to him as the source of his title to the lands which he alleged had 'been damaged. He had no other title. It was shown that he and his predecessors in title had been in possession of the island for more than seven years, and had paid taxes continuously for more than that period.

The trial court held that this was not a sufficient showing of title to enable appellant to maintain this suit for damages, and this appeal questions the correctness of that holding.

We think the trial court correctly held that plaintiff —appellant—had not shown a right to recover damages to the island.

Act '282 of the Acts of 1917 (Acts 1917, vol. 2, page 1468),• which appears as §§ 6796-6802, O. & M. Digest, was an act to provide for the sale and disposition of islands which had formed or which may hereafter form in the navigable rivers and streams of this State.

•Section 1 of this act, which appears as § 6796, C. & M. Digest, provides that all such islands formed subsequent to the admission of the State into the Union shall be the property of the State, hut be subject to sale in the manner provided by the act. The act provided the manner of sale, and gave bona fide claimants a preferential right to purchase at any time within one year from the date of the passage of the act. It was not contended that this right had been exercised. Underdown v. Desha, 142 Ark. 258, 219 S. W. 19 ; Ferguson v. Hudson, 143 Ark. 187, 220 S. W. 306 ; Lewis v. Owen, 146 Ark. 469, 225 S. W. 648 ; Wilson v. Guthrie, 155 Ark. 315, 244 S. W. 338 ; Reed v. Wilson, 163 Ark. 520, 260 S. W. 438 ; Kissell v. Stephens, 164 Ark. 195, 261 S. W. 299 ; Mills v. Protho, 143 Ark. 117, 219 S. W. 1017 ; State v. Cissna, 168 Ark. 565, 270 S. W. 963.

The title to the lands alleged to have been damaged was therefore in the State of Arkansas, and appellant has not, through his own possession and that of his grantors, acquired the title to the island, because they have not pursued the method of acquiring the title of the State which the act of 1917 provides. The State’s title cannot be acquired by adverse possession. Brinneman v. Scholem, 95 Ark. 65, 128 S. W. 584 ; § 443, vol. 2 C. J., chapter, Adverse Possession, page 213.

As there is no showing of title, except such as might arise out of actual possession, the judgment of the court below was correct, and must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Appleton v. Risher.
    Opinion delivered December 22, 1930.

      W. S. Goodwin and Shields M. Goodwin, for appellant.

      C. C. Hollensworth and Clary •& Ball, for appellee.
   Humphreys, J.

Appellant brought this suit on the 2d day of January, 1929, against appellees in the Second Division of the Chancery Court of Union County to cancel a deed to 27.64 acres of land in said county, together with the ferry operated therefrom across Ouachita River, executed by Dr. Garrett B. Browne, to J. E. Risher on December 24, 1928, upon the alleged grounds that Dr. Browne was of unsound mind when same was executed, and that appellees procured its execution through undue influence.

Appellees filed an answer to the complaint on January 19, 1929, denying the material allegations therein.

On February 2,1929, Dr. Browne died, and the cause was revived on February 1, 1930.

Thereafter, on May 15, 1930, appellees filed an amended answer and also a cross-complaint alleging therein that the deed sought to be canceled was executed in accordance with and pursuant to an agreement signed and delivered to them by Dr. Browne in November, 1927, in words as follows:

“I, G-. B. Browne, agree to give to J. E. Risher one-half of my income from now on until I take my 'bed and after that all my income. I hereby agree to deed him the 28 acres of land and the ferry and ferry rights. This is binding on me from now on. At my death he shall have all the money, land which I may own. I am to have a home with J. E. Risher the balance of my days for this, and neither of us can back out now or later. I have paid him $20 to bind us. I will make a deed when I return from Illinois, but, should anything happen that I fail to do this, then the property is J. E. Risher’s anyway. He agrees to hold a home for me.
“G-. B. Browne, M. D.”

It was further alleged that after Dr. Browne returned from Illinois he went to live with appellees on January 15,1928, and continued to abide with them until removed to the hospital in Warren on December '26,1928; that soon after taking up his abode with them he had a second stroke of paralysis rendering him helpless, and thereafter they cared for him and nursed him as long as he remained in their home.

The prayer of the cross-complaint was that, in the event the deed should to the land and the ferry rights be canceled, appellees be accorded a specific performance of the agreement.

Appellant filed an answer to the cross-complaint denying that the deed was made pursuant to the alleged agreement or that same was adopted and acted upon by the parties regarding Dr. Browne’s entertainment in appellee’s home, but that, on the contrary, appellees cared for and nursed Dr. Browne in their home for a stipulated consideration of $90 a month.

The cause was submitted to the court upon the pleadings and testimony, resulting in a finding that the deed was voluntarily executed by Dr. Browne pursuant to the agreement made in November, 1927; and that he was mentally capable of executing the deed.

The decree was rendered in accordance with the findings dismissing the complaint of appellant, and the cause is here on appeal for trial de novo.

The record reflects the following undisputed facts: On January 15, 1928, Dr. Browne returned from a visit to Illinois and repaired to the home of appellees where he remained until December 26, 1928, at which time he was removed to Dr. W. L. Hartwell’s hospital at Warren for care and treatment. January 15, 1928, when Dr. Browne took up his abode with appellees, he was paralyzed on one side and needed help to walk. Some time in March, 1928, he had another stroke, and dating from that time ha was bedridden and practically helpless.

On May 15,1928, Dr. Browne executed a will in which he devised one dollar to his daughter and all his other property to Todd Kellar Shaner, a grandchild, in whom he had taken great interest and to whom he was devoted. Some time in the fall of 1928, J. E. Risher went to the home of Jim P. Johnson, a justice of the peace, and requested him to go to their home and take the acknowledgment of a deed from Dr. Browne to him to a tract of land at Moro Bay, together with the ferry rights. When the justice read the deed to Dr. Browne he refused to sign it because it conveyed all he had and was not the paper he expected to sign.

On December 17, 1928, J. E. Risher went from his home at Moro Bay to Warren, at the request of Dr. Browne, to see W. S. Goodwin with reference to a power of attorney, a deed and a will which had been prepared by Judge MeKnight. He directed Mr. Goodwin to redraft the deed so as to eliminate the cause reserving in Dr. Browne the right to control the ferry and ferry privileges. The power of attorney authorized J. E. Risher to attend to all of Dr. Browne’s business and especially to collect the ferry rents. The deed as redrafted conveyed the 27.64-acre tract of land and ferry rights to J. E. Risher and the will devised all of his property to J. E. Risher. J. E. Risher informed Mr. Goodwin that Dr. Browne wanted to consult him. Mr. Goodwin went home with J. E. Eisher, a distance of about six miles, for the purpose of interviewing Dr. Browne, arriving there after sundown, where he spent the night. When Mr. Goodwin entered the room occupied by Dr. Browne, the doctor told him that Mr. Eisher wanted him to sign those papers but that he was not going to do it. After his refusal to sign the papers Mr. Goodwin walked into an adjoining room where Mr. Eisher was standing. Mr. Eisher asked Mr. Goodwin what Dr. Browne said about signing the papers, and was told by him that Dr. Browne was not going to sign anything. Mr. Eisher asked him why, and Mr. Goodwin told him Dr. Browne said that he wanted all that was left to go to his grandson, and that the papers which Eisher wanted Dr. Browne to sign conveyed everything Dr. Browne had to him (Eisher). Mr. Eisher said: ‘ ‘ He ’ll sign them; yes, he ’ll sign them. ” When Mr. Eisher came out of Dr. Browne’s room after taking his supper to him, he said, “I asked* him if he was going to sign those papers and he said to wait until in the morning, and I will see Mr. Goodwin.” The next morning Mr. Eisher told Mr. Goodwin he had asked the doctor if he was going to sign those papers, and Dr. Browne told him that he thought he would, but that he wanted to talk to you before he did so. Mr. Goodwin went in Dr. Browne’s room about 7:30 on the morning of the 18th and remained until 11 o’clock. During the time Mr. Eisher came into the room about six times. He asked Dr. Browne in a commanding sort of way, “Doctor, aren’t you going to sign those papers?” and the doctor said “No.” Dr. Browne then expressed a desire to go to the hospital at Warren for treatment, and Mr. Goodwin replied that he would communicate with his relations, and if they were willing he would make arrangements to take him to the hospital. Mr. Goodwin left and immediately communicated with Dr. Browne’s relatives and received directions to take Dr. Browne to the hospital, which he did on December 26, 1930, over the protest of appellees. On the way to the hospital Dr. Browne told Mr. Goodwin and Dr. Martin, who was assisting in his removal to the hospital, that he signed some papers, but had done so under threat of the Rishers that unless he signed them that they would move away and let the hogs and dogs get him. (The Rishers denied making such a threat). The papers referred to consisted of a deed and a will executed by Dr. Browne on December 24, 1928. The deed is the one redrafted by Mr. Goodwin and conveyed the 27.64 acres in question with ferry 'rights to J. E. Risher in consideration of maintenance and support. The will devised all his property to J. E. Risher.

On the 26th day of December, 1928, when Dr. Browne was brought to the hospital, he was afflicted with tuberculosis, cancer and paralysis. He was unable to use any part of his body on the left side and could only use his right hand a little. He had suffered two strokes of paralysis, one in 1927 and the other in the spring of 1928. The record is silent concerning the first appearance of tuberculosis and cancer. As a result of his bedridden condition after March, 1928, he had a sore upon his back which was black and contained proud flesh. On December 31, 1928, appellant was appointed guardian of the person and estate of Dr. Browne, a person of unsound mind. On February 2, 1929, Dr. Browne died. The purported last will and testament of Dr. Browne, executed on the 24th day of December, 1928, was contested by the beneficiary in the will executed on May 15, 1928, in the probate court and in the circuit court on appeal, upon the same grounds that the deed in question is sought to be canceled; and the judgment in both courts denied to probate the. will of date December 24, 1928, and admitted to probate the will of date May 15,1928..

The direct testimony introduced by the appellant and that introduced by appellees upon the issues of the state of mind of Dr. Browne on December 24, 1928, the date he executed the deed in question, and whether undue influence was used to procure the deed, is conflicting.

Dr. C. M. Martin, who helped remove Dr. Browne to the hospital on December 26, 1928, testified that there was nothing to indicate a change in his condition for the worse on or after the 24th day of December, 1928, and that Dr. Browne on either day was not capable of appreciating or retaining in his memory the extent of his property or relation of persons he might include or exclude from participating in his estate.

Dr. W. L. Hartsell who attended him three or four times a day and kept a nurse with him constantly after he entered the hospital testified, in substance, to the same effect as Dr. Martin. He positively stated that Dr. Browne had a low mentality and frequently contradicted himself and was unable to concentrate on any subject over three minutes.

Mrs. Fannie Denson, who nursed Dr. Browne after he entered the hospital, testified that his condition was very serious; that he had a black sore about the size of her hand on his back on which the flesh was about ready to drop off; that his mind would just come and go.

R. M. Hutchins testified that he was called to see Dr. Browne on December 22, 1928, to consult him with reference to instituting a suit against his daughter, Mrs. Norris, to cancel through court proceedings a deed which he had previously executed to her; that Dr. Browne gave him information that he desired and upon which he brought the lawsuit; that he saw him again about the middle of January, 1929, and discussed the lawsuit with him; and, that from these two interviews he discovered that Dr. Browne was physically incapacitated, but that he was mentally awake and sound.

Dr. J. W. Shaw testified that he was personally acquainted with Dr. Browne, and that on the 20th day of December, 1928, he was called to see Mr. Risher’s little daughter; that he went into Dr. Browne’s room and talked with him; that, although bedridden and in a helpless condition, he concluded, from his conversation that his mind was sound.

Dr. W. H. Reasons testified that he had a talk with him in Risher’s home in Moro Bay either December 22 or 23, 1928, and that, after conversing with him for about fifteen or twenty minutes, lie impressed him as being altogether sane.

A number of lay witnesses, introduced by appellees, testified that they had visited Dr. Browne while he was (making his home with the Bishers, and that their several conversations with him indicated that he was in his right mind.

"W. S. Goodwin testified that on the morning of the 18th of December, 1928, Dr. Browne said that the reason he would not sign the deed was that his contract with the Bishers was that he would pay them for their services, and that he had done so; that Dr. Browne told him in the presence of Mr. Bisher that he had $1,100 in the bank, and that Mr. Bisher allowed both of them to rest under the belief that the money was still in the bank when as a matter of fact it had already been drawn out by Mr. Bisher; that Dr. Browne also requested Mr. Bisher to turn over two checks to him to deposit and that at first Mr. Bisher agreed to do so but later said he had already cashed them, and, in justification, claimed that Dr. Browne had made him a present of them, Dr. Browne denied having done so; that during the altercation over the checks Dr. Browne claimed to own the automobile Mr. Bisher was using, to which Mr. Bisher replied, “Only as long as you live.” Dr. Browne then asked, “Why did you say that?”1 Mr. Bisher answered, ‘‘When you die, I am going to have that car.”

L. L. Smith testified that during the month of September, 1928, he was in the home of J. E. Bisher at Moro Bay and had a conversation with Dr. Browne in the presence of Mr. Bisher with reference to an agreement Dr. Browne made with Bisher when he came to his home concerning how much he was to pay the Bishers for keeping him; that during the conversation Mr. Bisher wanted Dr. Browne to give him a check; that Dr. Browne told Mr. Bisher he had already paid him $2,500, and that he had only agreed to pay him $90 a month for taking care .of him; that Mr. Bisher was present and did not deny that the agreement was that Dr. (Browne should pay him $90 a month; that he was present on the 15th day of May, 1928, when Dr. Browne executed a will in favor of his grandson, Todd Kellar -Shaner; that Mr. Risher was also present; that Mr. Risher put his arm under Dr. Browne’s shoulder and raised him up when he signed the will; that when Dr. Browne signed the will Mr. Risher made no reference to a written contract having 'been executed by him in November, 1927, and entered no protest against the" execution of the will by Dr. Browne.

Appellant introduced testimony tending to show that appellee, J. E. Risher, had received in the neighborhood of $2,500 in cash from Dr. Browne during the 11 months he was in his home.

Mrs. Pearl Holmes testified that Dr. Browne returned from Illinois early in 1928; that she heard him tell Mrs. Risher that if she would take care of him he would will her everything he .owned at his death; that he made no mention of his grandson at the time.

Elvin Parker testified that Dr. Browne told him in August or September, 1928, that his daughter had kicked him out, and that he intended for Mr. Risher to have everything he owned at his death; that at the time he made no mention of his grandson.

Allen 'Shinpock testified that Dr. Browne told him the latter part of 1927 that he was going to will the rest of his property to Elmo Risher, and said nothing about his daughter or his grandson at the time.

J. E. Risher testified that the contract was executed in November, 1927, agreeing to give him his property, and that the deed and will were made pursuant to the written contract; that he and his wife had not made any threats or used any force to procure the deed and will in his favor from Dr. Browne; that the deed and will were executed by Dr. Browne voluntarily; that he was not present and did not hold up Dr. Browne’s head on May 15, 19'28, when he executed the will devising all of his property to his grandson; that he received only about $1,200 in cash from Dr. Browne during the time he was in his home; that he did not hear Dr. Browne say anything to Mr. Goodwin about an agreement to pay him for his services and that he had done so; that he did not deceive him about Dr. Browne having money in the bank and did not have any altercation with him in Mr. Goodwin’s presence concerning checks or the ownership of the automobile; that he did not hear Dr. Browne say anything to L. L. Smith about an agreement to take care of the doctor for $90 a month, and that no such statement was made to Smith in his presence; that he objected to Dr. Martin and Mr. Goodwin taking Dr. Browne to the hospital because he did not regard it as necessary, and because Dr. Browne was satisfied to remain with them.

Mrs. J. E. Risher said that no force was used by them in procuring the deed or will, and that Dr. Browne was removed to the hospital by force; that the deed and will were made to J. E. Risher pursuant to a promise to convey everything he had to her husband if they would allow him to make his home with them.

Appellant contends for a reversal of the findings and decree of the chancery court upon the alleged ground that both the findings and decree were contrary to the weight of the evidence. We agree with him in this contention. The deed was executed at a time when Dr. Browne was suffering from a complication of diseases. His long suffering had rendered him a physical wreck. He had had two paralytic strokes resulting in his inability to move any portion of his body except his right hand a little. He had been bedridden since March, 1928, and had one bed sore upon his back from which the flesh was about to drop. The physicians who attended him in a professional capacity on and after the"26th day of December, 1928, two days after the execution of the deed in question, testified that he could not have been mentally capable of knowing the extent of his property on December '24, 1928. The nurse who cared for him corroborated their testimony. Their conclusion as to his mental incapacity seems to be the natural result of his physical condition. Dr. Browne’s physical inability is an admitted fact in the record. It is true a number of witnesses, including two physicians, testified that Dr. Browne was sane near the time the will was executed, hut we are convinced from all the testimony that he had very little, if any, resisting mental power left at the time he executed the deed and will. According to the weight of the testimony he executed a deed and will to Mr. Risher which he had refused to execute a short time prior to the execution thereof.

It is also reflected by the record that Mr. Risher was very anxious to get both instruments signed by Dr. Browne. Mr. Risher does not deny Mr. Goodwin’s statement that he stoutly insisted upon Dr. Browne signing the power of attorney, the will and the deed on the night of the 17th and the morning of the 18th day of December, 1928. Mr. Risher admits that he refused to sign either in the presence of Mr. Goodwin. The testimony of Jim P. Johnson stands in the record uncontradicted that Dr. Browne also refused to execute the deed. We think the only conclusion that can be drawn is that Dr. Browne executed the deed at a time when he was weak in mind either through undue persuasion or under threat, and that the execution thereof was not a voluntary act on his part.

It is argued by appellees that, even though the deed should be canceled, the writtep agreement signed by Dr. Browne in November, 1927, should be upheld and the findings and decree of the chancellor should be sustained under the terms of the agreement. The agreement was not heard of until it was introduced in the trial contesting the will in which J. E. Risher was made the beneficiary. The contract was not set up in defense of this action during the lifetime of Dr. Browne. No mention was made by J. E. Risher of such a contract according to the testimony of W. S. Goodwin and L. L. Smith, both of whom state that Dr. Browne said in the presence of J. E. Risher that the contract was that he should pay the Rishers $90 a month for his services, and that he had more than paid them. It is true that Mr. Risher denied that such a statement was made in his presence either to Mr. Goodwin or to Mr. Smith, but he also contradicted the testimony of L. L. Smith relative to the execution of a will on the 15th day of May,' 1928, in favor of Dr. Browne’s grandson. Mr. and Mrs. Bdsher both testified that they did not know of the execution of the will on the 15th day of May, 1928, and just how it could have been executed in their home on that date, by a bedridden man, without some knowledge on their part of him having done so is hard to understand. Ve think the only reasonable conclusion that can be reached under the testimony detailed is that the written .contract was abandoned, and that an oral agreement in substitution therefor was made between Dr. Browne and the appellees to the effect that he would pay them $90 a month for their services during his life, and that according to the undisputed evidence he paid at least that much, if not more, before he left their home.

The decree is therefore reversed, and the cause is remanded with directions to the chancery court to cancel the deed and the written contract introduced in' evidence.


text:
    Cook v. Panich.
    Opinion delivered December 22, 1930.

      Price Shofner, for appellant.

      G. E. Gamer, for appellee D. D. Panich; George A-. MoComiell and Graham B. Hall, for appellee Continental Credit Company.
   Humphreys, J.

The issue involved on this appeal is whether a purchaser of personal property at'a void tax sale thereof can recover his purchase money for failure of his title. After appellant, as collector of taxes for Pulaski County, had sold certain machinery situated in a building known as the Twin City Ice Company in North Little Rock, Arkansas, to D. D. Panich for the tax assessed against it for the year 1928, amounting to $755.25, including penalty and costs, and, after having received the money and receipted for same, he instituted this action on May 7,1930, to establish a lien upon said machinery and again recover the taxes, penalties and costs for the year 1928, wherein he made the appellees herein parties defendant.

Appellee, D. D. Panich, filed a separate answer and cross-complaint, praying for the return of the money he paid at the tax sale, in which he alleged that appellant by deputy levied a tax lien upon and sold the machinery to him and retained his money, notwithstanding the title he sought to purchase failed.

On the 3rd day of May, 1930, appellant entered an agreement with appellee, Continental Credit Company, to release the machinery from the tax levy and allow the removal of same, upon it depositing $645, the correct amount of taxes claimed to be due thereon less penalty and costs, which amount should be held in lieu of the machinery pending the determination of the tax liability thereon.

On the 16th day of May, 1930, said Continental Credit Corporation filed an answer in which it denies that taxes were extended for the year 1928 based upon the assessment of the ice machinery by the receiver for the Morgan Utilities, Inc., or that any taxes were extended for the year 1928 against said machinery, or that the assessor of Pulaski County, or any other person, made a delinquent assessment on the property, or that D. D. Panich was purchaser at a tax sale of the machinery, or that appellant retained any money that D. D. Panich paid to purchase the machinery at the tax sale.

On July 29, 1930, the cause was submitted to the court on the pleadings and testimony resulting in a finding that the sale of the machinery to D. D. Panich was illegal; that he was entitled to a return of the penalty and costs amounting to $124; and rendered a decree dismissing the cross-complaint of D. D. Panich for a return of that part of the purchase money paid for taxes assessed against the machinery and also dismissing appellant’s complaint against appellee, Continental Credit Corporation.

The parties to the suit stipulated that the tax sale of the machinery for the taxes of 1928 which D. D. Panich purchased was void.

The record reflects that the machinery brought $755.25 at a void tax sale, the amount of the taxes, penalties and -costs; that said amount was paid to appellant and a receipt issued therefor.

The record contains testimony tending to show that D. D. Panich bought the property at a void tax sale for Morgan Utilities, Inc., in whose name the property was first assessed and who claimed to be the owner thereof at the time same was assessed and also when same was sold for the alleged delinquent taxes for 1928. Treating him, however, as a stranger to the title of the machinery when he purchased same at the void tax -sale, and treating the money he paid therefor as his own, he was -not entitled to a return of any part of the purchase money when his title failed. In this State the doctrine of caveat emptor applies in its full force and effect to purchasers at an invalid tax sale. The rule bars a purchaser at a void tax sale from recovering any part of his purchase money upon the theory that he is speculating as to the genuineness of the title upon a very small investment. St. L. I. M. & S. Ry. Co. v. Alexander, 49 Ark. 190, 4 S. W. 753 ; Nevada County v. Dickey, 68 Ark. 160, 56 S. W. 779.

The decree refunding $124 -of his purchase money to D. D. Panich is reversed, and his action therefor is dismissed. In all other respects the decree is affirmed.


author: Kirby, J.,

text:
    Morel v. Lee.
    Opinion delivered December 22, 1930.

      John M. Shackleford and Buzbee, Pugh $ Harrison, for appellant.

      Robert A '. Kitchen and Surrey E. Gilliam, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the killing of the child was an unavoidable accident, and that the court should have directed a verdict and erred in giving said instructions, and in any event that the damages awarded are excessive.

No witness saw the little boy in time to give warning or do anything to prevent his being struck by the automobile, in front of which he ran following the larger boy across the street. The man who called the boys, his own eleven-year-old son and the little fellow playing with him, to come home from the opposite side of the street, and turned after starting back into the house to see if they were coming, saw him about three or four feet in front of the car when it was inevitable that he would be run down. The owner of the car didn’t see him until he was in front of the car; while the driver, watching the larger boy, who was ahead of the small boy, from the time he crossed in front of the car until he was past all danger, did not see the small boy until after he had been struck by the car. The law of the case has been well settled in the several decisions of this court defining the relative rights and reciprocal duties of persons using the public streets and highways as pedestrians or in operation of automobiles and other cars or vehicles thereon, each being bound to the exercise of ordinary care for his own safety and the prevention of injury to others in the use thereof. Millsaps v. Brogdon, 97 Ark. 469, 134 S. W. 632, 32 L. R. A. (N. S.) 1177 ; Minor v. Mapes, 102 Ark. 351, 114 S. W. 219, 39 L. R. A. (N. S.) 214 ; Butter v. Cabe, 116 Ark. 26, 171 S. W. 1190, L. R. A. (N. S.) 1915C, 702 ; Texas Motor Co. v. Buffington, 134 Ark. 323, 203 S. W. 1013 ; Oliphant v. Hamm, 167 Ark. 167, 267 S. W. 563 ; Snow v. Riggs, 172 Ark. 835, 290 S. W. 591 ; Gates v. Plummer, 173 Ark. 27, 291 S. W. 816 ; Murphy v. Clayton, 179 Ark. 225, 15 S. W. (2d) 391.

Ordinary care, however, is a relative term, its interpretation depending upon the facts and circumstances of each particular case; and, although drivers of automobiles and pedestrians both have the right to the use of the streets, the former must anticipate the presence of the latter and exercise reasonable care to avoid injuring them, care commensurate with the danger reasonably to be anticipated. Minor v. Mapes, supra ; Snow v. Riggs, supra ; Texas Motor Co. v. Buffington, supra ; and Murphy v. Clayton, supra.

“However, the doctrine that drivers or owners of motor vehicles are not insurers-against all accidents applies in the present state of the law to injuries to children. If no one can reasonably foresee the sudden presence of a child in the path of an automobile, so as to prevent a collision with him, the driver or his master, proceeding at a lawful speed and being otherwise in observance of the traffic regulations, will not be liable for injuries from such a collision.” 1 Blashfield, 'Cyclopedia of Automobile Law, p. 641.

The instructions complained of, Nos. 1 and 2, the first of which contained no direction to the jury, were no more than an application of the principles of law, as herein declared, to the facts of the case as made, and no error was committed by the court in giving them.

Although it is true that the chauffeur was shown to be an experienced and careful driver, never before having injured any one by the movement of his car, and, although he was not driving it at an excessive rate of speed, he did not see the little boy before striking him, his attention being concentrated on the larger boy, who also came from behind the standing car on the west side of the street, passed in front of his car and on to the east side of the street, fearing lest he might attempt to return and be injured. He knew that people lived along the street, and that children played about and crossed over it, saw the larger boy run across the street in front of his car from west to east and watched him until he got entirely across, not looking to see whether other children were attempting to follow him across; and the jury could have found that he was negligent in so doing, not exercising reasonable care to avoid injury to the little boy, following the other one, whose presence he should have anticipated.

It is next contended that the damages awarded are excessive, and this contention must be sustained. Where the death of a child, incapable of earning anything or rendering services of any value at the time of its death, as in the present case, is the subject of the action, the value of the probable future services to its parents during its minority must, in the nature of things, be a matter of conjecture and can be determined by the jury without the testimony of witnesses. L. R. & Ft. S. Ry. Co. v. Barker, 29 Ark. 41 ; Hines v. Johnson, 145 Ark. 602, 224 S. W. 989.

In the case of St. L. I. M. & S. R. Co. v. Freeman, 36 Ark. 41, we held (quoting syllabus) that “the measure of damages to a parent for killing his child is the pecuniary value of his services during minority, and the cost and expense incurred by the parent on account of the injury, less the reasonable and necessary expense of raising it; the value to be such as is ordinary with children in like condition and station in life, without regard to the relationship between them, or to the parent’s feelings or the child’s suffering.”

Our statutes (§ 7085, O. & M. Digest) provides that no child under the age of 14 years shall be employed or permitted to work in any remunerative occupation, except during school vacation when they may be employed by their parents in occupations controlled by them; and parents are required to- send their children between the ages of 7 and 15 years to school (§ 9042, O. & M. Digest).

In Interurban Ry. Co. v. Trainer, 150 Ark. 19, 233 S. W. 816, the court held the damages recovered, $5,000, by the parents for pecuniary loss for the services of their child, a girl eleven years old, excessive and reduced the amount to $’2,500. It was there said: “In determining what the pecuniary value of the services of a child of tender age would be to its parents between the time of its death and the age of maturity, the jury should take into consideration the position in life of both parents and child, the occupation of the parents, their physical condition, their circumstances, and also the sex, age, physical and mental condition of the child. While the law is liberal in allowing the jurors to voice their own opinions and conclusions as to the pecuniary value of the services without any specific proof or opinion of such value by affirmative evidence, yet such conclusion as reflected by their verdict must be predicated upon the facts and circumstances as above detailed and accord with what reasonable men in viewing sucb facts and circumstances would decide.”

In L. R. & Ft. Smith Ry. v. Barker, 33 Ark. 350, 34 Am. Rep. 44, one of our earliest cases on tbe subject, tbe court in reversing a .judgment on a Verdict of $4,500 as excessive, less than $2,300 being finally recovered, said: “We are satisfied that if the facts of the case were submitted to one hundred impartial men, of sound, discriminating judgment, of experience and observation in the raising of children, properly instructed in the law as to the measure of damages, ninety-nine, if not all of them, would say that the damages awarded in this case for loss of probable service were excessive, and such is our judgment.” It may be observed also that the record herein shows that the jury returned a verdict for $1,000 damages on the first trial of the instant case.

The little child herein was undersized and undernourished, according to testimony, incapable of earning anything for some years, and the court is of opinion that the recovery of a greater amount herein than the judgment was reduced to in the Trainer case, supra, cannot be permitted to stand. The judgment will therefore be reduced to the said sum of $2,500, and, as modified, it will be affirmed. It is so ordered.