text:
    Pekin Wood Products Company v. Mason.
    Opinion delivered February 8, 1932.

      Exby, Moriarty and Pierce, and John G. Sheffield and W. G. Dimrnig, for appellant.

      Brewer & Gracraft, for appellee.
   Butler, J.

This suit was brought in the Phillips Circuit Court by the appellee, as administratrix of the estate of T. S. Mason, for the benefit of herself as widow and for the minor children to recover damages arising from the death of the intestate, which occurred while he was in the employ of appellant and while engaged in the performance of his duties. On a trial of the case the appellee recovered verdict in the sum of $25,000, and from the .judgment entered in accordance with the verdict this appeal has been duly prosecuted.

The court gave nine instructions at the request of the plaintiff, the defendant (appellant) contenting itself with the request for a peremptory instruction. The principal ground urged for reversal and argued by the appellant is for the failure of the court to direct a verdict in its favor, the contention being that there was no substantial evidence to sustain the allegations of the complaint or to warrant the instructions given to the jury at 'the request of the plaintiff.

The following facts were either admitted or established by the undisputed testimony: T. S. Mason was a veterinary surgeon, 42 years old, living in Helena, where he had practiced his profession for a number of years until some time in 1930, when, owing to the general business depression, his practice fell off so much that he was forced to do something else for a living. Before this time he had done a lucrative business, and for the seven years preceding 1930 his income from the practice of his profession had averaged in excess of $5,000 a year, all of which he contributed to his family except about $25 or $30 a month which he used for his personal expenses. 'Sometime in September, 1930, Dr. Mason secured employment with the appellant company as a helper to the night engineer in charge of the boiler room. Among other things it was his duty to keep the boilers properly supplied with fuel. This fuel consisted of sawdust and ground up shavings and refuse lumber accumulated from various parts of the plant and blown into a large cylindrical-shaped bin about fifty feet high, twenty-six feet in diameter at the bottom and twenty-two feet at the top. The bin terminated at the bottom in a hopper with the sides of the same sloping upward to where it met the cylinder at an angle of 45 degrees. This hopper was about eight feet square at the bottom. Seated in the bottom of the hopper were three troughs, in which large iron screws or augers revolved, which were about 12 inches in diameter and so arranged that the tops of the screws were about six inches above the floor of the hopper. These troughs and screws extended into another and larger trough, the top of which was covered, and in this top were two doors, which could be lifted up when occasion demanded, and were large enough for a man to enter. At one end of this large trough and right at the hopper was a fan. The other end of the trough extended beyond the bin to the furnace. The fuel accumulated from other parts of the mill was conveyed by large pipes to the top of the bin and blown into it. As it fell to the bottom of the hopper, the fan and screws were put in operation by electric power, the revolving screws carrying the sawdust into the larger trough, where the fan blew it with great force throug’h the large trough to the furnace where it was burned to create steam. At times, when the sawdust was damp and shavings which had not been ground up were conveyed into the bin, the fuel would stick to the sides of the bin and gradually increase in quantity until it would “arch” and prevent the sawdust coming in from the tbp from falling to the bottom of the hopper. Below this “arch” the fuel would fall and be conveyed out, so that frequently a cavity would occur between the fuel accumulated and clogged in the bin above and the floor of the hopper. In order to dislodge this fuel so that it might fall, several plans were adopted; one, to descend from the top of the bin by means of a chair attached to a rope and pulley and loosen the sawdust with a pole; another, to pound the outside of the bin with a hammer which would sometimes dislodge the sawdust; another, to push iron rods from the outside of the bin through small apertures made for that purpose into the sawdust; and still another, to enter the bin from below by raising the doors on the top of the fan trough, crawling in through that trough between the screws into the bottom of the hopper, and from that point to dislodge the sawdust from above by punching it with a pole. To loosen the sawdust by entry from the top of the hopper required two men— one to g'o down in the chair and the other to lower him by means of the rope and pulley.

On the night of October 26, 1930, the fuel in the bin ceased coming through the augers into the furnace, and to unclog the fuel so that it might fall and be conveyed out, Dr. Mason entered the bin from below. He was given a pole by the night engineer, and all of the fuel became dislodged,'falling upon him and completely covering him. An alarm was given, and a rescue was attempted, but before he could be reached and uncovered he had died from suffocation. Dr. Mason had been work-in about six weeks before this occurrence, and it was alleged and admitted that he had had no experience in that kind of work. It was also alleged that it had been the practice in dislodging' the fuel from the bin to direct an employee to enter through the opening at the bottom of the conveyor (or fan trough), and that this was so small that it could not be entered without assistance; that this method of dislodging the sawdust was more expeditious 'but was highly dangerous, and known to be so by the engineer in charge, but not known by Mason. It was alleged that on the night of his death Mason was directed by his superior, the night engineer, to enter through the small opening at the bottom of the bin to relieve the congestion of the fuel for the purpose of enabling it to be fed to the furnace, and that, relying upon the knowledge of his superior, and without appreciating the risk, he entered the bin; that, while inside the bin, he was caught in a slide of sawdust and killed; that his death was caused by the negligence of the defendant’s servant, the night engineer and superior of the deceased, in failing to warn Mason of his danger in entering the hopper, that his death was caused thereby, and that defendant was further negligent in putting the screws and fan in operation while Mason was in the bin, causing them to revolve and grasp his left foot and trouser leg, crushing the foot and preventing him from escaping from the falling sawdust.

• While admitting the tendency of the sawdust to become impacted and to “arch” in the bin, and that entry at the bottom of the bin was dangerous and known to be so by the night engineer, and that it was the duty of Mason to keep the fuel moving toward the furnace, the appellant denied that the deceased entered at the bottom at the invitation or direction of the night engineer or that the latter had put in motion the fan and screws, but contended that the deceased hád been expressly warned of the dangers incident to his work, and had entered the bin from the bottom without the knowledge of the night engineer and in violation of the express command of his superiors, and that, therefore, his death was occasioned by his own negligence and not through any negligence of the appellant.

Boss Smith, appellant’s chief engineer who had employed Mason, testified that he had explained in detail the manner in which the fnel was to be fed to the furnace and the construction of the bin, and had instructed Mason that the congestion of the fuel in the bin was to be relieved only by entering from above in the chair; that he must not enter from below and had warned him of the danger.

John (Monty) Smith, the night engineer under whom Mason was worldng on the night of his death, testified that he had also warned Mason of the danger of entering the bin from below and had directed him not to do so; that he was not present when Mason entered the bin and did not know that he had done so until witness discovered him within the bin at the bottom just before the sawdust fell upon him.

The testimony of Ross Smith was corroborated by that of an employee of appellant who testified that he had heard the warning given by .Smith to Mason regarding the danger attendant upon the bill.

To contradict this testimony and to establish her allegation, the plaintiff relied largely on circumstances proved. The settled rule, which has been many times approved by this court, is that a well connected train of circumstances is as cogent of the existence of a fact as an array of direct evidence, and frequently outweighs opposing direct testimony, and that any issue of fact in controversy can be established by circumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions. St. Louis, I. M. & So. Ry. Co. v. Hempfling, 107 Ark. 476, 156 S. W. 171; St. Louis, I. M. & So. Ry. Co. v. Owens, 103 Ark. 61, 145 S. W. 879; Midland Valley Ry. Co. v. Ennis, 109 Ark. 206, 159 S. W. 214; St. Louis-San Francisco Ry. Co. v. Bishop, 182 Ark. 763, 33 S. W. (2d) 383.

The circumstances relied on by the appellee are as follows: Cooper, the employee whose testimony corroborated that of Ross Smith as to the warning given, stated that when Ross Smith and Mason went up together on the day of the latter’s employment to the top of the bin, witness was at the bottom hammering on the bin to loosen the sawdust, and when they had descended, Mason came to where witness was and inquired how they got the sawdust down, and was told, “We beat it down, if we could. If we could not, we go up on top and work it down.” Mason asked if that was the place that had been shown him, and was told, “Yes, that is the only place that you can get into the sawdust, ’ ’ and then Mason said, “Do you reckon I will have to go into it?” and was answered, “No, I don’t reckon you will.” These questions were significant of the question whether or not he had beén warned of the danger and had the methods of unclogging the fuel explained to him, and was a circumstance indicating that he had not.

The night engineer and Mason were the only ones who were shown to have been engaged in the operation around the furnace on the night of Mason’s death. The testimony of a witness who had worked for several months in the performance of the same work that Mason did, and who was shown to have been familiar with the situation, was to the effect that it was impossible for one to enter the bin through the fan trough without assistance; that it was necessary for one to hold up the doors of the fan trough when another crawled through; that these doors would fall immediately on being released; that, even with assistance, one could not enter at all when the screws were in motion and the fan operating; that the force of the air from the fan was so strong that it would blow one entering the trough under the boilers. When the body of Mason was uncovered, there was a quantity of sawdust and shavings between it and the bottom of the bin. By the side of the body was the flashlight of the night engineer, and there was a pole in the hands of the dead man. He had on two pairs of coarse trousers or overalls, and both pairs at the bottom of the left leg were torn in several places and hanging in fragments to the remainder of the fabric. When the body was prepared by the undertaker, it was discovered that the big and second toes of the left foot were mashed flat — the nail of the big toe was mashed completely off and that of the second toe nearly so. The foot was bruised, and a quantity of blood had escaped sufficient to soak through the leather of the shoe. There was also testimony to the effect that frequently men would be - sent in at the bottom to dislodge the fuel from above, and that while the employee would be in the bin the fan and feed screws would be put in operation to remove the sawdust as it fell.

According to the familiar rule, this court must give to these circumstances their highest probative value in favor of the appellee and indulge every inference which is reasonably deducible from them in support of the finding of the jury. Gaster v. Hicks, 181 Ark. 297, 25 S. W. (2d) 760. Giving to the above circumstances the force prescribed by the rule stated, we conclude that they come within the principles heretofore'announced, and that there was sufficient evidence to warrant the submission of the'issues to the jury. It is true that John Smith, the night engineer, denied helping Mason into the bin, but there was no one else to help him, and he could 'not have got in without assistance. Therefore the jury might have reasonably concluded that the circumstances refuted the testimony of John Smith, especially when he admitted that he discovered the man inside, and, instead of ordering him out, he gave him a pole with which to dislodge the fuel, and failed to give any satisfactory explanation as to why his flashlight was found in the possession of the deceased. There was no direct testimony as to whether or not the fan and screws were put in motion after Mason entered the bin, but, as it was impossible for him to enter while they were in motion, the injury to his foot must have happened after he. had entered the bin, and the jury might have reasonably inferred that these screws and fan were put in motion after Mason’s entry, and that in endeavoring to escape from the falling sawdust his foot and trouser leg were caught in the revolving screws, which prevented his egress through the point of entry. In removing the body, care was taken not to injure it, and it might be well believed from the quantity of sawdust found between the body and the floor of the bin that, when Mason’s injury occurred, he began struggling upward in an effort to rise above the sawdust, in which effort he almost succeeded, for it is shown that there was only about three or four feet of sawdust above him and almost an equal amount below.

Instructions Nos. 4, 6 and 7 for the appellee are the only ones of which appellant complains in its brief, on the ground that they were “not supported by any testimony of any character.” Instruction No. 4, in effect, told the jury that if the deceased entered the fuel container, and while therein the screws and fan were started in motion, and this was in any manner the proximate cause of the death, and this could have been foreseen in the light of the attendant circumstances, and the deceased at the time was not guilty of contributory negligence and had not assumed the risk, the verdict of the jury should be for the plaintiff.

Instructions Nos. 6 and 7 were on the doctrine of assumed risk, and in these instructions it was left to the jury to say whether Mason was acting under the direction of his superior, and they were told that, if this were true, Mason had a right to rely upon the judgment of his superior unless the risk was so obvious that no prudent man would have obeyed the command.

Prom what we have already said, it follows that in our judgment these instructions were not abstract, but had substantial evidence upon which to base them.

It is also urged that the court erred in admitting the testimony of five witnesses, each of whom was called in rebuttal, and it is argued that the purpose for which these witnesses were introduced was to prove the declarations of the employees as to who was responsible for the injury, and that such testimony was incompetent under the rule that “declarations of an employee as to who was responsible for any injury made after its occurrence is incompetent as against his employer, for the reason that his employment does not carry with it authority to make declarations or admissions at a subsequent time as to the manner in which he had performed his duties of employment.” Casteel v. Yantis-Harper Tire Co., 183 Ark. 475, 36 S. W. (2d) 406; River R. & H. Const. Co. v. Goodwin, 105 Ark. 247, 151 S. W. 267.

An examination of the record discloses the fact that this testimony does not violate the rule. John Smith was the first witness called by the appellee. He was asked to tell how and why Mason happened to go inside the bin, and, after denying any knowledge of it, he was asked if it were not a fact that he had told Mason to enter the bin and assisted him to do so. He denied this. He was then asked if he had not made statements of that nature to and in -the presence of various persons who were named. He answered that he had not. He was then excused, and the attorney for the appellee made this announcement to the court: “I presume it would be proper at this time — if not, I want to make it clear — that in view of the fact that five or six people — reputable people — have told me of statements that this witness has made that he denied, 1 feel that I have been surprised by his statements, and I expect to introduce these witnesses to impeach him at this time.” No objection was made to this statement or to the indicated conduct in calling witnesses for the purpose of impeachment, and, after having called several witnesses who testified for the appellee, five witnesses were called in rebuttal of the testimony of John Smith and to impeach his testimony. The testimony of these witnesses was expressly introduced for, and limited by the court to, purposes of impeachment only, and the jury was instructed not to consider the evidence as affirmative testimony on the part of the plaintiff, but only as to the credibility of the witness whose testimony was sought to be impeached. It is the contention of the appellant that the testimony of these witnesses was improper, first, “for the reason that it tended to impeach the testimony of a witness called by the plaintiff herself; in the next place, it contradicted a witness on a matter of evidence that was wholly inadmissible for any purpose.” We do not agree with the appellant, bnt think that, since John Smith was the only person who was at or in the vicinity of the bin at the time of the accident, the appellee might well have thong'ht his testimony was indispensable, and from information he had received believed that he wonld testify to a state of facts which wonld impose liability on the appellant, and, when appellee’s counsel discovered that he would not testify as thought, the appellee was then justified in introducing other witnesses to show that he had made statements different from his present testimony. Section 4886, Crawford & Moses’ Digest, provides: “The party producing a witness is not allowed to impeach his credit by evidence of bad character unless it is a case in which it was indispensible that the party should produce him, but he may contradict by other evidence and by showing that he has made statements different from his present testimony.” The testimony offered in rebuttal was therefore competent. Ward v. Young, 42 Ark. 553; Roy v. State, 102 Ark. 691, 145 S. W. 190; Midland Valley R. R. Co. v. Ennis, 109 Ark. 206, 159 S. W. 214; Williams v. Cantwell, 114 Ark. 542, 170 S. W. 250; Jonesboro-Lake City R. R. Co. v. Farner, 112 Ark. 447, 166 S. W. 571; Graves v. Gardner, 137 Ark. 197, 208 S. W. 785. There can be no doubt that the testimony sought to be elicited from the witness was competent. It was not a declaration sought to be established by the testimony of another, but merely the narration of what the appellee had been led to believe had actually occurred.

■ Since all the questions were fully and fairly submitted to the jury by proper instructions, and there is substantial testimony to sustain the verdict, the judgment must be affirmed. It is so ordered.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    St. Louis-San Francisco Railway Company v. Tidmore.
    Opinion delivered February 15, 1932.

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

      W. B. Scott and A. B. Shafer, for appellee.
   Butler, J.

The appellee, T. M. Tidmore, was a section foreman in tbe employ of the appellant on July 8, 1930, and on that date, shortly after one o’clock in the afternoon, while engaged in the performance of his duties, was injured. The appellee brought suit for damages because of his injuries, and recovered a verdict and judgment against the appellant from which is this appeal.

The principal ground urged for reversal, and one which we think is decisive, was that the evidence was not sufficient to sustain the verdict, and that the appellant’s request for a directed verdict in its favor should have been granted. The testimony most favorable to the appellee tended to establish these facts. At about one o’clock, the switch engine passed by a point about 1,600 feet south of Highway No. 70 which crossed the main track of appellant practically at right angles. At this place he was directing two negroes in cutting small trees and bushes on the right-of-way west of the passing track. The switch engine was travelling north, but its front part was directed toward the south, the engine being in reverse. Several cars were attached to this engine on the north or back end of it, and several at its front on the south. As it passed by appellee, the conductor, who was hanging* on one of the cars, gave him a sign with his hand which appellee thought was a “highball,” and supposed that it meant that the switch engine was passing out of the yards to go to a junction point called Presley about 2% miles north. At this time there were two or three cars standing on the side track or passing track about 150 or 200 feet south of where the switch enters from the main track to the passing* track just south of Highway No. 70. Further south and with an interval between them were other cars, near which the aforesaid work was being done.

Appellee watched the switch engine with its cars attached until it crossed- the highway and went on to a team track which connected with the main line by a switch a short distance north of Highway No. 70. The main track ran north and south at this point, and the passing track, immediately west of which appellee was working, ran parallel with it. From time to time appellee looked from the west between the cars toward the north. After the switch engine passed to the north, the work of cutting the timber was continued, and in this operation a sapling or small tree was felled upon one of the coal cars. Appellee directed one of the negroes to get upon top of the coal car for the purpose of dislodging the tree, and, while the negro was on the coal car, appellee asked regarding the whereabouts of the switch engine, and was told that it was near the north end of the team track about a quarter and a half (% of a mile) away. He continued to stand where he was, supposing he was in the clear and in safety when, about eight or ten minutes after the negro had descended from the coal car, the car by which appellee was standing was struck by reason of the switching operation of the cotton cars from the main line to the passing track, and moved forward, a part of which projecting about four inches to the side, in which standards were fixed, struck the appellee on the shoulder violently knocking him to the ground and injuring him severely.

Appellee stated that it had generally been the practice of men operating the engine to give him a signal when they were going to switch cars upon a track on which he might be working, and that often he would ask the train crew what time they were going to use the track, but on this occasion he did not ask them, as he was not working-on the track, but was clearing bushes on the right-of-way. The appellee was an experienced man, having* worked on the section for fourteen years, ten years of which he had been foreman. He was well acquainted with the rule that required Mm to keep a lookout for his own safety and for the safety of the men working under him. It was his duty, when worldng around any track, to be on the lookout for cars which might he moving. He was working'in the yards of the appellant in the city of West Memphis, and through these yards ran the main line from north to south. On the west of this main line and south of Highway No. 70 ran the passing track parallel with the main line. Just north of the highway a switch led from the main line to the team track, east of and parallel to the main track. The passing track was connected with the main line at a point near the depot a short distance south of Highway No. 70 by a switch and again by a switch at a point to the south of where appellee was worMng. To the right and opposite to where appellee was standing was a cotton compress, and between it and near to it was another track which was used in handling* cotton either coming in or going out of the compress. This side track was connected with the main line at a point just south of Highway No. 70l by a switch a short distance north of the switch leading into the passing track. It was also connected with the main line at two points south of the place of appellee’s injury. These tracks were used daily for switching purposes, the switch engine and crew using them several times each day in these operations. On the forenoon of the day of the accident a number of cars had been switched on to the passing track, and the train crew had seen the appellee and his crew at work on the right-of-way cutting the bushes, and they knew that he was continuing’ this work after the noon hour. About one o ’clock p. m. the switch engine entered on the track by the compress and there picked up three carloads of cotton for the purpose of moving them over to the passing track. To accomplish this, they moved down toward the south with the engine headed in that direction and pushing the cars ahead, with some attached to the rear, on to the main line, and backed north on that line past where the appellee was working, proceeding on in a northerly direction. It was necessary for them to pass entirely across Highway No. 70 in order to give clearance between the cars and the north switch so that it might be opened. From the point where that switch entered the main line to the point where the injury occurred there was a considerable down grade of perhaps four or five feet between the two points, and, when the switch engine with its cars attached passed the switch and the highway, it moved- again south and shunted the three cars o.f cotton through the switch on to the main line. A brakeman was riding one of these cars, which were moving at this time at a rate of about four or five miles per hour — a sufficient speed on account of the down -grade. No signal was given by the operatives of the switch engine that this movement would be made, and no effort was made by any of them to notify the appellee that .the cars would be switched upon the side track. The weight of the cars rolling down grade was sufficient to put the first bunch of cars on the side or passing’ track south of the switch in movement, and they together with the three cars of cotton moved down, strildng the cars near which the appellee was standing with force enough to- move them forward, resulting in the accident to the appellee.

These are the essential facts-disclosed by the testimony most favorable to the appellee -which we think fail to disclose any negligence on the part of the crew of the switch engine, but show that the accident occurred by reason of appellee’s own inattention in taking a position sufficiently near the track to be struck by a moving car, which position it was unnecessary for him to occupy in the performance of his duties.

It is argued by the appellee that the train crew was negligent in that the brakeman. in charge of the cars being switched failed to put on the brakes when these cars passed upon the passing track, and that this is admitted by the testimony of the brakeman Garner who rode the cars, and also that the crew was guilty of negligence in failing to give a “side track signal.” This could not be said to be negligence under any view of the case, since the undisputed testimony shows that the cars were moving at not more than four miles an hour, and no one was expecting workmen upon the track. An examination of the transcript, however, fails to bear out the contention of the appellee as to the purported testimony of the brakeman, Garner. He testified, both on direct and cross-examination, that in the 'switching operation he set the brakes on the cars being switched. It is true that he testified at one time as to one switching operation that he did not put on the brakes and further stated that he would not say whether or not he did, but there were two switching operations about which he was questioned, and, when the entire testimony of this witness is read, it is uncertain which one he was referring' to. Whether he did or did not put on the brakes would be immaterial, as is disclosed in that part of the 'testimonjr of the appellee when he testified as to what the custom was with reference to the information being given him when the switching crew intended switching cars on to the side tracks. This would be done when they knew or had reason to believe that he was at work on the track, and appellee himself stated that when he was engaged in work on the tracks he would ask the operatives of their intentions, but that on this occasion he did not because his men were working on the right-of-way and not on the tracks. This the train crew knew, and that appellee’s duties did not require him to be upon the tracks or near enough to be within a point of danger, and they had no reason to expect that he would expose himself to unnecessary hazards, and therefore had reason to believe that the track was clear, and that the operation in which they were engaged would result in danger to no one, which was conducted in the customary way.

While acknowledging the duty of the appellee to keep a lookout for his own safety, it is insisted that his failure, if any, to keep the lookout was caused by a sign given him by the conductor in passing which he thought meant that they were through with their switching operations and were going on to the junction at the north. But, although he might have thought this, and even had he been justified in this supposition, he afterward knew by information conveyed to him by the negro on top the coal car that they had not gone on to the north, but were still in the yards on the team track. Within eight or ten minutes thereafter the cars had been pushed on to the passing track and the accident was occasioned by appellee’s failure to observe the rule to keep a lookout for his own safety, and because he occupied a position of danger entirely unnecessary for the performance of his duties and one where there was no reason to believe he would be.

It is conceded that the work in which appellee was employed was interstate commerce, and that the Federal Employers’ Liability Act is the law applicable to the facts here before us. In Dallas Coal Co. v. Rotenberry, 85 Ark. 237, 107 S. W. 997, the court said: “The undisputed evidence establishes the fact that appellee went into the place of danger in violation of the rule provided for his protection.. This was contributory negligence on his part, and precludes a recovery.”

In the case of C., R. I. & P. Ry. Co. v. Abel, 182 Ark. 631, 32 S. W. (2d) 1059, it was the duty of Abel to keep in repair and to operate the engine used for tamping ties in the roadbed. The machine was not operating satisfactorily at the dinner hour, and Abel, during that period, eng’aged in the repair and adjustment of the engine, and, while so at work, he was struck by a passing train. The court, in holding that the facts in that case precluded a recovery, said:

“Appellee was an experienced workman; he knew the location of the machine to be repaired relative to the track and the embankment or side of the cut, that trains were frequently passing over the track, and that the rules required him to rely upon his own watchfulness and keep out of the way, proceeded with his work of making the repairs, leaving the engine running and the air pump working, both making a great deal of noise, without looking toward the direction of the approaching train, according to his own statement, which he could have seen for almost a half mile, and stepped back on the track between his machine and the track where the passing train struck and injured him. * * *

“According to the undisputed testimony, appellee’s own statement of the occurrence of the injury, he neglected to take proper care for his own safety and assumed the risk incident upon the performance of the work without relying upon Ms own watchfulness to keep in the clear as the rules of the company required, and they were entitled to expect of their employees.”

The judgment of the trial court is reversed, and, as the facts seem to have been fully developed, the cause is dismissed.


author: Hart, C. J.,

text:
    Wilson v. Lucas.
    Opinion delivered February 22, 1932.

      Gochrill $ Armistead and W.A.Leach, for petitioner.

      Joseph Morrison, for respondent.
   Hart, C. J.,

(after stating the facts). This is an original application for a writ of prohibition to restrain the Arkansas Chancery Court for the Northern District from proceeding further in a suit by a single .judgment creditor of the Stuttgart Eice Mill Company, a domestic corporation, with a return of execution “no property found,” to reach equitable assets in the hands of the officers of said corporation in satisfaction of his judgment.

It is contended by counsel for the petitioner that, under our mode of civil procedure, service cannot be had in a transitory action on a defendant in a county other than that of his residence, except where there is service in the county where the action is instituted on a codefendant who is jointly liable. Their contention is that there is no joint liability under the allegation of the complaint in favor of Lockridge against Wilson and McCoy. Hence it is contended that, the liability being several and not joint, the court should have sustained the motion by Wilson to quash the service of summons upon him in Pulaski County, the suit having been brought in Arkansas County. In short, it is claimed that there is no joint liability against Wilson and McCoy, and that jurisdiction could not be obtained over Wilson, a resident of Pulaski County, by joining him in a suit with McCoy, who is a resident of Arkansas County, in a suit brought in the latter county.

The general rule is that the capital stock and assets of a corporation constitute a trust fund for the benefit of creditors, which neither the officers nor the stockholders can divert or waste. This rule was recognized and followed by this court in the case of Jones, McDowell & Company v. Arkansas Mechanical & Agricultural Company, 38 Ark. 17. In the discussion of the case, the court said:

“The assets of an incorporated company are a trust fund for the payment of its debts, which may be followed into the hands of any person having notice of the trust. This doctrine was invented by Judge Story, in the case of Wood v. Drummer, 3 Mason 308, and it will constitute not the least enduring of his titles to be considered a great .jurist. It has been applied by the Supreme Court of the United States in the following cases: (Citing cases.)

“The cases in the State courts on this subject are too numerous to cite; but it is sufficient to say that the doctrine has never been denied by any court of last resort in the Union, before which the question has come, and it is as well settled as any legal principle can be.”

The court further held that a director of a corporation is conclusively presumed to know its pecuniary condition, and that his purchase of the assets will not be bona fide and without notice of the trust.

In the case of Wesco Supply Company v. El Dorado Light & Water Company, 107 Ark. 424, 155 S. W. 518, this doctrine was approved, and the court again held that the assets of an incorporated company are a trust fund for the payment of its debts which may be followed into the hands of any person acquiring them with notice of the trust.

In Nedry v. Vaile, 109 Ark. 584, 160 S. W. 880, the court again expressly approved the doctrine and held that the directors of a corporation stand in the relation of trustees to the stockholders and creditors of the corporation. The court said, however, that the purchase of the assets of a corporation by a director is only to be voided for fraud at the instance of some party in interest. This case also recognizes that chancery is an appropriate forum in which to enforce the rights of creditors.

In varying form, the principle has been before the court in other cases. To illustrate, in Carter v. Union Printing Company, 54 Ark. 576, 16 S. W. 579, it was held that a voluntary release of a stock subscription by an insolvent company is a fraud upon its creditors, whether its claims arose before or after the stock was issued.

In Spear Mining Company v. Shinn, 93 Ark. 346, 124 S. W. 1045, it was held that creditors of an insolvent corporation may, on behalf of themselves and all other creditors who may join with them, bring suit to discover assets of such corporation, and to obtain an accounting from other corporations who had assumed to pay, to the extent- of such assets, the liability of the debtor corporation.

Other cases recognizing that the capital stock and assets of a corporation are a trust fund that must be devoted to the payment of its debts, which neither the corporation nor the individual stockholders can directly or indirectly divert from this purpose, are the following: Ward v. McPherson, 87 Ark. 521, 113 S. W. 132, and Tiger v. Rogers Cotton Cleaner & Gin Company, 96 Ark. 1, 130 S. W. 585.

The Supreme .Court of the United States, in later cases than those referred to above, has reaffirmed the doctrine that the property of a corporation is a trust fund for the payment of its debts, which means that the property and assets of a corporation must first be appropriated to the payment of the debts of the corporation before any portion of it can be distributed to the stockholders. The court, in Hollins v. Brierfield Coal & Iron Company, 150 U. S. 371, 14 S. Ct. 127, quoted with approval from an earlier decision the following:

“ ‘The property of a corporation is-doubtless a trust fund for the payment of its debts, in the sense that, when the corporation is lawfully dissolved and all its business wound up, or when it is insolvent, all its creditors are entitled in equity to have their debts paid out of the corporate property before any distribution thereof among the stockholders. It is also true, in the case of a corporation, as in that of a natural, person, that any conveyance of property of the debtor, without authority of law, and in fraud of existing creditors, is void as against them.’ ”

In the case of Wabash, St. Louis & Pacific Railway Co. v. Ham, 114 U. S. 587, the court said that it was also true in the case of a corporation, as in that of a natural person, that any conveyance of the property of the debtor without authority of law and in fraud of existing creditors is void as to them.

In all the cases above cited, and in many others which anight be cited the court expressly recognized that courts of equity have concurrent jurisdiction with courts of law to set aside conveyances of this sort which are made in fraud of the rights of creditors. The plaintiff specifically alleges that the sale of the assets of the corporation was made by the corporation, by Wilson as president and McCoy as secretary, with the other stockholders of the corporation. The complaint alleges that the sale was made in fraud of the rights of plaintiff as a creditor of the corporation, and in this suit it is sought to discover the assets of the corporation and to appropriate them to the payment of the decree of the plaintiff against the corporation. Hence, under the allegations of the complaint, the liability of Wilson and McCoy was joint and several.

Counsel for the petitioner rely upon the principles of law decided in Hatch v. Davis, 101 U. S. 205, 25 L. ed. 885. We do not think that the principles, of law there announced control in this case. The court there said that the presence of all the stockholders might be convenient, but was not necessary. The reason given was that the liability of the subscriber for capital stock of a company is several and not joint. Hence it was held by the court that it was not necessary to make all the stockholders parties to the action in a creditor’s suit to enforce the liability of a stockholder for his unpaid subscription. The Supreme Court of the United States did not hold that, if the other stockholders had been made parties defendant in the lower court, that court would have been without jurisdiction. On the other hand, it recognized that such a course might be convenient and proper in a given case. Unpaid damages due on stock subscriptions are not the primary fund for the payment of corporate debts. Each stockholder is liable on Ms unpaid subscription only for the proportion thereof which is necessary for the payment of the debts of the corporation when the property of the corporation is insufficient for that purpose. To hold the subscriber liable, the creditor must first show that they have exhausted their legal remedies against the corporation without obtaining satisfaction, or that it is insolvent. Fletcher v. Bank of Lonoke, 71 Ark. 1, 69 S. W. 580, and Davis v. Scott, 129 Ark. 226, 195 S. W. 383.

As we have already seen, the assets of the corporation which were disposed of at the time of its statutory dissolution was a primary fund for the payment of its debts, and was subject to be reached either in law or in equity by a judgment creditor in satisfaction of his' debt.

In this view of the matter, we do not regard it as necessary to determine whether § 1728 of Crawford & Moses’ Digest was repealed by § 38 of act 250 of the Acts of 1927. The latter act was" an act to provide for the formation of corporations, the regulation of corporations, and for other purposes. Acts of 1927, p. 854. Both § 1728 of Crawford & Moses’ Digest and ^ 38 of the Acts of 1927, above referred to, were acts regulating the liability of corporations where the capital stock had been withdrawn and returned to the stockholders before the payment of the debts of the corporation. Neither act could enlarge or lessen the ancient jurisdiction of chancery in the premises. The acts could only regulate the chancery practice. In this State, from the very beginning, it has been held that' the jurisdiction of courts of equity under our Constitution is fixed and permanent, and that its .jurisdiction cannot be enlarged or abridged. Hempstead & Company v. Watkins, 6 Ark. 317, 42 Am. Dec. 696; Hester v. Bourland, 80 Ark. 145, 95 S. W. 992; Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579; Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980; and German National Bank v. Moore, 116 Ark. 490, 173 S. W. 401.

The result of our views is that the chancery court of Arkansas County had jurisdiction of the case, which is the subject of this controversy, and the petition for the writ of prohibition must be denied.


author: Smith, J.

text:
    Fender v. Rogers.
    Opinion delivered February 22, 1932.

      Walter L. Pope and W. J. Schoonover, for appellant.

      W. P. Smith and W. M. Ponder, for appellee.
   Smith, J.

This case involves the construction of a certain deed, which reads as follows:

“Know all men by these presents: That I, Albért W. W. Brooks, of the county of Randolph, and the State of Arkansas, have this day, for and in consideration of the sum of one dollar to me in hand paid, the receipt of which is hereby acknowledged, and for the further consideration of the natural love and affections that I have for my daughter, Ellen Rogers, have granted, bargained, sold and given, and by these presents do grant, bargain, sell and give, unto my daughter, Ellen Rogers, the following described lands lying and being in Randolph County. Arkansas,

“To have and to hold during her natural life and then to her bodily heirs, to-wit:

“The west half (W%) section two (2); northeast fractional quarter (NE Frl. %) east °f river, section three (3); northeast quarter (NE1/^) of southeast quarter (SEi/4) of section three (3); south half (S1/^) of southeast quarter (SE%) section three (3); southeast quarter (SE%) of southwest quarter (SW14), section fifteen (15), all in township eighteen (18) north, range two (2) east.

“To have and to hold the same unto the said Ellen Rogers and unto her heirs and legal assigns forever. This deed however is made on this condition, that I hereby reserve unto myself the full control and authority and all the rents and profits which may accrue on said lands during my natural life.

“Witness my hand and seal this the 3d day of October A. D., 1893.

(Signed) “Albert W. W. Brooks.”

The chancellor was of opinion that this deed.from Brooks to his daughter conveyed only a life estate to her, and that the deed which she executed to the ancestor of appellants conveyed only that estate, and that upon her death appellees, her heirs at law, took the fee title by way of remainder. The correctness of this construction of the deed is the question presented for decision on this appeal.

A comparison of the deed set out above with the deed construed in the case of McDill v. Meyer, 94 Ark. 615, 128 S. W. 364, shows that the deeds in the two cases are substantially identical down to the habendum clause, and'what was said in the construction of that portion of the deed in the McDill case is applicable here. The rules of construction there stated were that, if the granting-clause conveys a fee simple .a repugnant provision in the habendum clause which diminishes the estate thus conveyed is void. Carl-Lee v. Ellsberry, 82 Ark. 209, 101 S. W. 407, 12 L. R. A. (N. S.) 956, 118 Am. St. Rep. 60. That at'common law a fee could not be granted by deed without words of inheritance, but by force of our statute (§ 1497, Crawford & Moses’ Digest) “* * * all deeds shall be construed to convey a complete estate of inheritance in fee simple, unless expressly limited by appropriate words in such deed,” but that this statute has no application where appropriate words are used in the deed expressly limiting the grant. It was further said that, while the habendum is the appropriate place in the deed for such limitations, it may appear elsewhere in the deed, and that such limitations or reservations are held to be void only when they are repugnant to or in conflict with the recitals of the interest conveyed in the granting clause; that it was the function of the habendum clause to explain or define the extent of the grant, and that such explanation would be rejected only where there is a clear and irreconcilable repugnance between the estate granted and that limited in the habendum.

It was pointed out in the McDill case that the granting clause there construed did not define the estate granted, and that fact is true here also. It was therefore held in that case, as it must be held here, that there was no repugnancy in the definition of the estate conveyed between the granting clause and the habendum clause, and the interpretation of the deed in that case was arrived at by a construction of the habendum clause. We must resort to the same means here to interpret this deed. There is here not only no conflict between the granting and the habendum clauses, but only in the habendum clause does the grantor define the estate conveyed.

The similarity 'between the two deeds ceases however with the granting clause. In the McDill case it was recited in the habendum clause that if the grantee “ shall die without children'lawfully begotten, then the title to the property herein granted shall revert to one, the said O. F. McDonald, (the grantor) to my heirs, etc.; otherwise to his lawful children. ’ ’

It was held that the language of the habendum clause did not bring it within the rule in iShelley’s case so as to convey an estate in fee simple to the grantee, but that he took only an estate for life. The court found it unnecessary to decide whether the limitation in the habendum clause set out above created an estate tail at common law, which, by force of our statute (§ 1499, Crawford & Moses’ Digest), was effective as conveying a life estate with remainder over in fee simple to the “person to whom the estate tail would first pass according to the course of the common law,” or whether the deed conveyed a contingent remainder to the children of the grantee who survived at the time of his death, as the result would be the same in either case, inasmuch as the grantee was survived by children lawfully begotten.

Here however there appears two clauses, either of which, if it stood alone, would be treated as the habendum clause. These clauses are not void as being in conflict with the granting clause, for the reason which has been stated that the granting clause is silent as to the extent or character of the estate conveyed.

It is true, of course, that, if there were no habendum clause, the deed would be construed as conveying' an estate in fee simple. This by virtue of § 1497, Crawford & Moses’ Digest, quoted from above. But there is an habendum clause; the doubt is whether there are not two.

The first of these clauses contains the recital: “To have and to hold during her natural life and then to her bodily heirs.” If the language just quoted is to be given effect as the habendum clause, then only a life estate was granted to Mrs.- Rog’ers, and her bodily heirs take the fee title, subject to her life estate and subject also to the life estate reserved by the grantor. Wilmans v. Robinson, 67 Ark. 517, 55 S. W. 950.

It is apparent that this deed was written by an untrained hand, and it is a. matter of common knowledge that nearly all persons authorized to take acknowledgments write deeds, and that blanks of all kinds are used for this purpose.

It is significant that this clause does not appear in the part of the deed where habendum clauses are usually found, although that fact is not of controlling importance. It appears in connection with the description of the land conveyed, and following this description another clause appears where the habendum clause would be expected to be found and which reads as follows:

“To have and to hold the same unto the said Ellen Rogers and unto her heirs and legal assigns forever. This deed however is made on this-condition that I hereby reserve unto myself the full control and authority and all the rents and profits which may accrue on said lands during my natural life.”

It must be admitted that these clauses conflict, as one is to the heirs special, whereas the other is to the heirs general, but we have concluded that the second clause is, in fact the habendum clause, and the one to be given effect as such.

We are led to this conclusion, not only from the reasons stated, but from the additional reason that the habendum clause is the appropriate place in the deed where limitations and reservations are expressed, and it is in this second clause that the grantor recites the condition upon which the deed was made, the condition being that, subject to the conveyance to the grantee and her general heirs and legal assigns forever, the grantor had reserved to himself “the full control and authority and -all the rents and profits which may accrue on said lands during my natural life.” If the grantor intended to convey to his daughter only an estate for her life, he made that subject to the life estate reserved in himself; in other words, a life estate to begin upon the termination of another life estate. The deed does not recite the grantor’s intention that his daughter’s life estate shall begin at the expiration of his own life estate there reserved, but such is its necessary effect if only a life estate was conveyed to lier. If such had been his intention, this second clause was the place in which that intention would be expressed, because it was here that he undertook to state the condition upon which the deed had been executed.

We conclude therefore that this second clause should be given effect as the habendum clause, and not the first, and, if this be the proper construction of the deed, it follows that an estate in fee simple was conveyed to the grantee named, subject only to the life estate reserved by .the grantor in himself.

The decree of the court below will therefore be reversed, and the cause will be remanded with directions to enter a decree conforming to this opinion.

Kirby, J., dissents.


author: Kirby, J.,

text:
    St. Louis-San Francisco Railway Company v. Steele.
    Opinion delivered February 22, 1932.

      E. T. Miller, E. L. VJestbroolce, Jr., and E. L. 1Vest-broolce, for appellant.

      W. B. Scott and A. B. Shafer, for appellee.
   Kirby, J.,

(after stating the facts). Appellant contends that the verdict is not supported by the testimony, that the court erred in the giving’ and refusing* of certain instructions, and especially in not setting the verdict aside as having been arrived at by lot.

The testimony is in conflict on certain points, but from it the jury could have found that appellee was the guest riding in the car with the negro, and also that the appellant was negligent in not keeping a proper lookout and giving the signals as required by law at the crossing, notwithstanding the weight of the evidence supported its contention that the usual signals were given. There is no dispute as to the injury or damage, and the testimony is sufficient to support the verdict.

It is next contended that the court erred in not giving appellant’s only requested instruction, which reads as follows:

“You are instructed that, if you find from the testimony in this case that the automobile, on the front seat of which the plaintiff was riding, passed over the track of the defendant ahead of the approaching train in safety, but that the plaintiff, John Steele, jumped out of the automobile on the track of the defendant in front of an approaching train and so near to it that the train could not have been stopped in time to avoid injuring him, the negligence of said Steele in so jumping out of said automobile in front of the moving train was such that it was the sole cause of his injury, and he cannot recover in this action, and your verdict will be for the defendant. ’ ’'

The testimony showed that-appellee was riding in the car with the negro as a guest by his own invitation, it is true, but any negligence of the owner or driver of the car cannot he imputed to him, although he was bound to the exercise of ordinary care for his own safety under the circumstances, and a failure to exercise such care contributing to his injury would have constituted contributory negligence barring a recovery. Graves v. Jewell Tea Co., 180 Ark. 981, 23 S. W. (2d) 972. The requested instruction was virtually a peremptory one, and the court did not err in refusing to give it.

Appellee was required to exercise ordinary care for his own safety under the circumstances, and, if it appeared to him, as it evidently did, that the car was going to be struck by the train, he had the right, of course, to make the effort to get out of the car and avoid the danger, and was not necessarily negligent in attempting to do so, and certainly not guilty of contributory negligence as a matter of law that would bar his recovery, or of negligence at all, if the jury found, as they might have done, that a person of ordinary care and prudence might have made such an attempt in the emergency. No error was therefore committed in the giving of instruction No. 7.

No error was committed in instructing the jury as to comparative negligence, the instruction given being a correct declaration of the law. Section 8575, Crawford & Moses’ Digest.

Instruction No. 10 is a correct declaration of the law that the negligence of the driver of the car in which appellee was riding as a guest, if the jury found him to be such, could not be imputed to appellee, nor was error committed in the giving of instruction No. 12, which is not in conflict with instruction No. 10, as contended by appellant. No. 10 was given on the theory that appellee was the guest of the driver of the car, as the jury could have found, while No. 12 was on the theory that he was engaged in a joint enterprise, leaving the .jury, to determine the question, and was as much bound to the exercise of ordinary care for his own safety as was the driver of the car to the use of such care.

The jury was directed not to take any one of the instructions as the law of the case, but to consider them all as such, etc.

Neither is there merit in the assignment that the verdict was arrived at by lot. Three of the jurors, who did not sign the verdict, which was made by nine of the jurors returning it, testified that each of them was unwilling to return a verdict for appellee, that the nine jurors who agreed to the verdict were in favor of returning a verdict for appellee in different amounts, and that said jurors set down the different amounts each was willing to allow the plaintiff and divided it by nine, and the result was the amount of the verdict returned into court by the nine jurors signing it, $1,737.50. A. C. Oliver, the foreman of the jury, testified that he had no recollection that each of the nine jurors favorine: the verdict wrote down the amount he thought should be returned, the total of which amounts was divided by the number of jurors returning- the amount so reached as the verdict; said, he did not hear the matter mentioned, but, if any such sug-g-estion was made, it was not carried out. It was suggested but was not taken into consideration. He stated that, in the consideration of the matter, some of the .jurors increased their estimate while others lowered theirs, and the verdict was finally reached. In any event, their testimony tends to show it was a quotient verdict, and it could not be impeached by the testimony of any of the jurors, whether they agreed to it or not, as having been reached by lot. Speer v. State, 130 Ark. 457, 198 S. W. 113; Steed v. Wright, 179 Ark. 812, 18 S. W. (2d) 340; Chess & Wymond Co. v. Wallis, 134 Ark. 136, 203 S. W. 274.

A juror cannot be examined to establish a ground for a new trial, except it be to establish as such ground that the verdict was made by lot, and, although the law has been changed allowing a verdict to be returned by nine jurors, the prohibition of the statute against its being impeached by a juror still applies, although the juror so attempting to impeach it did not sign the verdict. Section 3320, Crawford & Moses’ Digest; Southern Ry. Co. v. Simpson, 140 Tenn. 458, 261 S. W. 677.

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


text:
    Tankersley v. Gibbs.
    Opinion delivered February 22, 1932.

      G. E. Morris, for appellant.

      Claude V. Holloway, for appellee.
   Kirby, J.,

(after stating the facts). It is conceded that the balance of the indebtedness due to the Bank of England for supplies furnished appellee was only $252.65 at the time of the purchase by an assignment of the crop mortgage to appellants, and, such béing the case, in the absence of any special provision in the mortgage that might authorize its being a security for any other sum or indebtedness, the tender-of that amount to the assignee by the mortgage debtor and ■ its payment into the court completed the satisfaction of 'the mortgage and discharged the lien thereon, as- the court correctly held. There can be no question of'subrogation0 to the rights of the mortgagee or marshaling of assets under the cir-c um-stances of this case that would permit the assignee.of the mortgage to recover any more, or foreclose the mortgage for a greater or different amount, than would have satisfied it by payment to the mortgagee bank before such transfer, and the court correctly held the mortgage was satisfied and could not constitute a lien in the hands of the assignee upon property included in the mortgage other than the crops, etc.

The decree is affirmed.


author: Mehaffy, J.

text:
    Missouri Pacific Railroad Company v. McLendon.
    Opinion delivered February 22, 1932.

      Thos. B. Pryor and W. L. Curtis, for appellant.

      J. W. Perrymore and Starbird S Starbird, for appellee.
   Mehaffy, J.

The appellee, Harvey McLendon, filed a complaint in the Crawford Circuit Court on January 3,1931, against Sullivan, Long & Haggerty Company. He alleged that the defendants were a construction company operating under the firm name and style of Sullivan, Long & Haggerty Company; that they were nonresidents of the State of Arkansas, and had property in the possession of the Missouri Pacific Railway Company about to be shipped out of the State.

Allegations and interrogatories were filed and a writ of garnishment was issued and served on the garnishee the same day.

Plaintiff alleged that the defendants were indebted to him in the sum of $1,500. The pleadings were not verified, and no affidavit was filed.

The defendant, at the same time, filed a bond in the sum of $3,000, the defendant’s name being signed to said bond by one of his attorneys, and the attorney signed it as surety.

The Missouri Pacific Eailroad Company, on January 22, filed its answer, denying that it had any goods, wares, chattels, moneys, credits, or effects in its hands at the time of the service or at any time thereafter.

On February 3, McLendon filed an affidavit for a warning order and on February 5, the warning order,' was issued and was published, the first insertion being the 6th day of February.

On March 5, the appellee filed a response to the answer of the garnishee denying the allegations in said answer. On March 9 the garnishee filed an amended answer.

Eeport of attorney ad litem was filed on March 10, and also a motion to strike the answer of the garnishee from the files. The report of the attorney ad litem was to the effect that on February 18, he addressed a stamped envelope with his return address printed thereon to the defendants at Birmingham, Alabama, inclosing defendants a copy of the complaint, but that he had received no reply.

On the same day appellee filed a motion to strike appellant’s amended answer from the files, and on the same day, February 18, the garnishee made an oral motion for an order discharging the garnishee, and this motion was overruled by the court.

The garnishee then filed an application to be permitted to defend in the case. In this motion, as well as in its answer, it was stated that on January 5, the defendant tendered shipment of eight cars of second-hand road and paving equipment to the garnishee at Mulberry, Arkansas; that said garnishee issued a bill of lading for the property, which was to be shipped to Lake Providence, Louisiana.

On March 19, the garnishee filed a demurrer to the jurisdiction of the court, alleging that at the time of the issuance and service of the writ of garnishment no suit' had heen commenced, and also that the bond filed by appellee was signed by one of the attorneys of appellee without getting the permission of the court to ber come surety.

The jury returned a verdict for the sum of $750, for which sum judgment was entered against the garnishee. Motion for new trial was filed within the time allowed by the court, which was by the court overruled, exceptions saved, and an appeal prosecuted to this court.

Evidence was taken tending to show the indebtedness of defendants to appellee; and it was agreed by counsel for the parties that there was no original process for the purpose of securing service on the defendant, and it was also agreed that the property shown in the bill of lading exceeded the amount sued* for, including costs.

Appellant discusses several questions, but we find it necessary to' decide but one question, and that is, whether the writ of garnishment was void because at the time it was issued no action had been commenced against the original defendants.

The statute authorizing writs of garnishment reads as follows: “In all cases where any plaintiff may begin an action in any court of record,, or before any justice of the peace, or may have obtained a judgment before any of such courts, and such plaintiff shall have reason to believe that any other person is indebted to the defendant, or has in his hands or possession goods and chattels, moneys, credits and effects belonging to such defendant, such plaintiff may sue out a writ of garnishment, setting forth such claim, demand or .judgment, and commanding the officer charged with the execution thereof to summon the person therein named, as garnishee, to appear at the return day of such writ, and answer what goods, chattels, moneys, credits and effects he may have in his hands or possession belonging to such defendant to satisfy said judgment, and answer such further interrogatories as may be exhibited against him; provided, if the garnishment be issued before the judgment, the plaintiff shall give bond in double- the amount for which the garnishment is issued, that he will pay the defendant all damages that he may sustain by the wrongful bringing of his suit or the issuing of the garnishment.”

It will be observed that this'Statute says that, when the plaintiff may begin an action, a writ of garnishment may be issued.

Was any action begun against the defendants in this case before the writ of garnishment was issued?

Section 1049 of Crawford & Moses’ Digest is as follows: “A civil action is commenced by filing in the

office of the clerk of the proper court a complaint and causing a summons to be issued thereon.”

■ No summons' was ever issued against the defendant in this case, the defendants being nonresidents. No affidavit for a warning order was filed until February 3, a month after the writ of garnishment had been issued.

This court has said: ‘ ‘ There is no statutory provision defining the commencement of a suit where service is constructive and made pursuant to §§ 6055-6 of Kirby’s Digest. But by analogy it seems clear that a suit commenced by constructive service, as authorized by §§ 6055-6, is commenced when the proceedings therein provided for are complied with. In fact, this is a method of summons fitted to a case where-the defendant is a nonresident.” Boynton v. Chicago Mill Lumber Co., 84 Ark. 203, 105 S. W. 77.

Sections 6055-6 of Kirby’s Digest, which were construed by the court, are §§ 1159-60 of Crawford & Moses’ Digest.

The remedy given by garnishment is purely statutory, and the statute must be strictly construed. Beasley v. Haney, 96 Ark. 568, 132 S. W. 646; Trowbridge & Jennings v. Means, 5 Ark. 135; 9 Enc. Pleading & Practice 809; Rood on Garnishment, § 352.

The Michigan court said: “All the proceedings in this case are special and statutory, and must be strictly construed. To entitle the defendant to the benefit he claims under them, he must show they are clearly within the provisions of the statute. Statutes of garnishment, at best, give a “harsh and peculiar remedy,” and ought not to be resorted to when the redress sought may be obtained through common-law proceedings. * * * It further appears from the record in this case that there was not any legal service, actual or substituted, of the process in the principal case. Clearly there was no legal service of any kind of either summons against the principal defendant. The only attempt at service, as returned by the officers, was a copy, and made several days before the return day in the one case, and the adjourned day in the other. This rendered the proceeding void, and gave the court no jurisdiction of the principal defendant.” Iron Cliffs v. Lahais, 52 Mich. 394, 18 N. W. 121.

In the case of McDonald v. Alanson Mfg. Co., 107 Mich. 10, 64 N. W. 730, the garnishment was held valid, although issued after the complaint was filed, but before service, but the court expressly held in that case that under the statute of Michigan a suit is commenced so as to authorize the issuance of a writ of garnishment when the declaration is filed, though the defendant has not been served with process.

Our statute authorizes the writ of garnishment only after an action has been commenced, and this court has expressly held that, where there is constructive service, the action is commenced when the proceedings provided for in the statute are complied with. There is no claim in this case that the statute was complied with before the writ of garnishment was issued and served. The proceeding’s therefore were void. First Nat. Bank of Huttig v. Rhode Island Ins. Co., 184 Ark: 812, 43 S. W. (2d) 535.

Until the affidavit provided for in § 1159 of Crawford & Moses’ Digest has been filed, the court had no jurisdiction, and there was no authority prior to this time to issue a writ of garnishment, and-the writ issued without a compliance with this statute was void. The statute only authorizes the writ of garnishment where an action has been begun, and one would have no more right to a writ of garnishment after filing his complaint but before the action was commenced, than he would have if no complaint had been filed. In order for the writ of garnishment to be valid, the statute must be complied with. The action must have been commenced before the writ can be issued.

The authorities are not in entire harmony, some courts- holding that, if summons is served on the principal defendant before there is any motion made by the garnishee to quash the writ or discharge the garnishee, the garnishment is valid, but under our statute the writ cannot be issued until the action is commenced.

‘ ‘ There must be a strict compliance with the requirements imposed by statute in order that garnishment proceedings may be -sustained, but, conversely, such a compliance with the statute is sufficient.” 28 C. J. 189; Schiele v. Dillard, 94 Ark. 277, 126 S. W. 835.

“A strict compliance with the statutory prerequisites is essential to support the jurisdiction of garnishment proceedings as has already been noted. No presumption of jurisdiction is indulged, particularly as against direct attack, or where there is no personal service, and authority must be found in the law providing for the proceeding for every step taken until jurisdiction is acquired.” 28 C. J. 190.

“ It -follows from the ancillary character of garnishment proceedings that, in order to support them, there must be jurisdiction of the proceeding against the principal defendant. * * * “Where the court has failed to acquire jurisdiction of defendant in the principal action by any of the methods authorized by the statute, garnishment proceedings based on the principal action are void.” 28 O. J. 191-2.

The appellee argues that the garnishment writ would be the beginning of an action, but the action must be begun against the principal defendant. Appellee calls attention to the case of Austin v. Goodbar Shoe Co., 60 Ark. 444, 30 S. W. 888, but the only thing the court held in that case was that the failure of an attaching creditor to file an attachment bond is an irregularity which may be waived by the appellant, and cannot be availed of by a junior attaching creditor to defeat the lien of the prior attachment.

Appellee also calls attention to the case of Smith v. Spinnenweber, 114 Ark. 384, 170 S. W. 84, but in that case action was commenced before the garnishment was issued. It was commenced against several parties as partners, and one of them was actually served before the garnishment was issued. The action was commenced in that case, because under the express terms of the statute, an action is commenced when complaint is filed and summons issued, but this court has never held that a garnishment may be issued before the action is commenced.

Appellee also calls attention to Johnson v. Foster, 69 Ark. 617, 65 S. W. 105, but in that case the court states that the complaint was filed and at the same time affidavit, bond and interrogatories for garnishment. The court also states that the defendant, Foster, was duly summoned by warning order.

While the statute must be strictly construed, there is no difficulty in complying with its provisions and commencing the action before the writ of garnishment is issued. At the time a plaintiff files his complaint, he can cause summons to be issued and thereby commence the action, or if the defendant is a nonresident, he can file his affidavit and cause a warning order to be issued, and in either event he can comply with the statute without difficulty.

It follows from what we have said that the judgment of the circuit court must be reversed, and the cause of action against the garnishee is dismissed.


author: McHanby, J.

text:
    Missouri Pacific Railroad Company v. Taylor.
    Opinion delivered February 22, 1932.

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

      Nat R. Hughes and Bonn Rorex, for appellee.
   McHanby, J.

Appellants claim to be preferred or prior creditors of the American Exchange Trust Company, hereinafter called the bank, under the following state of facts: On November 14 and 15> 1930, the local agent at Little Rock of the Missouri Pacific Railroad Company, having funds in his hands which he desired to remit to his company in St. Louis, Missouri, purchased from the bank two bank drafts or checks aggregating $1,931.31, drawn on a bank in St. Louis where it kept a deposit sufficient to cover same, which were delivered to said agent and by him immediately sent by mail to his company in St. Louis. A like transaction took place between the agent of the Transportation' Company and the bank, the agent being delivered three bank drafts or checks on the same bank in St. Louis, aggregating $264.01 on November 15, 1930. These drafts were never paid, as the bank was not open for business after November 15. Separate interventions were filed by appellants in the chancery court asserting the right to be classified as prior creditors, to which the bank commissioner demurred. The court sustained the demurrer, disallowed the claims as prior, but allowed them as common or general claims.

The chancery court correctly disallowed the claims as prior or preferred and classified them as common or general claims. Act 107 of the Acts of 1927, page 297, -classifies all creditors of the bank of which the commissioner has taken charge as secured, prior or general creditors. There is no contention that appellants are secured creditors, and" a casual reading of said act defining prior creditors shows that appellants do not come within either of the seven subdivisions thereof defining prior creditors. They axe not the beneficiaries of an express trust as defined in subdivision 5, nor the owner of the proceeds of a collection made by said bank and not remitted by it, as defined in subdivision 6, nor are they the owners of a remittance of the bank, the proceeds of a collection made by it, as defined by subdivision 7. The act provides that “All creditors not in this section hereinabove classed as secured or prior creditors of- said bank, including the State of Arkansas and any of its subdivisions, shall be general creditors thereof.”

The authorities relied upon by appellants, such as Darragh Co. v. Goodman, 124 Ark. 532, 187 S. W. 673, Rainwater v. Federal Reserve Bank of St. Louis, 172 Ark. 631, 290 S. W. 69; Taylor v. Corning Bank & Trust Co., 183 Ark. 757, 38 S. W. (2d) 557, are not in point for the reason that they had to do with the proceeds of collections made by the failed bank or with remittances for collections made by such bank. Here the bank made no collection for- appellants. Their agent, instead of sending’ the collections he had already made to appellants in St. Louis in the form in which he held them, whether in cash or otherwise, elected to purchase drafts of said bank drawn on a St. Louis bank and remitted same to appellants in St. Louis in this form. By so -doing appellants became mere creditors of said bank, and the transaction is no different from that decided in the recent case of Taylor v. Dermott Grocery & Com. Co., ante p. 7. We there said:- “Appellee’s situation fails to fit this definition in any respect. The bank made no collection for appellee. Its own agent made the collection from Townsend, presented the check to the bank and asked to and did become its creditor bv taking a cashier’s check. * * * Not being a collection made by the bank, the 6th subdivision of the act has no application. Nor does any other provision of the act defining prior creditors apply.”

The situation of appellants is the same as if its agent had deposited the money in the bank and immediately drawn his check against the deposit and forwarded same to appellants in St. Louis. It was a convenient form in which to transmit the money to St. Louis and one in general usage, but it can make no difference that such is the fact, because appellants became mere creditors of the bank in thus electing to transmit its funds.

The decree of the chancery court is therefore correct, and must be affirmed. It is so ordered.


author: ¡Butler, J. McHaney, J.,

text:
    Texarkana Special School District v. Consolidated Special School District No. 2.
    Opinion delivered February 22, 1932.

      Shaver, Shaver & Williams, for appellant.

      James D. Head and Jones $ Jones, for appellee.
   ¡Butler, J.

On January 17,1931, petitions were filed with the county board of education of Miller County, signed by 2,858 persons purporting to be qualified electors of the territory affected, asking- that the boundaries of Texarkana Special School District'be so changed and extended as to bring within the boundaries of said district all of the territory comprising- and constituting Consolidated School District No. 2, Rural Special School District No. 19, and Common School District NA. 12. On the same day a remonstrance to the petitions was filed with the board, and on that date by consent of all parties the matter was passed until January 24, 1931. On that day, at the request of the petitioners, the board passed said matter and set it for hearing and trial for the 7th day of March, 1931. The notices required by law to be given in such proceeding’s were first posted on the 29th day of January, 1931. It is conceded that the notices were in proper form and posted in the manner required by law.

On appeal to the circuit court from the order of the county board of education granting- the prayer of petitioners, the petition was dismissed, and the order of the court directed to be certified to the county board of education to the end that the order of consolidation theretofore entered by it be set aside and annulled. On appeal to this court, there is but a single question presented: was the notice posted within apt time? It is the contention of the appellants that the notice required can be given either before or after the filing of the petition, while the appellees urge, and the circuit court found, that the notice must be posted before the filing of the petition asking for the consolidation.

The law making provision for the giving of notice is found in § 8821 of Crawford & Moses’ Digest, and is as follows: “"When a change is proposed in any school district, notice shall be given by parties proposing* the change by putting up handbills in four or more conspicuous places in each district to be affected, one of said notices to be placed on the public school building in each affected district. All of said notices to be posted thirty days before the convening of the court to which they propose to present their petition. Said notices shall give a geographical description of the proposed change.”

This statute was written at a time when the jurisdiction relating to the dissolution or change of boundaries of school districts lay in the county court. The act creating the county board of education changed the tribunal authorized to act and not the method of procedure. Therefore, the requirements of the notice remain now as before, the only difference being that “county board of education” is to be substituted for “court.” Mitchell v. Directors School Dist., 153 Ark. 50, 239 S. W. 371.

It is insisted by the appellants that this court has virtually construed § 8821, supra, in conformity with their view. They cite Rural Special School District No. 11 v. Baker, 144 Ark. 397, 222 S. W. 732; Acree v. Patterson, 153 Ark. 188, 240 S. W. 33; Nathan Special School Dist. No. 4 v. Bullock Springs Special School District No. 36, 183 Ark. 706, 38 S. W. (2d) 19, and Priest v. Moore, 183 Ark. 999, 39 S. W. (2d) 710; and call attention to the facts of those cases by which it appears- that the notice was given after the filing of the petition, and they argue that, since each of these cases held that the notice was sufficient and properly given, the question in the case at bár was settled by the court according to their contention now made. On the .contrary, the- appellees take the position that the question was settled according to their view in the case .of Lewis v. Young, 116 Ark. 291, 171 S. W. 1197. A careful review of these- cases and the points therein decided does not sustain either the appellees or the appellants in their respective views.

The point for decision in the case of Rural Special School District v. Baker, supra, was the sufficiency of the petition, and the question of the time in which the notice - should be filed was not involved. So, in Mitchell v. Directors, etc., supra, there was no question before the court as to the time when notice should be given. In that case the court merely held that the section requiring notice to be given was not repealed by subsequent legislation, and that the notice required was jurisdictional. In Acree v. Patterson, supra, practically the same question relating to- the notice was before the court as in the Mitchell case. In Nathan Special School District v. Bullock Springs Special School District, supra, the sufficiency of the notice was questioned merely on the ground that it was signed by four only of those who- had signed the petition, the contention being that the notice to meet the requirements of the law should have been signed by all of the petitioners. In Priest v. Moore, supra, the question -of notice did not arise at all,,the court in that case merely holding that more than one petition on the question of consolidation of school districts might be circulated, and the county board of education might hear them together, and it was within the sound discretion of the board to determine matters necessary to the formation or consolidation of school districts, and its order is subject to review only when arbitrary or unreasonable.

These are the decisions relied upon by the appellants, and it will be observed that in none of them was the- point presented which is now before us.

The case of Lewis v. Young, supra, was an appeal from the order of the circuit court sustaining that of the county court creating a new district from portions of the territory of two districts, No. 3 and No. 64. The notice prescribed by the statute was posted in District No. 3, but there was no notice posted in District No. 64, but all of the electors in District No. 64 signed the petition. The question was, did the fact that all of the electors of District No. 64 signed the petition give the court jurisdiction to take a part of the- territory embraced in that district and transfer it to another district, although no notice had been posted as required by the statute? The court held that the giving'' of the notice was a prerequisite to the exercise of jurisdiction by the county court and must be given, even when all of the electors had signed the petition.

We have been unable to find any ease where we have been called to pass upon the question we are now asked to decide. Therefore, none of the cases cited are controlling in the instant case, and we are remitted to the statutes providing for the change, dissolution or consolidation of school districts for a determination of the proposition now involved. 'Section 8821 of the Digest was a part of the act of April 8, 1891, which provided that “the boundaries of school districts in counties shall ■be and remain as now established except that [the] county court shall have power to alter the same whenever a majority of the citizens residing therein shall petition the court so to do; but in all changes due regard shall be had to the convenience of the citizens and all the territory in the county shall be embraced in said school districts.”

By act of April 1,1895, the county courts were given power to dissolve any school district and attach the territory of the same in whole or in part to an adjoining district or districts “whenever a majority of the electors residing in such district shall petition the court so to do.” In the following section of the act it was provided that, “when such dissolution is proposed, notice shall be given by those proposing the same by posters in four public places in the district, said notices to be posted thirty days before the meeting of the term of the court at which such petition is proposed to be presented.”

The act of March 11, 1919, conferred upon county boards of education {% 8823, Crawford & Moses’ Digest), the right to form new school districts or to change the boundaries thereof upon a petition of a majority of all of the electors residing upon the territory of the districts to be divided. At the 1927 session of the General Assembly act No. 156 was enacted amending § 8823, supra, and providing that, “upon a petition being filed with the county board of education signed by a majority of the qualified electors in the territory to be affected, said county board of education of any county within the State of Arkansas shall have the right to form new school districts and to change the boundary lines between any school district heretofore formed where, in the judgment of such board of education, it would be for the best interest of all parties affected, provided, however, that no change shall be made that would impair any outstanding indebtedness of any school district now formed.”

The only requirements for notice are those provided for in the act of April 8, 1891 {% 8821) and in the act of April 1, 1895 (§ 8870) which have been quoted above. It is pointed out by the appellants that in neither of the sections requiring* the giving of notice is there any provision for giving* or posting the notice prior to the filing of the petition, and it is contended that, since the giving of the notice is jurisdictional, if the Legislature intended the notice to be given prior in point of time to the circulation and filing of the petition, it would have so stated in plain words, and, because this was not done, it must be presumed that no such requirement was intended. It will be observed, however, that in none of the legislation providing for dissolution, change or consolidation of school districts is there any time mentioned at or in which the petition shall be filed in the court or before the board, or any specific provision made regarding the time in which the petitions .should be circulated for the signatures of the electors. In order, therefore, to determine the meaning of the provisions of the law requiring the posting of the notice, the; fact that no specific time is fixed for the circulation and filing of the petition becomes important when the purposes for which a notice is given are considered.

The effect of our decision in Williams v. Citizens, 40 Ark. 290, and McCulloch v. Blackwell, 51 Ark. 164, 10 S. W. 259, is that the signing of petitions, such as the one in the instant case, is in the nature of an election an*l equivalent to a vote cast which, after the filing of the petition, becomes irrevocable except for deception and fraud. Nathan Sp. School Dist. v. Bullock Springs Sp. School Dist., supra. In tfiat case we said: “The only purpose the notice serves is to inform those interested of the nature and effect of the proceeding and the date upon which it would be submitted for hearing.” The persons interested are not only those who reside in the territory affected, but those who. might reside elséwhere and own property within the affected territory whose interest may be even greater than many of the electors who actually live therein. Of course, all those who have children are interested and all persons, whether electors or not, who reside within the territory affected.

In the case of Lewis v. Young, supra, after having held that the notice prescribed by the statute was a prerequisite to the exercise of jurisdiction, the court said:

. “This principle of law is recognized by counsel for appellee, but they contend that it is not applicable under the facts in the present case because all of the electors residing in District No. 64 signed the petition and to have given notice would, they say, have been a useless thing. But it may be that property owners within District No. 64 did not reside within the district, and therefore did not sign the petition. They were interested in the question as to whether or not a school district in which their property was situated should be dismembered, and for that reason notice should have been given, so that, in the event they saw fit to do so, they might have used whatever influence they might have had with their tenants and other electors residing within the district to cause them not to sign the petition.”

It appears from this language that the court attached great importance to the right of those interested to prevent, if they saw fit and could do so, the signing of the petition by those with whom they might have influence, and, of course, they would be deprived of this right if the petition had been signed and filed before they had notice that such would be circulated; and, as the filing of the petition concludes the right of withdrawal by the signer. except for fraud, his vote would have become irrevocable^ and the notice would be useless for the purpose indicated in the ease last cited. Also,, as the board had discretion to deny the prayer of the petition, although a majority might have signed it, the notice of the date upon which it would be submitted would also be important.

The question presented is one which we find difficulty in answering, but we have concluded that, since the statutes are silent as to the date on which the petition should be filed, the better view is that the Legislature intended that it be not filed before its presentation, and the words “present their petition” were equivalent to the words “filing their petition.” It is argued that the language of the act regarding notice is unambiguous, but we think, when the statute of 1891 is considered as a whole, there is an ambiguity which requires construction, and that we must read the section applicable to the notice in the light of the section preceding. State v. Hanna, 131 Ark. 129, 198 S. W. 881; Rayder v. Warrick, 133 Ark. 491, 202 S. W. 831; Gardner v. Hughes, 136 Ark. 332, 206 S. W. 678.

The decisions of this court in the cases of Williams v. Citizens and McCulloch v. Blackwell, supra, had been rendered prior to the passage of the act of 1891, and the Legislature, in passing this act, is presumed to have known -these decisions, and that the act of signing the petition after the same was filed was irrevocable, and that they acted in the light of those decisions. Rhodes v. Cannon, 112 Ark. 6, 164 S. W. 752; Merchants’ T. & W. Co. v. Gates, 180 Ark. 96, 21 S. W. (2d) 406, and intended that the petition be filed as of the date of its presentation and the notice be given thirty days before.

It is argued by the appellants with much force that, since the statement of facts in the cases cited and relied on by them show that the notice was published after the filing of the petition, those decisions inferentially held that the notices with respect to the time limit and the relation they bore to the filing of the petition were sufficient. But, as we have seen, the point in issue here was not before the court in those cases and was not considered or decided. “It is a maxim not to be disregarded that general expressions in every opinion are to be talcen in connection with the case in which these expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented. The reason of this maxim is obvious. The question actually before the court is investigated with care and considered in its full extent. Other principles, which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.” Marbury v. Madison, 1 Cranch 137, cited with approval in Cooper v. Freeman Lumber Co., 61 Ark. 36, 31 S. W. 981, 32 S. W. 494.

Affirmed.

McHaney, J.,

(dissenting). I agree with the majority that the court has never directly decided the question as to the time of giving the notice, 'but 'it has done so inferentially in all the cases cited by appellant and in many others. The statute, § 8821, needs no construction. In express terms it fixes the time for giving the notice. “All of said notices to be posted thirty days before the convening of the court (now county board of education) to which they propose to present their petition.” There is nothing ambiguous about that. In all the cases which have come to this court, it is not shown in one of them that the notice was given before the filing of the petition. In many of them the notice was given after the petition was filed. The statute is so plain that it has never been questioned before. I do not now understand whether the majority is holding that the notice must be given before the petition is circulated or whether all that is required is to give it before the petition is filed. I think we are upsetting many former decisions and impairing the organization of many districts. Mr. Justice Humphreys agrees with this dissent.