text:
    Arrington v. King.
    Opinion delivered May 20, 1929.

      D. L. Ford, for appellant.

      O. C. Garter, for appellee.
   Kirby, J.,

(after stating the facts). The appellants insist that the court erred in not giving their requested peremptory instruction, and that the verdict of the jury is not supported by the evidence. In support of this assignment they insist that appellee acquired no title to the note which the payee hank, through its cashier, sold and delivered to her, because such sale and delivery was made without authority given the cashier by the board of directors to make such sale.

There is nothing in appellant’s contention that the sale and indorsement of the note to appellee was. void, being made by the cashier without written authority from the board of directors authorizing it. Under the law as amended the cashier could sell and indorse this note owned by the bank, in due course, without any authority first given by the board of directors of the bank and reflected in a written record made thereof. Section 700, C. & M. Digest, § 3b of act 113 of 1913, was amended by § 18, act 647 of 1923, leaving out entirely the words “indorse, sell,” and the court, construing this amending act, expressed doubt of the intention of the Legislature to repeal the statute, and limited the requirement to pledges of the bank’s paper as collateral security, saying:

“ * * * But we are of the opinion that it may be inferred from the language in the first part of the section that pledges of collateral security for loans or redis-counts of the bank’s paper are prohibited and made void without the prior action of the board authorizing it, and we so hold, regardless of the loose manner in which said section is drawn.” Grand National Bank of St. Louis v. Taylor, 176 Ark. 1, 1 S. W. (2d) 818.

The undisputed testimony shows that the appellant’s note had been sold and indorsed by the bank and delivered to appellee by its cashier, and was not in the possession of or owned by the bank when either of the amounts paid by the maker to the bank and later credited on the note was made. It was also undisputed that the checks sent by Arrington, one of the makers of the note, in making the payments thereon, were made payable to the order of the People’s Bank, to which they were sent. These amounts, as the bank records show, were credited to the account of Arrington on the dates of their payment, and he was doubtless given deposit tickets showing such credits; in any event he made claim against the bank after its failure for the money so paid, and received dividends upon the amount of the allowance. The fact that appellee also made a claim, after the bank’s failure, for these amounts and was paid dividends thereon, could only have tended to show that the bank was acting as agent for her in the collection of the money, but the jury found in her favor on that point, upon substantial testimony amply supporting their verdict. She only recovered a judgment for the balance due on the note after crediting the amount of the dividends paid to her by the Bank 'Commissioner of the insolvent bank on the claim for the amount of the payments made by the maker of the note which were credited to him on the books of the bank.

There was no error in this instruction, since the failed bank was responsible to the maker for the amount paid in and credited to him on the books, which could be reduced by the amount of the dividends paid from the assets of the bank, upon the claim of appellee, to whom the maker claimant was bound to pay the same. The makers of the negotiable promissory note could not assume that it was still held by the bank to whom it was given, and discharge their obligation by partial payments to the bank, when it was no longer the holder thereof. People’s Savings Bank v. Manes, 136 Ark. 215, 206 S. W. 315; Miles v. Dodson, 102 Ark. 422, 144 S. W. 908, 50 L. R. A. (N. S.) 83.

As already said, the jury found against appellants on the question of the authority of the bank to receive the payments on the note for appellee, the owner, upon substantial testimony, if not the preponderance of the evidence, and its finding cannot be disturbed.

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


source: Caselaw Access Project

author: Kirby, J.

license: Public Domain

text:
    Supreme Lodge Woodmen of Union v. Johnson.
    Opinion delivered May 20, 1929.

      H. K. Toney, for appellant.

      J. D. Shacldeford, for appellee.
   Kirby, J.

The question presented by this appeal for determination is whether error was committed by the trial court in refusing to vacate a judgment rendered in behalf of appellee on the 7th day of November, 1928.

Appellee brought suit against the appellant to recover $500' on a fraternal benefit certificate issued to one Margaret Medloclc, in which he was named beneficiary.

Appellant’s answer denied that the insured was a member of the order at the time of her death, and that she carried a policy in said order in that sum; denied any indebtedness to plaintiff, and alleged that Margaret Medlock carried a policy of insurance in the order for the sum of $215 at the time of her death, issued on the 30th day of October, 1926, and had been a member of the order at the time of her death for a period of less than one year. That the policy was on a graded plan or basis, and only $35.83 was due and payable thereon at the time of the insured’s death, which sum was paid to and accepted by the plaintiff on the 10th day of November, 1927, and that appellant had discharged all of its obligation in such payment. A copy of the policy was attached as an exhibit to the answer.

The case was set for trial on the 7th day of November, 1928, and called at 9 a. m. of that day, when plaintiff and his witnesses appeared, and, in the absence of appellant’s attorney, proceeded with the trial and recovered judgment thereon. Appellant’s attorney reached the court at 1:35 p. m. of that day, and, learning that judgment had been rendered in the cause, immediately filed a motion to vacate and set it aside, alleging that its attorney lived at Hot Springs, Arkansas, and left there at 6:30 on the morning of the 7th of November, 1928, the date set for the trial, in a practically new Dodge car, in good condition, with a competent and experienced driver, and that, because of the heavy rains that morning rendering defective the roads, his car stuck in the mud within 12 miles of Pine Bluff. That he had to have it pulled out with a team, and had to detour some 8 miles over a bad road under repair, and by way of Sheridan, and on that account was unable to reach the court until 1:35 p. m. on the day of the trial. In said motion, as a defense to the action, appellant offered to prove that the insured, Marg'aret Medloek, allowed her policy to lapse on the first Monday in October, 1926, for failure to pay a premium, and that she failed to pay premiums for the months of September and October, 1926, and then rejoined the Union in November, 1926, and was issued a new policy of insurance at the time, of the face value of $215 on the adequate rate plan, a copy of which was made an exhibit to the motion.

The affidavit of the chauffeur was also filed as an exhibit, and the testimony showed that the failure of appellant’s attorney to arrive at the opening of court was due to the causes alleged in the motion, and that he was proceeding by the usual and customary method of transportation, and would have been on time but for the accident resulting from the excessive rains and bad condition of the roads. There was testimony also tending to support the allegations of the answer and in support of the allegation of the defense set up in the motion.

On the 22d day of December the appellee filed a reply to the motion to vacate the judgment, alleging negligence of the appellant in not having his motion sooner passed on, but no proof was offered in support of the motion. On that day the court overruled the motion to vacate the judgment, appellant’s exceptions were noted, and he filed a motion for a new trial within the time allowed, setting up as one of the grounds therefor the overruling of its motion to vacate the judgment. The motion for a new trial was overruled, and the case is here on appeal.

Appellant’s motion to vacate and set aside the judgment because of the inability of its counsel to be present at the trial was filed immediately on the arrival of his attorney, showing a sufficient reason for his failure to appear. A valid defense to the cause of action was set up in the answer on file in the case, as well as in the motion to vacate the judgment, and proof was introduced in support thereof.

Under the -circumstances of this case, we think the showing made was sufficient, and that the court should have granted the motion to vacate and given appellant an opportunity to try the cause upon its defense as alleged. There was certainly no negligence or delay of appellant in its filing a motion to vacate the judgment rendered in the absence of its counsel, without fault, and the court erred in not granting the motion. The court had inherent power, during the whole of the term at which the .judgment complained of was rendered, and which remained subject to its plenary control, and could have been vacated, set aside, modified or annulled upon a proper showing made. Wells Fargo & Co. v. Baker, 107 Ark. 415, 155 S. W. 122; Waldo v. Thweatt, 64 Ark. 126, 40 S. W. 782.

For the error of the court in refusing to grant the motion to vacate and set aside the default judgment, its judgment is reversed, and the cause remanded for a new trial.


author: Mehaffy, J.

text:
    Arkansas Power & Light Company v. Decker.
    Opinion delivered May 20, 1929.

      Robinson, House & Moses, for appellant.

      Albert W. Jernigam and H. B. Mecms, for appellee.
   Mehaffy, J.

The appellee filed her complaint in the Hot Spring Circuit Court, and the cause was after-wards transferred to chancery court by consent. She alleged that she was the owner of all sand and gravel situated and being on the following described land, in the State of Arkansas, and the county of ¡Hot Spring:The south half of the southwest quarter of section 30, township 3 south, range 17 west; the northeast quarter of section 36, township 3 south, range 18 west. That the Arkansas Power & Light Company is engaged in the operation of an electric power plant for the production and distribution of electricity for sale, and is doing business in Hot 'Spring County, Arkansas. That the appellant constructed and built a large power dam across the Ouachita River at Cove Creek, in Hot Spring County, Arkansas, and in the construction of said dam it used 300,000' yards of gravel and sand from appellee’s land. That, after the construction of said dam, the Arkansas Light & Power Company was reorganized, and the Arkansas Power & Light Company took over its assets and became liable for its liabilities, and that it is now doing business under the name of Arkansas Power & Light Company.'

It is alleged that the appellants fraudulently entered into collusion to deprive plaintiff of the value of the gravel and sand removed from her lands and used in the construction of the dam, and without authority of law, and without the knowledge of appellee, took from her premises 300,000 yards of gravel and sand which was of the market value of ten cents per cubic yard, being of the aggregate value of $30,000. Appellee alleges that she was not apprised that the defendants had taken her gravel and sand, and had no information about it until some time in 1927.

The defendants filed answer, denying the material allegations in plaintiff’s complaint, and stated that Walter S. Kirkham, under whom appellee claimed, .had secured a deed from York by false and fraudulent representations, without paying any consideration; that York never delivered his deed to Kirkham, but that Kirkham fraudulently got possession of it and had it recorded. It is further stated that John H. York and those claiming title through him have had actual possession of said property since 1913.

Appellee filed an amendment to lier complaint, alleging that the Arkansas Power & Light Company was a willful and wanton trespasser, and she was entitled to recover the market value of the gravel and sand after it was washed and screened, which was $1.25 per cubic yard.

The decree recites, among other things, that judgment was taken by default, and the cause submitted on the complaint of the plaintiff, the answer of the defendants, the summons, and the evidence adduced by plaintiff, together with the exhibits thereto and documents therein contained, together with the correspondence relative to the submission of this cause. And the court finds that this day is the date regularly set for the trial of this cause, and that the defendant has been duly served with summons on the 15th day of December, 1927, being more than 20 days before the first day of the present term of this court, and that it has failed to defend herein. The court then finds in favor of the plaintiff in the sum of $2.7,500.

Thereafter the appellant filed a motion asking that the judgment entered against it be vacated and set aside, and that it be permitted to file its depositions and offer proof in defense of the action, and with this motion filed the affidavit of Mr. W. H. Holmes, attorney for appellant, to the effect that he had had a telephone conversation with Mr. H. B. Means, attorney for the plaintiff, and that he understood the case would not he tried that day. The court heard this motion, which it overruled, and granted the defendant an appeal to the Supreme Court.

Mrs. L. M. Decker testified, in substance, that she was the owner of the sand and gravel on the south half of the southwest quarter of section 30, township 3 south, range 17 west, for which she paid $1,000 to Walter S. Kirkham. She had never seen Mr. York nor the property, and she learned in the fall of 1927 that the Arkansas Power & Light Company had removed the sand and gravel. She testified that she met Kirkham some time in 1913 and also in 1914, but that his whereabouts for the past 14 years have been unknown to her. She knew nothing about Kirkham paying Mr. York $1,000 or having given him a note. In 1913 her home was in Ripley, Tennessee, but since 1914 she has been living in Corpus Christi. She never had any other business transactions with Kirkham. She and her mother visited in Hot Springs in 1913, at the time she purchased the property.

John Inglis, a witness for plaintiff, testified, in substance, that he and W. F. McKnight were both employed by the Caddo River Power & Irrigation Company in June, 1922. That this company was operated in conjunction with the Arkansas Light & Power Company. He was present on June 9, 1922, when W. F. McKnight took an option deed from York on certain lands. York advised McKnight that he had given Kirkman an option to the sand and gravel, and explained the transaction to McKnight, but witness did not pay any attention.' The gravel used by the Arkansas Light & Power Company was taken from the land of John H. York, Sr., which was the southwest quarter of the northeast quarter of section 36, and the land of John H. York, Jr., which was the northwest quarter of the northeast quarter of section 36. Witness was in York’s when Kirkham got his option renewed.

J. H. York testified for the plaintiff that he was formerly the owner of the northeast quarter of sectibn 36, and that he had given McKnight an option, and later gave the Arkansas Light & Power Company a warranty deed. He told McKnight that he had sold the gravel pit to Kirkham, but that Kirkham had not paid him. Part, of the gravel used in the construction of the Rernmel Dam was taken from the southwest quarter of the northeast quarter of section 36 and part was taken from the northwest quarter of the northeast quarter of section 36.

E. H. Barker, a witness for plaintiff, testified, in substance, that he was employed by the construction company which 'built Rernmel Dam; that his checks were from the Arkansas Power & Light Company. He was foreman of the gang which removed the gravel. There was a trolley line running from the gravel bar to the washer at the dam, and a drag’ line dug the gravel ont of the pit and dumped it into the hopper. It was carried from the hopper to the dam on a trolley line consisting of 24 buckets, running on a continuous chain. Each of the buckets had a capacity of one-half yard. The buckets would malee a complete revolution in • thirty minutes. They worked ten hours a day and a great deal of overtime at nights. Most of the gravel -came from old man York’s land, and was used in the construction of Bemmel Dam. They worked seven days a week, in all kinds of weather, and'the machine was run on an average of ten hours a day for eighteen months. Witness did not keep any record or make any reports of his work. There were from seven to twenty men working under him. Witness thought that from 50,000 to 60,000 yards of gravel and sand went into the dam. It might have been more or less. He did not keep any record, and never heard any one state the number of cubic yards of concrete in Bemmel Dam.

Sam Bittles testified for the plaintiff that he was engaged in the concrete construction business,- and resided in North Little Bock. The market value of gravel is 80 cents per ton, and the market value of sand is 60 cents per ton. This would amount to about one dollar per cubic yard for gravel and 75 cents for sand. Witness ’ prices on local sand and gravel are based on the prices at Benton, Arkansas. The price of sand and gravel was higher in 1924 than now. Witness has given the retail prices on sand and gravel. The values depend largely upon the use intended. The value of a deposit of gravel is determined by what it can be used for. It costs from 20 cents to $1 per yard to remove sand and gravel from the pit. The location and the expense necessary to transport it to the place where it is used and the quantity available largely determine the price it brings.

S. H. Leiper testified that fie was State Higfiway Inspector, and lived at Malvern, Arkansas. He sold the Arkansas Light & Power Company the site for Remmel Dam, and is acquainted with the lands along the Ouachita River. The gravel used for constructing the dam was taken from the southwest quarter of the northeast quarter and the northwest quarter of the northeast quarter of section 36, township 3 south, range 18 west. Witness was present a number of times when gravel was being taken off the bar and used in the dam. It was suitable for construction purposes, and stood the test of the Van Trump' Testing Laboratory in Little Rock. It is about seven-eighths of a mile from this land to Cove Creek, a shipping station on the main line of the Rock Island Railroad.

This was all the testimony introduced by the plaintiff; and, as the decree recites, the case was decided on the evidence introduced by the plaintiff, and the evidence taken by defendants was not considered — in fact, had not been filed when the decree was rendered.

The only evidence tending to show the amount of sand and gravel taken was the testimony of E. H. Barker, who testified that he did not keep any record or make any reports, but that he believed there was from 50,000 to 60,000 yards of sand and gravel in the dam. He said, however, it might have been more or less. And the only evidence as to the value of the sand and gravel was the evidence of Sam Bittles, who lived in North Little Rock, and testified as to the market value. He said the market value of gravel is 80 cents per ton and of sand is 60 cents per ton; that this would amount to about one dollar per cubic yard for gravel and 75 cents for sand; that his prices on local sand and gravel are based on those at Benton, Arkansas, and that the prices he had given were the retail prices of sand and gravel. It appears therefore that there was no evidence from which the court could have found the market value of the sand and gravel except the evidence of Bittles, who testified about the retail price. Of course this would he no evidence of the market value at the time and place it was taken.

“The measure of damages recoverable in trespass for the wrongful working of a mine is affected largely by the circumstances of each case, and depends upon whether the wrongful act was done willfully and with the knowledge of the violation of another’s rights, or innocently and through the wrongdoer’s mistaken belief as to his rights. It is the prevailing rule that, in an action of unlawfully working a mine and extracting coal or ore therefrom, if the taking was not a willful trespass, but the result of an honest mistake as to the rights, of the wrongdoer, the measure of damages is the value of the coal or ore as it was in the mine before it was disturbed. The recovery in such case is limited, first, by the value of what is taken, and second, 'by the cost of mining, extraction and hauling to the surface. To this is sometimes added the cost of milling, while under other authorities nothing* additional is allowed for separating or other acts necessary to render it marketable. ' Another rule is that, where the trespass is unintentional, the measure of the damages is the value of the mineral in the bed, with the incidental injury to the land. When the wrongdoer commits the trespass willfully and with the knowledge that he is invading the rights of another, or under such circumstances as to charge him with knowledge of the character of his act, a different rule obtains. In such case the measure of damages is the value of the thing mined at the time of severance, without making deduction for the cost of labor and other expenses incurred in committing the wrongful act; and at times exemplary damages may be allowed in addition to compensatory damages.” 18 E. C. L. 1266.

The rule, however, is well settled by the decisions of this court. This court has followed the rule above announced, with reference to the measure of damages. If the trespasser was innocent, believing he had a right to take the ore, the measure of damages would be the value of the sand and gravel taken in the ground. If, however, the trespass was willful, the other rule applies.

This court said: “Under these circumstances it is clear that, being willful trespassers, they were liable to the plaintiffs for the full value of the ties at the time of the sale and conversion, and, had they been sued, would have been entitled to no reduction on account of labor and expense. The rule would have been different had they been innocent of intentional wrong, the reasons for which are fully explained in the opinion in a recent case decided by this court.” Central Coal & Coke Co. v. John Henry Shoe Co., 69 Ark. 302, 63 S. W. 49; Eaton v. Langley, 65 Ark. 448, 47 S. W. 323, 42 L. R. A. 474; Fitzgerald v. Chicago Mill & Lbr. Co., 176 Ark. 64, 3 S. W. (2d) 30, 57 A. L. R. 444.

.Since there is no sufficient proof of the amount of sand and gravel taken and no sufficient proof as to its market value, the case will have to be reversed. It is argued by appellee that the decree is sustained by the law and the evidence, and appellee quotes .from and argues the testimony of E. C. Lynch, appellant’s engineer. But this evidence was not considered by the court. In fact, the depositions had not been filed at the time the decree was rendered, and we have only considered the evidence here that was considered by the court below. It will therefore be necessary for the appellee to take further testimony as to the amount of sand and gravel taken and the market value of the same, and, if the testimony taken by the appellant is considered, together with any other testimony that it may wish to take, the court can then determine whether the trespass was willful, and can determine which rule of damages is applicable.

•Since we have reached the conclusion that the case must be reversed and more evidence taken, it is unnecessary to discuss or decide the question as to the misunderstanding of the attorneys. This will probably not occur again.

The decree of the chancellor is reversed, and the canse remanded, with directions to permit the parties to fully develop the case, and for further proceedings not inconsistent with this opinion.


text:
    Upson v. Robison.
    Opinion delivered May 20, 1929.

      John N. Cook, for appellee.
   Mehaffy, J.

The appellee filed suit in .the municipal court of Texarkana, Arkansas, for the sum of $30 which she claimed the appellant owed her for rent. She filed the following in the municipal court:

“Texarkana, Ark.-Tex., Oct. 17, 1928.
“Mr. F. J. Upson, in account with Mrs. W. M. Bobison.
‘ ‘ Office telephone 281. Home telephone 466.
“1928 2604 Hazel Street, Texarkana, Tex.
“October 17. To one month’s house rent, beginning September 14, 1928, and ending October 14, 1928, at $30 per month, $30. Filed -Oct. 17, 1928.”

In the municipal court at Texarkana no written pleadings are necessary. That court is governed by the same statute that governs pleadings in the justice of the peace court.

Section 6427 of Crawford & Moses’ Digest reads as follows: ‘ ‘ The pleadings in the action may be written or oral, and without verification, but, if oral, it shall be the duty of the justice of the peace to write down the substance thereof in his docket, and all cross demands or set-offs shall be made, if at all, at the time answer is put in.”

That refers to the pleadings both of the plaintiff and of defendant. The transcript shows that the defendant filed no written pleadings, but the municipal judge put on his docket: “Answer in short, defendant denying claim.” It therefore appears from the record that there was a suit for a debt claimed to be due, and the defendant did not plead any counterclaim or set-off, but merely denied owing the debt. In other wiords, as stated by the municipal judge, his plea was a denial of plaintiff’s claim.

There was very little conflict in the evidence. The undisputed proof shows that the appellant rented the house from appellee, and promised to pay her $30' a month, and began by paying in advance. There is then a controversy about whether repairs were necessary, and also as to whether repairs were made, but we think this is immaterial, because there was no claim fior .set-off or counterclaim pleaded in the lower court. And if appellant had any claim against the appellee, it was his duty to plead it in the lower court. Since appellant did not plead any counterclaim or set-off in the municipal court, he could not plead it in the circuit court.

Section 6529 of 'Crawford & Moses’ Digest reads as follows: “The same cause of action, and no other, that was tried before the justice shall be tried in the circuit court upon the appeal, and no set-off shall be pleaded that was not pleaded before the justice, if the summons was served on the person of the defendant. ”

The appellant contends, first, that the court had no jurisdiction for the following reasons:

“ (1) Because the action is a local action under the laws of the lex loci contractus and the domicile of the parties; (2) that the action, under appellee’s theory of the case, is penal in its nature; (3) that it pertains or relates to real property; (4) that it would be against the public policy of the .State of the forum to do so.”

As to the first contention, that it is a local action under the Texas laws, appellant calls attention to the statutes of Texas, one of which provides that no person who is an inhabitant of the State of Texas shall be sued out of the county in which he has his domicile, etc. That means, of course, in the courts of Texas. The Arkansas statute provides that a person shall be sued in the county where he resides or where service might be had upon Mm. But no one would contend that, if one owed another an account, or had given a promissory note and the parties were' in some other State, suit might not he brought wherever service could be had on the defendant.

The other statutes quoted and relied on by appellant are statutes of Texas for the enforcement of a landlord’s lien, or statutes that give tenants a right in certain cases. A sufficient answer, we think, to the argument on this question and these statutes is that the appellee was not seeking to enforce a lien under the Texas laws, but was simply suing on a debt which she claimed appellant owed her. It is also true, under the statutes of Arkansas, that suits with reference to real estate must be brought in the county where the land is situated. But if A should purchase a tract of land from B and give a promissory note for the purchase money, it would not be contended that suit on this note might not be brought anywhere. Of Course a lien on the land could be enforced only in the county where the land was situated. That would be true of a promissory note secured by a mortgage on real estate. If the mortgagee desired to foreclose his mortgage, to enforce his lien, this could only be done in the county where the mortgaged land was situated, but he might waive any right he had to foreclose or any lien that he might have, and sue the maker of the note wherever he could get service on him. This is exactly the case here. Under the statutes of Texas the appellee would have had a lien for rent due her, but she is not seeking to enf orce the lien, but simply seeking to collect a debt which she claims appellant owes her.

It is next contended by appellant that the action under appellee’s theory of the case is penal in its nature. The undisputed proof shows that the parties entered into a contract or agreement, and that appellant agreed to pay $30 a month for the house as rent, and that the rental was from month to month. There is no question about 30 days’ niotice or any other notice. The appellee does not contend that she was entitled to notice. What she does contend is that the appellant held over after one month had expired, and he therefore was indebted to her for the next month, having held lover. Appellant then says that this pertains to real property. We think appellant is mistaken about this. There is no question about a lien on real property, and the claim did not in any way affect real property or relate to it. It was simply a promise, according’ to appellee’s theory, to pay her $30 a mlonth, and if he stayed any part of a month, of course that would constitute an agreement to stay the whole month.

Appellant then contends that it would be against the public policy of the State of the florum to entertain jurisdiction of this case. We do not agree with the appellant in this contention.

Of course she could not enforce any lien against the property of appellant in this State. If she undertook to d'o that, she would have to bring her suit in the county where the Texas lav/ says it shall be brought. 'But she has waived any lien she might have; brought the suit only on the contract to pay her $30 a month, and the undisputed proof shows that appellant stayed in the house six days after his month was up, and this would make him liable, either under the laws of Texas or Arkansas, for a month’s rent. It is contended, hlowever, that the appellee tacitly consented to the holding over. There is nothing in the record indicating that she consented for him to hold over without the payment of rent. It is true that the appellant told'her that, if she did not make certain repairs, he wtould leave and get another house, and she asked him once why he did not move. Certainly, neither one of them meant that the moving out would in any way change the contract, and, unless there was some agreement to that effect, he would owe the rent for the entire month, since he occupied the house flor a portion of that month, and the rental was from month to month, as agreed by both parties.

Each of-the instructions requested by appellant are, in effect, peremptory instructions, and, since they were, and the appellee asked a peremptory instruction, this amounted to the parties submitting the question to the court, and the finding of the court as to the facts is as binding as-if found by a jury, and if there is any substantial evidence to sustain the finding, it will not be reversed by this court.

It is, we think, a sufficient answer to appellant’s argument about the Texas statutes and about failure to make repairs, that none of these things were pleaded in the court below, and they cannot be considered here.

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


author: McHaneY, J.

text:
    Phillips v. First National Bank of Van Buren.
    Opinion delivered May 20, 1929.

      G. M. Wofford, for appellant.

      E. L. Matlock, for appellee.
   McHaneY, J.

In the year 1910 Ed "Webster died in Crawford County, Arkansas, leaving a last will and testament, in which he gave his widow, the appellant, who has since remarried, a life estate in ¡SO acres of land, in lieu of dower, and the remainder of his real estate to his two sons, Keith and Glenn B. Webster, together with the remainder in the 80 acres set apart to his widow' flor life. This will was admitted to probate in 1910, but the widow, in proper time, renounced the will, and elected to taire under the law her dower interest in her husband’s estate. Dower was never assigned to her.

On June -5,1926-, Keith Webster and his -wife executed and delivered to the appellee their mortgage covering “'all of their right, title and interest, present and prospec-. tive, in and to” all the lands which he received from his father’s estate as cotenant with his brother, Glenn B. Webster, to secure their promissory note in the sum of $2,712 of the. same date. In other words, Keith Webster undertook to mortgage to appellee his undivided interest, present and prospective, in his father’s estate. Keith Webster failed to pay his indebtedness to appellee, and this suit was brought by it to foreclose the mortgage covering said indebtedness, in which Keith Webster and his wife, the appellant, Glenn B. Webster and others, were made parties defendant.

It appears that Glenn B. Webster was a nonresident, and that sérvice was had upon him by warning order. The report of the attorney ad litem shows that he was notified of the pendency lof the action, but did not appear, and made no defense. The appellant appeared, and filed a separate answer, in which she set up the facts heretofore stated relative to the said lands, and claimed a one-third interest in and to all of the lands described in the complaint, which constituted all the lands of which -Ed Webster died seized and possessed. She further claimed that she had furnished her husband with funds with which to buy one 80-acre tract, the deed to which was taken in her husband’s name, and that this tract was held in'trust for her by him. She prayed that her interest and that of the heirs lof Ed Webster in his estate be ascertained and declared; that her dower interest in said property be apportioned and set aside to her; and that only the interest of Keith Webster in said lands be foreclosed and sold under the mortgage of appellee.

The court entered a decree denying the claim of appellant to the 80 acres mentioned, and dismissed same for want lof equity, excepting her right of dower in the land. Judgment was entered against Keith Webster and his wife for the amount of the note and interest, and a sale decreed of all the lands, ‘ ‘ and the entire title thereto of all the defendants” was ordered sold at public vendue, etc. It was further decreed that “the interest of the widow, Allie Webster Phillips, and Glenn B. Webster in and to the proceeds of said sale to await distribution after the report of sale.” The court further found that the lands could not be partitioned in kind among the several owners without great prejudice to their rights and interests therein. This finding apparently formed the basis of the decree selling the entire tract of land, and all the title thereto, including that of Glenn B. Webster, and the dower interest of the widow.

This decree cannot stand. This was not a partition suit, but a foreclosure suit — a -suit to foreclose a mortgage on an undivided interest of one of the tenants in common. The mortgage covered only the interest Keith Webster had in the land, and this suit was briought to foreclose the mortgage covering .that interest only. The complaint prayed for that relief only, and was all the relief to which the appellee was entitled. The appellee could not have maintained a partition suit based merely on its mortgage. Our statute, § 8091, C. & M. Digest, provides: “Any person desiring a division iof land held in joint tenancy, in common or in coparceny, shall file in the circuit court a written petition,” etc. Appellee did not claim to hold in joint tenancy, in common, or in co-parceny. ■ The complaint did not state a cause of action for partition, as it failed to allege such an interest in the land as would justify partition.

In Eagle v. Franklin, 71 Ark. 544, 75 S. W. 1093, Judge Riddick, speaking for the court, said: “To entitle one to have partition of lands, he must not only have title, but must have possession, either actual or construe-tive, of the lands which he asks to have partitioned.” In this case appellee had neither title nor possession. It was the mortgagee, but not in possession, nor entitled to the immediate possession.

In 30 Cyc. 194, the rule is stated as follows with reference to mortgagees:

“By the commlon law, mortgagees were vested with the legal title, but not with a right of immediate possession. The right of mortgagees to maintain partition may be considered with reference: (1) To those cases in which two or more persions are mortgagees and undertake to compel a partition which will affect only their interest as mortgagees; and (2) to those cases in which a cotenant, having executed a mortgage, his mortgagee undertakes to compel a partition which will include an estate equivalent to that held by the mortagor before the mortgage. In the case first supposed, the partition must be denied, if for no other reason, because, as against the mortgagor, the indebtedness to secure which the miortgage was given cannot be split into fragments, nor can his right of redemption be thus divided. ' In cases lof the second class, partition has been ordered; but it is believed that this position, if ever maintainable, has been judicially abandoned.”

Moreover, appellant was entitled to have her dower assigned. The statute requires the court, when it orders and decrees dower tio any widow, to appoint three commissioners, of the vicinity, who shall, by survey and measurement, lay off and designate, by metes and bounds, the dower of the widow. Section 3553, C. & M. Digest. The court had no power to decree a sale of her dower interest in the lands without her consent. All that the court had power to do in this action, and all that the complaint asked the court to do, was to foreclose the interest of Keith Webster and his wife in and to the lands covered by the mortgage, and then only subject to appellant’s interest in the land by way of dower. Before appellee could have partition and sale of the entire land, even as against Glenn B. Webster, it must become the owner of Keith Webster’s interest therein, and become a cotenant with Glenn B. Webster. If, at the foreclosure sale hereinafter ordered, appellee becomes the purchaser and acquires the interest of Keith Webster, it may thereafter bring partition, but it may not become the purchaser at the foreclosure sale.

The decree of the court will therefore be reversed, and the cause remanded with directions to enter a decree foreclosing the interest of Keith Webster in and to the lands covered by the -mortgage, subject, however, to the widow’s right of dower. It is sio ordered.


author: McHaney, J.

text:
    Manning v. Davis.
    Opinion delivered May 20, 1929.

      Brundidge & Neelly, for appellant.

      John E. Miller, for appellee.
   McHaney, J.

On August 23,1924, appellant entered into a contract with the appellee for the sale to him of a certain tract of land in White County, Arkansas, for a consideration of $1,700, in which appellee agreed to pay a certain note and mortgage to the Conservative Loan Company in the sum of $1,200 as a part of the consideration. The agreement further recites that: “I, M. D. Manning, am to pay all interest on .said loan up to September 1, 1924, and said G. H. Davis is to pay me the difference between the loan and interest up to $1,700 on delivery of deed of said land by me, M. D. Manning, to G-. H. Davis or Ms agent.” Pursuant to that agreement, on October 29, 1924, appellant and his wife executed and delivered a warranty deed to the appellee, conveying said land to him, containing the- following warranty clause: “And we hereby covenant with the said G-. H. Davis, his heirs and assigns, that we will forever warrant and defend the title to said lands against all lawful claims whatever, except for the mortgage above mentioned, and special assessments for improvement purposes.”

At that time both parties figured the accrued interest on the $1,200 mortgage to the Conservative Loan Company to September 1, to be $72, which was 9 per cent, for 8 months. This amount was deducted from the $500 due appellant, and a check given him for $428, in full settlement of the amount due him above the mortgage. Thereafter appellee paid off the loan to the Conservative Loan Company, with interest after September 1, and the interest for 8 months to September 1. Later the Conservative Loan Company advised appellee that it held a second mortgage on this land to secure a balance due it by way of commission or brokerage in making the loan of approximately $215, which appellee was compelled to pay in order to free his land from the lien of said mortgage. He thereafter instituted this suit to recover from appellant the amount so expended by him, alleging a breach of the warranty in the deed. The chancery court found in appellee’s favor, and entered a judgment against appellant for the amount in controversy.

We think the chancery court was correct in so holding. The total consideration agreed to be paid by ap-pellee, as set out in the written contract of sale and in the deed, as well as by the undisputed evidence, was $1,700. By the undisputed evidence this amount was paid in full by payment of the $1,200 loan and interest, after September 1, to the Conservative Loan Company, and the $500 paid to appellant, less accrued interest of $72, which was paid to the loan company for the account of appellant. If the balance dne on the second mortgage is said to be interest, then it was appellant’s duty to pay it by the plain provisions of his contract of August 23, as he there agreed to pay all interest on account of the loan up to September 1, 1924. If it be said to be an additional incumbrance, securing an indebtedness for any other purpose, it was not excepted in appellant’s deed to appellee, and constitutes a breach of warranty. In no event did appellee agree to pay more than $1,700 for the land. The amount of the second mortgage was appellant’s debt which appellee was under no obligation to discharge. He did not assume it or agree to pay it, nor was it excepted from the warranty in the deed of conveyance.

We find no error, and the decree is affirmed.


author: Hart, C. J.

text:
    Williams v. Montgomery.
    Opinion delivered May 27, 1929.

      G. W. Botts, for appellant.

      Ingram & Moher, for appellee.
   Hart, C. J.

(after stating the facts). The circuit court quashed the service of summons on the defendants because they lived in the Northern District ¡of Arkansas County, and were sued in the Southern Dis triet of said county. Service was had upon one of the defendants in the Southern District and then upon the other in the Northern District.

There is nothing in our Constitution which prohibits the Legislature from dividing a county into judicial districts and defining the power and jurisdiction of the courts therein situated. Walker v. State, 35 Ark. 385; Pryor v. Murphy, 80 Ark. 150, 96 S. W. 445; Bonner v. Jackson, 158 Ark. 526, 251 S. W. 1; and Murrell v. Exchange Bank, 168 Ark. 645, 271 S. W. 1, 44 A. L. R. 1391.

As above stated, Arkansas County was divided into two judicial districts by the Legislature of 1913. Acts of 1913, page 192. Section 4 of the act prescribed the territorial jurisdiction of the circuit court for the Northern District, and in like manner for the Southern District. It contains a proviso that no citizen or. resident of the Northern District shall 'be liable to be sued in the Southern District, nor shall any citizen or resident of the Southern District be liable to be sued in the Northern District, in any action whatever. Section 6 provides that, in order to ascertain in which of the respective districts actions cognizable in the circuit and chancery courts shall be returnable and tried, the said districts, for all the purposes of the acts, shall be considered as separate and distinct counties, and the mode and the place for trying suits shall be determined by the general law applicable to different counties.

Counsel for plaintiff relies for a reversal of the judgment upon the principles of law decided in Saliba v. Saliba, 178 Ark. 250, 11 S. W. (2d) 774. In that case the court held that, under a similar act creating two judicial districts in Mississippi County, a transitory action might be brought and maintained in either district in that county where the defendant was found and served with process. It will be noted, however, that in that case the defendant did not move to quash the service of summons, but filed an answer denying negligence on his part, and pleaded contributory negligence and assumption of risk on the part of the plaintiff. Hence it will be seen that the court only had under consideration whether a transitory action could he maintained in lone district where the defendant was found there and served with summons, and made no objection to the service of process upon him, hut answered to the merits of the case. The result of the holding in that case is that an action in tort for personal injuries is purely an action in personam, and is therefore transitory, except as localized by acts dividing the county into two judicial districts. Consequently the court held that it had jurisdiction over the subject-matter of the suit because it was a transitory action, and that the defendant, having voluntarily appeared and answered when he was summoned, waived any question as to jurisdiction over him. The section of the statute providing that no citizen or resident of the Northern District shall be liable to be sued in the Southern District did not shift the venue of the subject-matter of the action, but was a provision executed for the benefit or protection of residents and citizens of the Northern and Southern Districts of said county. It was passed expressly as a matter of private right to the citizens and residents of each district, and no consideration of public policy beyond their rights is involved.

This brings the case under the well-settled principles that, where a court has general jurisdiction of the subject-matter of an action and a statute localizes the action as a personal right, the person whose right is affected may waive, and does waive, that right by answering and defending the action upon the merits. The requirement as to the district in the county in which the suit may be brought is a mere personal privilege granted to the parties, which may be waived like any other privilege of personal right of this character. It is well settled that the defendant waives the jurisdiction of the person when he files an answer without preserving any objection to jurisdiction over his person, and goes to trial on the merits. C. R. I. & P. Ry. Co. v. Jaber, 85 Ark. 232, 107 S. W. 1170; Manufacturing Co. v. Donahoe, 49 Ark. 318, 5 S. W. 342; and Purnell v. Nichols, 173 Ark. 496, 292 S. W. 686. There was no waiver here, and the court properly quashed the service of summons.

It follows that the judgment of the circuit court was correct, and it must he affirmed.


author: Smith, J.

text:
    Ellis v. Jonesboro Trust Company.
    Opinion delivered May 27, 1929.

      W. E. Spence and Dudley & Dudley, for appellant. Horace Sloan, for appellee.
   Smith, J.

The Jonesboro Trust Company, a hank-ing corporation under the laws of this State, sued W. S. Ellis to recover the sum of $1,875, with accrued interest, alleged to be due upon a promissory note payable to the order of the trust company, dated May 10, 1927, and maturing October 10, 1927.

The material facts in the case are covered by a stipulation of opposing counsel, from which it appears that in 1922 the State Bank Commissioner found and declared that the capital stock of the trust company had become impaired, and he ordered the bank to make a voluntary assessment of fifty per cent, on its shares of stock, failing which he advised that he would require a compulsory assessment of that amount. Pursuant to this requirement, the directors of the trust company passed a resolution reciting the necessity for the assessment and the opinion that it would be voluntarily paid “without the technical procedure required by law for the purpose of making and enforcing such assessments. ’ ’

It was resolved by the board of directors that a voluntary assessment of fifty per cent, be made, to be paid as follows: “(1) In cash, or (2) by the'execution of a note by the shareholders to the company for the full amount of said assessment, said note to be dated June 1, 1922, to mature June 1, 1923, and to bear interest at six per-centum from date until paid.”

The resolution of the directors further provided that, if shareholders owning seventy-five per cent, of the entire capital stock shall have complied with the terms of the voluntary assessment on or before June 1, 1922, then the cash or notes delivered thereunder should become the property of the trust company, to be used and employed by it as any other property it may own; otherwise they should not be used by the trust company until, through the making of a compulsory assessment as required by law, stockholders holding in the aggregate seventy-five per .cent. iof the capital stock (including in said computation cash and notes so delivered voluntarily) shall have met such assessment. It ■was further recited that, in case voluntary assessments on seventy-five per cent, of the capital stock shall have been complied with on or before June 1, 1922, the trust company should have until July 1, 1922, to procure the remaining stockholders to comply with the voluntary assessment; “and if, at the last mentioned date, any shareholder shall not have met said voluntary assessment, then a compulsory assessment shall he made in accordance with the laws of this State in such cases made and provided. ’ ’

Some of the stockholders paid the amount of their assessment in cash, while others, including Ellis, gave notes, instead of paying money. Ellis renewed his note at a higher rate of interest than that 'borne by the original note, hut default was made in the payment of both the principal and the interest on the renewal note, and this suit was brought to enforce its payment.

After making the voluntary assessment in 1922, it became apparent in 19'27 that the trust company was again insolvent, and it sold such of its assets to the American Trust Company, another banking institution, as the latter company would buy. Under the terms of this sale the American Trust Company paid all the depositors of the Jonesboro Trust Company in full, and it was agreed that the Jonesboro Trust Company should be indebted to the American Trust Company for a sum representing the difference between the agreed value of its assets actually taken over by the American Trust Company and the total of the debts assumed. This agreement left the Jonesboro Trust Company with a number of notes, which it is seeking to collect and apply to its debt to the American Trust Company, and the note of Ellis is among this number. The proceeds of the collection 'of the note will be turned over to the American Trust Company to apply on the debt of the Jonesboro Trust Company to it, so that, while the suit was brought by the Jonesboro Trust Company, it is for the benefit of the American Trust Company.

Ellis filed an answer, denying liability on the note, and alleged that the note was taken to satisfy the Bank Commissioner, and was not intended to be paid; but there appears to have been no attempt to establish this allegation. It was further alleged that the note had not been executed pursuant to an assessment under the statute; and that the note was without consideration. It was also alleged that the note was void under § 8 of article 12 of the Constitution and the decisions of this court construing this section of the Constitution. A decree was rendered granting the relief prayed, which included the setting aside of a deed conveying certain lands from Ellis to his sons. There appears to be no question that the deed was properly set aside if Ellis is, in fact, liable on the note.

It is true that the assessment in satisfaction :of which the original note of Ellis was given was voluntary in the sense that it was not made under the authority of the statute (§ 733, C. & M. Digest), as it might have been; but it does not follow from this that the note was without consideration. A condition existed which would have authorized the statutory assessment, and the voluntary assessment forestalled the statutory assessment. The payment of money and the execution of notes by other shareholders were in the nature of mutual promises, to the advantage of all parties concerned. Farmers’ Equity Coop. Assn. v. Tice, 122 Kan. 127, 251 Pac. 421; Farmers’ State Bank v. Fisher, 204 Iowa 1049, 216 N. W. 709; Bohning v. Caldwell, 10 Fed. (2d) 298; Union Bank of Brooklyn v. Sullivan, 214 N. Y. 332, 108 N. E. 558; Stern v. McDonald, 47 Col. App. 79, 190 Pac. 221; Farmers’ Coop. Union v. Reynolds, 127 Kan. 16, 272 Pac. 108. The note is therefore not without consideration. It appears that all the, notes have been paid except the one here sued on and a small balance on another note.

We are also of the opinion that the note is not void under § 8 of article 12 of the Constitution, which reads as follows:

“No private corporation shall issue stocks'or bonds, except for money or property actually received or labor done, and all fictitious increase of stock or indebtedness shall be void; nor shall the stock or bonded indebtedness of any private corporation be increased, except in pursuance of general- laws, nor until the consent of the persons holding the larger amount in value of stock shall be obtained at a meeting held after notice given for a period not less than sixty days, in pursuance of law.”

In construing this section of the Constitution it has been several times held by this court that a note given to a private corporation for the purchase price of corporate stock is neither money nor property actually received within the meaning of the Constitution, and that such a note is void, except in the hands of an innocent purchaser, as having been executed in violation of the Constitution. Bank of Commerce v. Goolsby, 129 Ark. 416, 196 S. W. 803; Bank of Dermott v. Measel, 172 Ark. 193, 287 S. W. 1017; Bank of Manila v. Wallace, 177 Ark. 190, 5 S. W. (2d) 937; Park v. Bank of Lockesburg, 178 Ark. 669, 11 S. W. (2d) 483. We have also held that a renewal note, as well as the original note, is subject to the same defense, for the reason that “both notes were given for the same illegal consideration. The renewal note is not a payment of the'original note, but is merely an extension of the time of payment of such prior note.” Bank of Dermott v. Measel, supra.

But the cases cited have no application here. In the first of these cases — that of Bank of Commerce v. Goolsby, supra — it was pointed out that: “The above plain provision of our Constitution is for the protection of .stockholders, as well as creditors and all who are interested in the financial affairs of private corporations. This wholesome provision of our Constitution is a guaranty to all who are financially interested in private business corporations, against the issuance of what is termed ‘watered stock,’ that is, ‘stock which purports to be paid in full but which, in fact, has not been paid for. ’ ’ ’

There was here no issue ¡or increase of stock or of indebtedness of the corporation in connection with the execution of the note. Ellis received no stock. His stock had been previously issued to Mm and had been paid for by him, and, instead of “watering the stock,” his note was intended to give it a value which it would not otherwise have had. Since the constitutional prohibition is directed against the issuance of “watered stock,” it cannot be construed to prohibit a stock assessment note executed to give value to stock already issued, paid for, and outstanding.

Section 8 of article 12 of the Constitution of Missouri is substantially identical with § 8 of article 12 of our own, and in the case of Scott v. Abbott, 160 Fed. 573, the Circuit Court of Appeals of the Eighth Circuit had occasion to construe the words “issue” and “fictitious” appearing in this section of the Missouri Constitution. It was there said:

“The word ‘issue’ here employed is obviously used in its ordinary commercial or financial sense, meaning ‘to emit,’ ‘put into circulation,’ or ‘dispose of securities’ already authorized and prepared for disposition. Black’s Law Dictionary; Century Dictionary; Folks v. Yost, 54 Mo. App. 55, 59. The word ‘fictitious’ employed in the Constitution is found in immediate connection with the prior provision relating to the issue of stock, and, by the most natural and familiar rule of construction, ought to be construed in connection with it; and as so construed it means, in our ¡opinion, that all increases of capital stock which are not issued for money paid, labor done, or property actually received, are fictitious and void. The record discloses that the shoe company disposed of or put into circulation much, if not all, of its increased stock. Such disposition, in our opinion, amounted to the issue of the stock within the contemplation of the constitutional provision.”

This definition of the word “issue” accords with our own definition of that word in the case of Stranahan v. Van Buren County, 175 Ark. 678, 300 S. W. 382, where we construed the constitutional amendment authorizing counties to “issue bonds.”

There was therefore no issue of stock to Ellis or fictitious increase of stock or indebtedness, and the constitution-al inhibition has no application. Neither do the above-cited oases which have construed this section of the Constitution apply.

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


author: Humphreys, J.

text:
    National Life & Accident Insurance Co. v. Davis.
    Opinion delivered May 27, 1929.

      Bevens & Mundt, for appellant.

      Sheffield & Coates, for appellee.
   Humphreys, J.

This -suit was broug’ht by appellee against appellant, in the circuit court of Phillips County, to recover $155 as beneficiary in the life insurance policy issued to her aunt, Anna Harden, who is a negro woman, by appellant, on April 18, 1927, the policy being based upon an application of date March 31, 1927, which contained the following questions and answers:

“(1). The applicant was asked, ‘What medical or surgical attention have you had in the last five years?’ Her answer was, ‘None.’ (2). She was asked, ‘Have you ever had heart disease?’ and her answer was ‘No.’ (3). She was asked, ‘Are you in good health?’ Her answer to that question was ‘Yes.’ ”

Appellant filed an answer denying any liability on the policy.

The cause was sent to the jury upon the pleadings, the testimony adduced by the parties, and the instructions of the court, which resulted in a verdict and judgment in favor of appellee for $155, from which, is this appeal.

At the conclusion of the testimony appellant requested the court to instruct a verdict for it upon the grounds: (1) That the undisputed testimony reflected that the insured was the aunt of appellee, and not dependent upon her for support; and (2), that the insured knowingly made false answers to the interrogatories propounded to her in her application for the insurance, in order to procure the policy.

(1). The undisputed testimony showed that ap-pellee paid the premiums on the policy, and there was some testimony which tended to show that appellee arranged for her aunt to take the insurance on her life for appellee’s benefit. Even if this were true, it was not necessary for appellee, in order to recover on the policy, to show that the insured was dependent upon her for support and maintenance, or was her debtor. This court announced the rule to be, in the case of Century Life Insurance Co. v. Custer, 178 Ark. 304, 10 S. W. (2d) 882, that, where the insured and beneficiary were closely related, an insurable interest in the life of each other existed by virtue of the relationship' alone, and should not be classed as wagering contracts.

The case of McRae v. Warmack, 98 Ark. 52, 135 S. W. 807, 33 L. R. A. N. S. 949, in so far as it holds that an uncle has no insuraible interest in the .life of a nephew and cannot recover on a policy of insurance in the absence of a showing of reasonable ground of expectation of .support to be furnished by the insured to the other, when the relationship was not concealed at the time the contract of insurance was entered into, is hereby overruled.

(2). In support of appellant’s contention that the undisputed testimony reflected that the insured knowingly made false answers to the questions asked her in her application, appellant has called attention to the testimony of Mose Cross, Lilly B. Owens, and of two physicians introduced by him.

Muse Cross testified that he was the foster' father of Anna Harden, and at the time of her death she had ■been living with him for more than a year; that she was in very had health, not confined to her bed all of the time, but up and down; that she had a doctor of her own, and that he called in two doctors; that she picked cotton for him whenever she was able.

Lilly B. Owens testified that she was a neighbor of Anna Harden, and that in February, 1927, Anna told her that she was sick, and on another occasion that she was picking mullein to saturate her swollen limbs.

S. H. Hargrove, a negro physician, testified that. Anna Harden came to his office, without assistance, in February, 1927, for treatment; that he examined her, and found that she had diabetes, which had caused a cardiac dilation; that he gave her something to drive the swelling out of her feet; that he did not tell her of the dilated condition of her heart; that she did not return for further treatment.

Dr. J. W; Nicholls testified that he waited on Anna Harden twice shortly before she died, the first time on April 30, 1927; that her heart was enlarged and her face and abdomen swollen; that she had dropsy, super-induced by the condition of her heart; that in his opinion her heart must have been affected at the time she made the application for insurance, on March 31, 1927, and must have known that she. was a sick woman, even though unaware of the actual condition of her heart.

If this were the only testimony in the record relating to the condition of the insured’s health at the time she applied for the policy, it might be said with reasonable certainty that she knowingly falsified when she said in the application that she was then in good health. This was her answer to the first question. The record contains other testimony which we think is clearly contradictory of the testimony thus detailed, and made this issue one to be determined by the jury. We will set out the substance of the testimony referred to after discussing the insured’s answers to the second and third questions, in the light lof the testimony detailed above. The testimony detailed above is not conclusive that the insured intentionally misrepresented the condition of her heart, for Dr. Nicholls himself testified that he did not know whether the insured, on March 31, 1927, knew that she had heart trouble; and the negro physician testified that when he examined her to' treat her in February, 1927, he did not tell her she had heart trouble. Neither does the evidence detailed above conclusively show that the insured knowingly made a false answer to the third question, within the true meaning of same. The question, correctly interpreted, had reference to a treatment or an operation for a serious ailment or trouble, and not for a slight or temporary indisposition. She had not been operated upon, and had not been told by the physician who treated her, before she applied for the insurance, that she had any constitutional ailment or disease. It not appearing that she knew of the serious condition of her heart, it cannot be said as an undisputed fact that she knowingly made a false answer to the third question.

Returning to the issue involved in the insured’s answer to the first question, we find in the record the statement of appellant’s agent, who prepared and sent in the insured’s application, to the effect that, from information and observation, the applicant was in sound health, and without any deformity, lameness, or physical defect; and that he recommended that the insurance applied for be granted. Also the testimony of appellee to the effect that the insured was in good health. Also the testimony of Rosalie Allen, a neighbor, to the effect that the insured was up and around and in her garden on or about the date she signed the application for the insurance, and that there was nothing to indicate that she was a sick woman. The testimony last detailed is contradictory of the testimony introduced by appellant relative to the ill health of the insured, or that she kniowingly made a false answer concerning- same to the first interrogatory propounded to her.

In the case of Missouri State Life Insurance Co. v. Witt, 161 Ark. 148, 256 S. W. 46, where the testimony of lay witnesses was in conflict with the opinion of physicians relative to the goiod health of the insured, this court ruled that the evidence presented a conflict in the testimony for determination by the jury. In view of the conflict of the testimony upon this point, we think the court properly submitted the issue to the jury.

Nig error appearing, the judgment is affirmed.


text:
    Nagel v. State.
    Opinion delivered May 27, 1929.

      J. P. Kerby and G. B. Colvin, for appellant.

      Eal'L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Kirby, J.

Appellant prosecutes this appeal from a judgment of conviction of murder in the second degree for ’killing Ms father, with punishment fixed fit 21 years in the penitentiary.

Joe Nagel, appellant’s father, was shot and Mlled in the dining room of his home in Perry County, on the night of September 9, 1928. In the afternoon of that day appellant, with his brother Henry Nagel, and upon his suggestion, went out into the woods' to hunt a bee-tree, and about two miles from home came upon Prank Wohlford, who was in his field looking over his crops, and he accompanied them. They went some distance further together and found a keg of “choc” beer. They all three drank of the'beer from a tin-can they found there. Wohlford drank very little, and did not feel the effects of it, but said it was intoxicating, and enough of it would make one drunk. He said none of the three drank enough to indicate that anything was wrong with him. Did not know how man} drinks either of the Nagels took.

Henry Nagel stated that he took one or two drinks, and felt the effects of it, and that his brother took three or four drinks.

The appellant stated that he took three or four drinks of the 'beer, and did not remember anything that happened thereafter'until he woke up in jail the next morning, several hours after the killing. The boys separated about dusk, the Nagel boys going home, where they arrived after dark, and the rest of the family had eaten supper. Henry went to the ice-box and got himself something to eat, and appellant remained outside, or on the hack sleeping porch. While there he took his shotgun and loaded it and, as though talking to himself, said: “I see him, there he goes.” His sister Helen, in the adjoining room, was alarmed at his actions, and told her father, the deceased, who came into the kitchen just as appellant came to the door off the south porch, with a shotgun in his hand. As they came face to face the father asked him what he was doing with the gun. Appellant answered that some one was trying to steal the chickens. His father told him there was nobody trying t» steal the chickens, and took the gun away from him, and reprimanded him about drinking. He slapped the appellant several times, and finally shoved him off the back porch. The father then came back into the house and sat down in a rear room, and a few minutes later a shot was fired through a screen window, striking him in the jaw and resulting in his immediate death. Appellant was taken immediately to the home of his brother-in-law, Charles Strassle, where he stayed until the sheriff arrested him, about 3 o’clock that morning, and took him to jail. A 44 Winchester rifle was found on the back porch, with an empty shell in it, and several witnesses testified that the gun had been recently fired.

While it is true no one saw the shot fired, Baylor House testified that, when being notified of the tragedy on the night it occurred, he went to the home of the deceased, Joe Nagel, found him there dead, examined the rifle, which had been recently fired, and had an empty shell in it. He went to Strassle’s house and arrested appellant, and took him to jail. On the way to jail appellant cried, and said: “I did love my daddy, and wish I hadn’t done it;” that his father wanted him to leave home, and it would have been better if he had done so. Witness took the rifle to jail the next morning, and appellant pointed to it and said: “If it hadn’t been for this thing, this wouldn’t have happened.” Told witness he got the gun off the back porch and put it down in the corner of the back porch. Witness said appellant was not drunk at the time he took him into custody.

Henry Nagel testified about going “bee hunting” and finding the “choc” beer, and said that appellant had drunk a little too much of it and was under the influence of it, tout admitted that he had previously made a contrary statement to the effect that the appellant was not drunk. He heard the quarrel between his father and brother, and the shot was fired a short time after the quarrel.

His sister testified that she heard the quarrel, an<j her father had reprimanded the appellant about drinking, and slapped him several times and pushed him off the porch, and about twenty minutes afterwards she heard the shot fired, and her brother and sister took appellant to Strassle’s house.

Other witnesses testified about examining the gun that night and finding one empty shell, showing that the gun had been recently fired.

Johnnie, appellant’s 26-year-old brother, testified that he and his. father were in the dining room when the shot was fired. His father was sitting’ in a chair, taking off his shoes, and the bullet struck him in the jaw. He had heard the little quarrel between his father and brother about fifteen minutes before the shot was fired, and saw appellant, after the shooting, standing on the back porch. He wanted to come in, but the witness would, not let him. Appellant at the time said he was sorry that he did it. He was asked if he did not make a statement at the inquest, and he replied that 'he did. The statement was read over to him to refresh his memory, and he answered that he had said that. He also saw the rifle on the back porch after the shooting, and it had an empty shell in it.

Although it is true that no one saw appellant fire the fatal shot, the evidence, while mostly circumstantial, warranted the jury in finding him guilty. There was no intimation or proof that any one else was outside the room where the deceased was sitting, or could have fired the shot that killed him, and we hold that the testimony is sufficient to support the conviction. Burrow v. State, 177 Ark. 1121, 7 S. W. (2d) 28; Campbell v. State, 170 Ark. 936, 282 S. W. 4; Moore v. State, 167 Ark. 164, 267 S. W. 769; Pierce v. State, 176 Ark. 1205, 4 S. W. (2d) 948; Underhill’s Criminal Evidence (3 ed.) 15 and 16.

Neither was error committed in allowing- the State’s witness, Baylor House, to testify about the rifle found at the home of deceased, with which it was charged appellant shot him. Witness stated that he found the rifle at the house, that it contained an empty shell, and had been recently fired, and that appellant, after he was put in jail, pointed to the gun and stated that if it had not been loaded it would not have happened, and also that he got the gun off the porch, and put it back in the corner of the porch. Other witnesses testified that the gun had been recently fired, and had an empty shell in it, and it was not contradicted that the deceased died from the effects of the gunshot wound. The evidence was admissible as a circumstance throwing light on the homicide and connecting the defendant with the commission thereof. 2 Wharton Criminal Evidence, § 893.

Neither is there any merit in the assignment that the court erred in allowing the prosecuting attorney to impeach the State’s witness, Henry Nagel, by asking him if he had not made contradictory statements. The prosecuting attorney stated he was surprised at the statement made by the witness while on the stand, and asked him if he had not made a different statement at the coroner’s inquest or the examining trial, to the effect that the appellant was not drunk that day. The State bad the right, on being surprised at the testimony of its own witness, to show that he had made a contradictory statement at the examining trial, for the purpose of impeaching his credibility. Derrick v. State, 92 Ark. 239, 122 S. W. 506; Brown v. State, 176 Ark. 1203, 3 S. W. (2d) 292.

It is finally contended that the court erred in modifying appellant’s instruction C and giving it as modified. The instruction reads as follows, the amendment complained of being included in parentheses :

“There has been some testimony to the effect that, immediately-prior to the fatal shot, the deceased had a difficulty with the defendant, and made an assault on him, and threatened him. If you believe that this assault on the person of the defendant by the deceased was sufficient to arouse the passion of the defendant to the point of being irresistible, then you may reduce the crime from murder to manslaughter. The passion that will reduce a homicide from murder to manslaughter may consist of anger or sudden resentment, or fear, or terror; but the passion springing from any of these causes will not alone reduce the grade of the homicide. There must be a provocation which induced the passion and which you deem adequate to make the passion irresistible (and the defendant acted under that passion before a -sufficient length of time had elapsed for his irresistible passion to cool). An assault with violence upon another, who acts under the influence thereof, may be sufficient to arouse such passion.”

It was a question for the jury whether the defendant, after the provocation given, had reasonable time for the passion to cool and reason to be restored, to regain his self-control. Fitzpatrick v. State, 37 Ark. 238; Lindsey v. State, 125 Ark. 542, 189 S. W. 163; Royer v. Belcher, 100 W. Va. 694, 134 S. E. 556, 47 A. L. R. 1089. The modification of the instruction made by the amendment was ini effect explanatory of the statute on being a correct declaration of the law, appellant could not have been prejudiced by the court’s giving it. the killing of a human being in the heat -of passion, and,

After a careful investigation, disclosing no error in the record, the judgment is accordingly affirmed.