text:
    Laseter v. Terral.
    Opinion delivered March 30, 1925.
    1. Appeal and error — exclusion op testimony. — It cannot be maintained on appeal that the -court erred in excluding the testimony of -a witness if it is not shown what the testimony of the witness would have been.
    2. Executors and administrators- — -disallowance op claim — evidence. — On a claim by -a father against the estate of his son, to which 'defense was made that a policy on the -son’s life in favor. of the father wia-s intended as security for the loan, the proceeds of the policy having been received by the father, evidence held to sustain a judgment allowing credit for such proceeds.
    3. Insurance — continuance op policy to secure new loans.— Where a son -gave his father a life insurance policy to- -secure loans, which were subsequently paid, the giving -of new loans was -sufficient consideration for continuing the insurance as security for the new loans.
    4. Husband and wipe — husband as wipe’s agent. — Evidence that ■a father, in making a loan to his son, acted as agent for his wife and acquiesced in the -son securing the loan with an insurance policy, the -proceeds of which the father collected after the Son’s death, held to warrant the inference that the father in collecting the policy had authority to act as his wife’s agent.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      Mehaffy, Donham & Mehaffy, for appellant.

      Tom Campbell, Floyd Terral, and J. C. Marshall, for appellee.
   Humphreys, J.

TMs suit was brought by appellant in the prohate court of Pulaski County, for $500 in his own right and for $750 as administrator of the estate of Mattie H. Laseter, deceased, against appellee as the administrator of the estate of W. E. Laseter, deceased. Appellant, A. F. Laseter, was the father of W. E. Laseter, and the husband of Mattie H. Laseter. The suit was originated by filing verified claims in the probate court against the estate of W. E. Laseter, deceased, which had been disallowed by the administrator of the estate of W. E. Laseter, deceased, when presented to him. The probate court allowed the claims, from which allowance an appeal was prosecuted to the circuit court of Pulaski County, where the cause was submitted to a jury upon the testimony adduced by the respective parties and instructions of the court, which resulted in a verdict and consequent judgment in favor of the estate of W. E. Laseter, deceased, on appellant’s individual claim, and in favor of appellant, as administrator of the estate of Mattie H. Laseter, deceased, in the sum of $250, with interest from May 17, 1920, from which is this appeal.

The sole contention of appellant for a reversal of the judgment is that the evidence is insufficient to support it. Appellee admitted the existence of the indebtedness at the time W. E. Laseter died, but claimed that $1,000 of the amount was liquidated by the proceeds derived by appellant from a life insurance policy which had been carried by W. E. Laseter in his lifetime in favor of appellant, his father, to secure the indebtedness.

The record reflects, according to the- undisputed testimony, that, some time prior to the year 1915, at which time W. E. Laseter married, he took out a policy for $1,000 in favor of his father to protect an indebtedness of $1,500 or $1,600 which he had borrowed from his father with which to pay his expenses while at school; that, .after he married, he and his wife paid this indebtedness ; that thereafter he borrowed $500 from his father and $750 from his stepmother with which to buy a farm, which amount was carried by them against him as an open account; this amount of money was turned over to him, in -his brother’s place of business, by his father, at the time the loan was made, in the form of personal cheeks of himself and wife; that, in addition to the $1,250 loan, he owed his father a note for $244, and his stepmother some other money, protected by another insurance policy, which amounts were paid off partly before and partly after his death; that appellant was not dependent upon W. E. Laseter for his support, but, on the contrary, was a man of some means; that W. E. Laseter’s family consisted of himself, his wife, and a girl child; that, about three months after his death, his widow .gave birth to another child; that W. E. Laseter was a man of small means, and his wife had no separate property of consequence.

The record reflects, however, a sharp conflict in the testimony as to the purpose of continuing the $1,000 policy in the name of A. F. Laseter as the beneficiary, after the payment of the $1,500 or $1,600 loan.

Mrs. Ernest Protho, who was the widow of W. E. Laseter, deceased, testified in substance that A. F. Laseter was continued as the beneficiary in the policy for the purpose of securing the $1,250 loan made to her husband by his father and stepmother. 'She said that, in talking the matter over, her husband offered to give his father a note or to continue the policy in his name as security for the loan, and that his father declined to take a note, and said he did not want him to carry insurance for him, as it cramped him financially; that her husband replied that he might die, and handed her the policy, saying, “Mother, keep this; and if I die, pay father the $1,000 you derive from the policy upon the $1,250 loan;” that his father made no objection to the arrangement; that, after the death of her husband, she gave his father the $1,000 policy and offered to pay him $250; that he took the policy, but refused to take the $250; that, after collecting the policy, he demanded that she pay him $1,250 or else execute a note to him for that amount, which she declined to do, claiming that the policy had liquidated $1,000 of the indebtedness and that she only owed $250 additional, which she was ready and willing to pay.

A. F. Laseter testified in substance that the insurance policy of $1,000 in which he was the beneficiary was not carried by his son as security for the $1,250 loan; that the only conversation that he had with his son relative to the policy was'to advise him to drop it, as the payment of the premiums thereon worked a financial' hardship upon him; that, after his son’s death, he obtained the policy from the agent of the insurance company, and not from his daughter-in-law, Mrs. .Protho; that he collected the policy in the belief that it was his own, and not for the purpose of applying the proceeds to the payment of the $1,250 loan; that he never tried to collect or get a note for $1,250 from Mrs. Protho.

Boy M. Laseter, the brother of W. E. Laseter, deceased, testified that, when his father delivered the checks to his brother, in witness’ place of business, to cover the $1,250 loan, nothing was said about insurance; that the only remark made by his brother was that he would execute a mortgage to secure the loan as soon as he got a deed' to the farm. Appellant offered to prove by witness a statement made by "W. E. Laseter in his lifetime to him about the policy, which testimony was excluded, over .appellant’s objection. It was not shown what the testimony of the witness would be if permitted to testify with reference to the statement, so we cannot say on appeal that the court committed error in excluding this piece of testimony.

After a careful reading of the testimony, and a construction of same in the light of the rule that it must be construed as strongly as possible in favor of the verdict, we are convinced that the judgment is supported by evidence of a substantial nature. The record not only contains direct and positive evidence to the effect that the $1,000 policy was carried by W. E. Laseter as security for the $1,250 loan, but there are potent circumstances therein from which the jury might have drawn such an inference. The circumstances referred to relate to the situation and condition of the parties at the time the loan was made. The financial condition of appellant was much better than that of his son, W. E. Laseter. Appellant was not dependent upon his son for support. W. E. Laseter’s wife and daughter were dependent upon bfm-The jury might have drawn a reasonable inference that, unless he was carrying the policy to secure the $1,250 loan from his father and stepmother, he would have changed the beneficiary in the policy from his father to his wife, who was soon to give birth to another child, or ■to his little daughter.

The suggestion advanced that, if the agreement testified to by Mrs. Protho was actually made, there was no consideration to support it is not sound, for new loans were sufficient consideration for continuing the insurance to secure same.

Again, it is suggested that, if such an agreement existed, there is no evidence in the record tending to show authority in appellant to collect the debt due Mattie H. Laseter, or that payment to appellant bound her. or her estate. The testimony reveals that, in making the loan, appellant acted as agent for his wife. It also tends to show that appellant acquiesced in the arrangement of his son to secure the loan with the insurance policy, which policy was collected by him after his son’s death. The jury might have drawn a reasonable inference from the fact that appellant made the loan, took security therefor, and collected same, together with his relationship to Mattie H. Laseter, that he had authority to act as her agent in collecting the indebtedness.

The court correctly refused, under the testimony in the ease, to instruct a verdict for appellant, and correctly declared the law applicable to the facts in the case.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: 'Humphreys, J.

license: Public Domain

text:
    Missouri Pacific Railroad Company v. Boyce.
    Opinion delivered Morch 30, 1925.
    Negligence — contributoky negligence of bailee. — Where & truck struck by a train had been loaned to the driver for use for his . own pleasure, the driver’s negligence could not be imputed to the owner nor be interposed as a defense, as the negligence of a bailee is not imputable to the bailor where the subject of the bailment is damaged by a third person.
    Appeal from Faulkner Circuit Court; George W. Clark, Judge;
    affirmed.

      Thomas B. Pryor and Vincent M. Miles, for appellant.

      J. G. ■& Wm. J. Clark, for appellee.
   'Humphreys, J.

This suit was brought in the circuit court of Faulkner County by appellee against appellant to recover the sum of $621 for damaging his truck through the alleged negligent operation of its train in backing same along its track across North Street in Conway, without sounding the whistle or ringing the bell as a warning against its approach.

Appellant filed an answer denying any negligence on its part, and, by way of further defense, pleading contributory negligence on the part of the driver.

The cause was submitted to the jury upon the pleadings, testimony and instructions of the court, which resulted in a, verdict and judgment against appellant for $400, from which is this appeal.

' The only question presented by the appeal for determination is whether the court erred in refusing to submit to the jury the issue of whether or not the driver of the truck was guilty of contributory negligence. The requested instruction bearing upon that issue is as follows-: “You are instructed that it is the duty of any one, in attempting to. cross a railway track, to look and listen to see if a train is approaching’, to the end that a collision may be avoided.”

• The facts are that appellee, who was in the plumbing business, and the owner of the truck, frequently loaned his car to Ms helper, Shelton Duffy, to he used by him for his own pleasure. On the night the train collided with and injured the truck, Shelton Duffy, with three of his companions, was returning in it from a dance where they had gone for their personal pleasure.

Appellant introduced testimony tending to disprove any negligence in the operation of its train and to show that the collision was due to the negligence of Shelton Duffy in approaching and crossing the track.

Appellee introduced testimony tending to show that the collision resulted from a failure of appellant to ring the bell or sound the whistle as the train approached the street crossing.

The trial court took the view that, if Shelton Duffy was guilty of contributory negligence, such negligence could not be imputed to appellee, and therefore could not be interposed as a defense to his alleged cause of action. The rule of law adopted by the court is in accord with the modern doctrine of bailments to the effect that the negligence of the bailee 'is not imputable to the bailor where the subject of the bailment is damaged by a third party. 6 C. J., page 1168; 3 R. C. L., p. 146; Gibson v. Bessemer & L. E. R. Co., 226 Pa., 198; 27 L. R. A. (N. S.) 689; Currie v. Consolidated Ry. Co., 81 Conn. 383; Norton v. Hines, 211 Mo. App. 438, Spelman v. Delano, 177 Mo. App. 28; Campbell v. Chicago, B. & O. R. Co., 211; Mo. App. 331; Lloyd v. Northern Pacific Ry. Co., 181 Pac. 29; Cain v. Wickens, 122 Atl. 800; Huddy on Automobiles (6th ed.) p. 824.

No error appearing, the judgment is affirmed.


author: Humphreys, J.

text:
    State use Prairie County v. McKee.
    Opinion delivered March 30, 1925.
    DEPOSITARIES — preference of county. — Where, by order of the county court, funds of the county were deposited in an insolvent bank without sufficient surety bond, as required by Acts 1915, No. 45, .a suit by the county to establish a preference against the bank’s funds because of wrongful deposit and intermingling of public funds is a collateral attack on the judgment of the county-court and not maintainable.
    Appeal from Prairie Chancery Court, Southern Pis-, trict; John E. Martineau, Chancellor;
    affirmed.

      W. J. Waggoner, Chas. A. Walls, Trimble S Trimble, and Gregory & Iloltzendorff, for appellant.

      Gray & Morris, Miller S Pearce, and Will G. Akers, for appellee.
   Humphreys, J.

This suit was brought by appellants against appellees in the Southern District of Prairie County for the purpose of having the 'Claim of Prairie County in the total sum of $43,036.89, including interest, against the New Bank of Hazen, declared prior and paramount to all other claims against said bank and a first lien upon the assets thereof, and for the further purpose of restraining Charles McKee, Bank Commissioner, and J. W. Jarrett, in charge of the assets of said bank, from distributing the funds thereof among the creditors until the debt and interest due from the bank to said county has been fully paid. The gist of the allegations in the bill is that the county funds were wrongfully deposited in said bank by the treasurer of the county, and the denial of these allegations formed the issue between the parties in the trial of the cause. The cause was submitted to the court upon the pleadings and testimony, which resulted in a dismissal of the bill for the want of equity, from which decree of dismissal an appeal has been duly prosecuted to this court.

The suit is a collateral attack upon the judgment of the county court of Prairie County, rendered at the April, 1923, term thereof, approving and designating the New Bank of Hazen as the depository for the public funds of Prairie County, pursuant to authority conferred upon said. court by act No. 45 of the Acts of the General Assembly of 1915. The act contains a provision that the county court shall select a bank, a banker or trust company in said county, as the county depository, who shall offer, on sealed competitive bids, the highest rate of interest on daily ¡balances for the use of the funds. The act also contains a provision that the successful bidder shall execute a bond to protect the county against loss, with the privilege of furnishing private bondsmen if signed by five solvent and qualified sureties, owning real estate -and personal property in the State, of value as great as the amount of the bond above their liabilities and exemptions. The record reflects that neither of these provisions was complied with in the manner designated in the act. The language of the sealed bid did not meet with the requirements of the statute, and the bond was only signed by three sureties, and they were not solvent. In fact, the record shows that the New Bank of Hazen itself was insolvent at the time the bid was made and the bond was filed. It also shows that the president of the bank was the county judge and that the officials of the bank were the sureties on the bond.

The treasurer of the county, however, who is one of the appellants herein, deposited the funds of the county in the bank pursuant to the order of the county judge, which order was regular on its face, in good faith, not knowing of the insolvency of the bank and the bondsmen.

Appellant contends for a reversal of the decree under the rule of law that, where public funds, wrongfully deposited by the custodian in a 'bank, are intermingled with the other funds of the bank, and the bank thereafter fails, the whole of the assets of the insolvent bank become trust funds out of which the public funds should be paid as a preferred claim. While the rule contended for is correct, and was recognized in the case of Talley v. State, 121 Ark. 4, it has no application on collateral attack of a judgment regular on its face. In the instant case appellants are confronted with an order of the county court, valid on its face and binding upon the treasurer of the county and parties concerned, until set aside by direct attack. No effort was made to do this, and hence the case is in the same situation as if the bid and bond had conformed in all particulars to the requirements of tlie act ■authorizing the county court to select a depository for the county funds. It was ruled in the Talley case, supra, that, where the public funds had been rightly deposited, pursuant to the statute authorizing it, which conferred no lien on the assets of the bank, the county is not exempt from the statute forbidding insolvent corporations from giving preference to creditors.

For the reason given, appellants are not entitled to a preference, and the court committed no error in dismissing their bill for the want of equity.

As we understand, the parties have agreed that judgment may. be entered here in favor of appellants for the total amount of their claim as general creditors, with direction that they be permitted to participate in the distribution of the assets as such. It is so ordered.

The decree is affirmed.


text:
    Kimbrough v. American Railway Express Company.
    Opinion delivered March 30, 1925.
    Carriers — delivery of shipment to consignee under assumed name. — Where a carrier delivered goods received for shipment to the person who ordered them from -the shipper, it could not be held liable to the -shipper for their value, although the consignee may have ordered and received them under a fictitious name.
    Appeal from Crawford Circuit Court;. James Cochran, Judge;
    affirmed.

      E. D. Chastain, for appellant.

      A. M. Hartung, and Warner, Hardin & Warner, for appellee.
   Humphreys, J.

This suit was instituted in the circuit 'court cf Crawford County by appellants against appellee to recover $378.25 on account of the alleged negligence of appellee in failing to deliver 150 crates of strawberries to appellant’s consignee.

Appellee filed an answer denying that it negligently failed to deliver the berries to the consignee of appellants.

This cause was submitted to a jury upon the pleadings, the testimony adduced by the respective parties, and the instructions of the court, which resulted in a verdict and judgment in favor of appellee, from which is this appeal.

Appellants contend for a reversal of the judgment upon the ground that the verdict was contrary to the law and the evidence. The facts are undisputed, and, in our opinion, the law applicable thereto sustains the verdict and consequent judgment dismissing appellants’ complaint.

T. E. Grratton, under the fictitious name of C. J. Smith, telephoned to appellants, who were engaged in buying and selling strawberries at Rogers, Arkansas, an open order for twenty crates of strawberries to he shipped to him daily. Appellants had never done any business with T. E. Grratton or C. J. Smith, .and did not realize, when they received the order, that the berries had been ordered under a fictitious name. They made no inquiry as to the existence or responsibility of C. J. Smith, but shipped berries to him on open account extending over a period of time from May 16, 1922, to June 2,1922. The 'berries were delivered by appellee at Pawhuska to a man representing himself to be C. J. Smith, the consignee named in the various shipments. Appellants, having received no payments upon the berries, became uneasy, so N. D. Kimbrough went to Pawhuska in search of 0. J. Smith. After much inquiry, he met a man in a garage who admitted that he was the person Kimbrough was looking for. This man paid Kim-brough $175, promising to meet him the next morning and settle in full for the strawberries. The party failed to meet him according to appointment, and, at the expiration of two days’ search, he found him at Whizbang, and ascertained that his real name was T. E. G-ratton. He succeeded in collecting $10 more from him, but was unable to collect the balance, and afterwards brought this suit to recover same from appellee for a misdelivery of the berries.

The rule applicable is well stated in the case of Fulton Bag & Cotton Mills v. Hudson Navigation Company, 157 Fed. 987, as follows: “Where a transportation company delivered goods received for shipment to the person who ordered the same from the shipper, it cannot be held liable to the shipper for their value, although such person may have ordered and received them under a fictitious name.” The doctrine thus announced is sustained by the weight of authority, as will be seen by reference to the following citations: 10 C. J., § 379, page 266; 4 Elliott on Railroads (3rd ed.), § 2296, p. 776; 2 Hutchinson on Carriers (3d ed.), § 472, page 746; Edmunds v. Merchants’ Despatch Transportation Co., 135 Mass. 283; Dunbar v. Boston & Providence R. R. Co., 110 Mass. 26; Southern Express Co. v. Williams (Ga.), 27 S. E. 743; Wilson v. Adams Express Co., 27 Mo. App. 360; Pacific Express Co. v. Hertzberg, (Tex.), 42 S. W. 795; Stimpson v. Jackson, 58 N. H. 138; Seibert v. Ry. Co., 155 Pa. Super. Cf. 433. The reason of this rule is that one who orders a shipment under a fictitious name is the real consignee, although the fictitious name appears in the consignment. The title to the property passes to the real party ordering the goods when the shipment is made, although ordered under a fictitious name, so it follows that the carrier is justified in delivering the goods to the owner thereof.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Todd v. Grayson.
    Opinion delivered April 6, 1925.
    1. Deeds — consideration.—The cancellation and extinguishment, by ia vendor under contract of sale, of the debt evidenced by the vendee’s notes and contract constituted a sufficient consideration for the execution of a quitclaim deed by the vendee to the vendor.
    2. Vendor and purchaser — vendor's right to extinguish purchaser’s equity. — A vendor who has contracted to sell lands, on the purchaser’s default, has the right to extinguish the ven-dee’s equity in the land, either hy foreclosure or 'by purchase, if the transaction is free from fraud or misrepresentation.
    Appeal from Ouachita Chancery Court, Second .Division ; George M. LeCroy, Chancellor;
    affirmed.

      8aye & 8aye, for appellant.

      Gaughan & Sifford, for appellee.
   McCulloch, C. J.

This is an action instituted 'by appellant, Shelby Todd, against appellee, C. W. 0-rayson, to cancel a quitclaim deed executed to appellee covering a tract of land in Ouachita County, containing 120 acres. The grounds of attack on the conveyance are that it was executed without consideration and that its execution was induced by false representations and threats'.

The land in controversy was originally owned by appellee, and on October '26,1918, he entered into a written contract with appellant Todd whereby he agreed to sell and convey the land to the latter for the sum and price of $1,800, payable $200 on December 1, 1918, and the remainder in three equal installments on the first.day of December, 1919, 1920, and 1921, with interest at the rate of ten per cent, per annum from date until paid. Appellant took possession of the land under his. contract and occupied it during the year 1919, but failed to pay any part of the agreed price, and, on December 1, 1919, the parties entered into a new contract in writing, superseding the former one, whereby appellee agreed to sell and convey the land to appellant for the sum and price of $1,960, payable $600 in cash and the remainder in two equal annual payments, with interest. The two deferred payments were evidenced by promissory notes executed by appellant to appellee, bearing interest.

On December 11, 1922, appellant, with his wife joining, executed the quitclaim deed in question, conveying all of Ms interest in the land to appellee.

Appellant alleged in his complaint, and testified on the witness stand, that he remained in possession of the land from the time the first contract was executed to him by appellee up to the date of the quitclaim deed, but' that he paid rent to appellee'during the year 1922, after appellee had attached his crop. He testified that appellee extended the .time for the payment of the nptes, but later induced him to execute the deed in question by telling him that, unless the deed was executed, he would bring suit in the chancery court to foreclose the' lien, and that the court, in addition to compelling appellant to make the deed reconveying the land, would impose a fine on him and his wife of seventy-five dollars.

Appellee denied that there was any failure of consideration in the deed or that he made any false representations or any threats. He testified that appellant was unable to make any payments on the land, and gave it up and rented the land for the years 1921 and 1922, and and that, upon bare request, he executed the quitclaim deed. Appellee denied that he represented to appellant that the chancery court could or would impose a fine for failure to execute the deed.

The cancellation and extinguishment- of the debt evidenced by appellant’s notes and contract constituted a sufficient consideration for the execution of the deed, therefore it is easy to dispose of appellant’s contention that the deed was executed without consideration.

Conceding that the alleged representation concerning what the chancery court would do in the way of imposing a fine constituted such a misrepresentation or threat as would justify the cancellation of the deed, there is a conflict in the testimony on that issue, and we are of the opinion that the finding of the chancellor is ¡supported by the weight of the evidence. Appellee, and also the attorney who prepared the deed and took the acknowledgment, testified that there was no such misrepresentation made to appellant, and there was other testimony in corroboration. Appellant testified that he was induced by the statement of appellee to execute the deed of conveyance, but it is undisputed that, when he executed the deed in the office of the attorney, he was accompanied by a friend and adviser, who told him to execute the deed, since he was unable to pay tbe purchase price and therefore had no interest in the land.

After careful consideration of the testimony, we are of the opinion that the case contains no element of misrepresentation or fraud.

Appellee had the right to extinguish appellant’s equity in the land either by foreclosure or by purchase, if the transaction was free from fraud or misrepresentation (Bazemore v. Mullins, 52 Ark. 207); and, as before stated, the evidence does not warrant the belief that appellant was induced by any fraud to execute the conveyance.

Affirmed.


text:
    Marshall v. Holland (1). Bass v. Cooper (2).
    Opinion delivered April 6, 1925.
    1. Counties — disbursement of revenues* — right of taxpayer to question. — As a taxpayer has a right to question the .disbursement of county revenues, he may sue to declare void special acts of 1923, Nos. 125, 410, fixing the salaries of officers of Mississippi County.
    2. Taxation — separation of collector’s office from that of sheriff. — Under Const., art 7, § 46, the office of tax collector may be disconnected from that of the sheriff, in the discretion of the Legislature, and the sheriff cannot object to such separation if the statute is otherwise valid; hut, if the statute is open to attack upon other grounds, the incumbent of the sheriff’s office has a standing in court to make an attack upon it.
    3. Officers — prohibition against dual office-holding. — Art. 19, § 6, of the Constitution, prohibiting the holding of more than one office in the same department of government, prohibits a county treasurer from holding the office of county collector.
    4. Officers — dual office-holing — invalidity of statutes.— Under Const., art. 7, § 46, and art 19, §§ 6, 26 held that the Legislature cannot annex the office of county fax collector to any other office than that of sheriff, so that Special Acts 1923, No. 125, § 3, making the county treasurer ex ,officio collector of taxes and fixing the salaries of sheriff and treasurer, is void, and, in the absence of other legal provisions, the sheriff continues as ex

      officio collector, with the fees and salary fixed by the general law.
    5. Statutes — uncertainty.—Special Acts 1923, No. 125, § 8, as amended toy act No. 410, § 2, limiting the salaries of the circuit and county clerks to fees earned not to exceed a specified amount, held not void for uncertainty.
    6. Constitutional law — provision for advanced costs. — Special Acts 1923, No. 125, § 15, providing for advance costs in the various courts of record, without providing for a pro rata return of unused fees, is not invalid as requiring excessive fees or as denying justice, it being within the power of the Legislature to make reasonable provision for the payment of the costs of litigation so as to help defray the expenses of the courts.'
    7. Counties — creation of office of auditor. — Special Acts 1923, No. 410, creating the office of county auditor of Mississippi County, ' is not unconstitutional as invading the jurisdiction of the county court over the disbursement of county funds and the auditing of accounts, nor as creating a permanent State office, in violation of art. 19, § 9, of the Constitution.
    8. Constitutional law — appointment of commissioners to make sale.. — .Special Acts 1923, No. 125, § 16, providing that the chancery clerk shall toe the commissioner to make all sales ordered by the chancery court, is not invalid as invading the jurisdiction of that court. ,
    9. Statutes — partial invalidity. — Section three of Special Acts 1923, No. 125, .providing for annexation of the office of county tax collector to the county treasurer’s office is separable from the other provisions of the act, and its invalidity does not affect the validity of other portions of the act.
    (1) Appeal from Mississippi Crancery Court, Chickasawiba District; J. M. Futrell, Chancellor.
    ■ (2) Appeal from Mississippi Circuit Court, Chick-asawba District; W. W. Brndy, Judge;

    reversal in both cases.

      Reed & Campbell, for appellants.

      Nelson & Crawford, Little, Buch é Lasley and C. E. Sullinger, for appellees.
   McCulloch, C. J.

The two cases mentioned in the caption were consolidated, as they both involve substantially the same question, namely, the constitutionality of an act of the General Assembly of 1923 (act No. -125, Special Acts 1923, p. 244, as amended by act No. 410, Special Acts 1923, p. 863), relating to the county officers of Mississippi ■County, placing the respective officers on salary and specifying- the number and amount of the salaries of deputies, and other matters -which will be hereinafter referred to.

The statute in question separates the office of sheriff and tax collector, and makes the county treasurer ex officio tax collector, and fixes the salary of that officer, as well as the sheriff; it creates the office of county auditor, to be appointed by the county court, with certain specified duties; it specifies the amount of the advance fees to be paid on the filing of causes in the courts of the county, and fixes the salaries of the clerks of the courts, payable out of the fees, and it also provides that the clerk of the ■chancery court shall act as commissioner of the court in chancery. There are other provisions of the statute unnecessary to mention, as these are the ones which are attacked as being- invalid.

Appellant, H. F. Marshall, instituted one of these actions in the chancery court, alleging that he is a resident citizen and taxpayer of the county, and praying that the statute be declared void, and that the county judge and other officers, who are made defendants, be enjoined from putting the scheme into effect. The chancery court sustained a demurrer to the complaint and dismissed the complaint for want of equity. Appellant declined to plead further.

In the other case, appellant Bass is the sheriff of the county, and he instituted an action at .law against appel-lee Cooper, the treasurer, under the usurpation statute (Crawford & Moses’ Digest, § 10325 et seq.), alleging that the latter is wrongfully and illegally attempting to usurp the office to which he is entitled. The circuit court sustained a demurrer to the complaint in that action, and dismissed the complaint, when appellant Bass refused to plead further.

In the case of Bass v. Cooper there is only involved the question of the right of the appellee to discharge the duties of tax collector, but, in both cases, the contention is that there are invalid provisions in the statute which cannot be separated, and that the whole of the statute must be stricken down.

In the case of Marshall v. Holland, the chancery court decided that the complaint was demurrable on the ground that appellant had no right to maintain the action, not having shown any interest in the subject-matter of the litigation. Counsel for appellees defend this ruling on the ground that the effect of the litigation is a challenge of the right to hold office, and, for that reason, the cause does not fall within the jurisdiction of the chancery court. To the extent that the right to hold . office is involved, it is a mere incident to the suit, and a taxpayer has a right to maintain an action to prevent an alleged diversion of public revenues. Lee County v. Robertson, 66 Ark. 82. The fixing of salaries of public officers necessarily involves disbursement of the public revenues, and a taxpayer is therefore sufficiently interested to justify him in maintaining an action.

Power to disconnect the office of collector from that of sheriff having been conferred upon the Legislature by the Constitution (art. 7, § 46), the incumbent of the office of sheriff has no right to complain of the statute separating the two offices, if it is in other respects a valid enaetmlent (Vaughan v. Kendall, 79 Ark. 584); but, if the statute is open to attack on other grounds, the incumbent has a standing in court to make an attack upon it. The principal assault upon the validity of the statute under consideration relates to this feature of it, and is common to both of the cases now before us. The Constitution (art. 7, § 46), provides that the sheriff “shall be ex officio collector of taxes, unless otherwise provided by law:” and another section of the Constitution reads as follows: “No person shall hold or perform the duties of more than one office in the same department of the government at the same time, except as expressly directed or permitted by this Constitution.” Section 6, art. 19.

Section 3 of the statute under consideration provides that “the couxity treasurer shall be ex-officio collector of taxes,” and another section fixes the salary of the treasurer for the performance of the dnties of both offices.

This court has held that the position of tax collector is a separate office, which, according to the express provision of the Constitution, may he held so long as the Legislature permits, by the incumbent of the sheriff’s office, and no longer. Ex parte McCabe, 33 Ark. 396; Falconer v. Shores, 37 Ark 386. The opinion of this court in Vaughan v. Kendall, supra, is inaccurate in stating that the duties of tax collector are a mere incident to the other office. That statement is in conflict with the ruling of the court in the two other cases cited above. The point involved in that case was whether or not the two offices of sheriff and tax collector could be separated so as to affect the incumbency of the individual then in office, and we were not called on to decide the question whether the position of tax collector was in fact a separate office or was a mere incident to another office.

Section 26, art. 19, of the Constitution reads as follows: “Militia officers, officers of the public schools and notaries may be elected to fill any executive or judicial office.” This provision and the one permitting the sheriff to be ex-officio collector of taxes are the only two provisions found in the Constitution expressly permitting dual office-holding. It is the contention of counsel for appellees that § 6, art. 19, relates only to officers in departments of the State Government, not to county officers, and they rely upon the decision of this court in Peterson v. Culpepper, 72 Ark. 230, in support of that contention. The insertion of the word “State” before the word “government” in that section óf the Constitution is unwarranted, and the question of so interpreting the Constitution was not involved in the decision cited above. The question under consideration in that case related to the right of one person to hold the office of sheriff and chief of police of a municipality, the court upholding the right on the ground that there is no incompatibility between the two offices.'

Section 6, art. 19, relates to the subject of incompatibility of dual office-holding and defines, to a certain extent, the instances in which a person may not hold two offices, but does not undertake to define what shall constitute the different departments of government. The offices of sheriff, collector, treasurer and certain other county officers are all embraced in § 46, art. 7, and this necessarily groups them as officers in the same department.

It is further 'Contended by counsel for appellees that, since the Constitution expressly authorizes the separation of the cffice of collector of taxes from that of .sheriff —in other words, makes other provision for the discharge of the duties of the office of collector — this necessarily clothes the lawmakers with supreme power in relation to such provision and permits the annexation of the collector’s office to any other office under the Constitution. We do not think that this contention is sound, for the reason that the provision in § 6, art. 19, is an inhibition against dual office-holding, “except as expressly directed or permitted by this Constitution,” and there is no provision in the Constitution for dual office-holding except in the instance of sheriff and collector of taxes, and all of those offices'mentioned in § 26, art. 19, namely, militia officers, officers of the public schools, and notaries. It follows therefore that there is no authority for joining together two offices in the same department, except those expressly permitted by the Constitution. The authority found in § 46, art. 7, to “otherwise provide by law” for the office of collector, does not confer authority on the Legislature to annex it to an office other than that of sheriff. Placing the collector’s office under legislative control does not imply authority to annex it to another office, for to do so would bring it in conflict with the other nrovision of the Constitution prohibiting dual office-holding.

The language of the opinion of this court in Durden v. Sebastian County, 73 Ark. 305, quoted in the brief, has .not escaped our attention, but we do not construe the language as meaning that the collector’s office may be annexed to another county office. The court there was merely dealing with the power of the Legislature to separate it from the sheriff’s office, and, in saying that the collector’s office “may he filled by another person or officer than the sheriff,” it was not meant to declare the law to be that the office could be annexed to another one. Nor can it be said that the mere fact that the office of tax collector is referred to in art. 7, § 46, forces the conclusion that the lawmakers may continue to treat it as an ex officio office and annex it to another office.

Our conclusion is that this feature of the statute is void, and it necessarily results that the office of tax collector falls back to its constitutional status as a part of the duties of the sheriff, since no other legal provision has been made for its separation.

That part of the statute which fixes the salary of the treasurer is also void, for the reason that we cannot assume that the lawmakers would have provided the amount of salary fixed by the statute or that they would have provided for the additional assistants or deputies ■if that officer was only to discharge the duties of treasurer, not including the ex officio duties of collector.

That provision of the statute fixing the salary of the sheriff and the number of his deputies is also void, for the reason that it cannot be assumed that the lawmakers would have thus placed this limitation upon the office of sheriff if that officer was to perform the ex officio duties of tax collector. Those provisions of the statute must therefore be eliminated, and the offices therein mentioned fall back into the status they occupied ‘before the statute was passed; that is to say, the sheriff continues to be ex officio tax collector and is to receive the fees and emoluments prescribed by general statutes for the discharge of the duties of both offices; and the treasurer receives commissions under general statutes.

The next attack is upon § 8 of the statute, which fixes the salaries of the county clerk and circuit clerk and provides for the payment of those salaries out of the revenues of the offices arising from fees collected. The contention is that this section is void for nncertainty, in that it does not provide definitely for the payment of the salary. We are of the opinion that there is no uncertainty about this provision of the statute, for it fixes the amount of the salaries, which are not to exceed the fees received in those offices. The power of the lawmakers is supreme with respect to fixing fees and emoluments of office, and we perceive no reason why such a limitation as is found in this statute may not be placed upon the amount to be received. It is definite and certain that those officers are to receive fees up to the specified amount of salaries and no more, and, if the fees are not earned in sufficient amount to make up the salary, it is limited to the amount so earned. It would be within the power of the Legislature to restrict the emoluments of those offices to a portion of the fees earned, and the result would be the same, so far as concerns the validity of the enactment, as the present statute which limits the amount of salary to the total amount of earned fees.

It is also contended that the feature of the statute (§ 15) which provides for the amount of the advance costs to be paid by litigants in each cause pending in the courts is void for the reason that the amounts are excessive, and constitute a denial of justice, or, rather, that it is in conflict with that provision of the bill of rights that every person is entitled to “obtain justice freely and without purchase.” The staute provides for advance costs -in the sum of $7.50 oh appeals to the circuit court, and for an advance fee of $10 in all other circuit court cases; an advance fee of $7.50 for divorce cases and ex parte cases in the chancery court; $15 for all other proceedings in the chancery court, and $7.50' in the common pleas court. It is the contention that the requirement for the payment of these fees without a provision for a pro rata return of the fees not used in paying the salaries renders the provision oppressive and therefore unconstitutional. It cannot be said, we think, that the amount is excessive, and the fact that the unused amount of the fees goes into the public revenues does not render the statute void. It is within the power of the Legislature to make reasonable provisions for the payment of cost of litigation so as to help defray the expenses of the courts. Our conclusion is that this provision of the statute is not invalid.

The next contention is that that part of the statute which creates the office of county auditor is unconstitutional. The argument is that this is an invasion of the constitutional jurisdiction of the county court in its control over the disbursement of county funds and in the auditing of accounts. This argument is unsound, for the reason that the creation of the office of auditor does not take away any of the jurisdiction of the county court; on the contrary, the duties of the auditor are in aid of that jurisdiction, and not in conflict with it. The control of the county court over the auditing of accounts is complete, notwithstanding the aid furnished by the auditor in the discharge of those duties. This feature of the statute is also assailed on the ground that it is in conflict with the provision of the Constitution which prohibits the creation of “any permanent State office not expressly provided for 'by this Constitution.” The readiest answer to this contention is that the office. is not a State office within the meaning of the Constitution. Fort Smith District of Sebastian County v. Eberle, 125 Ark. 350; Little River County Board of Education v. Ashdown, 126 Ark. 549.

Section 16 of the statute provides that the chancery clerk shall be the commissioner to make all sales ordered by the chancery court, unless he is disqualified, in which case one of his deputies shall be appointed, and there is an attack on this provision upon the ground that it constitutes an invasion of the jurisdiction and authority of the court. Such is not the effect of the statute, for the jurisdiction of the chancery court is left unimpaired. The appointment of commissioners, masters and receivers is not a matter necessarily and exclusively falling within the jurisdiction of the court, and it is within the power of the lawmakers to regulate those appointments. There is a general statute on this subject (Crawford & Moses’ Digest, §§ 10017 and 10042), the validity of which was distinctly recognized by the decision] of this court in State v. Swaim, 167 Ark. 225.

■Section 18 of the statute provides that the violation of any provision of this statute by any officer shall render him guilty of a misdemeanor, punishable by fine, and that such officer may also be removed from office by the circuit court or chancery court, or by a circuit judge or chancellor, either before or after conviction, upon petition of ten taxpayers. The validity of this provision is assailed in .the argument, but we do not think that the question arises in this case, further than the question of its validity ■may affect the validity of the whole statute; hence we proceed to a consideration of the final question presented in the case, whether or not the invalidity of some of the provisions of the statute necessarily strikes down the •whole enactment.-

Section 21 provides that ‘‘if any section, subsection, sentence or phrase in this act shall be held unconstitutional, such decision shall not affect the validity of the remaining parts of the act.” There was a similar provision involved in the statute considered by this court in the case of Nixon v. Allen, 150 Ark. 244, and we held that the determination of the invalidity of certain features of the statute necessarily invalidated the whole, notwithstanding this provision. In' that case, however, the provisions found to be invalid were so interwoven with all the other portions of the act that the whole scheme fell with the striking down of the particular provisions. Such is not the case here, for the invalid provisions with reference to the separation of the office of tax collector from the sheriff’s office, the annexation of that office to the office of treasurer,' and the fixing of salaries of those two officers, may be eliminated without disturbing the scheme otherwise prescribed in the statute. This is a separable provision of the statute, as it relates only to the two offices mentioned, and the elimination leaves the remainder of the statute intact. The same can be said with, reference to removal of officers, if that should be found to he invalid.

The decree of the chancery court in the one case and the judgment of the circuit court in the other case are each reversed, and the cause remanded with directions to grant the relief to the extent indicated in this opinion.


author: Wood, J.

text:
    Fidelity Mortgage Company v. Evans.
    Opinion delivered April 6, 1925.
    1. Venue — action affecting title to land. — An action to remove a cloud upon the title to land is a local action within Crawford & Moses’ Dig., § 1164, and should he brought in the county in which the land is situated.
    2. Judgment — Recitals of jurisdiction. — Recitals in a judgment that the court had jurisdiction of the parties defendant is prima, facie evidence of that fact, under Crawford & Moses’ Dig., § 6239.
    3. Corporation — service on agent of foreign corporation. — Under Crawford & Mioses’ Dig., § 1829, service of summons upon the designated agent of a foreign corporation is sufficient to give the court jurisdiction, whether made in the county of the venue or not.
    4. Process — defendant removing from county. — Where .a defendant removed from the county of the venue after filing of the complaint, service of summons in another county would he sufficient, under Crawford & Moses’ Dig., § 1180.
    5. Judgment — time for taking default. — A default judgment may he taken where more than 20 days have elapsed since service of summons on the .defendants.
    Appeal from Logan Chancery Court, Southern District; J. V. B(norland, Chancellor;
    affirmed.

      E. L. Carter, for appellant.

      Evans & Evans, for appellee.
   Wood, J.

On the first of February, 1923, one Lewis Finley sold a certain tract of land in Logan County to one John I. Nichols. The consideration was $700, $400 of which was paid in cash and a note executed for the balance of the purchase money, dated February 17, 1923, in the sum of $300, due sixty days after date, bearing interest at the rate of ten per .cent, per annum from date until paid. A warranty deed was executed by Finley to Nichols for the land, and a lien was reserved in the face of the deed to secure the balance of the purchase money, Nichols applied to the Conservative Loan Company, a .corporation doing business in Arkansas, for a loan of $300, and executed to the loan company a first mortgagee on the land mentioned to secure the loan, and also a second mortgage on the land to secure other notes executed to the loan company iii the sum of $95. The notes and mortgages were delivered to the loan company, or to appellant C. H. Christner, its president, upon the promise of Christner and the company to make him the loan. Nichols, during the year 1923, sold the land purchased of Finley to one Delling. Chas. I. Evans 'became the owner of the $300 note executed :by Nichols to Finley. The Fidelity Mortgage Company, another corporation doing business in Arkansas, was organized for the purpose of taking over, and did take over, the assets of the Conservative Loan Company, including the notes and mortgages mentioned. Christner was the president and general manager of these companies. The Conservative Loan Company and Christner failed or refused to advance the money for which Nichols had executed his notes and mortgages, and also failed and refused to return the notes and mortgages executed by Nichols as above mentioned. On the third of December, 1923, this action was instituted by Nichols, Delling and Evans in the chancery court of Logan County against the Conservative Loan Company, the Fidelity Mortgage Company and Christner to recover judgment in the sum of $395, with interest from February 1, 1923, and for damages, and all equitable relief.

Summons was issued on the fourth of December, 1923, directed to the sheriff of Pulaski County, commanding him to serve the companies and Christner. The returns of the sheriff show that on 19th of December, • 1923, he served the summons by delivering a copy to each of them as follows: Conservative Loan Company, to 0. H. Christner, president of said company; also Fidelity Mortgage Company, to C. H. Christner, president of the company; and to C. H. Christner in person, in the eonnty of Pulaski, as commanded. ,A second summons was issued on the 18th of January, 1924, directed to the sheriff of Pulaski County, and the return on the same are as follows: “Came to hand this 19th day of January, 1924, at 3 o’clock p. m., and I.have duly served this summons upon each of said defendants by delivering a copy hereof to each of them, as follows, to-wit: Conservative Loan Company, by delivering a true copy to C. H. Christner, president. I have further served C. H. Christner as president of Fidelity Mortgage Company. I have further served C. H'. Christner in person, in said county. In the county of-as commanded. Homer Adkins, sheriff, by J. M. Haynie, D. S.”

The cause came on for trial on February 5, 1924. The court found and recited in its decree that the defendants failed to appear; that they had been duly served with summons “for the time and in the manner required by law to entitle plaintiffs to trial at this term of court;” “that it had jurisdiction of each of the defendants, and that they have each been duly served with summons to appear and defend in this action, but they have each failed, neglected and refused to appear, answer or otherwise plead, and that they make default.” Then, after finding the facts substantially as above set forth, and that the defendants had breached their contract, the court rendered a decree against them in the sum of $395, together with interest thereon at the rate of sis per cent, per annum from the 17th of February, 1923, from which is this appeal.

The appellants present three grounds for the reversal of the decree. First, that the chancery court of Logan County did not have jurisdiction of the subject-matter; second, that the court did not have jurisdiction of the persons of the appellants; third, that the decree was prematurely rendered. We will dispose of these in the order mentioned.

The complaint set up a cause of action for damages growing out of an alleged breach of contract to loan money to Nichols, and ' alleged in substance that the appellants had agreed tó loan Nichols $395, balance of the purchase money, for which sum Nichols had agreed to and had executed his notes and mortgages on certain land in Logan County, and had delivered the notes and mortgages to the.appellants; that the appellants, after having received the notes and mortgages, failed and refused to make the loan, and also failed and refused to return the notes and mortgages; that Nichols had sold the land purchased by him of Finley to Delling, and that Evans had become the owner of the note for the balance of the purchase money due by Nichols for the land. The prayer of the complaint was in the alternative, that judgment be rendered against the appellants for the amount of the loans, or that they be required to deliver the notes and mortgages. There was also a prayer for all equitable relief.

Clearly, one purpose of the action, as shown by the allegations of the complaint and ■ the findings of the decree of the court, was to have surrendered and canceled the outstanding mortgages. These mortgages were clouds on the title. Appellee Delling, who had purchased the land from Nichols, and appellee Evans, who held the purchase money note which was secured by a vendor’s lien, were entitled to have the outstanding notes and mortgages executed by Nichols and wife surrendered and canceled. The action, in this respect, affected the land in Logan County and gave the chancery court of that county jurisdiction of the subject-matter. As incident to the general and equitable relief prayed for, it might have been necessary, in the final analysis, under the pleadings and proof, not only to have canceled the notes and mortgages in the hands of the appellants, corporations, but also to have the lands sold to satisfy the lien for the-purchase money. At any rate, it is manifest that, under the pleadings and prayer for general relief, the action and decree of the court affected the land in Logan County. These allegations were sufficient to give the chancery conrt of that county jurisdiction of the subject-matter. Section 1164, C. & M. Digest; Harris v. Smith, 133 Ark. 250, and cases there cited.

The decree of the court recites as follows: “The court finds that the defendants, Conservative Loan Company and Fidelity Mortgage Company, are corporations doing business in this State; that each of them have been duly served with summons in this case for the time and in the manner required by law to entitle plaintiffs to trial at this term of court; that defendant Christner has been duly and legally personally served with summons in this cause for the time and in the manner required by law to entitle plaintiffs to trial at this term of court. The court finds that it has jurisdiction of each of the defendants, and that they have each been duly served with summons to appear and defend in this action,” etc.

The above recitals in the judgment roll of the chancery court were certainly prima facie evidence that the court had jurisdiction of the parties’ defendant to the action. Section 6239 of C. & M. Digest; White v. Smith, 63 Ark. 513. The above recitals are not overcome by the summons issued to the sheriff of Pulaski County and the return thereon showing service upon each of the defendants in that county. The evidence as to this summons and the return thereon may not have embraced the entire proof before the court on the issue as to the service of process on the defendants. There are no recitals in the judgment itself showing that the above summons and return thereon embraced all the evidence that was heard by the court on the issue of process, nor is there any statement in the transcript of the record showing by bill of exceptions or otherwise that the summons and the return thereon was all the evidence heard by the trial court on that issue. In the absence of such showing, the presumption is, from the above recitals of the court’s decree, that the court had before it facts sufficient to justify its finding. See Love v. Coffman, 72 Ark. 265.

Furthermore, the recitals of the decree show that the court found that the Conservative Loan Company and the Fidelity Mortgage Company are corporations doing 'business in this State. This finding, of itself, does not indicate whether they were domestic or foreign corporations, but, in the absence of a showing to the contrary, it must be presumed that the court found that they were foreign corporations, and that they had designated Christner as their agent upon whom process might be served, in compliance with the provisions of § 1826 and 1829 of Crawford & Moses’ Digest. Under § 1829, supra, the service upon such designated agent at any place in the State was sufficient to give the trial court jurisdiction of the’ corporations, whether or not the service was had in Logan County. If foreign corporations, and if Christner was the agent named upon whom process might be served, then it was not essential that the service be had in Logan County. The service in Pulaski County on such agent was sufficient.

■So far as the service of process against Christner in his individual capacity is concerned, in the absence of a showing to the contrary, it will be presumed that the court found the existence of every fact essential to give it jurisdiction of his person. The court may have found that, at the time of the filing of the complaint in Logan Couuty, 'Christner was a resident of that county, and that, after the complaint was filed, he removed to another eouiity. If so, the service upon him in the county of Pulaski was sufficient. See § 1180, C. & M. Digest. We conclude therefore that the court had jurisdiction over the persons of the defendants to the action.

The appellants contend that the judgment was premature because the summons against Christner and the corporations was served on the 19th day of January, 1924, and that the decree was rendered on the 5th of February, 1924, which was only seventeen days after the date of the service, and that therefore the decree was premature. The record shows that summons was issued on the 4th of December, 1923, and that on the 19th of December, 1923, tbe same was served on the appellants, and that the decree was rendered on February 5, 1924. Forty-seven days, therefore, intervened between the time of the service of the summons and the rendition of the decree. True, there was another summons issued on the 18th day of January, 1924, which was duly served the next d'ay, January 19th, the last service therefore was only seventeen days before the decree was rendered. But the service under the first summons, as we have seen, was amply sufficient, and the decree was justified, and not premature under such service.

Thre is no reversible error in the rulings of the trial court, and its decree is therefore affirmed.


author: HaRt, J.

text:
    Holden v. State.
    Opinion delivered April 6, 1925.
    1. LARCENY — sufficiency of evidence. — 'Evidence held to sustain a conviction of stealing- seed cotton of the value of $100.
    2. Larceny — indictment—variance.—Proof that a landlord had a lien on cotton stolen by defendant is not variant from an indictment charging- that the cotton stolen was the property of the landlord.
    3. Larcency — instruction.—An instruction to the effect that, if the landlord owned a fourth interest in the cotton alleged to have been stolen, the title to that part would be in him; was not objectionable as assuming his ownership.
    Appeal from Lincoln Circuit Court; T. G. Parham, Judge;
    affirmed.

      A. J. Johnson, for appellant.

      H. W. Applegate, Attorney General, and Darden Mose, Assistant, for appellee..
   HaRt, J.

Sol Holden prosecutes this appeal to reverse a judgment of conviction against him for grand larceny, charged to have been committed by stealing 1,200 lbs. of seed cotton of the value of $100, the property of E. E. Eice.

The first assignment of error is that the verdict is not legally supported by the evidence.

On the part of the State it Avas shown that the cotton in question was grown on the farm of R. R. Rice, in Lincoln County, Arkansas, by a negro called Cool Shorty. Shorty was to pay one-fourth of the cotton raised by him as rent. He was also indebted to Rice for supplies, and it was their custom for the cotton to be sold by Rice and the proceeds applied first to the payment of the rent and the balance to the payment of the supply account.

Holden procured Augustus Bradley to drive a wag-on containing a bale of cotton to a gin at the town of Gould. ■The cotton was out on the pike, and Holden .told Bradley, if any one asked whose cotton it was, to tell them that it belonged to him (Holden). This was in the night time. The evidence shows that the cotton in question was raised on the farm of R. R. Rice by Cool Shorty. Holden went ahead of the wagon, on horseback, and took charge of the cotton at the gin. He had it ginned as his oavu cotton, and then .sold it as his OAvn cotton. The cotton was sold without the knowledge or consent of Rice. The value of the rent cotton in question belonging to Rice was $32 or more.

It is next insisted that there is a variance between the proof and the indictment. We cannot agree with counsel in this contention. The indictment charged that Hoden sold 1,200 lbs. of seed cotton of the value of $100, the property of R. R. Rice. The proof shows that this cotton was grown on the farm of R. R. Rice, and that he had a lien on it for rent and supplies. A tenant by whom the cotton was grown was to nay him one-fourth ot it for rent and the 'balanée was to be applied to the payment of his supply account. The cotton was to be sold by Rice. It is fairly inferable from this testimony that the cotton was in the possession of Rice, and that he had a snecial OAvnershin in it. Blankenship v. State, 55 Ark. 244, and State v. Esmond, 135 Ark. 168.

It is next insisted that the court erred in giving instruction No. 3, which reads as follows:

“If you find from the evidence in this case, beyond a reasonable doubt, that a man by the name of Cool Shorty raised the cotton in question under an agreement with. B. B. Eice, the landowner, by the terms of which said E. E. Eice was to receive one-fourth of the cotton, then .as a matter of law the title to that part of the cotton stolen, if you find the same was stolen, would be in the said E. B. Eice. ’ ’

The defendant objected specifically to the. instruction on the ground that it tells the jury as a matter of law that Eice was the owner of the land under contract to receive one-fourth of the cotton from Cool .Shorty.

We do not think the instruction is fairly susceptible to this construction. It tells the jury that, if it finds from the evidence that Shorty raised the cotton under an agreement with Eice that he was to receive one-fourth of the cotton as rent, then as a matter of law the title to that paH of the cotton was in Eice. There was no error in giving this instruction. The proof on the part of the State, if believed by the jury, showed special ownership of the rent cotton in Eice.

It follows that the judgment must be affirmed.


author: HaRt, J.,

text:
    Hudgins v. Hot Springs.
    Opinion delivered April 6, 1925.
    Taxation — property of city — dumping ground. — Land purchased toy a city for present use as a dumping ground and used as such for several months, though such use had been discontinued because the road to it had become impassable, is exempt from • taxation under Const., art., 16, § 5, and Crawford & Moses’ Dig., § 9858. .
    Appeal from Garland Chancery Court; J. P. Henderson, Chancellor;
    affirmed.
    STATEMENT OE PACTS.
    The land in controversy was purchased by the city of Hot Springs in December, 1912, for the purpose of depositing the refuse of the city. It was'so used for three or four months, and its use was then discontinued, because the road to it became impassable. Thfe road has not been repaired, and, on thát account, it has not been used for a dumping ground by the city sincb, nor has it been used for any other purpose. The land in some way was assessed and sold for taxes, and, after the period for redemption had expired, J. W. Hudgins obtained a tax title to it. This suit was brought by the city against him to cancel his tax title.
    From a decree in favor of the city, Hudgins has duly prosecuted an appeal to this court.

      Cobb <& Cobb, for .appellant.

      Leo P. McLaughlin and George P. Whiitmgton, for appellee.
   HaRt, J.,

(after stating the facts). The decision of the chancellor was correct. The city purchased th<j property for use as a dumping ground for its refuse. This-was a public purpose. Section 16, art. 5, of the Constitution exempts from taxation public property used exclusively for public purposes. Section 9858 of Crawford & Moses’ Digest exempts from taxation the following:

“All market-houses, public squares, other public grounds, town and city houses or halls, owned and used exclusively for public purposes, and all works, machinery and fixtures belonging to any town and used exclusively for conveying water to said town.”

We do not think the ease of Pulaski County v. First Baptist Church, 86 Ark. 205, is applicable. In that case the property was held to be taxable because it was not used for church purposes. Here the property was used for a public purpose, and there had been no change in the use of it. The city had simply quit using it for a time as its dumping ground because of the condition of the roads. It had not been used for any private purpose, and it could not even be said that, at the time the property was sold for taxes, the city had abandoned its use as a dumping ground. It was not bought for future use, but was actually used as a dumping ground for several months after its purchase.

In State v. Gaffney, 34 N. J. 131, the court held: “Lands and real estate acquired and held by the 'corporation of Jersey City, under the act to authorize the construction of works for supplying Jersey City and places adjacent with pure and wholesome water, and its supplements, although not in actual use, are exempt from taxation, if not held for speculation or to meet -a remote, contingent expectation of necessary use, or mere incidental convenience, but are held in good faith, and are reasonably necessary to meet the increased and growing demand for water.”

We think that principle of law controls here. Having held that the property belonged to the city and was used by it for a public purpose, Hudgins acquired no title at the tax sale* and the city was entitled to maintain this action. Winn v. Little Rock, 165 Ark. 11.

It follows that the decree will be affirmed.


text:
    Gregory v. Missouri Pacific Railroad Company.
    Opinion delivered April 6, 1925.
    1. Railroads — failure to keep lookout — contributory negligence. —Under Crawford & Moses’ Dig., § 8568, a railroad is liable for failure to keep a lookout which would have enabled it to avert an injury notwithstanding the contributory negligence of the person injured.
    2. Railroads — comparative negligence — instruction.—It was error to instruct that .the railroad company would not be liable for failure to keep a lookout if the negligence of the plaintiff was equal to or greater than the negligence of the trainmen.
    3. Trial — instruction—specific objection. — An objection to an instruction relating to the duty of trainmen to keep a lookout, held sufficient to apprise the court of error in the instruction.
    4. Railroads — keeping lookout — jury question. — Whether trainmen operating defendant’s train,, which collided with plaintiff’s motor bus at a public crossing, kept a proper lookout, held for the jury.

      5. Railroads — duty to kbep lookout. — Under Crawford & Moses' Dig., § 8568, it was the duty of the trainmen to keep a constant lookout for travellers along the highway, and if the appearance of a motorbus moving at the same rate of speed, indicated to the fireman that it would not stop, he could have signaled to- the engineer to stop before the motor ibus got too close to the crossing.
    6. Trial — abstract instruction. — In an action for damages sustained at a railroad crossing, near which the railroad crossed a “cut-off track” of another railroad, an instruction as to the duty to stop before' crossing another railroad was properly refused as abstract, where it appears that the “cut-off” track was nothing more than a .switch or transfer track.
    Appeal from -Cross Circuit Court; G. E. Keck, Judge;
    reversed.
    statement oe eaots.
    Appellant sued appellee to recover damages in the sum of $2,000 for negligently running into one of his motor -cars with one of its passenger trains.
    The accident occurred at the crossing of a concrete public highway with the railroad, between Marion, Arkansas, and Memphis, Tennessee. At the crossing where the accident -occurred the highway crosses the railroad track at an angle of about 65 degrees. About 800 feet west of this crossing a track of the St. Louis & -San Francisco Railway Company, called a cut-off track, crosses the railroad track at an angle of about 54 degrees. At a point about 500 feet north of the crossing on the public highway, a person looking to the west is apt to he confused as to whether a train at the crossing of the two railroads is upon the cut-off track or the main track of appellee. The motor bus of appellant and the passenger train of appellee were both going towards Memphis at the time the train struck the motor bus and demolished it. Between five and .six hundred feet before you get to the crossing in question, while traveling the public highway, you can see where the railroad of appellee intersects the cut-off track of the Frisco railroad, and a person not familiar with the situation would think they were all one track. Tou can see the Frisco crossing from a point in the highway 500 feet north of the concrete public highway crossing for >a distance of 150 feet as yon travel towards the pnblic highway crossing. Then for 200 feet the view of the railroad is obscured by bushes, and then you have a clear view for between two and three hundred feet between the highway and the railroad.
    G. H. Smith, one of the witnesses for appellant, had just passed the railroad crossing, going north on the concrete highway, in a truck, just before the accident occurred. He heard the train whistle just before he reached the crossing. The train was then on the other side of the cut-off crossing. After the witness had crossed the railroad and got about 150 or 200 feet, he passed the motor bus, which was running at the usual rate of speed, and it did not slacken its speed. Because of this fact, he began to doubt if the motor bus could go over the public crossing before the train reached it. There is a little bunch of shrubs between the highway and the railroad track, but that would not prevent one from seeing.
    On the part of the railroad company, it was shown that the fireman was keeping a lookout, and gave the signal to stop the train as soon as he saw that the motor bus was not going to stop. He gave the engineer the stop signal when the train was about 150 or 200 feet from the crossing. The bus was about 75 feet from the crossing before the fireman saw that it was not going to stop. The bell was ringing, and the train was stopped as soon as it could be, when the emergency signal was given.
    Other facts will be stated in the opinion.
    There was a verdict for appellee, and, from the judgment rendered in its favor, appellant has duly prosecuted an appeal to this court.

      Frank Berry, for appellant.

      Thomas B. Pryor and Baggett S Bdggett, for appellee.'
   HaRt, J.,

(after stating the facts). Counsel for appellant insists that the court erred in giving instruction No. 2 to the jury. The instruction is as follows: “If you find from the evidence in this case that the employees in charge of the train failed to keep a constant lookout for persons or property on or near the track, and, if they had kept such a lookout, the employees in charge of said train could have discovered the perilous position of the bus in time to prevent the injury, by the exercise of ordinary care, after the discovery of such peril, your verdict should be for the plaintiff, notwithstanding you may find the man in charge of the bus'to have been guilty of contributory negligence, unless you find that his negligence, if any, was of a degree equal to or greater than the negligence of the employees in charge of the defendant’s train, if any, in which event you should find for the defendant as to the alleged failure to keep a constant lookout. ’ ’

The instruction appears to have been based upon § 8568 of Crawford & Moses’ Digest, commonly called the lookout statute. The appellant specially excepted to the giving of the instruction, “because it authorizes judgment for the appellee notwithstanding discovered peril and failure to stop.”

Counsel for appellant claims that the latter part of the instruction is erroneous because it precludes the jury from finding for appellant if his negiigence, or that -of his employees, was of a degree equal to or greater than the negligence of the employees in charge of appellee’s train. We think counsel for appellant is correct in his contention. As wé have just seen, the duty of the trainmen to keep a lookout, under the section above referred to, makes the railroad liable to the person injured, either in person or in property, for all damages resulting from neglect to keep the lookout, notwithstanding the contributory negligence of the person injured.

Section 8568 of Crawford & Moses ’ Digest makes it the duty of a railroad to maintain a constant lookout, and charges it with having seen what its servants would have seen had this lookout been kept; and if, by keeping this lookout, the railroad company could and would have discovered the traveler’s peril in time to avert the injury, it is liable, if it fails to do so, notwithstanding the fact that the traveler’s contributory negligence placed him in peril. Blytheville, Leachville & Ark. Sou. Ry. Co. v. Gessell, 158 Ark. 569.

Thus it will be seen that the concluding part of the instruction is directly contrary to the statute. In .short, the statute provides that the railroad shall be responsible to the person injured for all damages resulting to him or to his property from the neglect of the railroad company to keep the lookout provided by the statute, notwithstanding his contributory negligence. The concluding part of the instruction in question relieves the railroad .company from liability, if the negligence of the servant of appellant was equal to or greater than the negligence of the employees operating the train which struck the motor bus of appellant.

But it is insisted that this error is not available to the appellant, because he made a specific objection to the instruction, and that the specific objection is not applicable to the concluding part of the instruction. "We do not agree with counsel in this contention. The instruction was excepted to specially because it authorized judgment for the appellant notwithstanding discovered peril and a failure to stop. This is the very essence of the lookout statute, and, it having provided in specific terms that contributory negligence does not relieve the railroad company from liability to the person injured, the instruction was necessarily prejudicial to the rights of appellant. It relieved the railroad company from all responsibility, even if it discovered the peril in which the appellant’s motor bus was placed, and failed to stop its train, provided the jury should find that the negligence of the appellant’s driver was equal to or greater than the negligence of the operators of the train. We think the specific objection was .sufficiently definite to have apprised appellee and the court trying the case of the error in the instruction.

This brings us to a consideration of whether the instruction was abstract, because the undisputed evidence showed that the servants of appellee were keeping the lookout required by law and stopped the train as soon as .it could be ascertained that the. motor bus was not going to stop before it reached the crossing to allow the train to pass by.

According to the testimony of the engineer, he was on the right-hand side of the engine, which was going east, and could not see the approaching motor bus, which was coming towards the crossing from the fireman’s side of the engine.

G. H. Smith passed the crossing going north, and passed the motor bus about 150 feet or 200 feet north of the crossing. According to his testimony, it was running at the usual speed, and, according to the testimony of others, the motor bus was running at the rate of 25 or 30 miles per hour. The bus had not slackened its speed when Smith passed it in his truck. At the time he passed it his attention was attracted to it, because he did not-think it could get across the public crossing before the train got there, and it seemed to him like the bus was not going to stop. According to his testimony, while there was a little bunch of scrubs between the public highway and the railroad track, one could see five or six hundred feet. Now the motor bus was going as fast as the train, and the jury might have found that the fireman was not keeping a lookout as he said he was, o.r that, if he was keeping a lookout, the appearance of the motor bus indicated that it was not going to stop. As soon as the fireman gave him the stop signal, the engineer applied the brakes in emergency and made a perfect stop. The train was running about 25 or 30 miles an hour, and the bell was ringing automatically.

According to the testimony of the fireman, he was keeping a lookout, and thought the bus was going to drive up to the crossing and stop like it usually did. The train was about 150 or 200’ feet from the crossing when the fireman gave the engineer the stop signal. At that time the motor bus was 70 or 75 feet from the crossing. The train was running at the rate of 25 or 30 miles per hour. With, all the appliances working properly, it required .seven or eight hundred feet to stop the train. It was about seven or eight hundred feet from the cutoff crossing to the concrete road crossing.

When all the attending circumstances are considered, we think it cannot be said that the testimony of appellee’s employees was undisputed on this point. We are of the opinion that it was a jury question. While it was the duty of the driver of the motor bus to look and listen for approaching trains, and to stop, if necessary, to allow such trains to go over the crossing in advance of his motor bus, it was equally the duty of the operators of the train to keep a constant lookout for travelers along the highway, and, if the appearance of the motor bus indicated that it was not going to stop for the crossing, the fireman should have signaled the engineer to stop before the motor bus got quite so close to the crossing. It will be remembered that the motor bus was going at about the same rate of speed as the train.

It is next insisted by counsel for the appellant that the court erred in giving instruction No. 6, which reads as follows: “You are instructed that all persons operating trains in this State are required to stop their trains at all places where any other railroad crosses, joins, unites or intersects, and you are further instructed that, while a failure to do so shall not be considered by you as an act of negligence on the part of the defendant, you may take this into consideration in determining whether the plaintiff’s agent was guilty of contributory negligence.”

We do not think there was any error in refusing to give this instruction. Our statute provides for the manner in which the railroads shall cross, intersect, or unite with other railroads, and that every railroad shall cause all its freight and passenger trains to stop at all points where another railroad crosses, joins, unites, or intersects with it, and that it shall take and receive on.their trains all passengers, freights, and mail which such railroad so crosses as for .shipment at such point. Crawford & Moses’ Digest, §§ 8480 and 8491.

In the case before ns there is nothing in the record from which it may be inferred that the cut-off crossing was a railroad within the meaning of the statute just referred to. On the other hand, it is fairly inferable that it was nothing more than a switch or transfer track, and was not a crossing where trains were obliged to stop, within the meaning of the statute. Hence the instruction was abstract, and there was no error in refusing to give it.

For the error in giving instruction No. 2, as indicated in the opinion, the judgment will be reversed, and the cause remanded for a new trial.


author: Smith, J.

text:
    Bizzell v. Hamiter.
    Opinion delivered April 6, 1925.
    Master and servant — liability for servant’s negligence. — The owner of an automobile is not liable for damages in a collision caused by his servant’s negligence in driving the automobile, where the servant was on! a mission of his own without the master’s knowledge and having no relation to his employment.
    Appeal from Pulaski Cirucit Court, Third Division ; Marvin Harris, Judge;
    affirmed.

      Longstreth db Longstreth, for appellant.

      jRose, Hemingway, Cantrell' é Loughborough, for appellee.
   Smith, J.

Appellant — who Was the plaintiff below— instituted this action against appellee to recover damages on account of the demolition of his automobile resulting from a collision between the automobile which appellant was driving and another owned by appellee and driven by his chauffeur. After all the testimony had been introduced, the court directed the jury to return a verdict in favor of appellee, which was done, and this appeal questions that action.

The testimony shows that, while appellant was driving his automobile near the intersection of Wright Avenue and High Street, in the city of Little Book, his car was run into and wrecked by an automobile belonging to appellee, which was being driven by appellee’s chauffeur at a reckless speed and contrary to the rules of the road.

Appellee resides at 23rd and Broadway Streets, and maintains an office at Second and Main Streets. A colored boy named McCoy was employed by appellee as a chauffeur, and had been so employed for about two years before the collision in question. McCoy was employed to drive appellee to and from his office and to such other places as he was directed to drive. He also drove members of appellee’s family, but he was always given direction where to drive. McCoy was forbidden to use the car without permission.

On the afternoon of June 9, 1923, McCoy was told by appellee’s wife to drive to appellee’s office and bring appellee home. This was a service which McCoy performed daily, and, in driving from appellee’s home to his office, both in the morning and in the afternoon, it was customary either to drive four blocks east to Main Street, or to drive either one block west to Arch Street or two blocks west to Caines Street and then north to appellee’s office. In performing the duty of going after appellee there was no necessity for going more than two blocks west from appellee’s home, and, so far as appellee was advised, this was never done. But, when McCoy received the order to go after appellee on the day of the collision, he conceived the idea of first going after his laundry, and, for that purpose, he drove west seven blocks, and from there he was going back to State Street on another personal mission. Appellee knew nothing of this, and had given no permission for this use by McCoy of the car.

McCoy testified that appellee did not know what he was about to do, and, to prevent appellee from knowing that he had made this use of the car, he accelerated its speed to shorten the time which would .be required, to discharge his own mission, and it was while thus driving rapidly to get to appellee’s office, without consuming too much time, that McCoy ran into and damaged appellant ’s car. These facts are established by the undisputed evidence, and we think the rule announced in the case of Healey v. Cockrill, 133 Ark. 327, is applicable here. The facts in the two cases are very similar, hut there was here a greater turning aside from the business and the scope of the servant’s employment than is found in the case cited.

In that case we said that a slight deviation from the employer’s service or a mere incidental departure from the service to'mingle it with the servant’s own purposes did not discharge the master from liability for the servant’s acts, but, if the servant completely abandons his duty to his master and steps aside to do an act wholly for his own purposes, and which has no relation to the employment, the master ceases to be liable.

The latter appears to be the case here. McCoy was making a use of the car which was unknown to appellee and was unauthorized by him. McCoy, at the time of the collision, was on a mission which had no relation to his employment. He had stepped aside for a purpose' wholly personal to himself, and, while pursuing that purpose, and while driving at a speed intended to conceal whát he was doing, the damage was done.

We conclude therefore that the verdict was properly directed in appellee’s favor, and the judgment pronounced thereon is affirmed. *

Humpheeys, J., did not participate.